SCHEDULE 14C INFORMATION
Information Statement Pursuant to Section 14 (c) of the Securities
Exchange Act of 1934
(Amendment No. )
Check the appropriate box:
[X] Preliminary Information Statement
[ ] Confidential, for Use of the Commission Only
(as permitted by Rule 14c-5 (d) (2))
[ ] Definitive Information Statement
Seasons Series Trust
(Name of Registrant as Specified in its Charter)
Payment of Filing Fee (Check the appropriate box):
[X] No fee required.
[ ] Fee computed on table below per Exchange Act Rules 14c-5(g) and 0-11.
1) Title of each class of securities to which transaction applies:
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2) Aggregate number of securities to which transaction applies:
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3) Per unit price or other underlying value of transaction
computed pursuant to Exchange Act Rule 0-11 (set forth the
amount on which the filing fee is calculated and state how it
was determined):
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4) Proposed maximum aggregate value of transaction:
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5) Total fee paid:
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[ ] Fee paid previously with preliminary materials.
[ ] Check box if any part of the fee is offset as provided by
Exchange Act Rule 0-11 (a)(2) and identify the filing for
which the offsetting fee was paid previously. Identify the
previous filing by registration statement number, or the Form
or Schedule and the date of its filing.
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1) Amount Previously Paid:
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2) Form, Schedule or Registration Statement No.:
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3) Filing Party:
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4) Date Filed:
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[LOGO] ANCHOR NATIONAL
A SUNAMERICA COMPANY
January 29, 2001
Dear Contract Owners:
The enclosed information statement is being provided to Seasons Select and
Seasons Select II Variable Annuity contract owners invested in the Focus Growth
and Focus Growth and Income Portfolios (the "Portfolios") of Seasons Series
Trust in connection with the change in control of one of the Portfolios'
subadvisers, Marsico Capital Management, LLC ("Marsico").
As a matter of regulatory compliance, we are sending you this information
statement which describes the management structure of the Portfolios, the
ownership of Marsico, and the terms of the Subadvisory Agreement with Marsico
which the Trustees have approved.
Please feel free to call your financial adviser or to call us at (800) 445-7862
should you have any questions on the enclosed information statement. We thank
you for your continued interest in the Seasons Select and Seasons Select II
Variable Annuity.
Sincerely,
/s/ Scott H. Richland
Scott H. Richland
Vice President
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SEASONS SERIES TRUST
FOCUS GROWTH PORTFOLIO
FOCUS GROWTH AND INCOME PORTFOLIO
P.O. BOX 54299
LOS ANGELES, CALIFORNIA 90054-0299
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INFORMATION STATEMENT
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This information statement is being provided to the Seasons Select and
Seasons Select II Variable Annuity contract owners invested in the Focus Growth
and Focus Growth and Income Portfolios (each, a "Portfolio," collectively, the
"Portfolios") of Seasons Series Trust ("Seasons" or the "Trust") in lieu of a
proxy statement, pursuant to the terms of an exemptive order Seasons received
from the Securities and Exchange Commission which permits SunAmerica Asset
Management Corp. ("SunAmerica" or the "Adviser") to hire new subadvisers and to
make changes to existing subadvisory contracts with the approval of the Board of
Trustees (the "Trustees"), but without obtaining shareholder approval. This
information statement is being furnished on behalf of the Trustees of Seasons.
WE ARE NOT ASKING YOU FOR A PROXY AND YOU
ARE REQUESTED NOT TO SEND US A PROXY.
This information statement will be mailed on or about January 29, 2001.
Copies of the most recent annual and semi-annual reports of Seasons are
available without charge and may be obtained by writing to the Trust at P.O. Box
54299, Los Angeles, California 90054-0299 or by calling (800) 445-7862.
PURPOSE OF THE INFORMATION STATEMENT
On January 2, 2001, Marsico Capital Management, LLC ("Marsico") underwent a
change of control whereby Bank of America Corporation ("Bank of America"), a
Delaware corporation entered into an agreement to increase its ownership of
Marsico to 100%. Prior to the transaction, Bank of America owned 50% of Marsico
through its ownership of Marsico Management Holdings, LLC. The closing of the
transaction (the "Closing") constituted an "assignment," as that term is defined
in Section 2(a)(4) of the Investment Company Act of 1940, as amended (the "1940
Act"), and consequently a termination of the Subadvisory Agreement between
SunAmerica, the investment adviser and manager, and Marsico with respect to the
Portfolios.
THE TRUST
The Portfolios are separate investment series of Seasons, a Massachusetts
business trust. The Trust entered into an Investment Advisory Agreement (the
"Advisory Agreement") with SunAmerica on January 1, 1999, as amended from time
to time. SunAmerica selects the subadvisers for the Portfolios, may manage
certain portions of the Portfolios, provides various administrative services and
supervises the Portfolios' daily business affairs, subject to general
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review by the Trustees. The Advisory Agreement authorizes SunAmerica to retain
the subadvisers for the Portfolios or portions thereof for which it does not
manage the assets. SunAmerica selects the subadvisers it believes will provide
the Portfolios with the highest quality investment services, while obtaining,
within the Portfolios' overall investment objective, a distinct investment
style. SunAmerica monitors the activities of the subadviser and, from time to
time, will recommend the replacement of a subadviser on the basis of investment
performance, style drift or other consideration.
The subadvisers to the Trust act pursuant to agreements with SunAmerica.
Their duties include furnishing continuing advice and recommendations to the
relevant portion of their respective Portfolios regarding securities to be
purchased and sold. The subadviser is independent of SunAmerica and discharges
its responsibilities subject to the policies of the Trustees and the oversight
and supervision of SunAmerica, which pays the subadviser's fees. The Portfolios
do not pay fees directly to the subadviser. However, in accordance with
procedures adopted by the Trustees, a subadviser may effect portfolio
transactions through an affiliated broker-dealer, acting as agent not as
principal, and receive brokerage commissions in connection therewith as
permitted by Section 17(e) of the 1940 Act, as amended, the rules thereunder and
other applicable securities laws.
THE SUBADVISORY AGREEMENT
Pursuant to the Subadvisory Agreement between SunAmerica and Marsico dated
May 23, 2000, as amended November 29, 2000 (the "Previously Existing Subadvisory
Agreement"), Marsico was serving as one of the subadvisers to the Focus Growth
and Focus Growth and Income Portfolios. As required by the 1940 Act, the
Previously Existing Subadvisory Agreement provided for automatic termination
upon its assignment. As described above, the Closing resulted in an assignment
of the Previously Existing Agreement. Accordingly, at the Board meeting held on
November 29, 2000, the Trustees approved a new Subadvisory Agreement with
Marsico (the "New Subadvisory Agreement") which became effective as of the
Closing. The New Subadvisory Agreement is identical in all material respects to,
and is essentially a continuation of, the Previously Existing Subadvisory
Agreement.
Under the Advisory Agreement, the annual rates of the investment advisory
fees payable to SunAmerica for each of the Portfolios is 1.00% of Assets. The
term "Assets" means the average daily net assets of the respective Portfolios.
This fee is accrued daily and paid monthly, and may be higher than those charged
to other mutual funds.
The New Subadvisory Agreement between Marsico and SunAmerica is
substantially similar in form and in substance to the Previously Existing
Agreement, in that it (i) provides for the Subadviser to manage the portion of
the relevant portfolio allocated to it on a discretionary basis, (ii) provides
for the Adviser to compensate the Subadviser for its services, (iii) authorizes
the Subadviser to select the brokers or dealers to effect portfolio transactions
for the Portfolios, and (iv) requires the Subadviser to comply with the
Portfolios' investment policies and restrictions and with applicable law. The
New Subadvisory Agreement will not result in any increase in fees to
shareholders. A form of the New Subadvisory Agreement is attached to this
information statement as Exhibit A.
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INFORMATION ABOUT MARSICO
Marsico is a Delaware limited liability company with principal offices at
1200 17th Street, Denver, Colorado 80202. As of December 31, 2000 Marsico had
approximately $14.9 billion in assets under management.
Marsico's investment management objective is to provide consistent,
superior absolute returns through a combination of creative idea generation,
intensive research and a rigorous buy/sell discipline. Marsico seeks to identify
companies with high potential for strong earnings growth by focusing on those
companies with long-term success potential in changing industries, with strong
brand franchises that can be leveraged in a changing global environment, and
that are moving with the major social, economic and cultural shifts taking place
globally. Once an investment idea emerges, Marsico subjects it to a detailed,
disciplined process that includes both top-down and bottom-up elements. They
analyze the economic, political and social factors that enhance a company's
ability to produce consistent growth in real terms as well as the fundamentals
of a company to determine its present and future value.
Marsico uses a risk management discipline in deciding when to sell a stock.
They review negative changes in their original rationale for owning a stock and
adverse changes in the competitive, regulatory and economic environments.
However, Marsico is careful to distinguish between temporary corrective setbacks
and structural changes. They maintain an extensive network of contacts who
provide early alerts to changes that may affect Marsico's positions. They call
upon these contacts as a routine part of a systematic portfolio review
discipline which subjects each holding to constant analysis of performance
against expectations and benchmarks.
Marsico encourages "out-of-the-box" thinking as an approach to investing.
This entails a non-linear approach to the generation of investment ideas and
strategies, actively seeking information and relationships not obvious to other
investors and analysts. Marsico gathers insight from a company's suppliers,
customers, competitors and critics beyond the information obtained from
financial ratios and analyst meetings, believing that the best investment ideas
often are immune to traditional Wall Street orthodoxies, especially in a
company's early stages when they stand to do the investor most good.
The names and principal occupations of the Directors and Principal
Executive Officers of Marsico are set forth below. The business address of each
Director and Principal Executive Officer is 1200 17th Street, Suite 1300,
Denver, CO 80202.
NAME POSITION
Christie L. Austin .......... Vice President and Chief Financial Officer
Barbara M. Japha ............ President
Robert J. Lojkovic .......... Executive Vice President and Director of Marketing
Christopher J. Marsico ...... Vice President and Chief Operating Officer
Thomas F. Marsico ........... Chairman and Chief Executive Officer
Mary L. Watson .............. Vice President of Client Services
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BOARD OF TRUSTEES' CONSIDERATION
In approving the New Subadvisory Agreement described herein, the Trustees,
at an in-person meeting held on November 29, 2000, considered certain factors,
including (i) the nature and quality of the services expected to be rendered by
Marsico, including the credentials and investment experience of its officers and
employees; (ii) Marsico's investment approach and management style, which is
expected to compliment the other investment managers of the Portfolios; (iii)
the structure of Marsico and its ability to provide services, based on both its
financial condition as well as its performance record; (iv) a comparison of
Marsico's subadvisory fee with those of other advisers; and (v) indirect costs
and benefits of providing such subadvisory services. The Trustees determined
that the engagement of Marsico as subadviser for the Portfolios and the
subadvisory fees were reasonable, fair and in the best interests of the
Portfolios and its shareholders.
ADDITIONAL INFORMATION
The Trust is not required to hold annual meetings of shareholders and,
therefore, it cannot be determined when the next meeting of shareholders will be
held. Shareholder proposals to be considered for inclusion in the proxy
statement for the next meeting of shareholders must be submitted at a reasonable
time before the proxy statement is mailed. Whether a proposal submitted will be
included in the proxy statement will be determined in accordance with applicable
state and federal law.
By Order of the Trustees,
/s/ Robert M. Zakem
Robert M. Zakem
Vice President and Assistant Secretary
Dated: January 29, 2001
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EXHIBIT A
SUBADVISORY AGREEMENT
This SUBADVISORY AGREEMENT is dated as of January 2, 2001, by and
between SUNAMERICA ASSET MANAGEMENT CORP., a Delaware corporation (the
"Adviser"), and MARSICO CAPITAL MANAGEMENT, LLC, a Delaware Limited Liability
Company (the "Subadviser").
WITNESSETH:
WHEREAS, the Adviser and Seasons Series Trust, a Massachusetts business
trust (the "Trust"), have entered into an Investment Advisory and Management
Agreement dated as of January 1, 1999, as amended from time to time (the
"Advisory Agreement"), pursuant to which the Adviser has agreed to provide
investment management, advisory and administrative services to the Trust; and
WHEREAS, the Trust is registered under the Investment Company Act of 1940,
as amended (the "Act"), as an open-end management investment company and may
issue shares of beneficial interest, par value $.01 per share, in separately
designated portfolios representing separate funds with their own investment
objectives, policies and purposes; and
WHEREAS, the Subadviser is engaged in the business of rendering investment
advisory services and is registered as an investment adviser under the
Investment Advisers Act of 1940, as amended; and
WHEREAS, the Adviser desires to retain the Subadviser to furnish investment
advisory services to the investment portfolio or portfolios of the Trust listed
on Schedule A attached hereto (the "Portfolio(s)"), and the Subadviser is
willing to furnish such services;
NOW, THEREFORE, it is hereby agreed between the parties hereto as follows:
1. DUTIES OF THE SUBADVISER. (a) The Adviser hereby engages the services
of the Subadviser in furtherance of its Investment Advisory and Management
Agreement with the Trust. Pursuant to this Subadvisory Agreement and subject to
the oversight and review of the Adviser, the Subadviser will manage the
investment and reinvestment of a portion of the assets of each Portfolio listed
on Schedule A attached hereto. The Subadviser will determine, in its discretion
and subject to the oversight and review of the Adviser, the securities to be
purchased or sold, will provide the Adviser with records concerning its
activities which the Adviser or the Trust is required to maintain, and will
render regular reports to the Adviser and to officers and Trustees of the Trust
concerning its discharge of the foregoing responsibilities. The Subadviser shall
discharge the foregoing responsibilities subject to the control of the officers
and the Trustees of the Trust and in compliance with such policies as the
Trustees of the Trust may from time to time establish, and in compliance with
(a) the objectives, policies, and limitations for the Portfolio(s) set forth in
the Trust's current prospectus and statement of additional information, and (b)
applicable laws and regulations.
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The Subadviser represents and warrants to the Adviser that the
portion of assets allocated to it of each of the Portfolios set forth in
Schedule A will at all times be operated and managed in compliance with (a) all
applicable federal and state laws, including securities, commodities and banking
laws, governing its operations and investments; (b) the diversification
requirements specified in the Internal Revenue Service's regulations under
Section 817(h) of the Internal Revenue Code of 1986, as amended (the "Code") so
as not to jeopardize the treatment of the Seasons variable annuity contracts
issued by Variable Annuity Account Five (File No. 33-08859; hereinafter
"Contracts") as annuity contracts for purposes of the Code; and (c) the
provisions of the Act and rules adopted thereunder. The Adviser agrees that it,
and not the Subadviser, shall be solely responsible for insuring that each
Portfolio set forth in Schedule A managed by the Subadviser (i) qualifies as a
"regulated investment company" under Subchapter M, chapter I of the Code; and
(ii) complies with any limits in its current prospectus or statement of
additional information concerning concentration of investments or the amount of
assets that may be invested by the Portfolio in any one or more securities.
Should the Adviser determine that the Portfolio is not in compliance with
Subchapter M, chapter I of the Code, the Subadviser agrees to follow
instructions of the Adviser to remedy such non-compliance. Subadviser also
agrees to furnish information to the Adviser, as requested, for purposes of
compliance with the distribution requirements necessary to avoid payment of any
excise tax pursuant to Section 4982 of the Code. The Subadviser further
represents and warrants that to the extent that any statements or omissions made
in any Registration Statement for the Contracts or shares of the Trust, or any
amendment or supplement thereto, are made in reliance upon and in conformity
with information furnished by the Subadviser expressly for use therein, such
Registration Statement and any amendments or supplements thereto will, when they
become effective, conform in all material respects to the requirements of the
Securities Act of 1933 and the rules and regulations of the Commission
thereunder (the "1933 Act") and the Act and will not contain any untrue
statement of a material fact or omit to state any material fact required to be
stated therein or necessary to make the statements therein not misleading.
The Subadviser accepts such employment and agrees, at its own
expense, to render the services set forth herein and to provide the office
space, furnishings, equipment and personnel required by it to perform such
services on the terms and for the compensation provided in this Agreement.
(b) The Subadviser agrees: (i) to maintain a level of errors and
omissions or professional liability insurance coverage that, at all times during
the course of this Agreement, is appropriate given the nature of its business,
and (ii) from time to time and upon reasonable request, to supply evidence of
such coverage to the Adviser.
2. PORTFOLIO TRANSACTIONS. (a) The Subadviser is responsible for
decisions to buy or sell securities and other investments for a portion of the
assets of each Portfolio, broker-dealers and futures commission merchants'
selection, and negotiation of brokerage commission and futures commission
merchants' rates. As a general matter, in executing portfolio transactions, the
Subadviser may employ or deal with such broker-dealers or futures commission
merchants as may, in the Subadviser's best judgement, provide prompt and
reliable execution of the transactions at favorable prices and reasonable
commission rates. In selecting such
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broker-dealers or futures commission merchants, the Subadviser shall consider
all relevant factors including price (including the applicable brokerage
commission, dealer spread or futures commission merchant rate), the size of the
order, the nature of the market for the security or other investment, the timing
of the transaction, the reputation, experience and financial stability of the
broker-dealer or futures commission merchant involved, the quality of the
service, the difficulty of execution, the execution capabilities and operational
facilities of the firm involved, and, in the case of securities, the firm's risk
in positioning a block of securities. Subject to such policies as the Trustees
may determine and consistent with Section 28(e) of the Securities Exchange Act
of 1934, as amended (the"1934 Act"), the Subadviser shall not be deemed to have
acted unlawfully or to have breached any duty created by this Agreement or
otherwise solely by reason of the Subadviser's having caused a Portfolio to pay
a member of an exchange, broker or dealer an amount of commission for effecting
a securities transaction in excess of the amount of commission another member of
an exchange, broker or dealer would have charged for effecting that transaction,
if the Subadviser determines in good faith that such amount of commission was
reasonable in relation to the value of the brokerage and research services
provided by such member of an exchange, broker or dealer viewed in terms of
either that particular transaction or the Subadviser's overall responsibilities
with respect to such Portfolio and to other clients as to which the Subadviser
exercises investment discretion. In accordance with Section 11(a) of the 1934
Act and Rule 11a2-2(T) thereunder, and subject to any other applicable laws and
regulations including Section 17(e) of the Act and Rule 17e-1 thereunder, the
Subadviser may engage its affiliates, the Adviser and its affiliates or any
other subadviser to the Trust and its respective affiliates, as broker-dealers
or futures commission merchants to effect portfolio transactions in securities
and other investments for a Portfolio; provided, however, that for each
Portfolio the average annual percentage of portfolio transactions which are
engaged in with the Subadviser's affiliates, the Adviser and its affiliates or
any other subadviser to the Trust and its respective affiliates, may not exceed
25 % of the Portfolio's total transactions in securities and other investments
during the Trust's fiscal year. The Subadviser will promptly communicate to the
Adviser and to the officers and the Trustees of the Trust such information
relating to portfolio transactions as they may reasonably request. To the extent
consistent with applicable law, the Subadviser may aggregate purchase or sell
orders for the Portfolio with contemporaneous purchase or sell orders of other
clients of the Subadviser or its affiliated persons. 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 Subadviser in the manner the Subadviser
determines to be equitable and consistent with its and its affiliates' fiduciary
obligations to the Portfolio and to such other clients. The Adviser hereby
acknowledges that such aggregation of orders may not result in more favorable
pricing or lower brokerage commissions in all instances.
(b) Notwithstanding Section 2(a) above, for such purposes as
obtaining investment research products and services, covering
fees and expenses, and rewarding sales or distribution, the
Adviser may direct the Subadviser to effect a specific percentage
of a Portfolio's transactions in securities and other investments
to certain broker-dealers and futures commission merchants'. In
designating the use of a particular broker-dealer or futures
commission merchant, the Adviser and Subadviser acknowledge:
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1. All brokerage transactions are subject to best execution. As
such, Subadviser will use its best efforts to direct non-risk
commission transactions to a particular broker-dealer or futures
commission merchant designated by the Adviser provided that the
Subadviser obtains best execution;
2. Such direction may result in the Subadviser paying a higher
commission, depending upon the Subadviser's arrangements with the
particular broker-dealer or futures commission merchant, or such
other factors as market conditions, share values, capabilities of
the particular broker-dealer or futures commission merchant,
etc.;
3. If the Subadviser directs payments of an excessive amount of
commissions, the executions may not be accomplished as rapidly.
In addition, the Subadviser may forfeit the possible advantage
derived from the aggregation of multiple orders as a single
"bunched" transaction where Subadviser would, in some instances,
be in a better position to negotiate commissions; and
4. Subadviser does not make commitments to allocate fixed or
definite amounts of commissions to brokers. As such the
Subadviser may be unable to fulfill the Adviser's request for
direction due to the reasons stated above.
3. COMPENSATION OF THE SUBADVISER. The Subadviser shall not be entitled
to receive any payment from the Trust and shall look solely and exclusively to
the Adviser for payment of all fees for the services rendered, facilities
furnished and expenses paid by it hereunder. As full compensation for the
Subadviser under this Agreement, the Adviser agrees to pay to the Subadviser a
fee at the annual rates set forth in Schedule A hereto with respect to the
portion of the assets managed by the Subadviser for each Portfolio listed
thereon. Such fee shall be accrued daily and paid monthly as soon as practicable
after the end of each month (i.e., the applicable annual fee rate divided by 365
applied to each prior days' net assets in order to calculate the daily accrual).
For purposes of calculating the Subadviser's fee, the average daily net asset
value of a Portfolio shall mean the average daily net assets for which the
Subadviser actually provides advisory services, and shall be determined by
taking an average of all determinations of such net asset value during the
month. If the Subadviser shall provide its services under this Agreement for
less than the whole of any month, the foregoing compensation shall be prorated.
4. OTHER SERVICES. At the request of the Trust or the Adviser, the
Subadviser in its discretion may make available to the Trust, office facilities,
equipment, personnel and other services in order to facilitate meetings or other
similar functions. Such office facilities, equipment, personnel and services
shall be provided for or rendered by the Subadviser and billed to the Trust or
the Adviser at the Subadviser's cost.
5. REPORTS. The Trust, the Adviser and the Subadviser agree to furnish to
each other, if applicable, current prospectuses, statements of additional
information, proxy statements, reports of shareholders, certified copies of
their financial statements, and such other information with regard to their
affairs and that of the Trust as each may reasonably request.
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6. STATUS OF THE SUBADVISER. The services of the Subadviser to the
Adviser and the Trust are not to be deemed exclusive, and the Subadviser shall
be free to render similar services to others so long as its services to the
Trust are not impaired thereby. The Subadviser shall be deemed to be an
independent contractor and shall, unless otherwise expressly provided or
authorized, have no authority to act for or represent the Trust in any way or
otherwise be deemed an agent of the Trust.
7. CERTAIN RECORDS. The Subadviser hereby undertakes and agrees to
maintain, in the form and for the period required by Rule 31a-2 under the Act,
all records relating to the investments of the Portfolio(s) that are required to
be maintained by the Trust pursuant to the requirements of Rule 31a-1 of that
Act. Any records required to be maintained and preserved pursuant to the
provisions of Rule 31a-1 and Rule 31a-2 promulgated under the Act which are
prepared or maintained by the Subadviser on behalf of the Trust are the property
of the Trust and will be surrendered promptly to the Trust or the Adviser on
request.
The Subadviser agrees that all accounts, books and other records
maintained and preserved by it as required hereby shall be subject at any time,
and from time to time, to such reasonable periodic, special and other
examinations by the Securities and Exchange Commission, the Trust's auditors,
the Trust or any representative of the Trust, the Adviser, or any governmental
agency or other instrumentality having regulatory authority over the Trust.
8. REFERENCE TO THE SUBADVISER. Neither the Trust nor the Adviser or any
affiliate or agent thereof shall make reference to or use the name of the
Subadviser or any of its affiliates in any advertising or promotional materials
without the prior approval of the Subadviser, which approval shall not be
unreasonably withheld.
9. LIABILITY OF THE SUBADVISER. (a) In the absence of willful
misfeasance, bad faith, gross negligence or reckless disregard of obligations or
duties ("disabling conduct") hereunder on the part of the Subadviser (and its
officers, directors/trustees, agents, employees, controlling persons,
shareholders and any other person or entity affiliated with the Subadviser) the
Subadviser shall not be subject to liability to the Adviser (and its officers,
directors/trustees, agents, employees, controlling persons, shareholders and any
other person or entity affiliated with the Adviser) or to the Trust (and its
officers, directors/trustees, agents, employees, controlling persons,
shareholders and any other person or entity affiliated with the Trust) for any
act or omission in the course of, or connected with, rendering services
hereunder, including without limitation, any error of judgment or mistake of law
or for any loss suffered by any of them in connection with the matters to which
this Agreement relates, except to the extent specified in Section 36(b) of the
Act concerning loss resulting from a breach of fiduciary duty with respect to
the receipt of compensation for services. Except for such disabling conduct, the
Adviser shall indemnify the Subadviser (and its officers, directors/trustees,
partners, agents, employees, controlling persons, shareholders and any other
person or entity affiliated with the Subadviser) from any and all losses,
claims, damages, liabilities or litigation (including reasonable legal and other
expenses) arising from Subadviser's rendering of services under this Agreement.
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(b) The Subadviser agrees to indemnify and hold harmless the Adviser
(and its officers, directors/trustees, agents, employees, controlling persons,
shareholders and any other person or entity affiliated with the Adviser) against
any and all losses, claims, damages, liabilities or litigation (including
reasonable legal and other expenses), to which the Adviser or its affiliates or
such directors/trustees, officers or controlling person may become subject under
the 1933 Act, under other statutes, at common law or otherwise, which may be
based upon (i) any disabling conduct or breach of this Agreement by the
Subadviser, or (ii) any material failure by the Subadviser to comply with the
representations and warranties set forth in Section 1 of this Agreement;
provided, however, that in no case is the Subadviser's indemnity in favor of any
person deemed to protect such other persons against any liability to which such
person would otherwise be subject by reasons of willful misfeasance, bad faith,
or gross negligence in the performance of his, her or its duties or by reason of
his, her or its reckless disregard of obligation and duties under this
Agreement.
(c) The Subadviser shall not be liable to the Adviser for (i) any
acts of the Adviser or any other subadviser to the Portfolio with respect to the
portion of the assets of a Portfolio not managed by Subadviser and (ii) acts of
the Subadviser which result from or are based upon acts of the Adviser,
including, but not limited to: (A), a failure of the Adviser to provide accurate
and current information with respect to any records maintained by Adviser or any
other subadviser to a Portfolio, which records are not also maintained by or
otherwise available to the Subadviser upon reasonable request; and (B) acts of
the Subadviser that were made in reasonable reliance upon information provided
to it by the Adviser. The Adviser agrees that Subadviser shall manage the
portion of the assets of a Portfolio allocated to it as if it was a separate
operating portfolio and shall comply with subsections (a) and (b) of Section 1
of this Subadvisory Agreement (including, but not limited to, the investment
objectives, policies and restrictions applicable to a Portfolio and
qualifications of a Portfolio as a regulated investment company under the Code)
only with respect to the portion of assets of a Portfolio allocated to
Subadviser. The Adviser shall indemnify the Subadviser (and its officers,
directors/trustees, partners, agents, employees, controlling persons,
shareholders and any other person or entity affiliated with the Subadviser) from
any and all losses, claims, damages, liabilities or litigation (including
reasonable legal and other expenses) arising from the conduct of the Adviser,
the Trust and any other subadviser with respect to the portion of a Portfolio's
assets not allocated to Subadviser.
10. PERMISSIBLE INTERESTS. Trustees and agents of the Trust are or may be
interested in the Subadviser (or any successor thereof) as directors/trustees,
partners, officers, or shareholders, or otherwise; directors/trustees, partners,
officers, agents, and shareholders of the Subadviser are or may be interested in
the Trust as trustees, or otherwise; and the Subadviser (or any successor) is or
may be interested in the Trust in some manner.
11. TERM OF THE AGREEMENT. This Agreement shall continue in full force and
effect with respect to each Portfolio until two years from the date hereof, and
from year to year thereafter so long as such continuance is specifically
approved at least annually (i) by the vote of a majority of those Trustees of
the Trust 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 (ii) by the Trustees of the Trust or by vote of a majority of the
outstanding voting securities of the Portfolio voting separately from any other
series of the Trust.
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With respect to each Portfolio, this Agreement may be terminated at
any time, without payment of a penalty by the Portfolio or the Trust, by vote of
a majority of the Trustees, or by vote of a majority of the outstanding voting
securities (as defined in the Act) of the Portfolio, voting separately from any
other series of the Trust, or by the Adviser, on not less than 30 nor more than
60 days' written notice to the Subadviser. With respect to each Portfolio, this
Agreement may be terminated by the Subadviser at any time, without the payment
of any penalty, on 90 days' written notice to the Adviser and the Trust;
provided, however, that this Agreement may not be terminated by the Subadviser
unless another subadvisory agreement has been approved by the Trust in
accordance with the Act, or after six months' written notice, whichever is
earlier. The termination of this Agreement with respect to any Portfolio or the
addition of any Portfolio to Schedule A hereto (in the manner required by the
Act) shall not affect the continued effectiveness of this Agreement with respect
to each other Portfolio subject hereto. This Agreement shall automatically
terminate in the event of its assignment (as defined by the Act).
This Agreement will also terminate in the event that the Advisory
Agreement by and between the Trust and the Adviser is terminated.
12. 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.
13. AMENDMENTS. This Agreement may be amended by mutual consent in
writing, but the consent of the Trust must be obtained in conformity with the
requirements of the Act.
14. GOVERNING LAW. This Agreement shall be construed in accordance with
the laws of the State of New York and the applicable provisions of the Act. To
the extent the applicable laws of the State of New York, or any of the
provisions herein, conflict with the applicable provisions of the Act, the
latter shall control.
15. PERSONAL LIABILITY. The Declaration of the Trust establishing the
Trust (the "Declaration"), is on file in the office of the Secretary of the
Commonwealth of Massachusetts, and, in accordance with that Declaration, no
Trustee, shareholder, officer, employee or agent of the Trust shall be held to
any personal liability, nor shall resort be had to their private property for
satisfaction of any obligation or claim or otherwise in connection with the
affairs of the Trust, but the "Trust Property" only shall be liable.
16. SEPARATE SERIES. Pursuant to the provisions of the Declaration, each
Portfolio is a separate series of the Trust, and all debts, liabilities,
obligations and expenses of a particular Portfolio shall be enforceable only
against the assets of that Portfolio and not against the assets of any other
Portfolio or of the Trust as a whole.
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17. NOTICES. All notices shall be in writing and deemed properly given
when delivered or mailed by United States certified or registered mail, return
receipt requested, postage prepaid, addressed as follows:
Subadviser: Marsico Capital Management, LLC
1200 17th Street - Suite 1300
Denver, Colorado 80202
Adviser: SunAmerica Asset Management Corp.
The SunAmerica Center
733 Third Avenue, Third Floor
New York, NY 10017-3204
Attention: Robert M. Zakem
Senior Vice President and
General Counsel
with a copy to: SunAmerica Inc.
1 SunAmerica Center
Century City
Los Angeles, CA 90067-6022
Attention: Mallary Reznik
Secretary
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IN WITNESS WHEREOF, the parties have caused their respective duly
authorized officers to execute this Agreement as of the date first above
written.
SUNAMERICA ASSET MANAGEMENT CORP.
By: /s/ PETER A. HARBECK
----------------------------------
Name: Peter A. Harbeck
Title: President
MARSICO CAPITAL MANAGEMENT, LLC
By: /s/ BARBARA M. JAPHA
---------------------------------
Name: Barbara M. Japha
Title: President
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