EXHIBIT 99.77Q1(3)
INTERIM SUB-ADVISORY AGREEMENT
This Interim Sub-Advisory Agreement ("Agreement") executed as of
December 1, 2005 between Delaware Management Company, a series of Delaware
Management Business Trust, a Delaware statutory trust (the "Adviser"), and
Salomon Brothers Asset Management Inc., a Delaware corporation (the
"Sub-Adviser").
WHEREAS, the Sub-Adviser serves as the sub-adviser to the Core Fund
(the "Fund"), a series of the Lincoln Variable Insurance Products Trust (the
"Trust"), pursuant to a sub-advisory agreement dated as of May 1, 2005 ("Current
Sub-Advisory Agreement"); and
WHEREAS, Citigroup Inc., the parent company of the Sub-Adviser, has
entered into an agreement to sell substantially all of its worldwide asset
management business, including the Sub-Adviser, to Xxxx Xxxxx, Inc. (the
"Sale"); and
WHEREAS, The Current Sub-Advisory Agreement will automatically
terminate upon the closing of the Sale; and
WHEREAS, Rule 15a-4 under the Investment Company Act of 1940 provides
for a temporary exemption from the shareholder approval requirements of Section
15(a) of the Act upon Board approval of an interim contract containing specified
conditions.
NOW, THEREFORE, in consideration of the mutual covenants herein
contained, and each of the parties hereto intending to be legally bound, it is
agreed as follows:
1. SERVICES TO BE RENDERED BY SUB-ADVISER TO THE FUND.
(a) Subject to the direction and control of the Board of Trustees (the
"Trustees") of the Trust, the Sub-Adviser, at its expense, will furnish
continuously an investment program for the Fund which shall at all times meet
the diversification requirements of Section 817(h) of the Internal Revenue Code
of 1986 (the "Code"). The Sub-Adviser will make investment decisions on behalf
of the Fund and place all orders for the purchase and sale of portfolio
securities.
(b) The Sub-Adviser, at its expense, will furnish (i) all necessary
investment and management facilities, including salaries of personnel, required
for it to execute its duties faithfully and (ii) administrative facilities,
including bookkeeping, clerical personnel and equipment necessary for the
efficient conduct of the investment affairs of the Fund (excluding determination
of net asset value per share, portfolio accounting and shareholder accounting
services).
(c) The Sub-Adviser shall vote proxies relating to the Fund's
investment securities in accordance with the Sub-Adviser's proxy voting policies
and procedures, and shall review its proxy voting activities on a periodic basis
with the Trustees. Upon sixty (60) days' written notice to the Sub-Adviser, the
Trustees may withdraw the authority granted to the Sub-Adviser pursuant to this
Section.
(d) The Sub-Adviser shall exercise conversion or subscription rights,
and respond to tender offers and other consent solicitations ("Corporate
Actions") with respect to the issuers of securities held in the Fund in the
manner in which the Sub-Adviser believes to be in the best interests of the
Fund, provided materials relating to such Corporate Actions have been timely
received by the Sub-Adviser. Upon sixty (60) days' written notice to the
Sub-Adviser, the Adviser may withdraw the authority granted to the Sub-Adviser
pursuant to this Section.
(e) In the selection of brokers, dealers or futures commission
merchants and the placing of orders for the purchase and sale of portfolio
investments for the Fund, the Sub-Adviser shall use its best efforts to obtain
for the Fund the most favorable price and execution available, except to the
extent it may be permitted to pay higher brokerage commissions for brokerage and
research services as described below. In using its best efforts to obtain for
the Fund the most favorable price and execution available, the Sub-Adviser,
bearing in mind the Fund's best interests at all times, shall consider all
factors it deems relevant, including by way of illustration: price; the size of
the transaction; the nature of the market for the security; the amount of the
commission; the timing of the transaction taking into account market prices and
trends; the reputation, experience and financial stability of the broker,
dealer, or futures commission merchant involved; and the quality of service
rendered by the broker, dealer or futures commission merchant in other
transactions. Subject to such policies as the Trustees may determine, the
Sub-Adviser shall not be deemed to have acted unlawfully or to have breached any
duty created by this Agreement or otherwise solely by reason of its having
caused the Fund to pay a broker, dealer or futures commission merchant that
provides brokerage and research services to the Sub-Adviser an amount of
commission for effecting a portfolio investment transaction in excess of the
amount of commission another broker, dealer or futures commission merchant would
have charged for effecting that transaction, if the Sub-Adviser 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 broker, dealer or
futures commission merchant, viewed in terms of either that particular
transaction or the Sub-Adviser's over-all responsibilities with respect to the
Fund and to other clients of the Sub-Adviser as to which the Sub-Adviser
exercises investment discretion.
(f) The Sub-Adviser will provide advice and assistance to the
Investment Adviser as to the determination of the fair value of certain
investments where market quotations are not readily available for purposes of
calculating net asset value of the Fund in accordance with valuation procedures
and methods established by the Trustees.
(g) The Sub-Adviser shall furnish the Adviser and the Board of Trustees
with such information and reports regarding the Fund's investments as the
Adviser deems appropriate or as the Board of Trustees shall reasonably request.
The Sub-Adviser shall make its officers and employees available to the Adviser
from time to time at such reasonable times as the parties may agree to review
investment policies of the Fund and to consult with the Adviser regarding the
investment affairs of the Fund.
(h) The Sub-Adviser shall not consult with any other sub-adviser to the
Fund or a sub-adviser to a portfolio that is under common control with the Fund
concerning the assets of the Fund, except as permitted by the policies and
procedures of the Fund.
(i) In the performance of its duties, the Sub-Adviser shall be subject
to, and shall perform in accordance with, the following: (i) provisions of the
organizational documents of the Trust that are applicable to the Fund; (ii) the
stated investment objectives, policies and restrictions of the Fund; (iii) the
Investment Company Act of 1940, as amended (the "1940 Act") and the Investment
Advisers Act of 1940 (the "Advisers Act"); (iv) any written instructions and
directions of the Trustees, the Adviser or Fund management; and (v) its general
fiduciary responsibility to the Fund. The Adviser has furnished or will furnish
the Sub-Adviser with copies of the Fund's Registration Statement, Prospectus,
Statement of Additional Information, Articles of Incorporation, and Bylaws as
currently in effect and agrees during the continuance of this Agreement to
furnish promptly the Sub-Adviser with copies of any amendments or supplements
thereto before or at the time the amendments or supplements become effective.
Until the Adviser delivers any such amendment or supplement to the Sub-Adviser,
the Sub-Adviser shall be fully protected in relying on the Prospectus and
Statement of Additional Information and any supplements thereto previously
furnished to the Sub-Adviser.
(j) The Sub-Adviser shall assist the Fund in the preparation of its
registration statement, prospectus, shareholder reports, marketing materials and
other regulatory filings, or any amendment or supplement thereto (collectively,
"Regulatory Filings") and shall provide the Fund with complete and accurate
disclosure for use in the Fund's Regulatory Filings, including, without
limitation, any requested disclosure related to the Sub-Adviser's investment
management personnel, portfolio manager compensation, Codes of Ethics, firm
description, investment management strategies and techniques, and proxy voting
policies. The Sub-Adviser shall be allowed a reasonable period of time to
perform the tasks described in this paragraph.
(k) The Sub-Adviser shall furnish the Adviser, the Board of Trustees
and/or the Chief Compliance Officer of the Trust and/or the Adviser with such
information, certifications and reports as such persons may deem appropriate or
may request from the Sub-Adviser regarding the Sub-Adviser's compliance with
Rule 206(4)-7 of the Advisers Act and the Federal Securities Laws, as defined in
Rule 38a-1 under the 1940 Act. Such information, certifications and reports
shall include, without limitation, those regarding the Sub-Adviser's compliance
with the Xxxxxxxx-Xxxxx Act of 2002, Title V of the Xxxxx-Xxxxx-Xxxxxx Act, the
Code of Ethics of the Sub-Adviser and the Trust and certifications as to the
validity of certain information relating to the Sub-Adviser or the Fund that is
included in the Fund's Regulatory Filings. The Sub-Adviser shall make its
officers and employees (including its Chief Compliance Officer) available to the
Adviser and/or the Chief Compliance Officer of the Trust and/or the Adviser from
time to time to examine and review the Sub-Adviser's compliance program and its
adherence thereto.
(l) Except as expressly provided under this Agreement, neither the
Sub-Adviser nor any of its officers or employees shall act upon or disclose to
any person any material non-public information with respect to the Fund, the
Trust or the Adviser, including, without limitation, the portfolio holdings of
the Fund.
2. OTHER AGREEMENTS.
The investment management services provided by the Sub-Adviser under
this Agreement are not to be deemed exclusive, and the Sub-Adviser shall be free
to render similar or different services to others so long as its ability to
render the services provided for in this Agreement shall not be impaired
thereby.
3. COMPENSATION TO BE PAID BY THE ADVISER TO THE SUB-ADVISER.
(a) As compensation for the services to be rendered by the Sub-Adviser
under the provisions of this Agreement, the Adviser will pay to the Sub-Adviser
a fee each month based on the average daily net assets of the Fund during the
month. Such fee shall be calculated in accordance with the fee schedule
applicable to the Fund as set forth in Schedule A attached hereto.
(b) The fee shall be paid by the Adviser, and not by the Fund, and
without regard to any reduction in the fees paid by the Fund to the Adviser
under its management contract as a result of any statutory or regulatory
limitation on investment company expenses or voluntary fee reduction assumed by
the Adviser. Such fee to the Sub-Adviser shall be payable for each month within
10 business days after the end of such month. If the Sub-Adviser shall serve for
less than the whole of a month, the foregoing compensation shall be prorated.
Notwithstanding any other provision in this Agreement, all compensation
to be paid to the Sub-Adviser hereunder shall be held in an interest-bearing
escrow account with the Fund's custodian or a bank until such time as the
holders of the Fund's outstanding voting securities approve, within 150 days
from the date first written above, a new sub-advisory agreement between the
Sub-Adviser and the Adviser. Upon such approval, the escrowed amount (including
interest earned) will be paid to the Sub-Adviser. However, should the new
sub-advisory agreement between the Sub-Adviser and the Adviser not be approved
by the holders of the Fund's outstanding voting securities within 150 days from
the date first written above, the Sub-Adviser will be paid from the escrow
account the lesser of (i) any costs incurred in performing its duties under this
Agreement (plus interest earned on that amount while in escrow); or (ii) the
total amount in the escrow account (plus interest earned).
4. AUTOMATIC TERMINATION.
This Agreement shall automatically terminate, without the payment of
any penalty, in the event of its assignment or in the event that the investment
advisory contract between the Adviser and the Fund shall have terminated for any
reason.
5. EFFECTIVE PERIOD; TERMINATION AND AMENDMENT OF THIS AGREEMENT.
(a) This Agreement shall become effective upon its execution, and shall
remain in full force and effect continuously thereafter (unless terminated
automatically as set forth in Section 4) until the date not greater than 150
days from the day first written above, unless sooner terminated as provided
herein. This Agreement may be terminated at any time, upon the vote of a
majority of the Trustees or by the vote of a majority of the Fund's outstanding
voting securities (as defined in the 1940 Act), upon ten (10) calendar days'
written notice to the Sub-Adviser.
(b) The Adviser may at any time terminate this Agreement by not less
than sixty days' written notice to the Sub-Adviser, and the Sub-Adviser may at
any time terminate this Agreement by not less than sixty days' written notice to
the Adviser.
(c) This Agreement shall automatically terminate, without the payment
of any penalty, in the event of its assignment or in the event that the
investment advisory contract between the Fund and the Adviser shall have
terminated.
(d) No amendment to this Agreement shall be effective unless (i) there
is written consent of the parties to this Agreement and (ii) the amendment is
approved in a manner consistent with the 1940 Act as interpreted or permitted by
the U.S. Securities and Exchange Commission ("SEC") and/or its staff.
6. CERTAIN INFORMATION.
The Sub-Adviser shall promptly notify the Adviser in writing of the
occurrence of any of the following events: (a) the Sub-Adviser shall fail to be
registered as an investment adviser under the Advisers Act and under the laws of
any jurisdiction in which the Sub-Adviser is required to be registered as an
investment adviser in order to perform its obligations under this Agreement, (b)
the Sub-Adviser has a reasonable basis for believing that the Fund has ceased to
qualify or might not qualify as a regulated investment company under Subchapter
M of the Code (c) the Sub-Adviser shall have been served or otherwise have
notice of any action, suit, proceeding, inquiry or investigation, at law or in
equity, before or by any court, public board or body, involving the affairs of
the Fund, and (d) the principal officers of the Sub-Adviser or any portfolio
manager of the Fund shall have changed.
7. NONLIABILITY OF SUB-ADVISER.
(a) In the absence of willful misfeasance, bad faith or gross
negligence on the part of the Sub-Adviser, or reckless disregard of its
obligations and duties hereunder, the Sub-Adviser shall not be subject to any
liability to the Fund or to any shareholder of the Fund, for any act or omission
in the course of, or connected with, rendering services hereunder.
(b) Failure by the Sub-Adviser to assure that the investment program
for the Fund meets the diversification requirements of Section 817(h) of the
Code, as required by Section 1 of this Agreement, shall constitute gross
negligence per se under sub-paragraph 7(a) above.
8. INDEMNIFICATION.
The Sub-Adviser agrees to indemnify the Adviser and the Funds for, and
hold them harmless against, any and all losses, claims, damages, liabilities
(including amounts paid in settlement with the written consent of the
Sub-Adviser) or litigation (including legal and other expenses) to which the
Adviser or the Funds may become subject as a result of:
(a) any failure by the Sub-Adviser, whether unintentional or in good
faith or otherwise, to adequately diversify the investment program of the Fund
pursuant to the requirements of Section 817(h) of the Code, and the regulations
issued thereunder; or
(b) any untrue statement of a material fact contained in disclosure
provided by the Sub-Adviser for inclusion in the Fund's Registration Statement
or any omission of a material fact required to be stated necessary to make such
disclosure not misleading;
provided that the Sub-Adviser shall have been given written notice concerning
any matter for which indemnification is claimed under this Section.
9. CONFIDENTIALITY.
The Adviser and the Fund agree that they will not disclose the
securities holdings of the Fund to third parties, except (i) as required by
applicable law or regulation; (ii) as required by state or federal regulatory
authorities; or (iii) pursuant to the Trust's portfolio holdings policy, which
may be amended by the Trust from time to time.
The Sub-Adviser agrees that in the performance of its obligations under
this Agreement, it will provide certain proprietary materials to the Adviser
such as the Sub-Adviser's compliance procedures, approved lists of Fund
investments, and other materials or information that Sub-Adviser shall
prominently label or otherwise describe as "Confidential" ("Confidential
Information"). The Adviser agrees that it will not disclose such Confidential
Information, except (i) as required by applicable law or regulation; (ii) as
required by state or federal regulatory authorities; (iii) to any of the
following parties or as otherwise reasonably agreed to by the Sub-Adviser in
writing:
o Trustees and officers of the Fund;
o Officers and employees of the Adviser and the Administrator;
o Counsel to any of the Fund, Adviser, Administrator or the
Independent Trustees; or
o The independent accountants and any other agent or service
provider of the Fund.
10. RECORDS; RIGHT TO AUDIT.
(a) The Sub-Adviser agrees to maintain in the form and for the period
required by Rule 31a-2 under the 1940 Act, all records relating to the Fund's
investments made by the Sub-Adviser that are required to be maintained by the
Fund pursuant to the requirements of Rule 31a-1 under the 1940 Act. The
Sub-Adviser agrees that all records that it maintains on behalf of the Fund are
the property of the Fund, and the Sub-Adviser will surrender promptly to the
Fund any such records upon the Fund's request; provided, however, that the
Sub-Adviser may retain a copy of such records. In addition, for the duration of
this Agreement, the Sub-Adviser shall preserve for the periods prescribed by
Rule 31a-2 under the 1940 Act any such records as are required to be maintained
by it pursuant to this Agreement and shall transfer all such records to any
entity designated by the Adviser upon the termination of this Agreement.
(b) The Sub-Adviser agrees that all accounts, books and other records
maintained and preserved by it as required hereby will be subject at any time,
and from time to time, to such reasonable periodic, special and other
examinations by the SEC, the Fund's auditors, any representative of the Fund,
the Adviser, or any governmental agency or other instrumentality having
regulatory authority over the Fund.
11. MARKETING MATERIALS.
(a) The Sub-Adviser shall furnish to the Fund, prior to its use, each
piece of advertising, supplemental sales literature or other promotional
material in which the Fund, the Adviser or any of the Adviser's affiliates is
named. No such material shall be used except with prior written permission of
the Fund or its delegate. The Fund agrees to respond to any request for approval
on a prompt and timely basis. Failure by the Fund to respond within ten (10)
calendar days to the Sub-Adviser shall relieve the Sub-Adviser of the obligation
to obtain the prior written permission of the Fund. If the Sub-Adviser makes an
unauthorized use of the names, derivatives, logos, trademarks, service marks or
trade names of the Fund or the Adviser, the parties acknowledge that these
entities shall suffer irreparable hardship for which monetary damages are
inadequate and thus, the Fund or the Adviser, as applicable, will be entitled to
injunctive relief.
(b) The Fund shall furnish to the Sub-Adviser, prior to its use, each
piece of advertising, supplemental sales literature or other promotional
material in which the Sub-Adviser or any of its affiliates is named. No such
material shall be used except with prior written permission of the Sub-Adviser
or its delegate. The Sub-Adviser agrees to respond to any request for approval
on a prompt and timely basis. Failure by the Sub-Adviser to respond within ten
(10) calendar days to the Fund shall relieve the Fund of the obligation to
obtain the prior written permission of the Sub-Adviser. If the Adviser or the
Fund makes an unauthorized use of the Sub-Adviser's names, derivatives, logos,
trademarks, service marks or trade names, the parties acknowledge that the
Sub-Adviser shall suffer irreparable hardship for which monetary damages are
inadequate and thus, the Sub-Adviser will be entitled to injunctive relief.
(c) The parties agree that the name of the Sub-Adviser, the names of
any affiliates of the Sub-Adviser and any derivative, logo, trademark, service
xxxx or trade name are the valuable property of the Sub-Adviser and its
affiliates. Upon termination of this Agreement, the Adviser and the Fund shall
as soon as practicable cease to use such name(s), derivatives, logos,
trademarks, service marks or trade names.
(d) The parties agree that they shall have no responsibility to ensure
the adequacy of the form or content of such advertising, supplemental sales
literature or other promotional material for purposes of the 1940 Act or other
applicable laws and regulations; provided, however, that each party is
responsible for the accuracy of any information that it gives to the other party
which is included in such advertising, supplemental sales literature or other
promotional material.
12. GOVERNING LAW.
This Agreement shall be governed by the laws of the State of Delaware,
without regard to conflict of law principles; provided, however, that nothing
herein shall be construed as being inconsistent with the 1940 Act.
13. SEVERABILITY/INTERPRETATION.
If any provision of this Agreement is held invalid by a court decision,
statute, rule or otherwise, the remainder of this Agreement shall not be
affected thereby. This Agreement shall be binding upon and shall inure to the
benefit of the parties hereto and their respective successors. Where the effect
of a requirement of the 1940 Act reflected in any provision of this Agreement is
altered by a rule, regulation or order of the SEC, whether of special or general
application, such provision shall be deemed to incorporate the effect of such
rule, regulation or order.
14. CERTAIN DEFINITIONS.
For the purposes of this Agreement, the terms "vote of a majority of
the outstanding voting securities," "interested persons," and "assignment" shall
have the meaning defined in the 1940 Act, and subject to such orders or
no-action letters as may be granted by the SEC and/or its staff.
15. COUNTERPARTS.
This Agreement may be executed in one or more counterparts, each of
which shall be deemed to be an original and, all of which, when taken together,
shall consist of one and the same instrument.
[The remainder of this page intentionally left blank.]
IN WITNESS WHEREOF, the parties have caused this instrument to be
signed by their duly authorized representatives, all as of the day and year
first above written.
DELAWARE MANAGEMENT COMPANY, a
series of Delaware Management Business Trust
/s/ Xxxxx X. Xxxxxx
Name: Xxxxx X. Xxxxxx
Title: Vice President
SALOMON BROTHERS ASSET
MANAGEMENT INC.
/s/ Xxxx Xxxxxxx
Name: Xxxx Xxxxxxx
Title: Managing Director
Accepted and agreed to
as of the day and year
first above written:
CORE FUND, a series of
Lincoln Variable Insurance Products Trust
/s/ Rise X.X. Xxxxxx
Name: Rise X.X. Xxxxxx
Title: Vice President
SCHEDULE A
Fee Schedule
------------
The Adviser shall pay to the Sub-Adviser compensation at an annual rate
as follows:
.40% on the first $500 million; and
.35% on the amount in excess of $500 million
