SUB-ADVISORY AGREEMENT
AGREEMENT made as of the
12th
day of December, 2008, by and between Genworth Financial Wealth Management,
Inc. a California corporation (the “Advisor”), and Mondrian Investment Partners
Limited (the “Sub-Advisor”).
WHEREAS, the Advisor and the
Sub-Advisor are registered investment advisers under the Investment Advisers Act
of 1940, as amended (the “Advisers Act”), and engage in the business of
providing investment management services; and
WHEREAS, the Advisor has been
retained to act as investment adviser pursuant to an Investment Advisory
Agreement dated October 20, 2006 (the “Advisory Agreement”) with AssetMark Funds
(the “Trust”), a Delaware statutory trust registered with the U.S. Securities
and Exchange Commission (the “SEC”) as an open-end management investment company
under the Investment Company Act of 1940, as amended (the “1940 Act”), currently
consisting of several separate series of shares, each having its own investment
objectives and policies, and which is authorized to create additional series in
the future; and
WHEREAS, the Advisory
Agreement permits the Advisor, subject to the supervision and direction of the
Trust’s Board of Trustees, to delegate certain of its duties under the Advisory
Agreement to other investment advisers, subject to the requirements of the 1940
Act; and
WHEREAS, the Advisor desires
to retain the Sub-Advisor to assist the Advisor in the provision of a continuous
investment program for that portion of one or more of the Trust’s series’ (each
a “Fund”), each as set forth on Exhibit A, assets which the Advisor will assign
to the Sub-Advisor (the “Sub-Advisor Assets”), and the Sub-Advisor is willing to
render such services, subject to the terms and conditions set forth in this
Agreement.
NOW, THEREFORE, in
consideration of mutual covenants recited below, the parties agree and promise
as follows:
1. Appointment as
Sub-Advisor. The Advisor hereby appoints the Sub-Advisor to
act as investment adviser for and to manage the Sub-Advisor Assets, subject to
the supervision of the Advisor and the Board of Trustees of the Trust, and
subject to the terms of this Agreement; and the Sub-Advisor hereby accepts such
appointment. In such capacity, the Sub-Advisor shall be responsible
for the investment management of the Sub-Advisor Assets. The
Sub-Advisor agrees to exercise the same degree of skill, care and diligence in
performing its services under this Agreement as the Sub-Advisor exercises in
performing similar services with respect to other fiduciary accounts for which
the Sub-Advisor has investment responsibilities, and that a prudent manager
would exercise under the circumstances.
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2. Duties of the
Sub-Advisor.
(a) Investments. The
Sub-Advisor is hereby authorized and directed and hereby agrees, subject to the
stated investment objectives, policies and restrictions of each Fund as set
forth in such Fund’s prospectus and statement of additional information as
currently in effect and as amended from time to time (collectively referred to
as the “Prospectus”) and subject to the written directions of the Advisor and
the Trust’s Board of Trustees, to purchase, hold and sell investments for the
Sub-Advisor Assets and to monitor such investments on a continuous
basis. All written directions of the Advisor or the Trust’s Board of
Trustees shall provide the Sub-Advisor with a reasonable time period to
implement the substance of the directions. In providing these
services, the Sub-Advisor will conduct an ongoing program of investment,
evaluation and, if appropriate, sale and reinvestment of the Sub-Advisor
Assets.
The Sub-Advisor acknowledges that
the Advisor is a wholly-owned subsidiary of Genworth Financial, Inc., and the
purchase, acquisition, or possession of securities issued by Genworth and/or its
affiliated entities (collectively referred to as “Genworth Securities”) by the
Fund is therefore prohibited under the 1940 Act. Accordingly, the
Sub-Advisor is directed and hereby agrees to refrain from the purchase,
acquisition, or possession of Genworth Securities on behalf of the
Fund. To achieve the foregoing, Advisor shall provide Sub-Advisor
with a list of all Genworth Securities and the Sub-Advisor may rely exclusively
upon such list in determining which securities are Genworth
Securities.
The Advisor agrees to provide the
Sub-Advisor information concerning: (i) a Fund; (ii) its assets available or to
become available for investment; and (iii) the conditions of a Fund’s or the
Trust’s affairs as relevant to the Sub-Advisor.
(b) Compliance with Applicable
Laws, Governing Documents and Compliance Procedures. In the
performance of its duties and obligations under this Agreement, the Sub-Advisor
shall, with respect to Sub-Advisor Assets, (i) act in conformity with: (A) the
Prospectus; (B) the policies and procedures for compliance by the Trust with the
Federal Securities Laws (as that term is defined in Rule 38a-1 under the 0000
Xxx) provided to the Sub-Advisor (together, the “Trust Compliance Procedures”);
and (C) the written instructions and directions received in writing from the
Advisor or the Trustees of the Trust (provided that all written instructions and
directions of the Advisor or the Trust’s Board of Trustees shall provide the
Sub-Advisor with a reasonable time period to implement the substance of the
instructions or directions); and (ii) conform to, and comply with, the
requirements of the 1940 Act, the Advisers Act, and all other federal laws
applicable to registered investment companies and the Sub-Advisor’s duties under
this Agreement. The Advisor will provide the Sub-Advisor with any
materials or information that the Sub-Advisor may reasonably request to enable
it to perform its duties and obligations under this Agreement.
The Advisor will provide the
Sub-Advisor with reasonable (30 days) advance notice, in writing, of: (i) any
change in a Fund’s investment objectives, policies and restrictions as stated in
the Prospectus; and (ii) any material change in the Trust Compliance Procedures;
and the Sub-Advisor, in the performance of its duties and obligations under this
Agreement, shall manage the Sub-Advisor Assets consistently with such changes,
provided the Sub-Advisor has received such prior notice of the effectiveness of
such changes from the Trust or the Advisor. In addition to such
notice, the Advisor shall provide to the Sub-Advisor a copy of a modified
Prospectus and copies of the revised Trust Compliance Procedures, as applicable,
reflecting such changes. The Sub-Advisor hereby agrees to provide to
the Advisor in a timely manner, in writing, such information relating to the
Sub-Advisor and its relationship to, and actions for, a Fund as may be required
to be contained in the Prospectus or in the Trust’s registration statement on
Form N-1A, or otherwise as reasonably requested by the Advisor.
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In order to assist the Trust and
the Trust’s Chief Compliance Officer (the “Trust CCO”) to satisfy the
requirements contained in Rule 38a-1 under the 1940 Act, the Sub-Advisor shall
provide to the Trust CCO: (i) direct access to the Sub-Advisor’s
chief compliance officer (the “Sub-Advisor CCO”), as reasonably requested by the
Trust CCO; (ii) a completed quarterly informational questionnaire regarding the
Sub-Advisor’s compliance program and participation in a quarterly telephone call
with the Trust CCO to discuss the responses on the questionnaire; (iii)
quarterly reports confirming that the Sub-Advisor has complied with the Trust
Compliance Procedures in managing the Sub-Advisor Assets; and (iv) quarterly
certifications indicating whether there were Material Compliance Matters (as
that term is defined by Rule 38a-1(e)(2)) that arose under the Trust Compliance
Procedures that related to the Sub-Advisor’s management of the Sub-Advisor
Assets.
(c) Sub-Advisor Compliance
Policies and Procedures. The Sub-Advisor shall promptly
provide the Trust CCO with copies of: (i) the Sub-Advisor’s policies
and procedures for compliance by the Sub-Advisor with the Federal Securities
Laws (together, the “Sub-Advisor Compliance Procedures”), and (ii) any material
changes to the Sub-Advisor Compliance Procedures. The Sub-Advisor
shall reasonably cooperate with the Trust CCO so as to facilitate the Trust
CCO’s performance of the Trust CCO’s responsibilities under Rule 38a-1 to
review, evaluate and report to the Trust’s Board of Trustees on the operation of
the Sub-Advisor Compliance Procedures, and shall promptly report to the Trust
CCO any Material Compliance Matter arising under the Sub-Advisor Compliance
Procedures involving the Sub-Advisor Assets. The Sub-Advisor shall
provide to the Trust CCO: (i) quarterly reports confirming the
Sub-Advisor’s compliance with the Sub-Advisor Compliance Procedures in managing
the Sub-Advisor Assets, and (ii) certifications indicating whether there were
Material Compliance Matters involving the Sub-Advisor that arose under the
Sub-Advisor Compliance Procedures that affected the Sub-Advisor
Assets. At least annually, the Sub-Advisor shall provide a
certification to the Trust CCO confirming that the Sub-Advisor has in place and
has implemented policies and procedures that are reasonably designed to ensure
compliance by the Sub-Advisor with the Federal Securities Laws.
(d) Voting of Proxies and Class
Action Law Suits. Unless otherwise instructed by the Advisor
or the Trust, the Sub-Advisor shall have the power, discretion and
responsibility to vote, either in person or by proxy, all securities in which
the Sub-Advisor Assets may be invested from time to time, and shall not be
required to seek instructions from the Advisor, the Trust or a
Fund. The Sub-Advisor shall also provide its Proxy Voting Policy (the
“Proxy Policy”) and, if requested by the Advisor, a summary of such Proxy Policy
suitable for including in the Prospectus, and will provide the Advisor with any
material amendment to the Proxy Policy within a reasonable time after such
amendment has taken effect. If both the Sub-Advisor and another
entity managing assets of a Fund have invested in the same security, the
Sub-Advisor and such other entity will each have the power to vote its pro rata
share of the security. Sub-Advisor is authorized, but shall not be obligated to,
cause the Fund to participate in any class action, formal or informal
reorganization or restructuring proposal, merger, combination, indenture
revision, consolidation, bankruptcy, liquidation or similar plan, agreement or
arrangement with respect to securities held by (or previously held by) the Fund
and, Sub-Advisor shall automatically and without further action by the Advisor
be appointed as the Advisor’s attorney-in-fact for any such
purpose. Sub-Advisor will provide notice to the Advisor within a
reasonable time after taking any action in connection with any such class
action, formal or informal reorganization or restructuring proposal, merger,
combination, indenture revision, consolidation, bankruptcy, liquidation or
similar plan, agreement or arrangement with respect to securities held by the
Fund.
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(e) Agent. Subject
to any other written instructions of the Advisor or the Trust, the Sub-Advisor
is hereby appointed the Advisor’s and the Trust’s agent and attorney-in-fact for
the limited purposes of executing account documentation, agreements, contracts
and other documents as the Sub-Advisor shall be requested by brokers, dealers,
counterparties and other persons in connection with its management of the
Sub-Advisor Assets, provided, that the Sub-Advisor’s actions in executing such
documents shall comply with federal regulations, all other federal laws
applicable to registered investment companies and the Sub-Advisor’s duties and
obligations under federal law, this Agreement and the Trust’s governing
documents.
(f) Brokerage. The
Sub-Advisor will place orders pursuant to the Sub Advisor’s investment
determinations for a Fund either directly with an issuer or with any broker or
dealer selected by the Sub-Advisor, pursuant to this paragraph. In
executing portfolio transactions and selecting brokers or dealers, the
Sub-Advisor will use its best efforts to seek, on behalf of a Fund, the best
overall execution available. In assessing the best overall terms
available for any transaction, the Sub-Advisor shall consider all factors that
it deems relevant, which may include, but are not limited to, the breadth of the
market in the security, the price of the security, the financial condition and
execution capability of the broker or dealer, and the reasonableness of the
commission, if any, both for the specific transaction and on a continuing
basis.
In evaluating the best overall
terms available, and in selecting the broker or dealer to execute a particular
transaction, the Sub-Advisor may also consider the brokerage and research
services (as those terms are defined in Section 28(e) of the Securities Exchange
Act of 1934, as amended (the “1934 Act”)) provided to a Fund and/or other
accounts over which the Sub-Advisor may exercise investment
discretion. The Sub-Advisor is authorized to pay to a broker or
dealer who provides such brokerage and research services a commission for
executing a portfolio transaction for any of the Funds that is in excess of the
amount of commission another broker or dealer would have charged for effecting
that transaction if, but only if, the Sub-Advisor determines in good faith that
such commission was reasonable in relation to the value of the brokerage and
research services provided by such broker or dealer, viewed in terms of that
particular transaction or in terms of the overall responsibilities of the
Sub-Advisor to a Fund. Such authorization is subject to termination
at any time by the Advisor or by the Board of Trustees of the Trust for any
reason.
Under no circumstances will the
Sub-Advisor compensate a broker or dealer for any promotion or sale of Fund
shares, or the promotion of the Genworth Financial Wealth Management investment
platform, by directing to the broker or dealer: (i) portfolio securities
transactions on behalf of the Fund; or (ii) any remuneration, including but not
limited to any commission, xxxx-up, xxxx-down, or other fee (or portion thereof)
received or to be received from such portfolio transactions effected through any
other broker (including a government securities broker) or dealer (including a
municipal securities dealer or a government securities dealer).
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The Sub-Advisor may only direct
the Fund’s portfolio securities transactions to a broker or dealer that promotes
or sells Fund shares as permitted by the provisions of the 1940 Act (and the
rules thereunder) and the policies and procedures adopted by the Trust, as
amended from time to time. The Advisor will provide the Sub-Advisor
with a copy of such policies and procedures and any amendments
thereto.
The Sub-Advisor, when selecting
brokers and dealers to effect the Fund’s portfolio securities transactions,
shall not take into account the brokers’ and dealers’ promotion or sale of
shares of the Fund or any other registered investment company, or the promotion
of the Genworth Financial Wealth Management investment platform. In
addition, the Sub-Advisor shall not enter into any agreement (whether oral or
written) or other understanding under which the Sub-Advisor directs, or is
expected to direct, the Fund’s portfolio securities transactions, or any
remuneration, including but not limited to any commission, xxxx-up, xxxx-down,
or other fee (or portion thereof) received or to be received from
such portfolio transactions effected through any other broker
(including a government securities broker) or dealer (including a municipal
securities dealer or a government securities dealer), or to a broker (including
a government securities broker) or dealer (including a municipal securities
dealer or a government securities dealer) in consideration for the promotion or
sale of shares of the Fund or any other registered investment
company.
In addition, the Sub-Advisor is
authorized to allocate purchase and sale orders for portfolio securities to
brokers or dealers that are affiliated with the Advisor, the Sub-Advisor, the
Trust’s principal underwriter, or other sub-advisors (if applicable) if the
Sub-Advisor believes that the quality of the transaction and the commission are
comparable to what they would be with other qualified firms and provided that
the transactions are consistent with the Trust’s Rule 17e-1 and/or Rule 10f-3
procedures (as applicable). The Advisor will identify all brokers and
dealers affiliated with the Trust, the Advisor, the Trust’s principal
underwriter (and the other Sub-Advisors of the Fund), to the extent such
information is necessary for the Sub-Advisor to comply with applicable federal
securities laws, other than those whose sole business is the distribution of
mutual fund shares, who effect securities transactions for customers and the
Sub-Advisor may solely rely on such identification to determine all such
affiliated brokers and dealers. The Advisor shall promptly furnish a
written notice to the Sub-Advisor if the information so provided is no longer
accurate.
In connection with its management
of the Sub-Advisor Assets and consistent with its fiduciary obligation to the
Trust and other clients, the Sub-Advisor, to the extent permitted by applicable
laws and regulations, may, but shall be under no obligation to, aggregate the
securities or futures contracts to be sold or purchased in order to obtain the
most favorable price or lower brokerage commissions and efficient
execution. In such event, allocation of the securities or futures
contracts so purchased or sold, as well as the expenses incurred in the
transaction, will be made by the Sub-Advisor in the manner the Sub-Advisor
considers to be, over time, the most equitable and consistent with its fiduciary
obligations to the Sub-Advisor Assets and to such other clients.
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(g) Securities
Transactions. In no instance will any Fund’s portfolio
securities be purchased from or sold to the Advisor, the Sub-Advisor, the
Trust’s principal underwriter, or any affiliated person of the Trust, the
Advisor, the Sub-Advisor or the Trust’s principal underwriter (as defined in the
1940 Act), acting as principal in the transaction, except to the extent
permitted by the SEC and the 1940 Act, including Rule 17a-7
thereunder.
The Sub-Advisor acknowledges that
the Advisor and the Trust may rely on Rule 17a-7, Rule 17a-10, Rule 10f-3, Rule
12d3-1 and Rule 17e-1 under the 1940 Act, and the Sub-Advisor hereby agrees that
it shall not consult with any other sub-advisor to the Trust with respect to
transactions in securities for the Sub-Advisor Assets or any other transactions
of Trust assets.
The Sub-Advisor is authorized to
engage in transactions in which the Sub-Advisor, or an affiliate of the
Sub-Advisor, acts as a broker for both the Fund and for another party on the
other side of the transaction (“agency cross transactions”). The
Sub-Advisor shall effect any such agency cross transactions in compliance with
Rule 206(3)-2 under the Advisers Act and any other applicable provisions of the
federal securities laws and shall provide the Advisor with periodic reports
describing such agency cross transactions. By execution of this
Agreement, the Advisor authorizes the Sub-Advisor or its affiliates to engage in
agency cross transactions, as described above. The Advisor may revoke
its consent at any time by written notice to the Sub-Advisor.
The Sub-Advisor hereby represents
that it has implemented policies and procedures that will prevent the disclosure
by it, its employees or its agents of the Trust’s portfolio holdings to any
person or entity other than the Advisor, the Trust’s custodian, or other persons
expressly designated by the Advisor.
(h) Code of
Ethics. The Sub-Advisor hereby represents that it has adopted
policies and procedures and a code of ethics that meet the requirements of Rule
17j-1 under the 1940 Act and Rule 204A-1 under the Advisers
Act. Copies of such policies and procedures and code of ethics and
any material changes or supplements thereto shall be delivered to the Advisor
and the Trust, and any material violation of such policies, and procedures and
code of ethics by personnel of the Sub-Advisor, the sanctions imposed in
response thereto, and any issues arising under such policies, and procedures and
code of ethics shall be reported to the Advisor and the Trust at the times and
in the format reasonably requested by the Advisor or the Board of
Trustees.
(i) Books and
Records. The Sub-Advisor shall maintain separate detailed
records of all matters pertaining to the Sub-Advisor Assets, including, without
limitation, brokerage and other records of all securities transactions. Any
records required to be maintained and preserved pursuant to the provisions of
Rule 31a-1 and Rule 31a-2 promulgated under the 1940 Act that are prepared or
maintained by the Sub-Advisor on behalf of the Trust are the property of the
Trust and will be surrendered promptly to the Trust upon request, provided that
the Sub-Advisor may also maintain copies of such records in order to comply with
its record and data protection requirements. The Sub-Advisor further
agrees to preserve for the periods prescribed in Rule 31a-2 under the 1940 Act
the records required to be maintained under Rule 31a-1 under the 1940
Act.
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(j) Information Concerning
Sub-Advisor Assets and the Sub-Advisor. From time to time as
the Advisor, and any consultants designated by the Advisor, or the Trust may
request, the Sub-Advisor will furnish the requesting party reports on portfolio
transactions and reports on Sub-Advisor Assets held in the portfolio, all in
such detail as the Advisor, its consultant(s) or the Trust may reasonably
request. The Sub-Advisor will provide the Advisor with information
(including information that is required to be disclosed in the Prospectus) with
respect to the portfolio managers responsible for Sub-Advisor Assets, any
changes in the portfolio managers responsible for Sub-Advisor Assets, any
material changes in the ownership or senior executive management of the
Sub-Advisor, or of material changes in the control of the
Sub-Advisor. The Sub-Advisor will promptly notify the Advisor of any
pending investigation, material litigation, administrative proceeding or any
other significant regulatory inquiry which the Sub-Advisor reasonably believes
could have a material adverse effect upon the Fund. Upon reasonable
request, the Sub-Advisor will make available its officers and employees to meet
with the Trust’s Board of Trustees to review the Sub-Advisor
Assets.
(k) Valuation of Sub-Advisor
Assets. As requested by the Advisor or the Trust’s Valuation
Committee, the Sub-Advisor hereby agrees to provide additional assistance to the
Valuation Committee of the Trust, the Advisor and the Trust’s pricing agents in
valuing Sub-Advisor Assets held in the portfolio. Such assistance may
include providing views with respect to fair value pricing of portfolio
securities, as requested by the Advisor, provided that the Advisor shall retain
responsibility for valuing Sub-Advisor Assets.
The Sub-Advisor also
will provide such information or perform such additional acts as are customarily
and reasonably performed by a Sub-Advisor and may be required for a Fund or the
Advisor to comply with their respective obligations under applicable federal
securities laws, including, without limitation, the 1940 Act, the Advisers Act,
the 1934 Act, the Securities Act of 1933, as amended (the “1933 Act”) and any
rule or regulation thereunder.
(l) Custody
Arrangements. The Sub-Advisor, on each business day in the
United Kingdom, shall provide the Advisor, its consultant(s) and the Trust’s
custodian such information as the Advisor and the Trust’s custodian may
reasonably request relating to all transactions concerning the Sub-Advisor
Assets.
(m) Historical Performance
Information. To the extent agreed upon by the parties, the
Sub-Advisor will provide the Trust with historical performance information on
similarly managed investment companies or other accounts to be included in the
Prospectus or for any other uses permitted by applicable law.
(n) Regulatory
Examinations. The Sub-Advisor will cooperate reasonably with
the Advisor and/or the Trust in responding to any regulatory or compliance
examinations or inspections (including information requests) relating to the
Trust, the Fund or the Advisor brought by any governmental or regulatory
authorities having appropriate jurisdiction (including, but not limited to, the
SEC).
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3. Independent
Contractor. In the performance of its duties hereunder, the
Sub-Advisor is and shall be an independent contractor and, unless otherwise
expressly provided herein or otherwise authorized in writing, shall have no
authority to act for or represent a Fund, the Trust or the Advisor in any way or
otherwise be deemed an agent of a Fund, the Trust or the Advisor.
4. Services to Other
Clients. Nothing herein contained shall limit the freedom of
the Sub-Advisor or any affiliated person of the Sub-Advisor to render investment
advisory, supervisory and other services to other investment companies, to act
as investment adviser or investment counselor to other persons, firms or
corporations, or to engage in other business activities. It is
understood that the Sub-Advisor may give advice and take action for its other
clients that may differ from advice given, or the timing or nature of action
taken, for a Fund. The Sub-Advisor is not obligated to initiate
transactions for a Fund in any security that the Sub-Advisor, its principals,
affiliates or employees may purchase or sell for its or their own accounts or
other clients.
5. Expenses. During
the term of this Agreement, the Sub-Advisor will pay all expenses incurred by it
in connection with its activities under this Agreement other than the costs of
securities, commodities and other investments (including brokerage commissions
and other transaction charges, if any) purchased or otherwise acquired, or sold
or otherwise disposed of for a Fund. The Sub-Advisor, at its sole
expense, shall employ or associate itself with such persons as it believes to be
particularly fitted to assist it in the execution of its duties under this
Agreement. The Trust or the Advisor, as the case may be, shall reimburse the
Sub-Advisor for any expenses as may be reasonably incurred by the Sub-Advisor,
at the request of and on behalf of a Fund or the Advisor. The Sub-Advisor shall
keep and supply to the Trust and the Advisor reasonable records of all such
expenses.
6. Compensation. For
the services provided and the expenses assumed with respect to a Fund pursuant
to this Agreement, the Sub-Advisor will be entitled to the fee listed for the
Fund(s) on Exhibit A. Such fees will be computed daily and payable in
arrears no later than the thirtieth (30th) day following the end of each month,
from the Trust on behalf of the Fund(s), calculated at an annual rate based on
the Sub-Advisor Assets’ average daily net assets. The Advisor shall
cause the Fund’s accounting agent to calculate such fees and provide the
Sub-Advisor with supporting calculations.
If this
Agreement is terminated prior to the end of any calendar month, the fee shall be
prorated for the portion of any month in which this Agreement is in effect
according to the proportion which the number of calendar days, during which this
Agreement is in effect, bears to the number of calendar days in the month, and
shall be payable within ten (10) days after the date of
termination.
7. Representations and
Warranties of the Sub-Advisor. The Sub-Advisor represents and
warrants to the Advisor and the Trust as follows:
(a)
The Sub-Advisor is registered as an investment adviser under
the Advisers Act;
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(b) The
Sub-Advisor is a limited liability company duly organized and validly existing
under the laws of England and Wales, with the power to own and possess its
assets and carry on its business as it is now being conducted;
(c) The
execution, delivery and performance by the Sub-Advisor of this Agreement are
within the Sub-Advisor’s powers and no action by or in respect of, or filing
with, any governmental body, agency or official is required on the part of the
Sub-Advisor for the execution, delivery and performance by the Sub-Advisor of
this Agreement, and the execution, delivery and performance by the Sub-Advisor
of this Agreement do not contravene or constitute a default under: (i) any
provision of applicable law, rule or regulation; (ii) the Sub-Advisor’s
governing instruments; or (iii) any agreement, judgment, injunction, order,
decree or other instrument binding upon the Sub-Advisor; and
(d)
The Form ADV of the Sub-Advisor previously
provided to the Advisor is a true and complete copy of the form as currently
filed with the SEC and the information contained therein is accurate and
complete in all material respects and does not omit to state any material fact
necessary in order to make the statements made, in light of the circumstances
under which they are made, not misleading. The Sub-Advisor will
promptly provide the Advisor and the Trust with a complete copy of all
subsequent amendments to its Form ADV.
8. Representations and
Warranties of the Advisor. The Advisor represents and warrants
to the Sub-Advisor and the Trust as follows:
(a) The
Advisor is registered as an investment adviser under the Advisers
Act;
(b) The
Advisor is a corporation duly organized and validly existing under the laws of
the State of California with the power to own and possess its assets and carry
on its business as it is now being conducted;
(c) The
execution, delivery and performance by the Advisor of this Agreement are within
the Advisor’s powers and have been duly authorized by all necessary action on
the part of its Board of Directors, and no action by or in respect of, or filing
with, any governmental body, agency or official is required on the part of the
Advisor for the execution, delivery and performance by the Advisor of this
Agreement, and the execution, delivery and performance by the Advisor of this
Agreement do not contravene or constitute a default under: (i) any provision of
applicable law, rule or regulation; (ii) the Advisor’s governing instruments; or
(iii) any agreement, judgment, injunction, order, decree or other instrument
binding upon the Advisor;
(d) The
Advisor acknowledges that it received a copy of the Sub-Advisor’s Form ADV prior
to the execution of this Agreement;
(e) The
Advisor and the Trust have duly entered into the Advisory Agreement pursuant to
which the Trust authorized the Advisor to enter into this
Agreement.
9. Survival of Representations
and Warranties; Duty to Update Information. All
representations and warranties made by the Sub-Advisor and the Advisor pursuant
to Sections 7 and 8, respectively, of this Agreement shall survive for the
duration of this Agreement and the parties hereto shall promptly notify each
other in writing upon becoming aware that any of the foregoing representations
and warranties are no longer true.
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10. Liability and
Indemnification.
(a) Liability. The
duties of the Sub-Advisor shall be confined to those expressly set forth herein,
with respect to the Sub-Advisor Assets. The Sub-Advisor shall not be
liable for any loss arising out of any portfolio investment or disposition
hereunder, except a loss resulting from willful misfeasance, bad faith or
negligence in the performance of its duties, or by reason of reckless disregard
of its obligations and duties hereunder, except as may otherwise be provided
under provisions of applicable state law that cannot be waived or modified
hereby.
(b) Indemnification. The
Sub-Advisor shall indemnify the Advisor, the Trust and each Fund, and their
respective affiliates and controlling persons (the “Sub-Advisor Indemnified
Persons”) for any liability and expenses, including reasonable attorneys’ fees,
which the Advisor, the Trust or a Fund and their respective affiliates and
controlling persons may sustain as a result of the Sub-Advisor’s willful
misfeasance, bad faith, negligence, or reckless disregard of its duties
hereunder; provided, however, that the Sub-Advisor Indemnified
Persons shall not be indemnified for any liability or expenses which may be
sustained as a direct result of the Advisor’s willful misfeasance, bad faith,
negligence, or reckless disregard of its duties hereunder, or violation of
applicable law.
Notwithstanding
any other provision in this Agreement, the Sub-Advisor will indemnify the
Advisor, the Trust and each Fund, and their respective affiliates and
controlling persons for any liability and expenses, including reasonable
attorneys’ fees, to which they may be subjected as a result of their reliance
upon and use of the historical performance calculations provided by the
Sub-Advisor concerning the Sub-Advisor’s composite account data or historical
performance information on similarly managed investment companies or accounts
which was prepared with willful misfeasance, bad faith, negligence, or reckless
disregard of Sub-Advisor’s duties hereunder, except that the Advisor, the Trust
and each Fund and their respective affiliates and controlling persons shall not
be indemnified for a loss or expense resulting from their willful misfeasance,
bad faith, negligence or reckless disregard of its duties hereunder in using
such numbers, or for their failure to conduct reasonable due diligence with
respect to such information.
The
Advisor shall indemnify the Sub-Advisor, its affiliates and its controlling
persons (the “Advisor Indemnified Persons”), for any liability and expenses,
including reasonable attorneys’ fees, howsoever arising from, or in connection
with, the Advisor’s breach of this Agreement, or its representations and
warranties herein, or as a result of the Advisor’s willful misfeasance, bad
faith, negligence, reckless disregard of its duties hereunder, or violation of
applicable law; provided, however, that the Advisor Indemnified Persons shall
not be indemnified for any liability or expenses which may be sustained as a
result of the Sub-Advisor’s willful misfeasance, bad faith, negligence, or
reckless disregard of its duties hereunder.
10
11. Duration and
Termination.
(a) Duration. This
Agreement, unless sooner terminated as provided herein, shall for the Fund(s)
listed on Exhibit A attached hereto remain in effect from the later of the date
of execution or Board approval as required under the 1940 Act (the “Effective
Date.”), until May 31, 2010, and thereafter, for periods of one year, so long as
such continuance thereafter is specifically approved at least annually: (i) by
the vote of a majority of those Trustees of the Trust who are not interested
persons of any party to this Agreement, 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 the vote of a majority of the outstanding voting securities of each Fund
(except as such vote may be unnecessary pursuant to relief granted by an
exemptive order from the SEC). The foregoing requirement that
continuance of this Agreement be “specifically approved at least annually” shall
be construed in a manner consistent with the 1940 Act and the rules and
regulations thereunder.
(b)
Termination. This
Agreement may be terminated as to any Fund at any time, without the payment of
any penalty by: (i) the vote of a majority of the Trustees of the
Trust, the vote of a majority of the outstanding voting securities of the Fund,
or the Advisor; or (ii) the Sub-Advisor, on not less than 60 days written notice
to the Advisor and the Trust. This Agreement may also be terminated
as to any Fund at any time by any party hereto immediately upon written notice
to the other parties in the event of a breach of any material provision of this
Agreement by any of the parties.
This
Agreement shall not be assigned and shall terminate automatically in the event
of its assignment, except as provided otherwise by any rule, exemptive order
issued by the SEC, or No-Action Letter provided or pursuant to the 1940 Act, or
upon the termination of the Advisory Agreement.
In the
event that there is a proposed change in control of the Sub-Advisor that would
act to terminate this Agreement and the Board of Trustees of the Trust
determines to approve the continuation of this Agreement without a shareholder
vote pursuant to the exemptive order issued to the Advisor and the Trust by
the SEC, the Sub-Advisor agrees to assume all external costs and expenses
associated with the preparation and mailing of an information
statement. The external costs and expenses of preparing and mailing
the information statement to be assumed by the Sub-Advisor shall include
external legal, printing and mailing costs, and shall be limited to the lesser
of: (i) the actual costs incurred, or (ii) twenty thousand U.S. dollars
($20,000).
This
Agreement shall extend to and bind the heirs, executors, administrators and
successors of the parties hereto.
12. Amendment. This
Agreement may be amended by mutual consent of the parties, provided that the
terms of any material amendment shall be approved by: (a) the Trust’s Board of
Trustees, and (b) the vote of a majority of those Trustees of the Trust who are
not interested persons of any party to this Agreement cast in person at a
meeting called for the purpose of voting on such approval, if such
approval. In addition, any such amendment shall be approved by a vote
of the majority of the Fund’s outstanding voting securities, unless shareholder
approval is not required by applicable law or regulation, by exemptive relief
granted by the SEC, or by a No-Action position of the SEC staff.
11
13. Confidentiality. Any
information or recommendations supplied by either the Advisor or the
Sub-Advisor, that are not otherwise in the public domain or previously known to
the other party in connection with the performance of its obligations and duties
hereunder, including portfolio holdings of the Trust, financial information or
other information relating to a party to this Agreement, are to be regarded as
confidential (“Confidential Information”) and held in the strictest
confidence. Except as may be required by applicable law or rule or as
requested by regulatory authorities having jurisdiction over a party to this
Agreement, Confidential Information may be used only by the party to which said
information has been communicated and such other persons as that party believes
are necessary to carry out the purposes of this Agreement, the custodian, and
such persons as the Advisor may designate in connection with the Sub-Advisor
Assets. Nothing in this Agreement shall be construed to prevent the
Sub-Advisor from giving other entities investment advice about, or trading on
their behalf, in the securities of a Fund or the Advisor. Notwithstanding the
foregoing, Sub-Advisor is permitted to: (i) include the Fund’s performance in
calculating composites; (ii) provide the Advisor’s name to brokers and other
third parties providing services to the Advisor; and (iii) include the Advisor’s
name in Sub-Advisor’s representative client list.
14. Use of Sub-Advisor’s
Name. During the term of this Agreement, the Advisor shall
have permission to use the Sub-Advisor’s name in the name of, and in the
marketing of, the Fund, and agrees to furnish the Sub-Advisor at its principal
office all marketing materials, prospectuses, proxy statements and reports to
shareholders prepared for distribution to shareholders of the Fund or the
public, which refer to the Sub-Advisor in any way. Prior to the use
thereof, the Advisor agrees to provide the Sub-Advisor with the opportunity to
review any materials which disclose information, the substance of which is not
included in the Trust’s registration statement (as amended from time to time),
and which refers to the Sub-Advisor in any way.
15. Notice. Any
notice, advice or report to be given pursuant to this Agreement shall be deemed
sufficient if delivered or mailed by registered, certified or overnight mail,
postage prepaid addressed by the party giving notice to the other party at the
last address furnished by the other party:
(a) If
to the Advisor:
Genworth
Financial Wealth Management, Inc.
0000
Xxxxxx Xxxxx Xxxx., Xxxxx 000
Xxxxxxxx
Xxxx, XX 00000-0000
Attn:
Xxxxxx X. Xxxxxx
(b) If
to the Sub-Advisor:
Mondrian
Investment Partners Limited
0xx Xxxxx,
00 Xxxxxxx Xxxxxx
Xxxxxx,
XX0X 0XX
Xxxxxx
Xxxxxxx
Attn.:
Chief Executive Officer
12
With a
copy to:
Mondrian
Investment Partners (U.S.), Inc.
Two
Commerce Square
0000
Xxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxxxxxx,
XX 00000
Attn.: President
16. Governing Law. This Agreement shall be
governed by the internal 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. 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.
17. Entire
Agreement. This Agreement embodies the entire agreement and
understanding between the parties hereto, and supersedes all prior agreements
and understandings relating to this Agreement’s subject matter. This
Agreement may be executed in any number of counterparts, each of which shall be
deemed to be an original, but such counterparts shall, together, constitute only
one instrument.
18. 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.
19. Certain
Definitions. For the purposes of this Agreement and except as
otherwise provided herein, “interested person,” “affiliated person,”
“affiliates,” “controlling persons” and “assignment” shall have their respective
meanings as set forth in the 1940 Act, subject, however, to such exemptions as
may be granted by the SEC, and the term “Fund” or “Funds” shall refer to those
Fund(s) for which the Sub-Advisor provides investment management services and as
are listed on Exhibit A to this Agreement.
20. Captions. The
captions herein are included for convenience of reference only and shall be
ignored in the construction or interpretation hereof.
13
IN
WITNESS WHEREOF, the parties hereto have executed this Agreement on the day and
year first written above.
ADVISOR
GENWORTH
FINANCIAL WEALTH
MANAGEMENT,
INC.
By:__________________________________
Name:
Xxxxxx X. Xxxxxx
Title:
Senior Vice President and Chief
Operations
Officer
SUB-ADVISOR
MONDRIAN
INVESTMENT PARTNERS
LIMITED
By:__________________________________
Name:
Title:
14
EXHIBIT
A
SUBADVISORY
AGREEMENT
BETWEEN
GENWORTH FINANCIAL WEALTH MANAGEMENT, INC.
AND
MONDRIAN
INVESTMENT PARTNERS LIMITED
AssetMark
International Equity Fund
FEE
SCHEDULE
|
ASSETS
|
COMPENSATION
|
|
All
Assets
|
0.40%
|
