Exhibit No. EX-99.23(d)(4)(k)
SUBADVISORY AGREEMENT
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THIS AGREEMENT is made and entered into as of the 2nd day of May, 2005,
among GARTMORE VARIABLE INSURANCE TRUST (formerly Nationwide Separate Account
Trust), a Delaware statutory trust (the "Trust"), GARTMORE MUTUAL FUND CAPITAL
TRUST (formerly Villanova Mutual Fund Capital Trust) (the "Adviser"), a Delaware
statutory trust registered under the Investment Advisers Act of 1940 (the
"Advisers Act"), and Xxxxxxx & Xxxx Investment Management Company, a Kansas
corporation (the "Subadviser"), and also registered under the Advisers Act.
W I T N E S S E T H:
WHEREAS, the Trust is 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");
WHEREAS, the Adviser has, pursuant to an Investment Advisory Agreement
with the Trust dated as of May 2, 2005 (the "Advisory Agreement") as
subsequently amended, been retained to act as investment adviser for certain of
the series of the Trust, which are listed on Exhibit A to this Agreement (each,
a "Fund");
WHEREAS, the Advisory Agreement permits the Adviser 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 Adviser desires to retain Subadviser to assist it in the
provision of a continuous investment program for that portion of the Trust's
assets which the Adviser will assign to the Subadviser (the "Subadviser
Assets"), and Subadviser is willing to render such services subject to the terms
and conditions set forth in this Agreement.
NOW, THEREFORE, the parties do mutually agree and promise as follows:
1. APPOINTMENT AS SUBADVISER. The Adviser hereby retains the Subadviser
to act as investment adviser for and to manage the Subadviser Assets subject to
the supervision of the Adviser and the Board of Trustees of the Trust and
subject to the terms of this Agreement; and the Subadviser hereby accepts such
employment. In such capacity, the Subadviser shall be responsible for the
investment management of the Subadviser Assets. It is recognized that the
Subadviser and certain of its affiliates now act, and that from time to time
hereafter may act, as investment adviser to one or more other investment
companies and to fiduciary or other managed accounts and that the Adviser and
the Trust have no objection to such activities.
2. DUTIES OF SUBADVISER.
(a) INVESTMENTS. The Subadviser is hereby authorized and directed
and hereby agrees, subject to the stated investment policies and
restrictions of the Fund as set forth in the Fund's prospectus and
statement of additional information as currently in effect and as
supplemented or amended from time to time (collectively referred to
hereinafter as the "Prospectus") and subject to the directions of the
Adviser and the Trust's Board of Trustees, to purchase, hold and sell
investments for the Subadviser Assets and to monitor on a continuous
basis the performance of the Subadviser Assets. In providing these
services, the Subadviser will conduct a continual program of
investment, evaluation and, if appropriate, sale and reinvestment of
the Subadviser Assets. The Adviser agrees to provide the Subadviser
with such assistance as may be reasonably requested by the Subadviser
in connection with the Subadviser's activities under this Agreement,
including, without limitation, information concerning a Fund, their
funds available, or to become available, for investment and generally
as to the conditions of a Fund's or Trust's affairs.
(b) COMPLIANCE WITH APPLICABLE LAWS AND GOVERNING DOCUMENTS. In the
performance of its duties and obligations under this Agreement, the
Subadviser shall act in conformity with the Prospectus and the Trust's
Agreement and Declaration of Trust and By-Laws as currently in effect
and, as soon as practical after the Trust, the Fund or the Adviser
notifies the Subadviser thereof, as supplemented, or amended and/or
restated from time to time (referred to hereinafter as the "Declaration
of Trust" and "By-Laws," respectively) and will conform to, and comply
with, the requirements of the 1940 Act, the Internal Revenue Code of
1986, as amended (the "Code"), and all other applicable federal and
state laws and regulations. Notwithstanding the foregoing, the Adviser
shall remain responsible for ensuring each Fund's overall compliance
with the 1940 Act, the Code and all other applicable federal and state
laws and regulations and the Subadviser is only obligated to comply
with this subsection (b) with respect to the Subadviser Assets. The
Adviser will provide the Subadviser with a copy of the minutes of the
meetings of the Board of Trustees of the Trust to the extent they may
affect a Fund or the duties of the Subadviser, and with the copies of
any financial statements or reports made by a Fund to its shareholders,
and any further materials or information which the Subadviser may
reasonably request to enable it to perform its functions under this
Agreement.
The Adviser will provide the Subadviser with reasonable advance
notice of any change in a Fund's investment objectives, policies and
restrictions as stated in the Prospectus, and the Subadviser shall, in
the performance of its duties and obligations under this Agreement,
manage the Subadviser Assets consistent with such changes, provided the
Subadviser has received prompt notice of the effectiveness of such
changes from the Trust or the Adviser. In addition to such notice, the
Adviser shall provide to the Subadviser a copy of a modified Prospectus
reflecting such changes. The Adviser acknowledges and agrees that the
Prospectus will at all times be in compliance with all disclosure
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requirements under all applicable federal and state laws and
regulations relating to the Trust or the Fund, including, without
limitation, the 1940 Act, and the rules and regulations thereunder, and
that the Subadviser shall have no liability in connection therewith,
except as to the accuracy of material information furnished in writing
by the Subadviser to the Trust or to the Adviser specifically for
inclusion in the Prospectus. The Subadviser hereby agrees to provide to
the Adviser in a timely manner such information relating to the
Subadviser and its relationship to, and actions for, the Trust as may
be required to be contained in the Prospectus or in the Trust's
Registration Statement on Form N-1A.
(c) VOTING OF PROXIES. The Subadviser shall have the power to vote,
either in person or by proxy, all securities in which the Subadviser
Assets may be invested from time to time, and shall not be required to
seek or take instructions from, the Adviser, the Fund or the Trust or
take any action with respect thereto. If both the Subadviser and
another entity managing assets of a Fund have invested in the same
security, the Subadviser and such other entity will each have the power
to vote its pro rata share of the security.
The Subadviser will establish a written procedure for proxy voting
in compliance with current applicable rules and regulations, including
but not limited to Rule 30b1-4 under the 1940 Act. The Subadviser will
provide the Adviser or its designee, a copy of such procedure and
establish a process for the timely distribution of the Subadviser's
voting record with respect to the Fund's securities and other
information necessary for the Fund to complete information required by
Form N-1A under the 1940 Act and the Securities Act of 1933, as amended
(the "Securities Act"), Form N-PX under the 1940 Act, and Form N-CSR
under the Xxxxxxxx-Xxxxx Act of 2002, as amended, respectively.
(d) AGENT. Subject to any other written instructions of the Adviser
or the Trust, the Subadviser is hereby appointed the Adviser'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 Subadviser shall be requested by brokers, dealers,
counterparties and other persons in connection with its management of
the Subadviser Assets. The Subadviser agrees to provide the Adviser and
the Trust with copies of any such agreements executed on behalf of the
Adviser or the Trust.
(e) BROKERAGE. The Subadviser is authorized, subject to the
supervision of the Adviser and the Trust's Board of Trustees, to
establish and maintain accounts on behalf of each Fund with, and place
orders for the purchase and sale of the Subadviser Assets with or
through, such persons, brokers (including, to the extent permitted by
applicable law, any broker affiliated with the Subadviser) or dealers
(collectively, "Broker(s)") as Subadviser may elect and negotiate
commissions to be paid on such transactions. The Subadviser, however,
is not required to obtain the consent of the Adviser or the Trust's
Board of Trustees prior to establishing any such brokerage account. The
Subadviser shall place all orders for the purchase and sale of
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portfolio investments for a Fund's account with Brokers selected by the
Subadviser. In the selection of such Brokers and the placing of such
orders, the Subadviser shall seek 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 provided below or in accordance with the policies
set forth in the Subadviser's Form ADV. In using its reasonable efforts
to obtain for a Fund the most favorable price and execution available,
the Subadviser, bearing in mind the best interests of each Fund at all
times, shall consider all factors it deems relevant, including price,
the size of the transaction, the breadth and nature of the market for
the security, the difficulty of the execution, the amount of the
commission, if any, the timing of the transaction, market prices and
trends, the reputation, experience and financial stability of the
Broker involved, and the quality of service rendered by the Broker in
other transactions. Subject to such policies as the Trustees may
determine, or as may be mutually agreed to by the Adviser and the
Subadviser, 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 its having caused a Fund to pay a Broker that
provides brokerage and research services (within the meaning of Section
28(e) of the Securities Exchange Act of 1934) to the Subadviser an
amount of commission for effecting a Fund investment transaction that
is in excess of the amount of commission that another Broker would have
charged for effecting that transaction if, but only if, the Subadviser
determines in good faith that such commission was reasonable in
relation to the value of the brokerage and research services provided
by such Broker viewed in terms of either that particular transaction or
the overall responsibility of the Subadviser with respect to the
accounts as to which it exercises investment discretion.
It is recognized that the services provided by such Brokers may be
useful to the Subadviser in connection with the Subadviser's services
to other clients. On occasions when the Subadviser deems the purchase
or sale of a security to be in the best interests of a Fund as well as
other clients of the Subadviser, the Subadviser, to the extent
permitted by applicable laws and regulations, may, but shall be under
no obligation to, aggregate the securities 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 securities so
sold or purchased, as well as the expenses incurred in the transaction,
will be made by the Subadviser in the manner the Subadviser considers
to be the most equitable and consistent with its fiduciary obligations
to each Fund and to such other clients. It is recognized that in some
cases, this procedure may adversely affect the price paid or received
by a Fund or the size of the position obtainable for, or disposed of
by, the Fund.
(f) SECURITIES TRANSACTIONS. The Subadviser and any affiliated
person of the Subadviser will not purchase securities or other
instruments from or sell securities or other instrument to the Fund;
provided, however, the Subadviser or any affiliated person of the
Subadviser may purchase securities or other instruments from or sell
securities or other instruments to the Fund if such transaction is
permissible under applicable laws and regulations, including, without
limitation, the 1940 Act and the Advisers Act and the rules and
regulations promulgated thereunder.
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The Subadviser, including its Access Persons (as defined in
subsection (e) of Rule 17j-1 under the 1940 Act), agrees to observe and
comply with Rule 17j-1 and its Code of Ethics (which shall comply in
all material respects with Rule 17j-1), as the same may be amended from
time to time. On at least an annual basis, the Subadviser will comply
with the reporting requirements of Rule 17j-1, which may include either
(i) certifying to the Adviser that the Subadviser and its Access
Persons have complied with the Subadviser's Code of Ethics with respect
to the Subadviser Assets or (ii) identifying any violations which have
occurred with respect to the Subadviser Assets.
(g) BOOKS AND RECORDS. The Subadviser shall maintain separate
detailed records of all matters pertaining to the Subadviser Assets
(the "Fund's Records"), including, without limitation, brokerage and
other records of all securities transactions. The Subadviser
acknowledges that the Fund's Records are property of the Trust; except
to the extent that the Subadviser is required to maintain the Fund's
Records under the Advisers Act or other applicable law. . The Fund's
Records (relating to the Subadviser Assets) shall be available to the
Adviser at any time upon reasonable request during normal business
hours and shall be available for telecopying without delay to the
Adviser during any day that the Fund is open for business.
(h) INFORMATION CONCERNING SUBADVISER ASSETS AND SUBADVISER. From
time to time as the Adviser or the Trust may request, the Subadviser
will furnish the requesting party reports on portfolio transactions and
reports on Subadviser Assets held in the portfolio, all in such detail
as the Adviser or the Trust may reasonably request. The Subadviser will
also inform the Adviser in a timely manner of material changes in
portfolio managers responsible for Subadviser Assets, any changes in
the ownership or management of the Subadviser, or of material changes
in the control of the Subadviser. Upon reasonable request, the
Subadviser will make available its officers and employees to meet with
the Trust's Board of Trustees to review the Subadviser Assets.
The Subadviser will also provide such information or perform such
additional acts as are customarily performed by a subadviser and may be
required for the Trust or the Adviser to comply with their respective
obligations under applicable laws, including without limitation, the
Code, the 1940 Act, the Advisers Act, and the Securities Act of 1933,
as amended (the "Securities Act"), and any rule or regulation
thereunder.
(i) CUSTODY ARRANGEMENTS. The Subadviser shall on each business
day provide the Adviser and the Trust's custodian such information
as the Adviser and the Trust's custodian may reasonably request
relating to all transactions concerning the Subadviser Assets.
(j) HISTORICAL PERFORMANCE INFORMATION. To the extent agreed upon by
the parties, the Subadviser will provide the Trust with historical
performance information on similarly managed investment companies or
for other accounts to be included in the Prospectus or for any other
uses permitted by applicable law.
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3. INDEPENDENT CONTRACTOR. In the performance of its duties hereunder,
the Subadviser 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 the Fund, the Trust or the Adviser in any way
or otherwise be deemed an agent of the Fund, the Trust or the Adviser.
4. EXPENSES. During the term of this Agreement, Subadviser will pay all
expenses incurred by it in connection with its activities under this Agreement
other than the cost of securities, commodities and other investments (including
brokerage commissions and other transaction charges, if any) purchased for a
Fund. The Subadviser shall, at its sole expense, 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 Subadviser shall not be
responsible for the Trust's, the Fund's or Adviser's expenses, which shall
include, but not be limited to, organizational and offering expenses (which
include out-of-pocket expenses, but not overhead or employee costs of the
Subadviser); expenses for legal, accounting and auditing services; taxes and
governmental fees; dues and expenses incurred in connection with membership in
investment company organizations; costs of printing and distributing shareholder
reports, proxy materials, prospectuses, stock certificates and distribution of
dividends; charges of the Fund's custodians and sub-custodians, administrators
and sub-administrators, registrars, transfer agents, dividend disbursing agents
and dividend reinvestment plan agents; payment for portfolio pricing services to
a pricing agent, if any; registration and filing fees of the SEC; expenses of
registering or qualifying securities of the Fund for sale in the various states;
freight and other charges in connection with the shipment of the Fund's
portfolio securities; fees and expenses of non-interested Trustees; salaries of
shareholder relations personnel; costs of shareholders meetings; insurance;
interest; brokerage costs; and litigation and other extraordinary or
non-recurring expenses. The Trust or the Adviser, as the case may be, shall
reimburse the Subadviser for any expenses of the Funds or the Adviser as may be
reasonably incurred by such Subadviser on behalf of the Fund or the Adviser. The
Subadviser shall keep and supply to the Trust and the Adviser reasonable records
of all such expenses.
5. COMPENSATION. For the services provided and the expenses assumed
with respect to a Fund pursuant to this Agreement, the Subadviser will be
entitled to the fee listed for each Fund on Exhibit A. Such fees will be
computed daily and payable no later than the seventh (7th) business day
following the end of each month, from the Adviser or the Trust, calculated at an
annual rate based on the Subadviser Assets' average daily net assets.
The method of determining net asset value of the Subadviser Assets for
purposes hereof shall be the same as the method of determining net asset value
for purposes of establishing the offering and redemption price of the shares of
the Trust as described in the Fund's Prospectus. If this Agreement shall be
effective for only a portion of a month, the aforesaid fee shall be prorated for
the portion of such month during which this Agreement is in effect.
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6. REPRESENTATIONS AND WARRANTIES OF SUBADVISER. The Subadviser
represents and warrants to the Adviser and the Trust as follows:
(a) The Subadviser is registered as an investment adviser under the
Advisers Act;
(b) The Subadviser is registered as a Commodity Trading Advisor
under the Commodity Exchange Act, as amended (the "CEA"), with the
Commodity Futures Trading Commission (the "CFTC"), or is not required
to file such exemption;
(c) The Subadviser is a partnership duly organized and properly
registered and operating under the laws of the State of Kansas with the
power to own and possess its assets and carry on its business as it is
now being conducted;
(d) The execution, delivery and performance by the Subadviser of
this Agreement are within the Subadviser's powers and have been duly
authorized by all necessary action and no action by or in respect of,
or filing with, any governmental body, agency or official is required
on the part of the Subadvisers for execution, delivery and performance
by the Subadviser of this Agreement, and the execution, delivery and
performance by the Subadviser of this Agreement do not contravene or
constitute a default under (i) any provision of applicable law, rule or
regulation, (ii) the Subadviser's governing instruments, or (iii) any
agreement, judgment, injunction, order, decree or other instrument
binding upon the Subadviser; and
(e) The Form ADV of the Subadviser provided to the Adviser is a true
and complete copy of the form, including that part or parts of the Form
ADV filed with the SEC, that part or parts maintained in the records of
the Adviser, and/or that part or parts provided or offered to clients,
in each case as required under the Advisers Act and rules thereunder,
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 were made, not misleading. In addition,
the Subadviser agrees to promptly provide the Trust with updates of its
Form ADV.
7. REPRESENTATIONS AND WARRANTIES OF ADVISER. The Adviser represents
and warrants to the Subadviser as follows:
(a) The Adviser is registered as an investment adviser under the
Advisers Act;
(b) The Adviser has filed a notice of exemption pursuant to Rule
4.14 under the CEA with the CFTC and the National Futures Association
or is not required to file such exemption;
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(c) The Adviser is a statutory trust duly organized and validly
existing under the laws of the State of Delaware with the power to own
and possess its assets and carry on its business as it is now being
conducted;
(d) The execution, delivery and performance by the Adviser of this
Agreement are within the Adviser's powers and have been duly authorized
by all necessary action on the part of its shareholders or managing
unitholder, and no action by or in respect of, or filing with, any
governmental body, agency or official is required on the part of the
Adviser for the execution, delivery and performance by the Adviser of
this Agreement, and the execution, delivery and performance by the
Adviser of this Agreement do not contravene or constitute a default
under (i) any provision of applicable law, rule or regulation, (ii) the
Adviser's governing instruments, or (iii) any agreement, judgment,
injunction, order, decree or other instrument binding upon the Adviser;
(e) The Form ADV of the Adviser provided to the Subadviser and the
Trust is a true and complete copy of the form, including that part or
parts of the Form ADV filed with the SEC, that part or parts maintained
in the records of the Adviser, and/or that part or parts provided or
offered to clients, in each case as required under the Advisers Act and
rules thereunder, 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 were made, not misleading; and
(f) The Adviser acknowledges that it received a copy of the
Subadviser's Form ADV prior to the execution of this Agreement; and
(g) The Adviser and the Trust have duly entered into the Advisory
Agreement pursuant to which the Trust authorized the Adviser to enter
into this Agreement.
8. REPRESENTATIONS AND WARRANTIES OF THE TRUST. The Trust represents
and warrants to the Adviser and the Subadviser as follows:
(a) The Trust is a statutory trust duly formed and validly existing
under the laws of the State of Delaware with the power to own and
possess its assets and carry on its business as it is now being
conducted;
(b) The Trust is registered as an investment company under the
1940 Act and the Fund's shares are registered under the Securities
Act;
and
(c) The execution, delivery and performance by the Trust of this
Agreement are within the Trust's powers and have been duly authorized
by all necessary action on the part of the Trust and its Board of
Trustees, and no action by or in respect of, or filing with, any
governmental body, agency or official is required on the part of the
Trust for the execution, delivery and performance by the Adviser of
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this Agreement, and the execution, delivery and performance by the
Trust of this Agreement do not contravene or constitute a default under
(i) any provision of applicable law, rule or regulation, (ii) the
Trust's governing instruments, or (iii) any agreement, judgment,
injunction, order, decree or other instrument binding upon the Trust.
9. SURVIVAL OF REPRESENTATIONS AND WARRANTIES; DUTY TO UPDATE
INFORMATION. All representations and warranties made by the Subadviser, the
Adviser and the Trust pursuant to Sections 6, 7 and 8, respectively, 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.
10. LIABILITY AND INDEMNIFICATION.
(a) LIABILITY. The Subadviser shall exercise its best judgment in
rendering the services in accordance with the terms of this Agreement.
In the absence of wilful misfeasance, bad faith or gross negligence on
the part of the Subadviser or a reckless disregard of its duties
hereunder, the Subadviser, each of its affiliates and all respective
partners, officers, directors and employees ("Affiliates") and each
person, if any, who within the meaning of the Securities Act controls
the Subadviser ("Controlling Persons") shall not be liable for any
error of judgment or mistake of law and shall not be subject to any
expenses or liability to the Adviser, any other subadviser to a Fund,
the Trust or a Fund or any of a Fund's shareholders, in connection with
the matters to which this Agreement relates. Except as set forth in (c)
below, the absence of wilful misfeasance, bad faith or gross negligence
on the part of the Adviser or a reckless disregard of its duties
hereunder, the Adviser, any of its Affiliates and each of the Adviser's
Controlling Persons, if any, shall not be subject to any liability to
the Subadviser, for any act or omission in the case of, or connected
with, rendering services hereunder or for any losses that may be
sustained in the purchase, holding or sale of Subadviser Assets;
provided, however, that nothing herein shall relieve the Adviser and
the Subadviser from any of their obligations under applicable law,
including, without limitation, the federal and state securities laws
and the CEA.
(b) INDEMNIFICATION. The Subadviser shall indemnify the Adviser, the
Trust and each Fund, and their respective Affiliates and Controlling
Persons for any liability and expenses, including reasonable attorneys'
fees, which the Adviser, the Trust and a Fund and their respective
Affiliates and Controlling Persons may sustain as a result of the
Subadviser's wilful misfeasance, bad faith, gross negligence, reckless
disregard of its duties hereunder or violation of applicable law,
including, without limitation, the federal and state securities laws or
the CEA. Notwithstanding any other provision in this Agreement, the
Subadviser will indemnify the Adviser, 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
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historical performance calculations provided by the Subadviser
concerning the Subadviser's composite account data or historical
performance information on similarly managed investment companies or
accounts, except that the Adviser, the Trust and the Fund, and their
respective Affiliates and Controlling Persons shall not be indemnified
for a loss or expense resulting from their negligence, willful
misconduct in using such numbers, or for their failure to conduct
reasonable due diligence with respect to such information.
The Adviser shall indemnify the Subadviser, its Affiliates and its
Controlling Persons, for any liability and expenses, including
reasonable attorneys' fees, which may be sustained as a result of the
Adviser's wilful misfeasance, bad faith, gross negligence, reckless
disregard of its duties hereunder or violation of applicable law,
including, without limitation, the federal and state securities laws or
the CEA.
(c) The Subadviser shall not be liable to the Adviser for (I) any
acts of the Adviser or any other subadviser to a Fund with respect to
the portion of the assets of that Fund not managed by Subadviser or
(ii)( acts of the Subadviser which result from acts of the Adviser,
including, but not limited to, a failure of the Adviser to provide
accurate and current information with respect to any records maintained
by the Adviser or any other subadviser to a Fund, which records are not
also maintained by or otherwise available to the Subadviser upon
reasonable request. The Adviser agrees that Subadviser shall manage the
Subadviser Assets as if they were a separate operating Fund as set
forth in Section 2(b) of this Agreement. The Adviser shall indemnify
the Subadviser, its Affiliates and Controlling Persons from any
liability arising from the conduct of the Adviser and any other
subadviser with respect to the portion of the Fund's assets not
allocated to the Subadviser.
11. DURATION AND TERMINATION.
(a) DURATION. Unless sooner terminated, this Agreement shall
continue until February 27, 2006, with respect to any Fund covered by
this Agreement initially and, for any Fund subsequently added to this
Agreement, an initial period of no more than two years that terminates
on the second February 27th that occurs following the effective date of
this Agreement with respect to such Fund, and thereafter shall continue
automatically for successive annual periods with respect to each of the
Funds, provided such continuance is specifically approved at least
annually by the Trust's Board of Trustees or vote of the lesser of (a)
67% of the shares of the Fund represented at a meeting if holders of
more than 50% of the outstanding shares of the Fund are present in
person or by proxy or (b) more than 50% of the outstanding shares of
the Fund; provided that in either event its continuance also is
approved by a majority of the Trust's Trustees who are not "interested
persons" (as defined in the 0000 Xxx) of any party to this Agreement,
by vote cast in person at a meeting called for the purpose of voting on
such approval.
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(b) TERMINATION. Notwithstanding whatever may be provided herein to
the contrary, this Agreement may be terminated at any time, without
payment of any penalty:
(i) By vote of a majority of the Trust's Board of Trustees, or
by "vote of a majority of the outstanding voting securities" of the
Fund (as defined in the 1940 Act), or by the Adviser, in each case,
upon at least 60 days' written notice to the Subadviser;
(ii) By any party hereto immediately upon written notice to the
other parties in the event of a breach of any provision of this
Agreement by either of the other parties; or
(iii) By the Subadviser upon at least 60 days' written notice to
the Adviser and the Trust.
This Agreement shall not be assigned (as such term is defined in the
0000 Xxx) and shall terminate automatically in the event of its
assignment or upon the termination of the Advisory Agreement.
12. DUTIES OF THE ADVISER. The Adviser shall continue to have
responsibility for all services to be provided to the Fund pursuant to the
Advisory Agreement and shall oversee and review the Subadviser's performance of
its duties under this Agreement. Nothing contained in this Agreement shall
obligate the Adviser to provide any funding or other support for the purpose of
directly or indirectly promoting investments in the Fund.
13. REFERENCE TO ADVISER AND SUBADVISER.
(a) Neither the Adviser nor any Affiliate or agent of the Adviser
shall make reference to or use the name of Subadviser or any of its
Affiliates, or any of their clients, except references concerning the
identity of and services provided by the Subadviser to a Fund, which
references shall not differ in substance from those included in the
Prospectus and this Agreement, in any advertising or promotional
materials without the prior approval of Subadviser, which approval
shall not be unreasonably withheld or delayed. The Adviser hereby
agrees to make all reasonable efforts to cause the Fund and any
Affiliate thereof to satisfy the foregoing obligation.
(b) Neither the Subadviser no any Affiliate or agent of the
Subadviser shall make reference to or use the name of the Adviser or
any of its Affiliates, or any of their clients, except references
concerning the identity of and services provided by the Adviser to a
Fund or to the Subadviser, which references shall not differ in
substance from those included in the Prospectus and this Agreement, in
any advertising or promotional materials without the prior approval of
Subadviser, which approval shall not be unreasonably withheld or
delayed. The Subadviser hereby agrees to make all reasonable efforts to
cause a Fund and any Affiliate thereof to satisfy the foregoing
obligation.
11
14. 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 or by a vote of a majority of the outstanding
voting securities of the Funds (as required by the 0000 Xxx) 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 is required by applicable law.
15. CONFIDENTIALITY. Subject to the duties of the Adviser, the Trust
and the Subadviser to comply with applicable law, including any demand of any
regulatory or taxing authority having jurisdiction, the parties hereto shall
treat as confidential all information pertaining to the Fund and the actions of
the Subadviser, the Adviser and the Fund in respect thereof.
16. NOTICE. Any notice that is required to be given by the parties to
each other under the terms of this Agreement shall be in writing, delivered, or
mailed postpaid to the other parties, or transmitted by facsimile with
acknowledgment of receipt, to the parties at the following addresses or
facsimile numbers, which may from time to time be changed by the parties by
notice to the other party:
(a) If to the Subadviser:
Xxxxxxx & Xxxx Investment Management Company
0000 Xxxxx Xxxxxx
Xxxxxxxx Xxxx, XX 00000
Attention: Xxxxx Xxxxxxx
Facsimile: (000) 000-0000
(b) If to the Adviser:
Gartmore Mutual Fund Capital Trust
0000 Xxxxx Xxxx - Xxxx 0000
Xxxxxxxxxxxx, XX 00000
Attention: Legal Department
Facsimile: (000) 000-0000
(c) If to the Trust:
Gartmore Variable Insurance Trust
0000 Xxxxx Xxxx - Xxxxx 0000
Xxxxxxxxxxxx, XX 00000
Attention: Legal Department
Facsimile: (000) 000-0000
16. JURISDICTION. This Agreement shall be governed by and construed to
be consistent with the Advisory Agreement and in accordance with substantive
laws of the State of Delaware without reference to choice of law principles
thereof and in accordance with the 1940 Act. In the case of any conflict, the
1940 Act shall control.
12
17. COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, all of which shall
together constitute one and the same instrument.
18. CERTAIN DEFINITIONS. For the purposes of this Agreement and except
as otherwise provided herein, "interested person," "affiliated person," 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.
19. CAPTIONS. The captions herein are included for convenience of
reference only and shall be ignored in the construction or interpretation
hereof.
20. SEVERABILITY. If any provision of this Agreement shall be held or
made invalid by a court decision or applicable law, the remainder of the
Agreement shall not be affected adversely and shall remain in full force and
effect.
21. GARTMORE VARIABLE INSURANCE TRUST AND ITS TRUSTEES. The terms
"Gartmore Variable Insurance Trust" and the "Trustees of Gartmore Variable
Insurance Trust" refer respectively to the Trust created and the Trustees, as
trustees but not individually or personally, acting from time to time under the
Declaration of Trust made and dated as of September 30, 2004, as has been or may
be amended from time to time, and to which reference is hereby made.
13
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on
the day and year first written above.
TRUST
GARTMORE VARIABLE INSURANCE TRUST
By: /s/ Xxxxx X. Xxxxxxxxx
--------------------------------
Name: Xxxxx X. Xxxxxxxxx
Title: Assistant Secretary
ADVISER
GARTMORE MUTUAL FUND CAPITAL TRUST
By: /s/ Xxxxxx X. Xxxxxxx
--------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Senior Vice President
SUBADVISER
XXXXXXX & XXXX INVESTMENT
MANAGEMENT COMPANY
By: /s/ Xxxxx X. Xxxxxxxx
--------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: President
14
EXHIBIT A
SUBADVISORY AGREEMENT
BETWEEN
GARTMORE VARIABLE INSURANCE TRUST,
GARTMORE MUTUAL FUND CAPITAL TRUST
AND
XXXXXXX & XXXX INVESTMENT MANAGEMENT COMPANY
FUNDS OF THE TRUST ADVISORY FEES EFFECTIVE DATE
------------------ ------------- --------------
GVIT Small Cap 0.60% of the average daily net May 2, 2005
Growth Fund assets of the Subadviser's Assets
GVIT Small 0.60% of the average daily net
Company Fund assets of the Subadviser's Assets May 2, 2005
A-1
EXHIBIT B
SUBADVISORY AGREEMENT AMONG
GARTMORE VARIABLE INSURANCE TRUST,
GARTMORE MUTUAL FUND CAPITAL TRUST and
XXXXXXX & XXXX INVESTMENT MANAGEMENT CORPORATION
DATED AS OF MAY 2, 2005
In connection with securities transactions for a Fund, the Subadviser that is
(or whose affiliated person is) entering into the transaction, and any other
investment manager that is advising an affiliate of the Fund (or portion of the
Fund) (collectively, the "Managers" for the purposes of this Exhibit) entering
into the transaction are prohibited from consulting with each other concerning
transactions for the Fund in securities or other assets and, if both Managers
are responsible for providing investment advice to the Fund, the Manager's
responsibility in providing advice is expressly limited to a discrete portion of
the Fund's portfolio that it manages.
This prohibition does not apply to communications by the Adviser in connection
with the Adviser's (i) overall supervisory responsibility for the general
management and investment of the Fund's assets; (ii) determination of the
allocation of assets among the Manager(s), if any; and (iii) investment
discretion with respect to the investment of Fund assets not otherwise assigned
to a Manager.
B-1
