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Exhibit 23(d)(5)(n)
SUBADVISORY AGREEMENT
THIS AGREEMENT is made and entered into on this 31st day of October, 2003,
between GARTMORE VARIABLE INSURANCE TRUST, a Massachusetts business trust (the
"Trust"), GARTMORE MUTUAL FUND CAPITAL TRUST (the "Adviser") a Delaware business
trust registered under the Investment Advisers Act of 1940 (the "Advisers Act"),
and XXXXXXXXX XXXXXX, LLC, Delaware limited liability company (the
"Subadviser"), also registered under the Advisers Act.
W I T N E S S E T H:
WHEREAS, the Trust is registered with the Securities and Exchange
Commission (the "SEC") as an open-end management investment company under the
Investment Company Act of 1940 (the "1940 Act");
WHEREAS, the Adviser has, pursuant to an Advisory Agreement with the Trust
dated as of November 1, 1997 (the "Advisory Agreement"), as subsequently
amended, been retained to act as investment adviser for certain of the series of
the Trust that are listed on Exhibit A to this Agreement (each, a "Fund");
WHEREAS, the Adviser represents that it is willing and possesses legal
authority to render such services subject to the terms and conditions set forth
in this Agreement.
WHEREAS, the Trust and the Adviser each represent that 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 Fund's
assets that the Adviser will assign to the Subadviser, 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 with
respect to each Fund:
1. Appointment as Subadviser. The Adviser hereby appoints the Subadviser to
act as investment adviser for and to manage that portion or all of the
assets of the Fund that the Adviser from time to time upon reasonable prior
notice allocates to, and puts under the control of, the Subadviser (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 appointment. 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
cannot object 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
soon as practical after the Trust, the Fund or the Adviser notifies
the Subadviser thereof, 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
monitor on a continuous basis the performance of the Subadviser Assets
and to conduct a continuous 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, providing information concerning the Fund, its funds
available, or to become available, for investment and generally as to
the conditions of the Fund's or the Trust's affairs.
(b) Compliance with Applicable Laws and Governing Documents. In the
performance of its services under this Agreement, the Subadviser shall
act in conformity with the Trust's Declaration of Trust and By-Laws
and the Prospectus 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 from time to time and with the
instructions and directions received in writing from the Adviser or
the Trustees of the Trust 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. Without limiting the preceding sentence, the
Subadviser promptly shall notify the Adviser as to any act or omission
of the Subadviser hereunder that the Subadviser reasonably deems to
constitute or is the basis of any noncompliance or nonconformance with
any of the Trust's Declaration of Trust, By-Laws and the Prospectus,
the instructions and directions received in writing from the Adviser
or the Trustees of the Trust or 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 the Fund's and the
Trust'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 timely 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 services of the
Subadviser, 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 shall perform quarterly and annual tax compliance tests to
ensure that the Fund is in compliance with Subchapter M and Section 817(h) of
the Code. In connection with such compliance tests, the Adviser shall inform the
Subadviser at least ten (10) business days prior to a calendar quarter end if
the Subadviser Assets are out of compliance with the diversification
requirements under either Subchapter M or Section 817(h). If the Adviser
notifies the Subadviser that the Subadviser Assets are not in compliance with
such requirements noted above, the Subadviser will take prompt action to bring
the Subadviser Assets back into compliance within the time permitted under the
Code thereunder.
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 that 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 will
ensure that the Prospectus will at all times be in compliance with all
disclosure 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 Adviser hereby delegates to the Subadviser the
Adviser's discretionary authority to exercise voting rights with
respect to the securities and other investments in the Subadviser
Assets and authorizes the Subadviser to delegate further such
discretionary authority to a designee identified in a notice given to
the Trust and the Adviser. The Subadviser, including without
limitation its designee, 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 the Fund have invested the Fund's assets in the
same security, the Subadviser and such other entity will each have the
power to vote its pro rata share of the Fund's 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, 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 plenary authority of the Trust's Board of
Trustees, to establish and maintain accounts on behalf of the Fund
with, and place orders for the investment and reinvestment, including
without limitation 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 "Brokers") 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
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. 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. Notwithstanding the foregoing, neither the Trust,
the Fund nor the Adviser shall instruct the Subadviser to place orders
with any particular Broker(s) with respect to the Subadviser Assets.
Subject to such policies as the Trustees may determine, or as may be
mutually agreed to by the Adviser and the Subadviser, the Subadviser
is authorized but not obligated to cause, and 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 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 Subadviser
Assets 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 the Fund with respect to the Subadviser Assets 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
the Fund or the size of the position obtainable for, or disposed of by, the Fund
with respect to the Subadviser Assets.
(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.
The Subadviser, on its own behalf and with respect to 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. The Subadviser will have also submitted its Code of Ethics for its
initial approval by the Board of Trustees no later than the date of execution of
this agreement and subsequently within six months of any material change
thereto.
(g) Books and Records. The Subadviser shall maintain separate detailed
records as are required by applicable laws and regulations of all
matters hereunder 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 and except that the Subadviser,
at its own expense, is entitled to make and keep a copy of the Fund's
Records for its internal files. The Fund's Records shall be available
to the Adviser or the Trust at any time upon reasonable request during
normal business hours and shall be available for telecopying promptly
to the Adviser during any day that the Fund is open for business as
set forth in the Prospectus.
(h) Information Concerning Subadviser Assets and Subadviser. From time to
time as the Adviser or the Trust reasonably may request in good faith,
the Subadviser will furnish the requesting party reports on portfolio
transactions and reports on the Subadviser Assets, all in such
reasonable detail as the parties may reasonably agree in good faith.
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 the
Trust's or the Adviser's 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 via telephone on a quarterly
basis and on a less frequent basis as agreed upon by the parties in
person.
Subject to the other provisions of this Agreement, the Subadviser will also
provide such information or perform such additional acts with respect to the
Subadviser Assets as are reasonably 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 Trust or the Adviser shall notify the
Subadviser of the identities of its custodian banks and the custody
arrangements therewith with respect to the Subadviser Assets and shall
give the Subadviser written notice of any changes in such custodian
banks or 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 in good
faith relating to all transactions concerning the Subadviser Assets.
The Trust shall instruct its custodian banks to (A) carry out all
investment instructions as may be directed by the Subadviser with
respect to the Subadviser Assets (which instructions may be orally
given if confirmed in writing); and (B) provide the Subadviser with
all operational information necessary for the Subadviser to trade the
Subadviser Assets on behalf of the Fund. The Subadviser shall have no
liability for the acts or omissions of the authorized custodian(s),
unless such act or omission is required by and taken in reliance upon
instructions given to the authorized custodian(s) by a representative
of the Subadviser properly authorized (pursuant to written instruction
by the Adviser) to give such instructions.
3. Independent Contractor. In the performance of its services 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. 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, the cost of securities,
commodities and other investments (including brokerage commissions and
other transaction charges, if any) purchased for a Fund and any losses
incurred in connection therewith, expenses of holding or carrying
Subadviser Assets, including without limitation expenses of dividends on
stock borrowed to cover a short sale and interest, fees or other charges
incurred in connection with leverage and related borrowings with respect to
the Subadviser Assets, organizational and offering expenses (which include
but are not limited to 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
Securities and Exchange Commission (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 pursuant to this Agreement, the
Subadviser is entitled to the fee listed for the Fund on Exhibit A hereto.
Such fees will be computed daily and paid 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 assets of the Subadviser Assets for purposes
hereof shall be the same as the method of determining net assets for purposes of
establishing the offering and redemption price of the Shares as described in the
Fund's Prospectus. If this Agreement shall be effective for only a portion of a
month with respect to the Fund, the aforesaid fee shall be prorated for the
portion of such month during which this Agreement is in effect for the Fund.
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 (the "CEA") with the Commodity Futures Trading
Commission (the "CFTC"), or is not required to file such registration;
(c) The Subadviser is a limited liability company duly organized and
properly registered and operating 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 and as proposed to be conducted
hereunder;
(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 actions of its directors or shareholders,
and no action by or in respect of, or filing with, any governmental
body, agency or official is required on the part of the Subadviser 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
violation of or a material 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 previously provided to the Adviser and
the Trust 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 were made, not misleading.
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;
(c) The Adviser is a business 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 and as proposed to be conducted hereunder;
(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 directors,
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 violation of or a material 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 previously provided to the Subadviser and
the Trust is a true and complete copy of the form 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 were made, not misleading;
(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
delegate certain of its duties under the Advisory Agreement to other
investment advisers, including without limitation, the appointment of
a subadviser with respect to assets of each of the Trust's mutual fund
series, including without limitation the Adviser's entering into and
performing 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 business trust duly organized and validly existing
under the laws of the Commonwealth of Massachusetts with the power to
own and possess its assets and carry on its business as it is now
being conducted and as proposed to be conducted hereunder;
(b) The Trust is registered as an investment company under the 1940 Act
and has elected to qualify and has qualified, together with the Fund,
as a regulated investment company under the Code, and the Fund's
shares are registered under the Securities Act;
(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 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; and
(d) The Trust acknowledges that it received a copy of the Subadviser's
Form ADV prior to the execution of this Agreement.
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 the recitals above and 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 or accurate
in all material effects.
10. Liability and Indemnification.
(a) Liability. The Subadviser shall exercise its best judgment in
rendering its services in accordance with the terms of this Agreement,
but otherwise, in the absence of willful 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"), if
any, 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, including without limitation for any losses that may be
sustained in the purchase, holding or sale of Subadviser Assets. The
Adviser shall exercise its best judgment in rendering its obligations
in accordance with the terms of this Agreement, but otherwise (except
as set forth in Section 10(c) below), in 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. Notwithstanding the foregoing,
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 the Fund, and their respective Affiliates and Controlling Persons
for any liability and expenses, including without limitation
reasonable attorneys' fees and expenses, which the Adviser, the Trust
and the Fund and their respective Affiliates and Controlling Persons
may sustain as a result of the Subadviser's willful 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. The Adviser shall
indemnify the Subadviser, its Affiliates and its Controlling Persons,
for any liability and expenses, including without limitation
reasonable attorneys' fees and expenses, which may be sustained as a
result of the Adviser's willful 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.
The Trust shall indemnify the Subadviser, its Affiliates and its
Controlling Persons, for any liability and expenses, including without
limitation reasonable attorneys' fees and expenses, which may be sustained as a
result of the Trust'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 October 31, 2005, with respect to any Fund covered by the
Agreement initially and for an initial two-year period for any Fund
subsequently added to the Agreement, and thereafter shall continue
automatically for successive annual periods with respect to each such
Fund, 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.
(b) Termination. Notwithstanding whatever may be provided herein to the
contrary, this Agreement may be terminated at any time with respect to
the Fund, 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, 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 it 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 nor any Affiliate or agent of it 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 Adviser, which approval shall
not be unreasonably withheld or delayed. The Subadviser hereby agrees
to make all reasonable efforts to cause any Affiliate of it to satisfy
the foregoing obligation.
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 and shall not disclose any and all information
pertaining to the Fund and the actions of the Subadviser, the Adviser and
the Fund in respect thereof; except to the extent:
(a) Authorized. The Adviser or the Trust has authorized such disclosure;
(b) Court or Regulatory Authority. Disclosure of such information is
expressly required or requested by a court or other tribunal of
competent jurisdiction or applicable federal or state regulatory
authorities;
(c) Publicly Known Without Breach. Such information becomes known to the
general public without a breach of this Agreement or a similar
confidential disclosure agreement regarding such information;
(d) Already Known. Such information already was known by the party prior
to the date hereof;
(e) Received From Third Party. Such information was or is hereafter
rightfully received by the party from a third party (expressly
excluding the Fund's custodian, prime broker and administrator)
without restriction on its disclosure and without breach of this
Agreement or of a similar confidential disclosure agreement regarding
them; or
(f) Independently Developed. The party independently developed such
information
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:
XXXXXXXXX XXXXXX, LLC
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxx Xxxxxxx, Deputy General Counsel
Facsimile: (000) 000-0000
(b) If to the Adviser:
Gartmore Mutual Fund Capital Trust
0000 Xxxxx Xxxx
Xxxxxxxxxxxx, XX 00000
Attention: Legal Department
Facsimile: (000) 000-0000
(c) If to the Trust:
Gartmore Variable Insurance Trust
0000 Xxxxx Xxxx
Xxxxxxxxxxxx, XX 00000
Attention: Legal Department
Facsimile: (000) 000-0000
17. Jurisdiction. This Agreement shall be governed by and construed in
accordance with substantive laws of the Commonwealth of Massachusetts
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.
18. 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.
19. 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.
20. Captions. The captions herein are included for convenience of reference
only and shall be ignored in the construction or interpretation hereof.
21. 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.
22. Entire Agreement. This Agreement, together with all exhibits, attachments
and appendices, contains the entire understanding and agreement of the
parties with respect to the subject matter hereof.
23. 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
a Declaration of Trust dated as of June 30, 1981, as has been or may be
amended from time to time, and to which reference is hereby made and a copy
of which is on file at the office of the Secretary of State of the
Commonwealth of Massachusetts and elsewhere as required by law, and to any
and all amendments thereto so filed or hereafter filed. The obligations of
the Trust entered into in the name or on behalf thereof by any of Gartmore
Variable Insurance Trust's Trustees, representatives, or agents are not
made individually, but only in their capacities with respect to Gartmore
Variable Insurance Trust. Such obligations are not binding upon any of the
Trustees, shareholders, or representatives of the Trust personally, but
bind only the assets of the Trust. All persons dealing with any series of
Shares of the Trust must look solely to the assets of the Trust belonging
to such series for the enforcement of any claims against the Trust.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the
day and year first written above.
TRUST
GARTMORE VARIABLE INSURANCE TRUST
By: XXXXX XXXXXXXXX
Name: Xxxxx Xxxxxxxxx
Title: Assistant Secretary
ADVISER
GARTMORE MUTUAL FUND CAPITAL TRUST
By: XXXXXX X. XXXXXXX
Name: Xxxxxx X. Xxxxxxx
Title: SVP
SUBADVISER
XXXXXXXXX XXXXXX, LLC
By: XXXXX X. XXXXXXX
Name: Xxxxx X. Xxxxxxx
Title: Executive Vice President
EXHIBIT A
SUBADVISORY AGREEMENT
BETWEEN GARTMORE VARIABLE INSURANCE TRUST,
GARTMORE MUTUAL FUND CAPITAL TRUST AND
XXXXXXXXX XXXXXX, LLC
EFFECTIVE OCTOBER 31, 2003
Fund of the Trust. . . . . Subadvisory Fee Effective Date
-------------------------------------------------------------------------------
GVIT Small Cap Growth Fund 0.60% of the average daily net October 31, 2003
assets of the Subadviser Assets
GVIT Small Company Fund. . 0.60% of the average daily net October 31, 2003
assets of the Subadviser Assets
EXHIBIT B
SUBADVISORY AGREEMENT
BETWEEN GARTMORE VARIABLE INSURANCE TRUST,
GARTMORE MUTUAL FUND CAPITAL TRUST AND
XXXXXXXXX XXXXXX, LLC
EFFECTIVE OCTOBER 31, 2003
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.
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