EXHIBIT 23(d)(6)
FORM OF
SUB-ADVISORY AGREEMENT
LVIP CITYPLACECOLUMBIA VALUE OPPORTUNITIES FUND
This Sub-Advisory Agreement ("Agreement") is between LINCOLN INVESTMENT
ADVISORS CORPORATION, a Tennessee corporation (the "Adviser"), and RIVERSOURCE
INVESTMENTS, LLC, a Minnesota corporation (the "Sub-Adviser"). This Agreement is
to be effective ______________________________ (the closing date of the sale of
Columbia Management Advisors, LLC to Ameriprise Financial, Inc.) (the "Effective
Date).
WHEREAS, Lincoln Variable Insurance Products Trust (the "Trust"), on
behalf of the LVIP Columbia Value Opportunities Fund (the "Fund"), has entered
into an Investment Management Agreement, dated April 30, 2007, with the Adviser,
pursuant to which the Adviser has agreed to provide certain investment
management services to the Fund; and
WHEREAS, the Adviser desires to appoint Sub-Adviser as investment
sub-adviser to provide the investment advisory services to the Fund specified
herein, and Sub-Adviser is willing to serve the Fund in such capacity.
NOW, THEREFORE, in consideration of the mutual covenants herein
contained, and each of the parties hereto intending to be legally bound, it is
agreed as follows:
1. SERVICES TO BE RENDERED BY SUB-ADVISER TO THE FUND.
(a) Subject to the direction and control of the Board of Trustees (the
"Trustees") of the Trust, the Sub-Adviser will furnish continuously an
investment program for the Fund which shall meet the diversification
requirements of Subchapters L and M under the Internal Revenue Code of 1986 (the
"Code"). The Sub-Adviser will make investment decisions on behalf of the Fund
and place all orders for the purchase and sale of portfolio securities. The
Sub-Adviser will be an independent contractor and will not have authority to act
for or represent the Trust or Adviser in any way or otherwise be deemed an agent
of the Trust or Adviser except as expressly authorized in this Agreement or as
agreed to in writing by the Trust, Adviser and the Sub-Adviser.
Pursuant to this agreement Sub-Adviser shall possess full power and
authority on behalf of the Fund and at risk of, and in the name of, Fund (a) to
buy, sell, exchange, convert and otherwise trade in any and all securities and
other assets as Sub-Adviser may select; (b) to instruct any custodian of any
security or other asset of the Fund to deliver securities or assets sold,
exchanged, or otherwise disposed of from the Fund's account; (c) to pay cash for
securities or assets delivered to any trustee or custodian upon acquisition for
the Fund; (d) to consent to any class action, plan or reorganization, merger,
combination, consolidation, liquidation or similar plan with reference to such
securities or other assets; (e) to exercise or dispose of subscription rights,
warrants and fractional shares as it deems to be in Fund's best interests; (f)
to
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deal through accounts with one or more securities or commodities brokerage
firms, dealers or banks; and (g) generally to perform any other act necessary to
enable Sub-Adviser to carry out its obligations under this Agreement. This
discretionary authority shall remain in full force and effect until Sub-Adviser
receives written notice from the Adviser of its termination. It is understood
and agreed that Sub-Adviser shall have no obligation whatsoever to initiate,
pursue and/or prosecute any claim, proceeding or action on behalf of the Fund or
Adviser.
(b) The Sub-Adviser, at its expense, will furnish (i) all necessary
investment and management facilities, including salaries of Sub-Adviser's
personnel, required for it to execute its duties faithfully and (ii)
administrative facilities, including bookkeeping, clerical personnel and
equipment as Sub-Adviser determines is necessary for Sub-Adviser to execute its
obligations under this Agreement. The Sub-Adviser shall be responsible for
commercially reasonable expenses relating to the printing and mailing of
required supplements to the Fund's registration statement, provided that such
supplements relate solely to a change in control of the Sub-Adviser or any
change in the portfolio manager or managers assigned by the Sub-Adviser to
manage the Fund.
(c) The Sub-Adviser shall vote proxies relating to the Fund's
investment securities in the manner in which the Sub-Adviser believes to be in
the best interests of the Fund, including voting in accordance with the
Sub-Adviser's Proxy Voting Policies and Procedures, and shall review its proxy
voting activities on a periodic basis with the Trustees. The Trust or Adviser
may withdraw the authority granted to the Sub-Adviser pursuant to this Section
at any time upon written notice. Sub-Adviser's responsibilities with respect to
proxy voting shall be limited to submission of votes, which have been forwarded
to Sub-Adviser in a timely manner by the Adviser's voting agent. Sub-Adviser
shall not have any supervisory responsibility with respect to the Adviser's
voting agent.
(d) The Sub-Adviser will select brokers and dealers to effect all
portfolio transactions subject to the conditions set forth herein (except to the
extent such transactions are effected in accordance with such policies or
procedures as may be established by the Board of Trustees.) In the selection of
brokers, dealers or futures commission merchants and the placing of orders for
the purchase and sale of portfolio investments for the Fund, the Sub-Adviser
shall use its best efforts to 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 described
below. The Adviser reserves the right to direct the Sub-Adviser upon written
notice not to execute transactions through any particular broker(s) or
dealer(s), and the Sub-Adviser agrees to comply with such request within ten
business days of receiving written notice. In using its best efforts to obtain
for the Fund the most favorable price and execution available, the Sub-Adviser,
bearing in mind the Fund's best interests at all times, shall consider all
factors it deems relevant, including by way of illustration: price; the size of
the transaction; the nature of the market for the security; the amount of the
commission; the timing of the transaction taking into account market prices and
trends; the reputation, experience and financial stability of the broker,
dealer, or futures commission merchant involved; and the quality of service
rendered by the broker, dealer or futures commission merchant in other
transactions. Subject to such policies as the Trustees may determine, the
Sub-Adviser shall not be deemed to have acted unlawfully or to have breached any
duty created by this Agreement or otherwise
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solely by reason of its having caused the Fund to pay a broker, dealer or
futures commission merchant that provides brokerage and research services to the
Sub-Adviser an amount of commission for effecting a portfolio investment
transaction in excess of the amount of commission another broker, dealer or
futures commission merchant would have charged for effecting that transaction,
if the Sub-Adviser determines in good faith that such amount of commission was
reasonable in relation to the value of the brokerage and research services
provided by such broker, dealer or futures commission merchant, viewed in terms
of either that particular transaction or the Sub-Adviser's over-all
responsibilities with respect to the Fund and to other clients of the
Sub-Adviser as to which the Sub-Adviser exercises investment discretion. The
Sub-Adviser shall maintain records it has reasonably determined are adequate to
demonstrate compliance with this section.
On occasions when the Sub-Adviser deems the purchase or sale of a
security to be in the best interest of the Fund as well as other clients of the
Sub-Adviser, the Sub-Adviser to the extent permitted by applicable laws and
regulations, may, but shall be under no obligation to, aggregate the securities
to be purchased or sold to attempt to obtain a more favorable price or lower
brokerage commissions and efficient execution. In such event, allocation of the
securities so purchased or sold, as well as the expenses incurred in the
transaction, will be made by the Sub-Adviser in compliance with Section 17(d) of
the Investment Company Act of 1940 and the rules established thereunder, Section
206 of the Investment Advisers Act of 1940 and any rules established thereunder,
and pursuant to policies adopted by the Sub-Adviser and approved by the Board of
Trustees of the Fund.
(e) The Sub-Adviser will provide reasonable advice and assistance to
the Adviser as to the determination of the fair value of certain investments
where market quotations are not readily available for purposes of calculating
net asset value of the Fund in accordance with valuation procedures and methods
established by the Trustees.
(f) The Sub-Adviser shall furnish the Adviser and the Board of
Trustees with such information and reports regarding the Fund's investments as
the Adviser deems appropriate or as the Board of Trustees shall reasonably
request. The Sub-Adviser shall make its officers and employees available from
time to time, including attendance at Board of Trustees Meetings, at such
reasonable times as the parties may agree to review the Sub-Adviser's
investments on behalf of the Fund and to consult with the Adviser or the Board
of Trustees regarding the investment affairs of the Fund.
(g) The Sub-Adviser shall not consult with any other sub-adviser to
the Fund or a sub-adviser to a portfolio that is under common control with the
Fund concerning the assets of the Fund, except as permitted by the policies and
procedures of the Fund.
(h) In the performance of its duties, the Sub-Adviser shall be subject
to, and shall perform in accordance with, the following: (i) provisions of the
organizational documents of the Trust that are applicable to the Fund; (ii) the
investment objectives, policies and restrictions of the Fund as stated in the
Fund's currently effective Prospectus and Statement of Additional Information
("SAI") as amended from time to time; (iii) the Investment Company Act of 1940,
as amended (the "1940 Act") and the Investment Advisers Act of 1940, as amended
(the
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"Advisers Act"); (iv) any written instructions and directions of the
Trustees, the Adviser or Fund management; and (v) its general fiduciary
responsibility to the Fund.
(i) The Sub-Adviser shall provide reasonable assistance to the Fund in
the preparation of its registration statement, prospectus, shareholder reports,
and other regulatory filings, or any amendment or supplement thereto
(collectively, "Regulatory Filings") and shall provide the Fund with disclosure
for use in the Fund's Regulatory Filings, including, without limitation, any
requested disclosure related to the Sub-Adviser's investment management
personnel, portfolio manager compensation, Codes of Ethics, firm description,
investment management strategies and techniques, and proxy voting policies.
(j) The Sub-Adviser shall furnish the Adviser, the Board of Trustees
and/or the Chief Compliance Officer of the Trust and/or the Adviser with such
information, certifications and reports as such persons may reasonably deem
appropriate or may request from the Sub-Adviser regarding the Sub-Adviser's
compliance with Rule 206(4)-7 of the Advisers Act, and compliance with Rule
38a-1 under the 1940 Act (including compliance with the Federal Securities Laws
as defined under that Rule). Such information, certifications and reports shall
include, without limitation, those regarding the Sub-Adviser's compliance with
the Xxxxxxxx-Xxxxx Act of 2002, Title V of the Xxxxx-Xxxxx-Xxxxxx Act, the Code
of Ethics of the Sub-Adviser and the Trust and certifications as to the validity
of the information included in the Fund's Regulatory Filings. The Sub-Adviser
shall make its officers and employees (including its Chief Compliance Officer)
available to the Adviser and/or the Chief Compliance Officer of the Trust and/or
the Adviser upon reasonable request to examine and review the Sub-Adviser's
compliance program and its adherence thereto.
2. OTHER AGREEMENTS.
The investment management services provided by the Sub-Adviser under
this Agreement are not to be deemed exclusive, and the Sub-Adviser shall be free
to render similar or different services to others. Sub-Adviser will not be
obligated to recommend for the Fund the purchase or sale of securities or other
investments that Sub-Adviser may purchase or sell for the accounts of
Sub-Adviser's other clients.
3. COMPENSATION TO BE PAID BY THE ADVISER TO THE SUB-ADVISER.
(a) As compensation for the services to be rendered by the Sub-Adviser
under the provisions of this Agreement, the Adviser will pay to the Sub-Adviser
a fee each month based on the average daily net assets of the Fund during the
month. Solely for the purpose of determining the promptness of payments,
payments shall be considered made upon mailing or wiring pursuant to wiring
instructions provided by the Sub-Adviser. Such fee shall be calculated in
accordance with the fee schedule applicable to the Fund as set forth in Schedule
A attached hereto.
(b) The fee shall be paid by the Adviser, and not by the Fund, and
without regard to any reduction in the fees paid by the Fund to the Adviser
under its management contract as a result of any statutory or regulatory
limitation on investment company expenses or voluntary fee
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reduction assumed by the Adviser. Such fee to the Sub-Adviser shall be payable
for each month within 10 business days after the end of such month. If the
Sub-Adviser shall serve for less than the whole of a month, the foregoing
compensation shall be prorated.
4. AUTOMATIC TERMINATION.
This Agreement shall automatically terminate, without the payment of
any penalty, in the event of its assignment or in the event that the investment
advisory contract between the Adviser and the Fund shall have terminated for any
reason.
5. EFFECTIVE PERIOD; TERMINATION AND AMENDMENT OF THIS AGREEMENT.
(a) This Agreement shall become effective as of the date first written
above, and shall remain in full force and effect continuously thereafter (unless
terminated automatically as set forth in Section 4) until terminated as set
forth below. This Agreement shall automatically terminate in the event of its
assignment or in the event of termination of the Investment Management
Agreement.
(b) This Agreement shall continue in effect for a period of more than
two years from the date hereof only so long as continuance is specifically
approved at least annually by the Board of Trustees or by the vote of a majority
of the outstanding voting securities of the Fund as required by the 1940 Act;
provided, however, that this Agreement may be terminated at any time without the
payment of any penalty:
(i) by the Board of Trustees of the Trust or by the vote of a
majority of the outstanding voting securities of the Fund;
(ii) by the Adviser on 60 days' written notice to the
Sub-Adviser; or
(iii) by the Sub-Adviser on 60 days' written notice to the
Adviser.
(c) Except to the extent permitted by the 1940 Act or the rules or
regulations thereunder or pursuant to any exemptive relief granted by the
Securities and Exchange Commission ("SEC"), this Agreement may be amended by the
parties only if such amendment, if material, is specifically approved by the
vote of a majority of the outstanding voting securities of the Fund (unless such
approval is not required by Section 15 of the 1940 Act as interpreted by the SEC
or its staff) and by the vote of a majority of the Independent Trustees.
6. CERTAIN INFORMATION.
The Sub-Adviser shall promptly notify the Adviser in writing of the
occurrence of any of the following events: (a) the Sub-Adviser shall fail to be
registered as an investment adviser under the Advisers Act and under the laws of
any jurisdiction in which the Sub-Adviser is required to be registered as an
investment adviser in order to perform its obligations under this Agreement, (b)
the Sub-Adviser has a reasonable basis for believing that the Fund has failed to
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satisfy the diversification requirements under Subchapter L or M under the Code
(c) the Sub-Adviser shall have been served or otherwise have notice of any
action, suit, proceeding, inquiry or investigation, at law or in equity, before
or by any court, public board or body, involving the affairs of the Fund, and
(d) any portfolio manager of the Fund shall have changed.
7. NONLIABILITY OF SUB-ADVISER.
(a) Except as may otherwise be provided by the 1940 Act or the Advisers
Act, in the absence of willful misfeasance, bad faith or gross negligence on the
part of the Sub-Adviser, or reckless disregard of its obligations and duties
hereunder, neither the Sub-Adviser nor its officers, directors, employees or
agents shall be subject to any liability to the Fund or to any shareholder of
the Fund, for any act or omission in the course of, or connected with, rendering
services hereunder.
(b) Failure by the Sub-Adviser to assure that any disclosure provided
by the Sub-Adviser for inclusion in the Fund's Regulatory filings does not (i)
contain any untrue statement of a material fact or (ii) omit to state a material
fact necessary to make such disclosure, in light of the circumstances under
which they are made, not misleading, shall constitute gross negligence per se
under sub-paragraph 7(a) above.
(c) Sub-Adviser shall not be liable for any act or omission of
Custodian or any broker which effects transactions for the Fund. Without
limiting the foregoing, Sub-Adviser does not assume responsibility for the
accuracy of information furnished to it by the Fund, Adviser, Custodian, broker,
or by any person on whom it reasonably relies.
(d) Sub-Adviser does not warrant that the portion of the assets of the
Fund managed by Sub-Adviser will achieve any particular rate of return or that
its performance will match that of any benchmark or index.
8. INDEMNIFICATION.
Notwithstanding Section 7, the Sub-Adviser agrees to indemnify the
Adviser and the Funds for, and hold them harmless against, any and all losses,
claims, damages, liabilities (including amounts paid in settlement with the
written consent of the Sub-Adviser) or litigation (including reasonable legal
and other expenses) to which the Adviser or the Funds may become subject as a
result of:
(a) any failure by the Sub-Adviser, whether unintentional or in good
faith or otherwise, to diversify the investment program of the Fund pursuant to
the requirements of Subchapters L and M under the Code, and the regulations
issued thereunder; or
(b) any untrue statement of a material fact contained in disclosure
provided by the Sub-Adviser for inclusion in the Fund's Regulatory Filings or
any omission of a material fact necessary to make such disclosure, in light of
the circumstances under which they are made, not misleading;
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provided that the Sub-Adviser shall have been given written notice concerning
any matter for which indemnification is claimed under this Section.
9. RECORDS; RIGHT TO AUDIT.
(a) The Sub-Adviser agrees to maintain in the form and for the period
required by Rule 31a-2 under the 1940 Act, all records relating to the Fund's
investments made by the Sub-Adviser that are required to be maintained by the
Fund pursuant to the requirements of Rule 31a-1 under the 1940 Act. The
Sub-Adviser agrees that all records that it maintains on behalf of the Fund are
the property of the Fund, and the Sub-Adviser will surrender promptly to the
Fund any such records upon the Fund's request; provided, however, that the
Sub-Adviser may retain a copy of such records. The Sub-Adviser will use records
or information obtained under this Agreement only for the purposes contemplated
hereby, and will not disclose such records or information in any manner other
than expressly authorized by the Fund, or if disclosure is expressly required by
applicable federal or state regulatory authorities or by this Agreement. In
addition, for the duration of this Agreement, the Sub-Adviser shall preserve for
the periods prescribed by Rule 31a-2 under the 1940 Act any such records as are
required to be maintained by it pursuant to this Agreement and shall transfer
all such records to any entity designated by the Adviser upon the termination of
this Agreement. For the avoidance of doubt, any records and reports maintained
by Sub-Adviser are not the official custodial books and records of the Fund.
(b) The Sub-Adviser agrees that all accounts, books and other records
maintained and preserved by it as required hereby will be subject at any time,
and from time to time, to such reasonable periodic, special and other
examinations by the SEC, the Fund's auditors, any representative of the Fund,
the Adviser, or any governmental agency or other instrumentality having
regulatory authority over the Fund.
10. CONFIDENTIAL INFORMATION
(a) The Sub-Adviser will use records or information obtained under this
Agreement only for the purposes contemplated hereby, and will not disclose such
records or information in any manner other than expressly authorized by the
Fund, or if disclosure is expressly required by applicable federal or state
regulatory authorities or by this Agreement.
(b) Notwithstanding the foregoing, the Sub-Adviser shall not disclose
to any third party material non-public information with respect to the Fund, the
Trust or the Adviser, including, without limitation the "non-public portfolio
holdings" of the Fund, unless (1) there is a legitimate business purpose for
such disclosure, and (2) such third party agrees in writing with Sub-Adviser to
keep such information confidential and to not trade based upon such information.
"Non-public portfolio holdings" means holdings which have not first been made
public by making a filing with the Securities and Exchange Commission which is
required to include portfolio holdings information.
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11. MARKETING MATERIALS.
(a) The Fund shall furnish to the Sub-Adviser, prior to its use, each
piece of advertising, supplemental sales literature or other promotional
material in which the Sub-Adviser or any of its affiliates is named. No such
material shall be used except with prior written permission of the Sub-Adviser
or its delegate. The Sub-Adviser agrees to respond to any request for approval
on a prompt and timely basis. Failure by the Sub-Adviser to respond within ten
(10) calendar days to the Fund shall relieve the Fund of the obligation to
obtain the prior written permission of the Sub-Adviser.
(b) The Sub-Adviser shall furnish to the Fund, prior to its use, each
piece of advertising, supplemental sales literature or other promotional
material in which the Fund, the Adviser or any of the Adviser's affiliates is
named. No such material shall be used except with prior written permission of
the Fund or its delegate. The Fund agrees to respond to any request for approval
on a prompt and timely basis. Failure by the Fund to respond within ten (10)
calendar days to the Sub-Adviser shall relieve the Sub-Adviser of the obligation
to obtain the prior written permission of the Fund.
12. GOVERNING LAW.
This Agreement shall be construed and interpreted in accordance with
the laws of the State of Delaware without regard to conflict of law principles,
and the applicable provisions of the 1940 Act or other federal laws and
regulations which may be applicable. To the extent that the applicable law of
the State of Delaware or any of the provisions herein, conflict with the
applicable provisions of the 1940 Act or other federal laws and regulations
which may be applicable, the latter shall control.
13. SEVERABILITY/INTERPRETATION.
If any provision of this Agreement is held invalid by a court decision,
statute, rule or otherwise, the remainder of this Agreement shall not be
affected thereby. This Agreement shall be binding upon and shall inure to the
benefit of the parties hereto and their respective successors. Where the effect
of a requirement of the 1940 Act reflected in any provision of this Agreement is
altered by a rule, regulation or order of the SEC, whether of special or general
application, such provision shall be deemed to incorporate the effect of such
rule, regulation or order.
14. NOTICES.
Any notice that is required to be given by the parties to each other
under the terms of this Agreement shall be given in writing, delivered, or
mailed to the other party, or transmitted by facsimile 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:
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(a) If to the Sub-Adviser:
Xxxxxx X. X'Xxxxxxxxxx, Vice President and Group Counsel
General Counsel's Office
Ameriprise Financial, Inc.
RiverSource Investments, LLC
000 Xxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, XX 00000
Office 212-850-1703
Facsimile 000-000-0000
Xxxxxx.x.xxxxxxxxxxx@xxxx.xxx
(b) If to the Adviser:
Lincoln Investment Advisors Corporation
Xxx Xxxxxxx Xxxxx
Xxxxxxx, XX 00000
Attn: Xxxxx Xxxxxxxxx
Facsimile (000) 000-0000
15. CERTAIN DEFINITIONS.
For the purposes of this Agreement, the terms "vote of a majority of
the outstanding voting securities," "interested persons," and "assignment" shall
have the meaning defined in the 1940 Act, and subject to such orders or
no-action letters as may be granted by the SEC and/or its staff.
IN WITNESS WHEREOF, the parties have caused this instrument to be
signed by their duly authorized representatives, all as of the day and year
first above written.
LINCOLN INVESTMENT ADVISORS CORPORATION
---------------------------------------
Name:
Title:
RIVERSOURCE INVESTMENTS, LLC
---------------------------------------
Name:
Title:
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Accepted and agreed to
as of the day and year
first above written:
LINCOLN VARIABLE INSURANCE PRODUCTS TRUST,
on behalf of the LVIP Columbia Value Opportunities Fund
-------------------------------
Name:
Title:
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