EX-99.23.d
GATEWAY VIT FUND
MANAGEMENT AGREEMENT
THIS AGREEMENT made as of October 31, 2001, by and between the GATEWAY
VARIABLE INSURANCE TRUST, an Ohio business trust (the "Trust"), and GATEWAY
INVESTMENT ADVISERS, L.P., a Delaware limited partnership (the "Adviser").
WITNESSETH:
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WHEREAS, the Trust is an open-end, diversified management investment
company registered under the Investment Company Act of 1940, as amended (the
"Act") the shares of beneficial interest (the "Shares") of which are registered
under the Securities Act of 1933; and
WHEREAS, the Trust is authorized to issue shares in separate series
with each such series representing the interests in a separate portfolio of
securities and other assets; and
WHEREAS, the Trust offers Shares in a series known as the Gateway VIT
Fund (the "Fund"); and
WHEREAS, the Trust desires to retain the Adviser to render investment
advisory and management services to the Fund, and the Adviser is willing to
render such services;
NOW THEREFORE, in consideration of the mutual covenants herein
contained and other good and valuable consideration, the receipt of which is
hereby acknowledged, the parties hereto agree as follows:
1. The Adviser shall act as investment manager for the Fund and
shall, in such capacity, supervise the investment and
reinvestment of the cash, securities or other properties
comprising the assets of the Fund, subject at all times to the
policies applicable to the Fund and to the control of the
Board of Trustees of the Trust. The Adviser shall give the
Trust the benefit of its best judgment, efforts and facilities
in rendering its services as investment manager.
2. In carrying out its obligations under paragraph 1 hereof, the
Adviser shall:
(a) obtain and evaluate pertinent information about
significant developments and economic, statistical
and financial data, domestic, foreign or otherwise,
whether affecting the Fund or the economy generally,
and whether concerning the individual companies whose
securities or options therefor are included in the
Fund or the industries in which they engage, or with
respect to other securities or options therefor which
the Adviser considers desirable for inclusion in the
Fund;
(b) determine what industries and companies shall be
represented in the Fund and regularly report them to
the Board of Trustees of the Trust;
(c) formulate and implement programs for the purchases
and sales of any securities or options and regularly
report thereon to the Board of Trustees of the Trust;
(d) place all orders for the purchase and sale of
investments for the Fund, including the purchase
and/or sale of options and the effecting of closing
purchase transactions, for the Fund's account with
brokers or dealers selected by the Adviser. In the
selection of such brokers or dealers and the placing
of such orders, the Adviser shall always seek best
execution, which is to execute the Fund's
transactions where the most favorable combination of
price and execution services in particular
transactions can be obtained or provided on a
continuing basis or with respect to individual
transactions by a broker or dealer, and to deal
directly with a principal market maker in connection
with over-the-counter transactions, except when it is
believed that best execution is obtainable elsewhere.
Subject to such policies as the Board of Trustees may
determine, the Adviser shall not be deemed to have
acted unlawfully or to have breached any duty created
by this Agreement, or otherwise, solely by reason of
its having either (i) dealt with an affiliate of the
Adviser, or (ii) caused the Fund to pay a broker or
dealer that provides brokerage, research and
statistical services to the Adviser an amount of
commission for effecting a portfolio investment
transaction, including the sale of an option or a
closing purchase transaction, in excess of the amount
of commission another broker or dealer would have
charged for effecting that transaction, if the
Adviser determines in good faith and in the best
interest of the Fund that (x) the commission and
other expenses of any such affiliate are comparable
to the commission and other expenses charged by
unaffiliated brokers and dealers, and (y) such amount
of commission was reasonable in relation to the value
of the brokerage and research services provided by
such broker or dealer, viewed in terms of either that
particular transaction or its overall
responsibilities with respect to the Fund and to any
other of its clients as to which it exercises
investment discretion. Consistent with the Rules of
Fair Practice of the National Association of
Securities Dealers, Inc. and subject to seeking best
execution and such other factors as the Trustees may
determine, the Adviser may consider sales of shares
of the Fund as a factor in the selection of
broker-dealers to execute securities transactions for
the Fund; and
(e) present a written report to the Board of Trustees of
the Trust at least quarterly indicating total
brokerage expenses, actual or imputed, as well as the
services obtained in consideration for such expenses;
and
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(f) take, on behalf of the Fund, all actions which appear
to the Adviser necessary to carry into effect such
purchase and sale programs and supervisory functions
as aforesaid.
3. Any investment program undertaken by the Adviser pursuant to
this Agreement, as well as any other activities undertaken by
the Adviser on behalf of the Fund pursuant thereto, shall as
all times be subject to any directives of the Board of
Trustees of the Trust.
4. In carrying out its obligations under this Agreement, Adviser
shall at all times conform to:
(a) all applicable provisions of the Act and any rules
and regulations adopted thereunder;
(b) the provisions of the Agreement and Declaration of
Trust of the Trust, as amended from time to time;
(c) the provisions of the By-Laws of the Trust, as
amended from time to time.
(d) the provisions of the Registration Statements of the
Trust under the Securities Act of 1933 and the Act,
as amended from time to time; and
(e) any other applicable provision of state or federal
law.
5. (a) The Adviser shall bear all (i) expenses of
printing and distributing all Trust registration
statements, prospectuses and reports to current Trust
shareholders; (ii) costs of printing and transmitting
reports to governmental agencies; and (iii) other
printing and mailing costs.
(b) Except as set forth above, the Trust has agreed to
pay all its operating expenses, including without
limitation the expenses of continuing the Trust's
existence; the fees and expenses of trustees not
employed by the Adviser; expenses that the Fund is
authorized to pay pursuant to Rule 12b-1 under the
Act; expenses of registering or qualifying the Trust
or its shares under federal and various state laws
and maintaining and updating such registrations and
qualifications on a current basis; borrowing costs
(such as (i) interest and (ii) dividend expenses on
securities sold short), taxes, fees and commissions
of every kind; expenses of issuing shares, including
cost of share certificates; repurchases and
redemption of shares; charges and expenses of
custodians, transfer agents, fund accountants,
shareholder servicing agents, dividend disbursing
agents and registrars; expenses of valuing shares of
the Fund; auditing, accounting and legal expenses;
expenses of shareholder meetings and proxy
solicitations therefor; insurance expenses; expenses
incurred in connection with association membership
dues, including the annual dues of the Trust for its
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membership in the Investment Company Institute; and
all "extraordinary expenses" as may arise, including
all losses and liabilities in administrating the
Trust; expenses incurred in connection with
litigation proceedings and claims and the legal
obligations of the Trust to indemnify its officers,
trustees, and agents with respect thereto. A majority
of the Board of Trustees of the Trust and a majority
of the trustees who are not parties to this agreement
(except as a trustee of the Trust), voting
separately, shall determine which expenses shall be
characterized as "extraordinary expenses." The
expenses to be borne by the Trust under this
subparagraph shall be determined by the Board of
Trustees of the Trust.
(c) All ordinary business expenses of the Trust shall be
borne by the Trust unless subparagraph 5(a) and 5(b)
hereof specifically provides otherwise.
6. The Trust will pay the Adviser, as full compensation for
services rendered hereunder, a daily fee at the annual rate of
0.50% of the average value of the daily net assets of the
Fund.
7. The Trust shall at all times keep the Adviser fully informed
with regard to the securities owned by the Fund, the funds
available or to become available to the Fund for investment,
and generally as to the condition of the Fund's affairs. It
shall furnish the Adviser with a copy of all financial
statements certified by its financial officer, and a signed
copy of each financial statement audited by certified public
accountants with respect to it.
8. This contract shall become effective on October 31, 2001. It
shall remain in effect, subject to paragraph 9(a) hereof, for
a period of two years, and thereafter, provided that its
continuance for the Fund for each renewal year is specifically
approved, in advance (i) by the Board of Trustees of the Trust
or by vote of a majority of the outstanding voting securities
(as defined in Section 2(a)(42) of the Act of the Fund, and
(ii) by vote of a majority of the trustees who are not parties
to this Agreement or interested persons of a party to this
Agreement (other than as trustees of the Trust), by votes cast
in person at a meeting specifically called for such purpose;
provided, however, that if the continuation of this Agreement
is not approved for the Fund, the Adviser may continue to
serve in such capacity for the Fund in the manner and to the
extent permitted by the Act and the rules and regulations
thereunder.
9. (a) This Agreement may be terminated at any time,
without the payment of any penalty, by vote of the
Board of Trustees of the Trust or by vote of the
holders of a majority of the outstanding voting
securities of the Fund, or by the Adviser, on sixty
days' written notice to the other party. The notice
provided for herein may be waived by either party.
(b) In the absence of willful misfeasance, bad faith,
gross negligence or
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reckless disregard of obligations or duties hereunder
on the part of the Adviser, the Adviser shall not be
subject to liability to the Trust or to any
shareholder of the Fund for any act or omission in
the course of, or connected with, rendering services
hereunder or for any losses that may be sustained in
the purchase, holding or sale of any security or
other investment, except that nothing under this
paragraph shall be deemed to be a waiver of any
rights of the Trust or of any shareholder of the Fund
that may exist under the federal securities laws.
10. It is understood that the Adviser may perform investment
advisory services for various other clients, including
investment companies. The Adviser agrees to report to the
Board of Trustees (at such times as the Board of Trustees
reasonably shall request) (i) the financial condition and
prospects of the Adviser, (ii) the nature and amount of
transactions affecting the Fund that involve the Adviser and
affiliates of the Adviser, (iii) information regarding any
potential conflicts of interest arising by reason of its
continuing provision of advisory services to the Fund and to
its other accounts, (iv) such other information as the Board
of Trustees shall reasonably request regarding the Fund, the
Fund's performance, the services provided by the Adviser to
the Fund as compared to its other accounts, and the plans and
capability of the Adviser with respect to providing future
services to the Fund and its other accounts, and the total
number and type of such other accounts and the approximate
total asset value thereof (but not the identities of the
beneficial owners of such accounts). The Trust agrees that the
Adviser may give advice and take action with respect to any of
its clients which may differ from advice given or the timing
or nature of the action taken with respect to the Fund, so
long as it is the Adviser's policy, to the extent practicable,
to allocate investment transactions among the Fund and its
other accounts, over a period of time, on a fair and equitable
basis.
Broker-dealer affiliates of the Adviser may effect orders for
the Fund and may retain compensation in connection with
effecting such transactions, so long as the Adviser furnishes
the Board of Trustees, at least annually, with a statement
setting forth the total amount of all compensation retained by
such broker-dealer affiliates in connection with effecting
such transactions within the preceding year for the Trust.
11. This Agreement may be amended from time to time by agreement
of the parties hereto provided that such amendment shall be
approved by the vote of a majority of trustees of the Trust,
including a majority of trustees who are not parties to this
Agreement or interested persons of any such party to this
Agreement (other than as trustees of the Trust), cast in
person at a meeting called for that purpose, and (if required
under current interpretations of the Act by the Securities and
Exchange Commission) by vote of the shareholders of the Fund.
12. This Agreement shall automatically terminate in the event of
its assignment, the term "assignment" for this purpose having
the meaning defined in Section 2(a)(4)
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of the Act.
13. All parties hereto are expressly put on notice of: (i) the
Gateway Variable Insurance Trust Agreement and Declaration of
Trust, which is on file with the Secretary of the State of
Ohio, and (ii) the limitation of shareholder and trustee
liability contained therein and in Chapter 1746 of the Ohio
Revised Code. Notice is hereby given that the obligations of
this Agreement are not binding upon any of the trustees,
officers, or shareholders of the Trust individually but are
binding upon only the assets and property of the Trust. With
respect to any claim by the Adviser for recovery of any
portion of the investment management fee hereunder (or any
other liability of the Trust arising hereunder or otherwise
with respect to the Fund), whether in accordance with the
express terms hereof or otherwise, the Adviser shall have
recourse solely against the assets of the Fund to satisfy such
claim and shall have no recourse against the assets of any
other funds of the Trust for such purpose.
14. (a) This contract shall be construed in accordance with
and governed by applicable federal law and the laws
of the State of Ohio.
(b) Any question of interpretation of any term or
provision of this Agreement having a counterpart in
or otherwise derived from a term or provision of the
Act shall be resolved by reference to such term or
provision of the Act and to interpretation thereof,
if any, by the United States courts or in the absence
of any controlling decision of any such court, by the
Securities and Exchange Commission or its staff. In
addition, where the effect of a requirement of the
Act, reflected in any provision of this Agreement is
revised by rule, regulation, order or interpretation
of the Securities and Exchange Commission or its
staff, such provision shall be deemed to incorporate
the effect of such rule, regulation, order or
interpretation.
15. Any notices under this Agreement shall be in writing addressed
and delivered or mailed postage paid to the other party at
such address as such other party may designate for the receipt
of such notice. Until further notice to the other party, it is
agreed that the address of the Trust and that of the Adviser
for this purpose shall be Rookwood Tower, 0000 Xxxxxxx Xxxx,
Xxxxx 000, Xxxxxxxxxx, Xxxx 00000.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
in duplicate as of the day and year first above written.
GATEWAY VARIABLE INSURANCE TRUST
By /s/
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Xxxxxx X. Xxxx, Chairman
GATEWAY INVESTMENT ADVISERS, L.P.
BY GATEWAY INVESTMENT ADVISERS, INC.
By /s/
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J. Xxxxxxx Xxxxxx, President
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