SUBADVISORY AGREEMENT
THIS AGREEMENT is made and entered into as of May 2, 2005 by and among
GARTMORE VARIABLE INSURANCE TRUST, a Delaware statutory trust (the "Trust"),
GARTMORE MUTUAL FUND CAPITAL TRUST (the "Adviser"), a Delaware statutory trust
registered under the Investment Advisers Act of 1940 (the "Advisers Act"), and
X.X. XXXXXX INVESTMENT MANAGEMENT, INC., a Delaware corporation (the
"Subadviser"), and also registered under the Advisers Act.
WITNESSETH:
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") 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 Advisor 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 its activities under this Agreement, including,
without limitation, information concerning the Fund, its funds
available, or to become available, for investment and generally as to
the conditions of the Fund'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, amended and/or
restated from time to time (referred to hereinafter as the "Declaration
of Trust" and "By-Laws," respectively) 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.
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 Subadvise 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 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 by the Subadviser to the Fund 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 Fund as may be required to be contained in the Prospectus or in the
Trust's registration statement on Form N-1A.
2
(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 or the Fund 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 the 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
Subadviser Assets for the 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, in its
opinion, 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 the Fund the most favorable price and
execution available, the Subadviser, bearing in mind the Fund's best
interests 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
3
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 the 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.
(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 instruments to the Fund;
provided, however, the Subadviser and 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, 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 material
violations which have occurred with respect to the Subadviser Assets.
The Subadviser will have also submit 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 of thereto.
(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
4
other records of all securities transactions. The Subadviser
acknowledges that the Fund's Records are property of the Trust. The
Fund's Records (relating to the Subadviser Assets) shall be available
to the Adviser at any time upon request 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 reasonably 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 Fund or the Adviser to comply with their
respective obligations under applicable laws, including, without
limitation, the Code, the 1940 Act, the Advisers Act, the Securities
Act and any state securities laws, 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.
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
5
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 a 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 Fund 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 the Fund pursuant to this Agreement, the Subadviser will be
entitled to the fee listed for each 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 the 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.
6. REPRESENTATIONS AND WARRANTIES OF SUBADVISER. The Subadviser
represents and warrants to the Adviser and the Fund 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");
(c) The Subadviser is a corporation 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 Subadviser of
this Agreement are within the Subadviser's powers and have been duly
authorized by all necessary action on the part of its Board of
Directors and no action by, or in respect of, or filing with, any
governmental body, agency or official is required on the part of the
Subadviser for the execution, delivery and performance by the
Subadviser of this Agreement, and the execution, delivery and
6
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;
(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;
7
(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
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, the Trust or a Fund or any of a
Fund's shareholders, in connection with the matters to which this
Agreement relates.
(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
8
their respective Affiliates and Controlling Persons may sustain as a
result of the Subadviser's wilful misfeasance, bad faith, or 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 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 each Fund and their
respective Affiliates and Controlling Persons shall not be indemnified
for a loss or expense resulting from their negligence or 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
attorneys fees, howsoever arising from, or in connection with, this
Agreement or the performance by the Subadviser of its duties hereunder;
provided, however, that the Subadviser shall not be indemnified for any
liability or expenses which may be sustained 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.
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.
(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 sixty (60) days' written notice to the
Subadviser;
9
(ii) By any party hereto immediately upon written notice to
the other parties in the event of a material breach of any
provision of this Agreement by any of the other parties; or
(iii) By the Subadviser upon at least 120 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 SUBADVISER. 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 in references concerning
the identity of and services provided by 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.
The Subadviser agrees to permit the Adviser and the Trust to use its
name in the names of Funds of the Trust. Upon termination of the Agreement with
respect to any one Fund the Adviser will cause such Fund to cease to use the
Subadviser's name in the name of the Fund. Upon the termination of the Agreement
with respect to all Funds, the Subadviser shall cease and shall cause the Funds
to cease all use of the name and marks of the Subadviser and its affiliates.
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 Fund (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 Fund and
the Subadviser to comply with applicable law, including any demand of any
regulatory or taxing authority having jurisdiction, the parties hereto s 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 party, 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:
10
(a) If to the Subadviser:
X.X. Xxxxxx Investment Management, Inc.
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxx Xxxxxx
Facsimile: (000) 000-0000
(b) If to the Adviser:
Gartmore Mutual Fund Capital Trust
0000 Xxxxx Xxxx - Xxxxx 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
17. 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.
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. GARTMORE VARIABLE INSURANCE TRUST AND ITS TRUSTEES. The terms
"Gartmore Variable Insurance Trust" and the "Trustees of Gartmore Variable
11
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.
23. IMRO REGULATION. Under the United Kingdom Financial Services Act of
1986, the Subadviser is a member of the Investment Management Regulatory
Organisation Limited ("IMRO") and as such is regulated by IMRO in the conduct of
its investment business in the United Kingdom. To the extent that the
Subadviser's United Kingdom office provides services under this Agreement those
services are provided on the basis that both the Trust and the Adviser are
non-private customers as that term is defined in the IMRO's rules.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on
the day and year first written above.
TRUST
GARTMORE VARIABLE INSURANCE TRUST
By: ___________________________
Name:
Title:
ADVISER
GARTMORE MUTUAL FUND CAPITAL TRUST
By: ______________________________
Name:
Title:
SUBADVISER
X.X. XXXXXX INVESTMENT
MANAGEMENT, INC.
By: _______________________________
Name:
Title:
12
EXHIBIT A
SUBADVISORY AGREEMENT BETWEEN
GARTMORE VARIABLE INSURANCE TRUST,
GARTMORE MUTUAL FUND CAPITAL TRUST AND
X.X. XXXXXX INVESTMENT MANAGEMENT, INC.
FUNDS OF THE TRUST SUBADVISORY FEES EFFECTIVE DATE
------------------ ---------------- --------------
X.X. Xxxxxx GVIT Balanced Fund 0.35% on Subadviser Assets May 2, 2005
up to $100 million
0.30% for Subadviser Assets
of $100 million and more
GVIT Small Cap Value Fund 0.50% on Subadviser Assets of up to May 2, 2005
$200 million
0.45% for Subadviser Assets of $200
million and more
EXHIBIT B
SUBADVISORY AGREEMENT
AMONG GARTMORE VARIABLE INSURANCE TRUST,
GARTMORE MUTUAL FUND CAPITAL TRUST
AND X.X. XXXXXX INVESTMENT MANAGEMENT, INC.
EFFECTIVE 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.
