Exhibit No. EX-99(d)(4)(l)
SUBADVISORY AGREEMENT
THIS AGREEMENT is made and entered into as of the 1st day of May, 2006,
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, as amended
(the "Advisers Act"), and FUND ASSET MANAGEMENT LP, a limited partnership under
the laws of the State of Delaware (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 the 2nd day of May, 2005, amended effective as of May
1, 2006 (the "Advisory Agreement"), 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 supervision 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
Subadviser is authorized, in its sole discretion and without prior consultation
with the Adviser, to buy, sell, lend and otherwise trade in any stocks, bonds
and other securities and investment instruments on behalf of the Subadviser
Assets in pursuance of each Fund's investment objective and policies. 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 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. Without limiting the preceding sentence,
the Adviser promptly shall notify the Subadviser as to any act or omission of
the Subadviser hereunder that the Adviser reasonably deems to constitute or to
be the basis of any noncompliance or nonconformance with any of the Trust's
Declaration of Trust and 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 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 and copies of
any procedures adopted by the Trustees applicable to the Subadviser or the
Subadviser Assets and any amendments thereto, copies of any financial statements
or reports made by or prepared for a Fund by certified or independent auditors;
reports of the Fund with respect to the Subadviser Assets to its shareholders or
to any state or federal regulatory agency, and any further materials or
information which the Subadviser may reasonably request to enable it to perform
its functions under this Agreement. Adviser shall also inform the Subadviser of
the results of any audits or examinations by regulatory authorities pertaining
to the assets of the Subadviser Assets or the Subadviser's responsibilities
under this Agreement, but only to the extent such directly relates to activities
of the Subadviser.
INSURANCE RESTRICTIONS
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 written 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 written 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.
The Adviser hereby acknowledges that in performing its
obligations pursuant to this agreement Subadviser will be acting in reliance on
the information provided by the Adviser relating to the financial condition, tax
status, and investment objectives of the Fund and the Subadviser Assets. Adviser
represents and warrants to Subadviser that all such information is, and will be,
accurate in all material respects, and that Adviser will not fail to disclose
any information which, if omitted, might render the information misleading.
Until the Adviser delivers to the Subadviser any supplements or amendments to
the documents described in this section 2, the Subadviser shall be fully
protected in relying on the most recent versions of such documents previously
furnished to the Subadviser.
(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, 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 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 instruments 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.
The Subadviser 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 assisting the
Trust in calculating net asset value of the Subadviser Assets in accordance with
valuation procedures and methods established by the Trustees. The Trust hereby
acknowledges and agrees that it shall have sole responsibility for the
determination of such net asset value.
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, 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. Any assets added to the Subadviser Assets shall be delivered directly to
the Trust's custodian banks and Subadviser will not take possession of any
Subadviser Assets money or securities. 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 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 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 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
(b) The Subadviser is registered as a Commodity Trading Advisor under the
Commodity Exchange Act, as amended (the "CEA"), with the Commodity Futures
Trading Commission (the "CFTC"), or is not required to file such registration to
perform its duties hereunder;
(c) The Subadviser is a limited partnership 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 provided to the Adviser 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. 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 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 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;
(f) The Adviser acknowledges that it received a copy of the Subadviser's
Form ADV at least 48 hours 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 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 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 at least 48 hours 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 acknowledges and agrees that the Subadviser makes
no representation or warranty, express or implied, that any investment results
will be achieved by the 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 willful
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/or 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 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.
(c) Anything in the foregoing to the contrary notwithstanding, the
Subadviser shall not be liable 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 or arise
out of acts of the Adviser, including, but not limited to, a failure of the
Adviser to provide accurate and current information with respect to any records
maintained by the Adviser or any other subadviser to a Fund, which records are
not also maintained by or otherwise available to the Subadviser upon reasonable
request. The Adviser agrees that Subadviser shall manage the Subadviser Assets
as if they were a separate operating Fund as set forth in Section 2(b) of this
Agreement. The Adviser shall indemnify the Subadviser, its Affiliates and
Controlling Persons from any liability arising from the conduct of the Adviser
and any other subadviser with respect to the portion of the Fund's assets not
allocated to the Subadviser.
11. Duration and Termination.
(a) Duration. Unless sooner terminated, this Agreement shall continue until
February 27, 2007, 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 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 (as
defined in the 1940 Act), or by the Adviser, in each case, upon not more than 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 not more than 60 days' written notice
to the Adviser and the Trust.
This Agreement shall not be assigned (as such term is defined in the
0000 Xxx) and shall terminate automatically in the event of its assignment or
upon the termination of the Advisory Agreement.
12. Duties of the Adviser. The Adviser shall continue to have responsibility for
all services to be provided to the Fund pursuant to the Advisory Agreement and
shall oversee and review the Subadviser's performance of its duties under this
Agreement. Nothing contained in this Agreement shall obligate the Adviser to
provide any funding or other support for the purpose of directly or indirectly
promoting investments in the Fund.
13. Reference to Adviser and Subadviser.
(a) Neither the Adviser nor any Affiliate or agent of the Subadviser 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 Subadvisor 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 the Subadviser 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 1940 Act), 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:
Fund Asset Management LP
Third Party Distributors
000 Xxxxxxxxxxxx Xxxx
Xxxxxxxxxx, Xxx Xxxxxx 00000
Attention: Legal Department
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 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. 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 the Declaration
of Trust made and dated as of September 30, 2004, as has been or may be amended
and/or restated from time to time, and to which reference is hereby made.
24. Non-Exclusivity. The Adviser agrees that the services of the
Subadviser are not to be deemed exclusive and that the Subadviser and its
affiliates are free to act as investment manager and provide other services to
various investment companies and other managed accounts, except as the
Subadviser and the Adviser may otherwise agree from time to time in writing
before or after the date hereof. This Agreement shall not in any way limit or
restrict the Subadviser or any of its trustees, officers, partners, directors,
employees, agents, controlling persons, limited partners and any other person or
entity affiliated with the Subadviser from buying, selling or trading any
securities or other investment instruments for its or their own account or for
the account of others for whom it or they may be acting, provided that such
activities (i) are consistent with the procedures of the Trust, (ii) are in
compliance with the Subadviser's Code of Ethics and other stated procedures
adopted pursuant to Rule 206(4)-7 under the Investment Advisers Act of 1940, as
amended, and (iii) do not adversely affect or otherwise impair the performance
by the Subadviser of its duties and obligations under this Agreement. The
Adviser recognizes and agrees that the Subadviser may provide advice to or take
action with respect to other clients, which advice or action, including the
timing and nature of such action, may differ from or be identical to advice
given or action taken with respect to the Subadviser Assets.
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: Xxxxx Xxxxxxxxx
Title: Assistant Secretary
ADVISER
GARTMORE MUTUAL FUND CAPITAL TRUST
By: _____________________________________
Name: Xxxxxx X. Xxxxxxx
Title: Senior Vice President
SUBADVISER
FUND ASSET MANANGEMENT LP
By:_______________________________________
Name:
Title:
EXHIBIT A
SUBADVISORY AGREEMENT AMONG
GARTMORE VARIABLE INSURANCE TRUST,
GARTMORE MUTUAL FUND CAPITAL TRUST and
FUND ASSET MANAGEMENT, L.P.
Effective May 1, 2006
Funds of the Trust Advisory Fees
GVIT S&P 500 Index Fund (a) 0.02% on assets up to $1.5 billion;
(b) 0.015% on assets of $1.5
billion and more but less than
$3 billion; and
(c) 0.0125% on assets of $3
billion and more
GVIT Small Cap Index Fund (a) 0.07% on assets up to $1.5 billion;
(b) 0.06% on assets of $1.5
billion and more but less than
$3 billion; and
(c) 0.05% on assets of $3 billion and more
GVIT Mid Cap Market Index Fund (a) 0.075% on assets up to $1.5 billion;
(b) 0.06% on assets of $1.5
billion and more but less than
$3 billion; and
(c) 0.05% on assets of $3 billion and more
GVIT International Index Fund (a) 0.11% on assets up to $1.5 billion;
(b) 0.085% on assets of $1.5
billion and more but less than
$3 billion; and
(c) 0.075% on assets of $3 billion and more
GVIT Bond Index Fund (a) 0.08% on assets up to $1.5 billion;
(b) 0.06% on assets of $1.5
billion and more but less than
$3 billion; and
(c) 0.05% on assets of $3 billion and more
TRUST ADVISER
GARTMORE VARIABLE INSURANCE TRUST GARTMORE MUTUAL FUND CAPITAL TRUST
By:______________________________
Name: Xxxxx Xxxxxxxxx
Title: Assistant Secretary By: ______________________________
Name: Xxxxxx X. Xxxxxxx
Title: Senior Vice President
SUBADVISER
FUND ASSET MANANGEMENT LP
By: _______________________________
Name:
Title:
EXHIBIT B
SUBADVISORY AGREEMENT AMONG
GARTMORE VARIABLE INSURANCE TRUST,
GARTMORE MUTUAL FUND CAPITAL TRUST and
FUND ASSET MANAGEMENT, L.P.
Effective May 1, 2006
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 the 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.
TRUST
GARTMORE VARIABLE INSURANCE TRUST
By:_______________________________________
Name: Xxxxx Xxxxxxxxx
Title: Assistant Secretary
ADVISER
GARTMORE MUTUAL FUND CAPITAL TRUST
By: _____________________________________
Name: Xxxxxx X. Xxxxxxx
Title: Senior Vice President
SUBADVISER
FUND ASSET MANANGEMENT LP
By:_______________________________________
Name:
Title:
