Exhibit No. EX-23.d.3.a
SUBADVISORY AGREEMENT
THIS AGREEMENT is made and entered into as of the 29th day of September,
2006, 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 Gartmore Global Partners, a general partnership organized
under the laws of Delaware (the "Subadviser"), and also registered under the
Advisers Act.
W I T N E S S E T H:
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") as subsequently
amended, 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 Subadviser is regulated by the Securities and Exchange
Commission as an investment adviser under the Advisers Act and is also
authorised and regulated by the Financial Services Authority ("FSA") of the
United Kingdom in the conduct of its investment business;
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 Adviser 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 the
Subadviser's activities under this Agreement, including, without
limitation, information concerning a Fund, their funds available, or to
become available, for investment and generally as to the conditions of a
Fund's or Trust's affairs. In particular, but without prejudice to the
generality of the foregoing, the Adviser shall authorize and instruct the
Trust's custodian to provide such information to the Subadviser as it may
reasonably require, and to act upon the Subadviser's instructions given in
the proper performance by the Subadviser of this Agreement.
(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, or 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 and the Code 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 copies of any financial statements
or reports made by the Fund to its shareholders, and any further materials
or information which the Subadviser may reasonably request to enable it to
perform its functions under this Agreement. Notwithstanding the foregoing,
the Adviser acknowledges that the Subadviser may also be subject to
requirements by FSA, and will comply with such requirements to the extent
they are not inconsistent with applicable federal and state laws and
regulations in the United States. At a minimum, the Subadviser must comply
with the laws of the United States, but may also choose to comply with more
stringent FSA requirements if the Subadviser deems necessary.
The Adviser will also 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 Trust or to the Adviser specifically for inclusion in
the Prospectus. The Subadviser hereby agrees to provide to the Adviser in a
timely manner following the Adviser's written request such information
relating to the Subadviser and its relationship to, and actions for, the
Trust as may be required to be contained in the Prospectus or in the
Trust's Registration Statement on Form N-1A.
(c) Voting of Proxies. The 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, the Fund or the Trust 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 managing the
Subadviser Assets, and executing account documentation, agreements,
contracts and other documents as the Subadviser shall enter into with
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 each 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
the 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 the 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. 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 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.
Notwithstanding the foregoing, the Adviser acknowledges that the Subadviser
may also be subject to requirements by FSA, and will comply with such
requirements to the extent they are not inconsistent with applicable
federal and state laws and regulations in the United States. At a minimum,
the Subadviser must comply with the laws of the United States, but may also
choose to comply with more stringent FSA requirements if the Subadviser
deems necessary.
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 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.
(f) Securities Transactions. The Subadviser and any affiliated person
of the Subadviser may purchase securities or other instruments from or sell
securities or other instruments to a Fund only 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 the Trust's 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 a quarterly basis, the Subadviser will either (i) certify to the
Adviser that the Subadviser and its Access Persons have complied with the
Trust's Code of Ethics with respect to the Subadviser Assets or (ii)
identify any violations which have occurred with respect to the Subadviser
Assets.
(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 other records of
all securities transactions. The Subadviser acknowledges that the Fund's
Records are property of the Trust; however, nothing in this clause shall be
interpreted to provide the Adviser or the Trust with any property right in
any software used by the Subadviser to maintain such records. The Fund's
Records (relating to the Subadviser Assets) shall be available to the
Adviser at any time upon reasonable request during normal business hours
and shall be available for telecopying without delay to the Adviser during
any day that the relevant Fund is open for business. The Trust acknowledges
that the Subadviser may be obligated under applicable law and regulation to
maintain copies of the Fund's Records for certain periods prescribed by
such law and regulation and that it will permit the Subadviser to maintain
such records as may be so required both during the term of this Agreement
and thereafter.
(h) Information Concerning Subadviser Assets and Subadviser. From time
to time as the Adviser or the Trust may 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
management team(s) 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 as may be
reasonably requested from time to time, and may be required for the Trust
or the Adviser to comply with their respective obligations under applicable
laws, including without limitation, the Code, the 1940 Act, the Advisers
Act, and the Securities Act of 1933, as amended (the "Securities Act"), and
any rule or regulation thereunder.
(i) Custody Arrangements. The 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 Fund Investments.
(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. The Trust and the Adviser both acknowledge
that the Subadviser may be bound by applicable law and regulation which may
restrict its ability to disclose details such information, and this
Agreement shall not be construed as requiring the Subadviser to disclose
any such information where such disclosure would result in the Subadviser
being in breach of such applicable law or regulation.
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, including any tax arising
on any transaction, 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 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 Funds 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 a Fund and the Subadviser Assets 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 payable 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 a 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 Trust as follows:
(a) The Subadviser is registered as an investment adviser under the
Advisers Act;
(b) The Subadviser has filed a notice of exemption pursuant to Section
4.14 under the Commodity Exchange Act, as amended (the "CEA"), with the
Commodity Futures Trading Commission (the "CFTC") and the National Futures
Association ("NFA"), or is not required to file such exemption;
(c) The Subadviser is a partnership 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 by the Subadvisers board of 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 the 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 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 Section
4.14 under the CEA with the CFTC and the National Futures Association or is
exempt from doing so;
(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, the appointment of the Subadviser and the delegation to the
Subadviser of the duties and powers delegated to it under 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; and
(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. In the absence of wilful
misfeasance, bad faith or gross negligence on the part of the Adviser or a
reckless disregard of its duties hereunder, the Adviser, any of its
Affiliates and each of the Adviser's Controlling Persons, if any, shall not
be subject to any liability to the Subadviser, for any act or omission in
the case of, or connected with, rendering services hereunder or for any
losses that may be sustained in the purchase, holding or sale of Subadviser
Assets; provided, however, that 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 reasonable attorneys' fees, which
the Adviser, the Trust and the Fund and their respective Affiliates and
Controlling Persons may sustain 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. Notwithstanding any other
provision in this Agreement, the Subadviser will indemnify the Adviser, the
Trust and the 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 the Fund, and their
respective Affiliates and Controlling Persons shall not be indemnified for
a loss or expense resulting from their negligence, willful misconduct or
the violation of the 1940 Act or federal or state securities laws 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 reasonable
attorneys' fees, which may be sustained as a result of the Adviser'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, or as a result of any
negligence, willful misconduct or the violation of the 1940 Act or federal
or state securities laws on the part of the Adviser in the reliance upon
and/or use of any historical performance calculations provided by the
Subadviser concerning the Subadviser's composite account data or historical
performance information or similarly managed investment companies.
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 Funds
represented at a meeting if holders of more than 50% of the outstanding
shares of the Funds are present in person or by proxy or (b) more than 50%
of the outstanding shares of the Funds; 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 60 days' written notice to the Subadviser;
(ii) By any party hereto immediately upon written notice to the
other parties in the event of a breach of any provision of this
Agreement by either of the other parties; or
(iii) By the Subadviser upon at least 60 days' written notice to
the Adviser and the Trust.
This Agreement shall not be assigned (as such term is defined in the
0000 Xxx) and shall terminate automatically in the event of its assignment
or upon the termination of the Advisory Agreement. Upon termination of this
Agreement, the Trust will immediately discontinue the use of the historical
performance information provided by the Subadviser provided under Section
2(j) hereof.
Termination will be without prejudice to the settlement of any
outstanding fees and the completion of transactions already initiated. If
on termination any money is due or will or may become due in the future as
a result of a commitment entered into by the Subadviser ("an outstanding
amount") then the Subadviser may at its discretion sell such of the
Subadviser Assets as it may in its discretion select in order to realize
funds sufficient to cover any outstanding amount (but only to the extent
that insufficient funds are otherwise available for the purpose). The
Subadviser may also cancel, close out, terminate or reverse any transaction
or enter into any other transaction or do anything which has the effect of
reducing or eliminating any outstanding amount or of reducing or
eliminating any liability under any contracts, positions or commitments
undertaken under this Agreement.
12. Duties of the Adviser.
(a) Responsibility for other services. The Adviser shall continue to
have responsibility for all services to be provided to the Trust 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 Trust.
(b) Delivery of documents. The Adviser will provide the Subadviser
with copies of each of the following:
(i) The Trust's Certificate of Trust and Declaration of Trust;
(ii) The most recent Prospectus and Statement of Additional
Information relating to the Trust;
(iii) The Trust's Bylaws; and
(iv) The Trust's Code of Ethics.
The Adviser will notify the Subadviser as soon as it becomes
aware of any change in the above documents, and supply a copy of the
amended document or documents. The Subadviser shall not be liable
either for the breach of any provision or otherwise under this
Agreement, where such breach or other liability relates to a failure
to comply with the above documents, in circumstances where the
Subadviser was not aware at the relevant time of the amendment of the
relevant document or documents and, if not for such amendment, such
breach or other liability would not have occurred.
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 references concerning the
identity of and services provided by the Subadviser to the 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.
14. Amendment. This Agreement may be amended by mutual written 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 the terms of this Agreement and applicable law,
including any demand of any regulatory or taxing authority having jurisdiction,
the parties hereto shall 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 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:
Gartmore Global Partners [ ]
(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 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. Agent Not Principal. The Subadviser shall enter into transaction under
this Agreement as agent on behalf of the Adviser or Trust and not as principal.
24. Soft Commissions. The subadviser may effect transactions under the
Agreement with or through the agency of a person who provides services under a
Soft Commission Agreement, as defined in the rules of FSA, and will report such
transactions to the Adviser upon request. All such transactions must comply with
applicable federal and state regulations in the United States and any mutually
agreed upon policies and procedures.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the
day and year first written above.
TRUST
GARTMORE VARIABLE INSURANCE TRUST
By: /s/ Xxxxxx X. Xxxxxxx
Name: Xxxxxx X. Xxxxxxx
Title: Treasurer, CFO
ADVISER
GARTMORE MUTUAL FUND CAPITAL TRUST
By: /s/ Xxxxxx X. Xxxxxxx
Name: Xxxxxx X. Xxxxxxx
Title: Senior Vice President, COO
SUBADVISER
GARTMORE GLOBAL PARTNERS
By: /s/ Xxxxx Xxxxxxxx
Name: Xxxxx Xxxxxxxx
Title: Global General Counsel and Authorized
Signatory
EXHIBIT A
SUBADVISORY AGREEMENT
BETWEEN
GARTMORE VARIABLE INSURANCE TRUST
GARTMORE MUTUAL FUND CAPITAL TRUST
AND GARTMORE GLOBAL PARTNERS
Amended June 14, 2006*
Funds of the Trust Advisory Fees
GVIT Small Company Fund 0.60% of the Fund's average daily net assets
Gartmore GVIT Worldwide Leaders Fund(1) 0.55% of assets up to $50 million
0.50% for assets of $50 million or more
Gartmore GVIT Emerging Markets Fund(1) 0.525% on assets up to $500 million
0.500% on assets of $500 million and more, but less
than $2 billion
0.475% on assets of $2 billion and more
Gartmore GVIT International Growth Fund(1) 0.450% on assets up to $500 million
0.425% on assets of $500 million and more, but less
than $2 billion
0.400% on assets of $2 billion and more
Gartmore GVIT Global Utilities Fund(1) 0.350% on assets up to $500 million
0.325% on assets of $500 million and more, but
less than $2 billion
0.300% on assets of $2 billion and more
Gartmore GVIT Developing Markets Fund(1) 0.525% on assets up to $500 million
0.500% on assets of $500 million and more, but
less than $2 billion
0.475% on assets of $2 billion and more
* Effective upon the closing of the sale of Gartmore Global Partners on or about
August 1, 2006.
(1) Performance fee for the Gartmore GVIT Worldwide Leaders, Gartmore GVIT
Emerging Markets, Gartmore GVIT Developing Markets, Gartmore GVIT International
Growth and Gartmore GVIT Global Utilities Funds
The base advisory fee for each Fund as set forth above is adjusted each quarter
beginning one year after implementation of the performance fee, depending upon
the Fund's investment performance for the 12 months preceding the end of that
month relative to the investment performance of the Fund's benchmark. The base
fee is either increased or decreased proportionately by the following amounts at
each breakpoint, based upon whether a Fund has out-performed or under-performed
its respective benchmark (using the performance of the Fund's Class III Shares
to measure), by more or less than a maximum of 500 basis points over the
preceding rolling 12 month period as follows:
+/- 100 bps under/outperformance 2bps
+/- 200 bps under/outperformance 4bps
+/- 300 bps under/outperformance 6bps
+/- 400 bps under/outperformance 8bps
+/- 500 bps or more under/outperformance 10bps
The investment performance of the Fund will be the sum of: (1) the change in the
Fund's value during such period; (2) the value of the Fund's cash distributions
(from net income and realized net gains) having an ex-dividend date during such
calculation period; and (3) the value of any capital gains taxes paid or accrued
during such calculation period for undistributed realized long-term capital
gains from the Fund. For this purpose, the value of distributions per share of
realized capital gains, of dividends per share paid from investment income and
of capital gains taxes per share reinvested in the Fund will be the Fund's value
in effect at the close of business on the record date for the payment of such
distributions and the date on which provision is made for such taxes, after
giving effect to such distribution, dividends and taxes.
A description of the specific methodology for calculating, accruing and paying
the performance fees for the above-referenced Fund is set forth in Exhibit C to
this Agreement.
Benchmark Index Performance:
The performance of each respective benchmark Index for a calculation period,
expressed as a percentage of each Index, at the beginning of such period will be
the sum of: (1) the change in the level of the Index during such period; and (2)
the value, as calculated consistent with the Index, of cash distributions having
an ex-dividend date during such period made by those companies whose securities
comprise the Index. For this purpose, cash distributions on the securities that
comprise the Index will be treated as if they were reinvested in the Index at
least as frequently as the end of each calendar quarter following payment of the
dividend.
Benchmark Indices:
1. Gartmore GVIT Worldwide Leaders Fund MSCI World Index
2. Gartmore GVIT Emerging Markets Fund MSCI Emerging Markets Index
3. Gartmore GVIT International Growth Fund MSCI All Country World Free ex U.S
Index
4. Gartmore GVIT Global Utilities Fund 60% MSCI World Telecom Services
Index/40% MSCI World Utilities Index
5. Gartmore GVIT Developing Markets Fund MSCI Emerging Markets Index
EXHIBIT B
SUBADVISORY AGREEMENT
AMONG GARTMORE VARIABLE INSURANCE TRUST, GARTMORE GLOBAL ASSET
MANAGEMENT TRUST and GARTMORE GLOBAL PARTNERS
Effective June 14, 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
subadviser that is advising an affiliate of the Fund (or portion of the Fund)
(collectively, the "Subadvisers" 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 Subadvisers
are responsible for providing investment advice to the Fund, the Subadvisers'
responsibility in providing advice is expressly limited with respect to a
discrete portion of the Fund's portfolio.
This prohibition does not apply to communications in connection with the
Investment 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 Subadviser(s); and (iii) investment discretion
with respect to the investment of Fund assets not otherwise assigned to a
Subadviser.
* Effective upon the closing of the sale of Gartmore Global Partners on or about
August 1, 2006.
TRUST
GARTMORE VARIABLE INSURANCE TRUST
By: /s/ Xxxxxx X. Xxxxxxx
Name: Xxxxxx X. Xxxxxxx
Title: Treasurer, CFO
ADVISER
GARTMORE MUTUAL FUND CAPITAL TRUST
By: /s/ Xxxxxx X. Xxxxxxx
Name: Xxxxxx X. Xxxxxxx
Title: Senior Vice President, COO
SUBADVISER
GARTMORE GLOBAL PARTNERS
By: /s/ Xxxxx Xxxxxxxx
Name: Xxxxx Xxxxxxxx
Title: Global General Counsel and Authorized
Signatory
