INVESTMENT SUB-ADVISORY AGREEMENT
---------------------------------
This AGREEMENT is effective this 10th day of September 2012, by and
between CURIAN CAPITAL, LLC, a Michigan limited liability company and registered
investment adviser ("Adviser"), and DIMENSIONAL FUND ADVISORS LP, a Delaware
limited liability partnership and registered investment adviser ("Sub-Adviser").
WHEREAS, Adviser is the investment manager for the Curian Variable Series
Trust (the "Trust"), an open-end management investment company registered under
the Investment Company Act of 1940, as amended ("1940 Act");
WHEREAS, the Adviser represents that it has entered into an Investment
Advisory and Management Agreement ("Management Agreement") dated as of December
19, 2011, with amendments thereto, with the Trust; and
WHEREAS, Adviser desires to retain Sub-Adviser as Adviser's agent to
furnish investment advisory services to the investment portfolios of the Trust
listed on Schedule A hereto (the "Funds" or each a "Fund").
NOW, THEREFORE, in consideration of the mutual covenants herein contained,
the parties hereto agree as follows:
1. APPOINTMENT. Subject to the approval of the Board of Trustees of the Trust
(the "Board of Trustees"), Adviser represents and warrants that it has
full legal power and authority to enter into this Agreement and to
delegate investment advisory services, and hereby appoints Sub-Adviser to
provide certain sub-investment advisory services to the Funds for the
period and on the terms set forth in this Agreement, and the appointment
of Sub-Adviser hereunder is permitted by Trust's and Adviser's governing
documents and has been duly authorized by all necessary corporate or other
action. Adviser represents that this Agreement has been duly authorized
and will be binding upon Adviser.
Sub-Adviser accepts such appointment and agrees to furnish the services
herein set forth for the compensation herein provided.
In the event the Adviser designates one or more funds other than the Funds
with respect to which the Adviser wishes to retain the Sub-Adviser to
render investment advisory services hereunder, it shall notify the
Sub-Adviser in writing. If the Sub-Adviser is willing to render such
services, the parties agree to execute an amended Schedule A of this
Agreement, whereupon such fund shall become a Fund hereunder, and be
subject to this Agreement, all subject to the approval of the Board of
Trustees.
2. DELIVERY OF DOCUMENTS. Adviser has furnished, or will furnish, to
Sub-Adviser copies properly certified or authenticated of each of the
following prior to the commencement of the Sub-Adviser's services:
a) the Trust's Agreement and Declaration of Trust, as filed with the
Secretary of State of The Commonwealth of Massachusetts on September
7, 2011, and all amendments thereto or restatements thereof (such
Declaration, as presently in effect
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and as it shall from time to time be amended or restated, is herein
called the "Declaration of Trust");
b) the Trust's By-Laws and amendments thereto (together with the
Declaration of Trust, the "Trust Documents");
c) resolutions of the Board of Trustees authorizing the appointment of
Sub-Adviser and approving this Agreement;
d) the Trust's Notification of Registration on Form N-8A under the 1940
Act as filed with the Securities and Exchange Commission (the
"SEC");
e) the Trust's Registration Statement on Form N-1A under the Securities
Act of 1933, as amended ("1933 Act") and under the 1940 Act as filed
with the SEC and all amendments thereto insofar as such Registration
Statement and such amendments relate to the Funds; and
f) the Trust's most recent prospectus and Statement of Additional
Information for the Funds (collectively called the "Prospectus").
During the term of this Agreement, the Adviser agrees to furnish the
Sub-Adviser at its principal office all proxy statements, reports to
shareholders, sales literature or other materials prepared for
distribution to shareholders of each Fund, and Prospectus of each Fund,
prior to the use thereof, and the Adviser shall not use any such materials
if the Sub-Adviser reasonably objects in writing within ten business days
(or such other period as may be mutually agreed) after receipt thereof.
The Sub-Adviser's right to object to such materials is limited to the
portions of such materials that expressly relate to the Sub-Adviser, its
services and its clients. The Adviser agrees to use its reasonable best
efforts to ensure that materials prepared by its employees or agents or
its affiliates that refer to the Sub-Adviser or its clients in any way are
consistent with those materials previously approved by the Sub-Adviser as
referenced in the first sentence of this paragraph. The materials
referenced in the first sentence of this paragraph will be furnished to
the Sub-Adviser by e-mail, first class or overnight mail, facsimile
transmission equipment or hand delivery, and any of such materials that
impact the Sub-Adviser's management of the Funds will not be deemed
effective with respective to the Sub-Adviser until the Sub-Adviser's
approval thereof, which such approval shall not be unreasonably withheld.
3. MANAGEMENT. Subject always to the supervision of the Adviser and the Board
of Trustees, Sub-Adviser will furnish an investment program in respect of,
and shall have full investment authority and discretion for, all assets of
the Funds and place all orders for the purchase and sale of securities,
including foreign or domestic securities, and other property (including
financial futures, options of any type, commodities and other derivative
instruments), all on behalf of the Funds as the Sub-Adviser shall
determine in accordance with each Fund's investment restrictions, policies
and Prospectus.
The Sub-Adviser further shall have the authority to instruct the custodian
as necessary to facilitate the completion of the Sub-Adviser's investment
decisions under this Agreement, including to: (a) deliver or accept
delivery of, upon receipt of payment or payment upon receipt of,
securities, commodities or other property underlying any futures or
options contracts, and other property purchased or sold in the Funds, or
deliver or pay for foreign property according to procedures commonly
followed by U.S. registered
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investment companies in the relevant foreign country; and (b) deposit
margin or collateral which shall include the transfer of money,
securities, or other property to the extent necessary to meet the
obligations of the Funds with respect to any investments made pursuant to
the Prospectus; and (c) such other routine and customary actions to the
extent necessary.
Adviser and/or the Fund's custodian will handle legal proceedings,
including class action and bankruptcy proceedings, relating to a Fund, and
Sub-Adviser shall not have any obligations thereto. Without Adviser's
prior consent to each transaction, Sub-Adviser shall have full
discretionary authority as agent and attorney-in-fact, with full power of
substitution and full authority in the Fund's name, to (a) buy, sell,
hold, exchange, convert or otherwise deal in any manner in any assets; (b)
place orders for the execution of such assets and other transactions with
or through such brokers, dealers, counter-parties, issuers, agents or
arrangers as Sub-Adviser may select; (c) enter into agreements and
execute, on behalf of the Fund, such brokerage, derivatives, subscription
and other agreements and documents (including, without limitation, ISDA,
LSTA, industry standard documentation, and the standard representations
contained therein) as Sub-Adviser deems necessary or appropriate in
connection with the Fund's investment activities; and (d) acknowledge the
receipt of brokers' risk disclosures; and (e) negotiate, enter into, make
and perform any other contracts, agreements or other undertakings it may
deem advisable in connection with the performance of the Sub-Adviser's
duties hereunder.
In the performance of its duties, Sub-Adviser will satisfy its fiduciary
duties to the Funds (as set forth below), and will monitor the Funds'
investments, and will comply with the provisions of the Trust Documents,
and the stated investment objectives, policies and restrictions of the
Funds, which may be amended from time to time, provided that Sub-Adviser
will be responsible for such monitoring and compliance of any amendments
to the Trust Documents, investment objectives, policies, and restriction,
only after Sub-Adviser's receipt of such amendments from the Adviser.
Sub-Adviser and Adviser will each make its officers and employees
available to the other from time to time at reasonable times to review
investment policies of the Funds and to consult with each other regarding
the investment affairs of the Funds. Sub-Adviser will report to the Board
of Trustees and to Adviser with respect to the implementation of such
program, as reasonably requested by the Board of Trustees or the Adviser.
Sub-Adviser, solely with respect to the assets of the Funds that are under
its management pursuant to this Agreement, shall take reasonable steps to
comply with the diversification provisions of Section 851(b)(3) and
Section 817(h) of the Internal Revenue Code of 1986, as amended ("IRC"),
and THE REGULATIONS THEREUNDER, INCLUDING, BUT NOT LIMITED TO, Treas. Reg.
Section 1.817-5.
Adviser will not act in a manner that would result in Sub-Adviser failing
to maintain the required diversification and if the failure to diversify
is inadvertent, Adviser shall in good faith follow the procedures
specified in Treas. Reg. Section 1.817-5(a)(2) and Revenue Procedure
2008-41 (or its successor) to request relief from the Commissioner of
Internal Revenue Service. In such an event, Sub-Adviser will provide
reasonable cooperation to the Adviser in the Adviser's preparation of any
request for relief or closing agreement and, to the extent that Adviser is
seeking indemnification under Section 11 hereof, no filings or agreements
shall be made with the Commissioner of Internal Revenue Service without
the prior written approval of Sub-Adviser.
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The Sub-Adviser is expressly authorized to rely upon any and all
instructions, directions, approvals and notices given on behalf of the
Adviser by any one or more of those persons designated as representatives
of the Trust whose names, titles and specimen signatures appear in
Schedule C attached hereto. The Adviser shall provide a Secretary
Certificate, Incumbency Certificate, or similar document indicating that
the persons designated as representatives have the authority to bind the
Trust. The Adviser may amend such Schedule C from time to time by written
notice to the Sub-Adviser. The Sub-Adviser shall continue to rely upon
these instructions until notified by the Adviser to the contrary.
The Adviser agrees that the Sub-Adviser shall not be liable for any
failure to recommend the purchase or sale of any security on behalf of any
Fund on the basis of any information which might, in the Sub-Adviser's
reasonable opinion, constitute a violation of any federal or state laws,
rules or regulations.
In rendering the services required under this Agreement, the Sub-Adviser
may, from time to time, employ or associate with itself such entity,
entities, person or persons as it believes necessary to assist it in
carrying out its obligations under this Agreement provided that the
Sub-Adviser shall be responsible for any acts or omissions such affiliated
or unaffiliated persons or parties to the extent Sub-Adviser would have
been responsible under this Agreement. Pursuant to this provision, the
Sub-Adviser currently has arrangements with unaffiliated third parties for
the provision to Sub-Adviser of certain administrative, middle office, and
proxy voting services and with registered investment adviser affiliates to
facilitate the execution of certain trades and make elections on certain
corporate actions.
The Sub-Adviser further agrees that it:
a) will use the same skill and care in providing such services as it
uses in providing services to its other similar client mandates for
which it has investment responsibilities;
b) will comply with all applicable Rules and Regulations of the SEC in
all material respects and in addition will conduct its activities
under this Agreement in accordance with any applicable regulations
of any governmental authority pertaining to its investment advisory
activities, including but not limited to compliance with Rule
206(4)-7 under the Investment Advisers Act of 1940, as amended (the
"Advisers Act");
c) will report regularly to Adviser and to the Board of Trustees as
reasonably agreed between the Adviser and Sub-Adviser, or as
reasonably requested by the Board of Trustees, and will make
appropriate persons available for the purpose of reviewing with
representatives of Adviser and the Board of Trustees on a regular
basis at reasonable times agreed to by the Adviser and Sub-Adviser,
or at such times as reasonably requested by the Board of Trustees,
in all cases with reasonable advance notice, including, without
limitation, review of the general investment strategies of the
Funds, the performance of the Funds in relation to the specified
benchmarks and will provide various other reports from time to time
as reasonably requested by Adviser or the Board of Trustees in
writing;
PAGE 4 OF 17
d) will provide to the Adviser (i) a monthly compliance checklist
developed for each Fund by Adviser and Sub-Adviser, (ii) quarterly
reports developed for each Fund by Adviser and Sub-Adviser, and
(iii) other compliance and reporting information as reasonably
requested by the Adviser or the Board of Trustees from time-to-time
and as agreed to by the Sub-Adviser, which such agreement shall not
be unreasonably withheld;
e) as a service provider to the Funds, will periodically provide
information, including information about the Sub-Adviser's
compliance program adopted pursuant to Rule 206(4)-7 under the
Advisers Act and provide such cooperation as may be reasonably
requested by the Chief Compliance Officer of the Trust in the
execution of his/her responsibilities to monitor service providers
to the Funds under Rule 38a-1 under the 1940 Act;
f) will prepare and maintain such books and records with respect to
each Fund's securities transactions in accordance with Section 7
herein;
g) will prepare and cause to be filed in a timely manner Form 13F and,
if required, Schedule 13G with respect to securities held for the
account of the Funds subject to Sub-Adviser's supervision;
h) will act upon reasonable instructions from Adviser not inconsistent
with the Sub-Adviser's fiduciary duties or a Fund's investment
objectives; however, in no case shall the Sub-Adviser be liable for
actions taken or non-actions with respect to the performance of
services under this Agreement based upon specific information,
instructions, or requests given or made to the Sub-Adviser by the
Adviser, subject to Section 10(a) under this Agreement;
i) will only disclose portfolio information in accordance with the
Trust's portfolio information policy as adopted by the Board of
Trustees or as required by law or requested by a regulator;
j) will treat confidentially and as proprietary information of the
Trust all such records and other information relative to the Trust
maintained by the Sub-Adviser, and will not use such records and
information for any purpose other than performance of its
responsibilities and duties hereunder or for other proposed not
inconsistent with the Sub-Adviser's fiduciary duties to the Funds,
except after prior notification to and approval in writing by the
Trust, which approval shall not be unreasonably withheld and may not
be withheld where the Sub-Adviser may be exposed to civil or
criminal contempt proceedings for failure to comply, when requested
to divulge such information by duly constituted authorities, or when
so requested by Trust, provided, however, that notwithstanding the
foregoing, Sub-Adviser may disclose such information as required by
applicable law, regulation or upon request by a regulator or auditor
of Sub-Adviser. Nothing in this provision will prevent disclosure of
any information to the Sub-Adviser's officers, directors, employees,
outside attorneys or accountants;
k) will have the sole authority and responsibility to exercise whatever
powers the Adviser may possess with respect to any of its assets
held in the Funds, including, but not limited to, the power to vote
or refrain from voting proxies, provided that the Sub-Adviser has
received the relevant proxy materials in a timely fashion, in
accordance with the Sub-Adviser's proxy voting policies and
procedures, as
PAGE 5 OF 17
amended from time to time, which shall be provided to the Trust and
the Adviser, the power to exercise rights, options, warrants,
conversion privileges, and redemption privileges, and to tender
securities pursuant to a tender offer, consistent with the
Sub-Adviser's fiduciary duties hereunder; and may, at its discretion
(subject to Sub-Adviser's responsibility and liability under the
terms of this Sub-Advisory Agreement), elect to use one or more
third parties, including proxy voting services, in fulfilling its
obligations hereunder; provided however, Adviser will, or will
direct the Fund's custodian to, send all proxy solicitation material
and other related material, including interim reports, annual
reports and other issuer mailings with respect to the Account, to
Sub-Adviser or its agent;
l) may vote and take all action, or refrain from voting or taking
action, related to corporate reorganization matters (e.g.,
conversions, tender and exchange offers, mergers, stock splits,
right offerings, recapitalizations, amendments, modifications or
waivers or other rights or powers); provided however, that the
Sub-Adviser has received the relevant corporate reorganization
materials and information in a timely fashion and that Adviser will,
or will direct the Fund's custodian to, deliver such materials and
information to Sub-Adviser or its agent;
m) may not consult with any other sub-adviser of the Trust, if any, or
the sub-adviser to any other investment company (or separate series
of an investment company) managed by the Adviser concerning the
Trust's transactions in securities or other assets for any
investment portfolio of the Trusts, including the Funds, except for
the purpose of complying with the conditions of Rule 12d3-1 (a) and
(b) under the 1940 Act, and except that such consultations are
permitted between the current and successor sub-advisers of the
Funds in order to effect an orderly transition of sub-advisory
duties so long as such consultations are not concerning transactions
prohibited by Section 17(a) of the 1940 Act;
n) will provide reasonable assistance to the Adviser or the Trust's
custodian, as the case may be, in determining the value of any
portfolio security; provided, such assistance shall be limited to
providing pricing recommendations for a security in the form and in
the manner that Sub-Adviser provides a recommendation for that
security to other funds that it subadvises that are registered as
investment companies under the 1940 Act. In addition, the
Sub-Adviser shall provide the Trust's custodian on each business day
with information relating to all transactions concerning each Fund's
assets under Sub-Adviser's supervision, and shall provide Adviser
with such information upon the reasonable request of the Adviser;
o) to the extent that disclosure is permitted by applicable law, the
SEC or direction provided by the staff of the SEC, will notify the
Adviser and the Trust in the event that the Sub-Adviser or any of
its affiliates: (1) becomes aware that it is subject to a statutory
disqualification that prevents the Sub-Adviser from serving as an
investment adviser pursuant to this Agreement; or (2) becomes aware
that it is the subject of an administrative proceeding or
enforcement action by the SEC or other regulatory authority. The
Sub-Adviser further agrees to notify the Trust and the Adviser
promptly of any material fact known to the Sub-Adviser respecting or
relating to the Sub-Adviser's ability to provide services hereunder
that would make any written information that is material to the
Sub-Adviser's ability to provide hereunder and that was previously
provided to the Adviser or the Trust materially
PAGE 6 OF 17
inaccurate or incomplete or if any such written information becomes
untrue in any material respect; and
p) promptly notify the Adviser and the Trust if the Sub-Adviser suffers
a material adverse change in its business including but not limited
to, a material loss of assets or accounts under management or the
departure of senior investment professionals to the extent such
professionals are not replaced promptly with professionals of
comparable experience and qualify that would materially impair its
ability to perform its relevant duties for a Fund.
The Adviser and the Sub-Adviser each further agree that:
a) that to the extent that the investments of the Fund, the Commodity
Exchange Act, as amended ("CEA"), and the then-current Commodity
Futures Trading Commission ("CFTC") regulations require (i)
registration by either party as a Commodity Pool Operator or
Commodity Trading Advisor, (ii) specific disclosure, or as
applicable to it (iii) filing of reports and other documents, each
shall fully comply with such requirements;
b) Sub-Adviser shall comply with all requirements of the applicable CEA
and then-current CFTC regulations that apply to Sub-Adviser with
regard to the Fund, and with regard to all Funds for which it serves
as Sub-Adviser; and
c) Sub-Adviser shall cooperate by assisting the Adviser in fulfilling
any disclosure or reporting requirements applicable to the Fund
under the CEA and/or then-current CFTC regulations.
4. CUSTODY OF ASSETS. Title to all investments shall be held in the name of
the Funds, provided that for convenience in buying, selling and exchanging
securities (stocks, bonds, commercial paper, etc.), title to such
securities may be held in the name of the Trust's custodian bank, or its
nominee. All cash and the indicia of ownership of all other investments
shall be held by the Trust's custodian bank. Sub-Adviser shall not act as
custodian of the assets held in the Funds and shall at no time have the
right to physically possess the assets of the Funds or have the assets
registered in its own name or the name of its nominee, nor shall
Sub-Adviser in any manner acquire or become possessed of any income,
whether in kind or cash, or proceeds, whether in kind or cash,
distributable by reason of selling, holding or controlling such assets of
the Funds. In accordance with the preceding sentence, Sub-Adviser shall
have no responsibility with respect to the collection of income, physical
acquisition or the safekeeping of the assets of the Funds. All such duties
of collection, physical acquisition and safekeeping shall be the sole
obligation of the custodian.
5. BROKERAGE. The Sub-Adviser is responsible for decisions to buy and sell
securities for each Fund, broker-dealer selection, and negotiation of
brokerage commission rates. Sub-Adviser shall have the express authority
to negotiate, open, continue and terminate brokerage accounts and other
brokerage arrangements with respect to all portfolio transactions entered
into by Sub-Adviser on behalf of the Funds. Adviser shall provide such
assistance to the Sub-Adviser in setting up and maintaining brokerage
accounts and other accounts as the Sub-Adviser shall reasonably request to
allow for the purchase or sale of various forms of securities and
instruments pursuant to this Agreement. Sub-Adviser will provide copies of
all such agreements to the Adviser upon the Adviser's
PAGE 7 OF 17
reasonable request. It is the Sub-Adviser's general policy in selecting a
broker to effect a particular transaction to seek to obtain "best
execution" consistent with applicable law and the Sub-Adviser's relevant
policies and procedures, as provided to the Board of Trustees. Consistent
with this policy, and when selecting a broker the Sub-Adviser will take
relevant factors into consideration, including (as applicable), but not
limited to: the best price available; the reliability, integrity and
financial condition of the broker-dealer; the size of and difficulty in
executing the order; the broker's execution capabilities; and the value of
the expected contribution of the broker-dealer to the investment
performance of the applicable Fund on a continuing basis. Consistent with
the Sub-Adviser's relevant policies and procedures, as provided to the
Board of Trustees, the Sub-Adviser shall have discretion to effect
investment transactions for each Fund through broker-dealers (including,
to the extent permissible under applicable law, broker-dealer affiliates)
who provide brokerage and/or research services, as such services are
defined in Section 28(e) of the Securities Exchange Act of 1934, as
amended (the "1934 Act"), and as interpreted by the SEC, and to cause such
Fund to pay any such broker-dealers an amount of commission for effecting
a portfolio investment transaction in excess of the amount of commission
another broker-dealer would have charged for effecting that transaction,
if the Sub-Adviser determines in good faith that such amount of commission
is reasonable in relation to the value of the brokerage or research
services provided by such broker-dealer, viewed in terms of either that
particular investment transaction or the Sub-Adviser's overall
responsibilities with respect to such Fund and other accounts to which the
Sub-Adviser exercises investment discretion (as such term is defined in
Section 3(a)(35) of the 1934 Act). Allocation of orders placed by the
Sub-Adviser on behalf of a Fund to such broker-dealers shall be in such
amounts and proportions as the Sub-Adviser shall determine in good faith
in conformity with its responsibilities under applicable laws, rules and
regulations and the Sub-Adviser's relevant policies and procedures. The
Sub-Adviser will submit reports on such allocations to the Adviser as
reasonably requested by the Adviser, in such form as may be mutually
agreed to by the parties hereto, indicating the broker-dealers to whom
such allocations have been made and the basis therefore.
6. EXPENSES. The Sub-Adviser shall bear all expenses incurred by it in
connection with the performance of its services under this Agreement. Each
Fund or the Adviser will bear certain other expenses to be incurred in its
operation, including, but not limited to, investment advisory fees, and
administration fees; fees for necessary professional and brokerage
services; transaction fees and expenses; costs relating to local
administration of securities; and fees for any pricing services. All other
expenses not specifically assumed by the Sub-Adviser hereunder or by the
Adviser under the Management Agreement are borne by the applicable Fund or
the Trust.
7. BOOKS AND RECORDS. In compliance with the requirements of Rule 31a-3 under
the 1940 Act, the Sub-Adviser hereby agrees that all records which it
maintains for the Trust are the property of the Trust and further agrees
to surrender promptly to the Trust any of such records upon the Trust's
request, copies of which may be retained by the Sub-Adviser. Sub-Adviser
further agrees to preserve for the periods prescribed by Rule 31a-2 under
the 1940 Act the records required to be maintained by Rule 31a-1 under the
1940 Act related to each Fund's portfolio transactions and that are not
maintained by a Fund's custodian or other service provider. The Adviser
shall maintain all books and records not related to the Fund's portfolio
transactions.
PAGE 8 OF 17
8. COMPENSATION. For the services provided and the expenses assumed pursuant
to this Agreement, each Fund will pay the Sub-Adviser, and the Sub-Adviser
agrees to accept as full compensation therefore, a sub-advisory fee
accrued daily and payable monthly on the average daily net assets in the
Funds in accordance with Schedule B hereto. Expense caps or fee waivers
for a Fund that may be agreed to by the Adviser, but not agreed to in
writing by the Sub-Adviser, shall not cause a reduction in the amount of
the payment to the Sub-Adviser.
The Sub-Adviser agrees that the fee rate paid to the Sub-Adviser pursuant
to Schedule B hereto shall not be in excess of the fee rates charged by
the Sub-Adviser to any other future, new U.S. registered investment
company for which Sub-Adviser provided substantially similar sub-advisory
services and that is of equivalent asset size and has a substantially
similar investment objective, style and strategy as the Fund.
9. SERVICES TO OTHERS. Adviser understands, and has advised the Board of
Trustees, that Sub-Adviser now acts, or may in the future act, as an
investment adviser to fiduciary and other managed accounts, and as
investment adviser or sub-investment adviser to other investment companies
or accounts. Adviser has no objection to Sub-Adviser acting in such
capacities, provided that whenever the Fund and one or more other
investment advisory clients of Sub-Adviser have available funds for
investment, investments will be allocated in a manner reasonably believed
by Sub-Adviser to be fair and equitable to each Fund or account over time
and consistent with the Sub-Adviser's relevant policies and procedures.
Sub-Adviser may group orders for a Fund with orders for other funds and
accounts to obtain the efficiencies that may be available on larger
transactions when it reasonably determines that investment decisions are
appropriate for each participating account. Sub-Adviser cannot assure that
such policy will not adversely affect the price paid or received by a
Fund. Adviser recognizes, and has advised the Board of Trustees, that in
some cases this procedure may adversely affect the size and the
opportunities of the position that the participating Fund may obtain in a
particular security. In addition, Adviser understands, and has advised the
Board of Trustees, that the persons employed by Sub-Adviser to assist in
Sub-Adviser's duties under this Agreement will not devote their full time
to such service, and nothing contained in this Agreement will be deemed to
limit or restrict the right of Sub-Adviser or any of its affiliates to
engage in and devote time and attention to other businesses or to render
services of whatever kind or nature.
Notwithstanding any other provision to the contrary, the Sub-Adviser shall
have no obligation to perform the following services or to have employees
of the Sub-Adviser perform the following roles, as applicable: a)
shareholder services or support functions, such as responding to
shareholders' questions about a Fund or its investments or strategies; b)
providing employees of the Sub-Adviser to serve as officers of a Fund; or
c) providing employees of the Sub-Adviser to serve as the Fund's Chief
Compliance Officer and associated staff.
10. LIMITATION OF LIABILITY.
-----------------------
a) Sub-Adviser, its officers, directors, employees, agents or
affiliates will not be subject to any liability to the Adviser or
the Funds or their directors, officers, employees, agents or
affiliates for any act, omission, error of judgment or mistake of
law or for any loss suffered by the Funds, any shareholder of the
Funds or the
PAGE 9 OF 17
Adviser either in connection with the performance of Sub-Adviser's
duties under this Agreement or its failure to perform due to events
beyond the reasonable control of the Sub-Adviser or its agents,
except for a loss resulting from Sub-Adviser's willful misfeasance,
bad faith, gross negligence, fraud, reckless disregard or willful
misconduct in the performance of its duties or by reason of its
reckless disregard of its obligations and duties under this
Agreement.
b) The Sub-Adviser makes no representation or warranty, express or
implied, that any level of performance or investment results will be
achieved by the Funds or that a Fund will perform comparably with
any standard or index, including other clients of the Sub-Adviser,
whether public or private. The Sub-Adviser shall not be deemed to
have breached this Agreement or any investment restrictions or
policies applicable to a Fund in connection with fluctuations
arising from market movements and other events outside the control
of the Sub-Adviser.
c) The Sub-Adviser shall not be liable to the Adviser, the Funds or
their shareholders, or the Trust for any action taken or failure to
act in good faith reliance upon: (i) information, directions,
instructions or requests, whether oral or written, with respect to
the Funds made to the Sub-Adviser by a duly authorized officer of
the Adviser or the Trust; (ii) the advice of counsel to the Trust;
and (iii) any written instruction or certified copy of any
resolution of the Board, subject to (a) of this Section 10.
d) Without limiting the generality of the foregoing, neither the
Adviser nor the Sub-Adviser will be liable for any indirect,
special, incidental or consequential damages.
11. INDEMNIFICATION. Adviser and the Sub-Adviser each agree to indemnify the
other party (and each such party's affiliates, employees, directors and
officers), and Sub-Adviser further agrees to indemnify the Funds, against
any claim, damages, loss or liability (including reasonable attorneys'
fees) arising out of any third party claims brought against an indemnified
party that is the result of willful misfeasance or gross negligence on the
part of the indemnifying party.
12. DURATION AND TERMINATION. This Agreement will become effective as to a
Fund upon execution or, if later, on the date that initial capital for
such Fund is first provided to it and, unless sooner terminated as
provided herein, the initial term will continue in effect through December
31, 2013, if not terminated as to a Fund, this Agreement will continue in
effect as to a Fund for successive periods of 12 months, PROVIDED that
such continuation is specifically approved at least annually by the Board
of Trustees or by vote of a majority of the outstanding voting securities
of such Fund, and in either event approved also by a majority of the
Trustees of the Trust who are not interested persons of the Trust, or of
the Adviser, or of the Sub-Adviser. Notwithstanding the foregoing, this
Agreement may be terminated as to a Fund at any time, without the payment
of any penalty, on sixty days' written notice by the Trust or Adviser, or
on sixty days' written notice by the Sub-Adviser. This Agreement will
immediately terminate in the event of its assignment. (As used in this
Agreement, the terms "majority of the outstanding voting securities,"
"interested persons" and "assignment" have the same meaning of such terms
as in the 1940 Act.) Sections 10 and 11 herein shall survive the
termination of this Agreement.
PAGE 10 OF 17
13. REPRESENTATIONS AND AGREEMENTS OF THE ADVISER. Adviser acknowledges,
represents and warrants that:
a) If the Sub-Adviser is registered as a Commodity Trading Advisor
under the CEA, the Adviser consents to the Sub-Advisor's compliance
with the alternative disclosure and recordkeeping standards
available to exempt accounts under CFTC Rule 4.7 with respect to a
Fund's trading in commodity interests, provided that the Sub-Adviser
has duly filed a notice of claim for such relief pursuant to Rule
4.7(d). The Adviser will take reasonable steps to cooperate with the
Sub-Adviser in connection with establishing and maintaining such
exemption under Rule 4.7, including, upon request, confirming
whether a Fund is a "qualified eligible person" as defined in Rule
4.7.
b) If the Adviser is excluded from the definition of a commodity pool
operator under CFTC Rule 4.5 with respect to a Fund, the Adviser
will furnish the Sub-Adviser with a copy of the notice of
eligibility filed pursuant to Rule 4.5 (c) with respect to such
exclusion, or, if more recent, the most recent annual notice
affirming the basis of such eligibility that has been filed pursuant
to Rule 4.5(c)(5).
c) The Adviser hereby acknowledges that not less than forty-eight (48)
hours before the date it has executed this Agreement, it received
from the Sub-Adviser a copy of the Sub-Adviser's most recent Form
ADV, Part 1 as filed with the Securities and Exchange Commission and
Part 2 as required by Rule 204-(3) of the Advisers Act.
d) The assets in the Funds are free from all liens and charges and
undertakes that no liens or charges will arise from the acts or
omissions of the Adviser and the Trust which may prevent the
Sub-Adviser from giving a first priority lien or charge on the
assets solely in connection with the Sub-Adviser's authority to
direct the deposit of margin or collateral to the extent necessary
to meet the obligations of the Funds with respect to any investments
made pursuant to the Prospectus.
e) The Adviser acknowledges that the Sub-Adviser is not the compliance
agent for the Funds or for the Adviser, and does not have access to
all of the Funds' books and records necessary to perform certain
compliance testing. To the extent that the Sub-Adviser has agreed to
perform the services specified in Section 3 hereof in accordance
with applicable law (including Section 851 of the IRC, the Act and
the Advisers Act ("Applicable Law")) and in accordance with the
Trust Documents, policies and determinations of the Board of
Trustees and the Adviser, and the Funds' Prospectus, all in the form
most recently provided to Sub-Adviser (collectively the "Charter
Requirements") the Sub-Adviser shall perform such services based
upon its books and records with respect to the Funds, which comprise
a portion of the Trust's books and records, and upon written
instructions received from the Funds, the Adviser or the Trust's
administrator, and shall not be held responsible under this
Agreement so long as it performs such services in accordance with
this Agreement, the Charter Requirements and Applicable Law based
upon such books and records and such reasonable instructions
provided by the Funds, the Adviser or the Trust's administrator. The
Sub-Adviser shall be afforded a reasonable amount of time to
implement any such instructions (for example, if instructed not to
trade on behalf of securities of certain specified
PAGE 11 OF 17
Adviser or the Trust's affiliates, the Sub-Adviser shall be notified
and afforded five business days after receipt of such instruction to
implement this trading restriction).
f) The Adviser hereby represents that this Agreement does not violate
any existing agreements between the Adviser and any other party, it
has all requisite authority to enter into, execute, deliver and
perform its obligations under this Agreement and the performance of
the Adviser's obligations under this Agreement does not conflict
with any law, regulation or order to which the Adviser is subject.
g) The Sub-Adviser further represents and warrants that it is a duly
registered investment adviser under the Advisers Act.
14. OBLIGATIONS OF ADVISER. The Adviser agrees to provide or complete, as the
case may be, the following prior to the commencement of the Sub-Adviser's
investment advisory services as specified under this Agreement:
a) A list of first tier affiliates and second tier affiliates (i.e.,
affiliates of affiliates) of the Fund;
b) A list of restricted securities for each Fund (including CUSIP,
Sedol or other appropriate security identification);
c) A copy of the current compliance procedures for each Fund; and
d) A list of legal and compliance contacts.
The Adviser also agrees to promptly update the above referenced items in
order to ensure their accuracy, completeness and/or effectiveness.
15. CONFIDENTIAL TREATMENT. Except as otherwise provided in this Agreement,
all information and advice furnished by one party to the other party
(including their respective agents, employees and representatives)
hereunder shall be treated as confidential and shall not be disclosed to
third parties, except as may be necessary to comply with applicable laws,
rules and regulations, subpoenas or court orders. It is understood that
any information or recommendation supplied by, or produced by, Sub-Adviser
in connection with the performance of its obligations hereunder is to be
regarded as confidential and for use only by the Adviser and the Trust.
16. ENTIRE AGREEMENT; AMENDMENT OF THIS AGREEMENT. This Agreement constitutes
the entire agreement between the parties with respect to the Funds. No
provision of this Agreement may be changed, waived, discharged or
terminated orally, but only by an instrument in writing signed by the
party against which enforcement of the change, waiver, discharge or
termination is sought.
17. NOTICE. Any notice under this Agreement shall be in writing, addressed and
delivered or mailed (postage prepaid) or sent via electronic mail or
facsimile to the other party at such address as designated herein.
a) TO ADVISER:
Curian Capital LLC
0000 Xxxxxxxxxx Xxx
PAGE 12 OF 17
Xxxxxx, XX 00000
Attention: Xxxxxxx Xxxx
E-mail: xxxxxxx.xxxx@xxxxxx.xxx
-----------------------
b) TO SUB-ADVISER:
Dimensional Fund Advisors LP
0000 Xxx Xxxx Xxxx
Xxxxxxxx Xxx
Xxxxxx, XX 00000
Attn: General Counsel
c) TO THE TRUST:
Curian Variable Series Trust
0000 Xxxxxxxxxx Xxx
Xxxxxx, XX 00000
Attention: Xxxxxxx Xxxx
E-mail: xxxxxxx.xxxx@xxxxxx.xxx
-----------------------
In accordance with the foregoing, Adviser hereby consents to receive
Sub-Adviser's Form ADV Part 2 and other Sub-Adviser Communications via
e-mail to Adviser's e-mail address set out above. Although Adviser does
not impose any additional charges for electronic delivery, Adviser may, of
course, incur costs associated with Adviser's electronic access, such as
usage charges from Adviser's Internet access providers. Adviser may revoke
its election to receive such Sub-Adviser Communications via e-mail at any
time by written notice to the Sub-Adviser requesting that Sub-Adviser send
Sub-Adviser Communications via facsimile or in hardcopy via the postal
service to the address set out above or as notified to the Sub-Adviser by
Adviser from time to time.
18. MISCELLANEOUS. The captions in this Agreement are included for convenience
of reference only and in no way define or limit any of the provisions
hereof or otherwise affect their construction or effect. If any provision
of this Agreement is held or made invalid by a court decision, statute,
rule or otherwise, the remainder of this Agreement will be binding upon
and shall inure to the benefit of the parties hereto.
Sub-Adviser hereby consents to the use of the name "DFA" in the name of
the Curian/DFA U.S. Micro Cap Fund and the use of its name in Fund
disclosure documents, and to the extent required, necessary or advisable,
in shareholder communications; provided however, Sub-Adviser may withdraw
authorization for the use of its name in relation to the Curian/DFA U.S.
Micro Cap Fund upon 60 days written notice. No party hereto, or any of
their affiliates, shall use the name or any trade name, trademark, trade
device, service xxxx, or symbol, or any abbreviation, contraction,
derivatives or simulation thereof, of any other party hereto, or any of
their affiliates or any funds advised by a party or its affiliates, for
any purpose, including in its marketing materials, unless it first
receives prior written approval of the relevant party(ies), which approval
shall not be unreasonably withhold or delayed so long as this Agreement is
in effect. Upon termination of this Agreement or withdrawal of any such
approval, the parties shall immediately forthwith cease to use the name or
any trade name, trademark, trade device, service xxxx, or symbol, or any
abbreviation, contraction, or simulation thereof, of any
PAGE 13 OF 17
other party except to the extent that continued use is required by
applicable laws, rules, and regulations.
The Sub-Adviser acknowledges and agrees that the names "Curian Variable
Series Trust" and Curian Capital, LLC, and abbreviations or logos
associated with those names, are the valuable property of the Adviser and
its affiliates; that the Trust, has the right to use such names,
abbreviations and logos; and that the Sub-Adviser shall use the names
"Curian Variable Series Trust", Curian Capital, LLC, and associated
abbreviations and logos, only in connection with the Sub-Adviser's
performance of its duties hereunder. Further, in any communication with
the public and in any marketing communications of any sort, the
Sub-Adviser agrees to obtain prior written approval from the Adviser
before using or referring to "Curian Variable Series Trust" and the
Adviser, or the Funds or any abbreviations or logos associated with those
names; provided that nothing herein shall be deemed to prohibit the
Sub-Adviser from referring to the performance of the Funds in the
Sub-Adviser's marketing material as long as such marketing material does
not constitute "sales literature" or "advertising" for the Funds, as those
terms are used in the rules, regulations and guidelines of the SEC and
FINRA.
The name "Curian Variable Series Trust" and "Trustees of Curian Variable
Series Trust" refer respectively to the Trust created by, and the
Trustees, as trustees but not individually or personally, acting from time
to time under, the Declaration of Trust, to which reference is hereby made
and a copy of which is on file at the office of the Secretary of State of
the Commonwealth of Massachusetts and elsewhere as required by law, and to
any and all amendments thereto so filed or hereafter filed. The
obligations of the "Curian Variable Series Trust" entered in the name or
on behalf thereof by any of the Trustees, representatives or agents are
made not individually but only in such capacities and are not binding upon
any of the Trustees, Shareholders or representatives or agents of Trust
personally, but bind only the assets of Trust, and persons dealing with
the Funds must look solely to the assets of Trust belonging to such Fund
for the enforcement of any claims against the Trust.
19. REPRESENTATIONS AND WARRANTIES OF THE SUB-ADVISER. The Sub-Adviser hereby
represents that this Agreement does not violate any existing agreements
between the Sub-Adviser and any other party, it has all requisite
authority to enter into, execute, deliver and perform its obligations
under this Agreement and the performance of the Sub-Adviser's obligations
under this Agreement does not conflict with any law, regulation or order
to which the Sub-Adviser is subject.
The Sub-Adviser further represents and warrants that it is a duly
registered investment adviser under the Advisers Act and has provided to
the Adviser a copy of its most recent Form ADV, Part 1 as filed with the
Securities and Exchange Commission, as well as a copy of its current Part
2 of Form ADV.
The Sub-Adviser further represents that it has reviewed the initial, pre-
and/or post effective amendment(s) to the Registration Statement for the
Funds that have been provided to the Sub-Adviser and that have been filed
with the Securities and Exchange Commission that contains disclosure about
the Sub-Adviser, and represents and warrants that, with respect to the
disclosure about the Sub-Adviser or information relating to the
Sub-Adviser, such Registration Statement contains, as of the date hereof,
no untrue
PAGE 14 OF 17
statement of any material fact and does not omit any statement of a
material fact necessary to make the statements contained therein not
misleading.
20. APPLICABLE LAW. This Agreement shall be construed in accordance with
applicable federal law and the laws of the State of New York.
21. COUNTERPART SIGNATURES. This Agreement may be executed in several
counterparts, including via facsimile, each of which shall be deemed an
original for all purposes, including judicial proof of the terms hereof,
and all of which together shall constitute and be deemed one and the same
agreement.
22. QUALIFIED INSTITUTIONAL BUYER REPRESENTATIONS. Adviser represents that on
the date of this Agreement the Fund is a "qualified institutional buyer"
as that term is defined in Rule 144A of the Securities Act of 1933, as
amended, and as such owns or invests on a discretionary basis at least
$100 million ("QIB Amount") in securities (valued at cost, except where
the Fund reports its securities holdings on the basis of fair market value
and no current information with respect to the cost of securities has been
published) of issues that are not affiliated with the Fund. Adviser agrees
to furnish Sub-Adviser with such financial information as it may request
to confirm the Fund's status (or continuing status) as a qualified
institutional buyer and to inform Sub-Adviser promptly if the Fund loses
its status as a qualified institutional buyer because it no longer owns
and invests the QIB Amount.
PAGE 15 OF 17
IN WITNESS WHEREOF, the Adviser and the Sub-Adviser have caused this
Agreement to be executed as of this 5th day of July, 2012.
CURIAN CAPITAL, LLC DIMENSIONAL FUND ADVISORS LP
By: /s/ Xxxxxxx X. Xxxx By: /s/ Xxxxxxx X. Xxxxx
----------------------------------- -----------------------------------
Name: Xxxxxxx X. Xxxx Name: Xxxxxxx X. Xxxxx
-------------------------------- --------------------------------
Title: President and Chief Executive Title: Vice President
Officer --------------------------------
-------------------------------
PAGE 16 OF 17
LIST OF SCHEDULES
-----------------
Schedule A Funds
Schedule B Compensation
Schedule C Designated Representatives
PAGE 17 OF 17
SCHEDULE A
DATED SEPTEMBER 10, 2012
(Funds)
---------------------------------------------------------
Curian/DFA U.S. Micro Cap Fund
---------------------------------------------------------
A-1
SCHEDULE B
DATED SEPTEMBER 10, 2012
(Compensation)
--------------------------------------------------------------------------------
CURIAN/DFA U.S. MICRO CAP FUND
--------------------------------------------------------------------------------
AVERAGE DAILY NET ASSETS ANNUAL RATE
--------------------------------------------------------------------------------
$0 to $100 Million 0.55%
--------------------------------------------------------------------------------
Over $100 Million 0.50%
--------------------------------------------------------------------------------
B-1
SCHEDULE C
DATED SEPTEMBER 10, 2012
(Designated Representatives of the Trust)
Name/Title Signature
* *
-------------------------------------- --------------------------------------
*See the attached List of Authorized Persons
C-1
