Exhibit No. EX-99.d.1
INVESTMENT ADVISORY AGREEMENT
GENWORTH VARIABLE INSURANCE TRUST
AGREEMENT made as of the ____ day of ___________, 2008, by and between
Genworth Variable Insurance Trust, a Delaware statutory trust (the "Trust"), and
Genworth Financial Wealth Management, Inc., a California corporation (the
"Advisor").
WHEREAS, the Trust is an open-end management investment company registered
under the Investment Company Act of 1940, as amended (the "1940 Act"), and is
authorized to create, and currently consists of, separate series of shares, each
representing interests in a separate portfolio of investments managed according
to its own investment objectives and policies; and
WHEREAS, the Advisor is a investment adviser registered under the
Investment Advisers Act of 1940, as amended, and engages in the business of
providing investment management services; and
WHEREAS, the Trust desires to retain the Advisor to render investment
management services with respect to the series listed on Schedule A, as may be
amended from time to time, attached hereto and made a part of this Agreement
(each a "Fund" and collectively the "Funds"), and the Advisor is willing to
render such services on the following terms and conditions.
NOW, THEREFORE, in consideration of mutual covenants recited below, the
parties agree as follows:
1. DUTIES OF THE TRUST.
(a) The Trust, except as otherwise provided in this Agreement, is
responsible for conducting its own business and affairs and for all necessary
and incidental expenses and salaries including, but not limited to, the costs
incurred in: the maintenance of its corporate existence; the maintenance of its
own books, records and procedures; dealing with its own shareholders; the
payment of dividends; transfer of stock, including issuance, redemption and
repurchase of shares; preparation of share certificates (if any), preparation
and filing of such forms as may be required by the various jurisdictions in
which the Trust's shares may be sold; preparation, printing and mailing of
reports and notices to shareholders; calling and holding of shareholders'
meetings; miscellaneous office expenses; brokerage commissions and other
transaction charges; custodian fees; legal and accounting fees; taxes, and state
and federal registration fees.
(b) In the conduct of the respective businesses of the parties and in the
performance of this Agreement, the Trust and the Advisor may share facilities
common to each, with appropriate proration of expenses between them.
(c) To the extent the Advisor incurs any costs by assuming expenses that
are an obligation of the Trust as set forth herein, the Trust shall promptly
reimburse the Advisor for such costs and expenses, except to the extent the
Advisor has otherwise agreed to bear such expenses. To the extent the services
(other than services contemplated under this Agreement) for which the Trust is
obligated to pay are performed by the Advisor, the Advisor shall be entitled to
appropriate payment from the Trust, subject to supervision of such arrangements
by the Trust's Board of Trustees.
2. DUTIES OF THE ADVISOR.
(a) The Trust employs the Advisor generally to manage the investment and
reinvestment of the assets of the Funds. In so doing, the Advisor may hire one
or more sub-advisors for each Fund to carry out the investment program of the
Fund(s) (subject to the approval of the Trust's Board of Trustees and (except as
otherwise permitted under the terms of any exemptive relief obtained by the
Trust and/or Advisor from the U.S. Securities and Exchange Commission ("SEC"),
or by rule or regulation) a majority of the outstanding voting securities of any
affected Fund(s)). To the extent that the Advisor does hire any sub-advisor, the
Advisor will thereafter continuously review, supervise and (where appropriate)
administer the investment program of the Fund(s).
(b) The Advisor will provide, or direct any sub-advisor to provide, to the
Trust and any appropriate Trust service provider, records concerning the
Advisor's and sub-advisor(s)' activities which the Trust is required to
maintain, and to render regular reports to the Trust's officers and Trustees
concerning the Advisor's and sub-advisor(s)' performance of the foregoing
responsibilities. The retention of a sub-advisor by the Advisor shall not
relieve the Advisor of its responsibilities under this Agreement.
(c) The Advisor shall discharge the foregoing responsibilities subject to
the control of the Board of Trustees of the Trust and in compliance with such
policies as the Trustees may from time to time establish, and in compliance with
the objectives, policies, and limitations for each such Fund set forth in the
Trust's prospectus(es) and statement(s) of additional information, as amended
from time to time (referred to collectively as the "Prospectus"), and applicable
laws and regulations. The Trust will furnish the Advisor from time to time with
copies of all amendments or supplements to the Prospectus, if any.
(d) The Advisor accepts such employment and agrees, at its own expense, to
render the services and to provide the office space, furnishings and equipment
and the personnel required by it to perform the services on the terms and for
the compensation provided herein. The Advisor will not, however, pay for the
cost of securities, commodities, and other investments (including brokerage
commissions and other transaction charges, if any) purchased or sold for the
Trust.
3. DELIVERY OF DOCUMENTS.
(a) The Trust has furnished the Advisor with properly certified or
authenticated copies of each of the following and will furnish any amendments
and restatements as they are effected:
(i) The Trust's Agreement and Declaration of Trust, (such Agreement and
Declaration of Trust, as presently in effect and as it shall from time
to time be amended, is herein called the "Declaration of Trust");
(ii) The By-Laws of the Trust (such By-Laws, as in effect on the date of
this Agreement and as amended from time to time, are herein called the
"By-Laws");
(iii) The Prospectus of the Fund(s).
(b) The Advisor has furnished to the Trust, a copy of its Form ADV as filed
with the SEC, and will furnish any amendment thereto as it may be effected.
4. OTHER COVENANTS. The Advisor agrees that it:
(a) will comply with all applicable Rules and Regulations of the U.S.
Securities and Exchange Commission and, in addition, will conduct its activities
under this Agreement in accordance with all other applicable law and
regulations;
(b) will place, or will cause each sub-advisor to place, orders pursuant to
the sub-advisor's investment determinations for the Fund either directly with
the issuer or with any broker or dealer. In executing portfolio transactions and
selecting brokers or dealers, the Advisor will, or will cause the sub-advisors,
to use its/their best efforts to seek on behalf of a Fund the best overall terms
available. In assessing the best overall terms available for any transaction,
the Advisor (or any sub-advisor) shall consider all factors that it deems
relevant, including the breadth of the market in the security, the price of the
security, the financial condition and execution capability of the broker or
dealer, and the reasonableness of the commission, if any, both for the specific
transaction and on a continuing basis. In evaluating the best overall terms
available, and in selecting the broker-dealer to execute a particular
transaction, the Advisor (or any sub-advisor) may also consider the brokerage
and research services (as those terms are defined in Section 28(e) of the
Securities Exchange Act of 1934) provided to a Fund and/or other accounts over
which the Advisor or an affiliate of the Advisor may exercise investment
discretion. The Advisor (or any sub-advisor) is authorized to pay to a broker or
dealer who provides such brokerage and research services a commission for
executing a portfolio transaction for any of the Funds that is in excess of the
amount of commission another broker or dealer would have charged for effecting
that transaction only if the Advisor or sub-advisor determines in good faith
that such commission was reasonable in relation to the value of the brokerage
and research services provided by such broker or dealer, viewed in terms of that
particular transaction or terms of the overall responsibilities of the Advisor
to a Fund. In no instance, however, will any Fund's securities be purchased from
or sold to the Advisor, any sub-advisor engaged with respect to that Fund, the
Trust's principal underwriter, or any affiliated person of either the Trust, the
Advisor, any sub-advisor or the principal underwriter, acting as principal in
the transaction, except to the extent permitted by the SEC, 1940 Act or the
rules thereunder. The Advisor (and any sub-advisor) is also authorized to enter
into brokerage/service arrangements with broker-dealers whereby certain
broker-dealers agree to pay all or a portion of a Fund's custodian,
administrative, transfer agency, and/or other fees in exchange for such Fund
directing certain minimum brokerage amounts to such broker-dealer, if, and only
if, the Advisor (or any sub-advisor) determines in good faith that such
arrangement was reasonable viewed in terms of that particular transaction or
terms of the overall responsibilities of the Advisor (or sub-advisor) to a Fund.
5. COMPENSATION OF THE ADVISOR.
(a) For the services to be rendered by the Advisor to each Fund as provided
in Sections 1 and 2 of this Agreement, the Trust shall cause each Fund to pay to
the Advisor compensation at the rate(s) specified in Schedule A, as may be
amended from time to time, attached hereto and made a part of this Agreement.
Such compensation shall be paid to the Advisor at the end of each month and
calculated by applying a daily rate to the assets of each of the Funds, based on
the annual percentage rates as specified in the attached Schedule A. The fee
shall be based on the average daily net assets for the month involved.
(b) Any advisory fees which may be charged by sub-advisors hired by the
Advisor are the sole obligation of the Advisor, and not of the Trust.
(c) If this Agreement is terminated prior to the end of any calendar month,
the management fee shall be prorated for the portion of any month in which this
Agreement is in effect according to the proportion which the number of calendar
days, during which the Agreement is in effect, bears to the number of calendar
days in the month, and shall be payable within 10 days after the date of
termination.
(d) The Advisor may voluntarily or contractually agree to reduce any
portion of the compensation or reimbursement of expenses due to the Advisor
pursuant to this Agreement and may similarly agree to make payments to limit
expenses which are the responsibility of the Trust under this Agreement. Any
such reduction or payment shall be applicable only to such specific reduction or
payment and shall not constitute an agreement to reduce any future compensation
or reimbursement due to the Advisor hereunder or to continue future payments.
Any such reduction will be agreed upon prior to accrual of the related expense
or fee and will be estimated daily. Any management fee voluntarily or
contractually reduced and any Fund expense paid by the Advisor voluntarily or
pursuant to an agreed expense limitation shall be reimbursed by the Fund to the
Advisor in the first, second, or third (or any combination thereof) fiscal year
next succeeding the fiscal year of the reduction or payment to the extent
permitted by applicable law if the aggregate expenses for the next succeeding
fiscal year, second fiscal year or third succeeding fiscal year do not exceed
any expense limitation to which the Advisor had agreed at the time of the
reduction or payment.
6. EXCESS EXPENSES.
If the expenses for any Fund for any fiscal year (including fees and other
amounts payable to the Advisor, but excluding interest, taxes, brokerage costs,
litigation, and other extraordinary costs) as calculated every business day
would exceed the expense limitations imposed on investment companies by any
applicable statute or regulatory authority of any jurisdiction in which shares
are qualified for offer and sale, the Advisor shall bear such excess cost.
However, the Advisor will not bear expenses of the Trust or any Fund which
would result in the Trust's inability to qualify as a regulated investment
company under provisions of the Internal Revenue Code. Payment of expenses by
the Advisor pursuant to this Section 6 shall be settled on a monthly basis
(subject to fiscal year end reconciliation) by a waiver of the Advisor's fees
provided for hereunder, and such waiver shall be treated as a reduction in the
purchase price of the Advisor's services.
7. REPORTS.
The Trust and the Advisor agree to furnish to each other, if applicable,
current prospectuses, proxy statements, reports to shareholders, certified
copies of their financial statements, and such other information with regard to
their affairs as each may reasonably request. The Advisor further agrees to
furnish to the Trust, if applicable, the same such documents and information
pertaining to any sub-advisor as the Trust may reasonably request.
8. STATUS OF THE ADVISOR.
The services of the Advisor to the Trust are not to be deemed exclusive,
and the Advisor shall be free to render similar services to others so long as
its services to the Trust are not impaired thereby. The Advisor shall be deemed
to be an independent contractor and shall, unless otherwise expressly provided
or authorized, have no authority to act for or represent the Trust in any way or
otherwise be deemed an agent of the Trust. To the extent that the purchase or
sale of securities or other investments of any issuer may be deemed by the
Advisor to be suitable for two or more accounts managed by the Advisor, the
available securities or investments may be allocated in a manner believed by the
Advisor to be equitable to each account. It is recognized that in some cases
this may adversely affect the price paid or received by the Trust or the size or
position obtainable for or disposed by the Trust or any Fund.
9. USE OF GENWORTH NAME.
In accordance with the Agreement and Declaration of Trust of the Trust, in
the event that the Advisor ceases to be the Trust's investment manager for any
reason, the Trust will (unless the Advisor otherwise agrees in writing) take all
necessary steps to cause the Trust to change its name and the name of its Funds
to names not including the word "Genworth," within a reasonable period of time.
10. CERTAIN RECORDS.
The Advisor shall maintain, and cause any sub-advisors to maintain, books
and records with respect to the Advisor's and the sub-advisors' respective
services to the Funds in accordance with good practice, applicable federal and
state securities laws, and such instructions as may be provided to it by the
Trust from time to time.
11. LIMITATION OF LIABILITY OF THE ADVISOR.
The duties of the Advisor shall be confined to those expressly set forth
herein, and no implied duties are assumed by or may be asserted against the
Advisor hereunder. The Advisor shall not be liable for any error of judgment or
mistake of law or for any loss arising out of any investment or for any act or
omission in carrying out its duties hereunder, except a loss resulting from
willful misfeasance, bad faith or gross negligence in the performance of its
duties, or by reason of reckless disregard of its obligations and duties
hereunder, except as may otherwise be provided under provisions of applicable
state law which cannot be waived or modified hereby. (As used in this Section
11, the term "Advisor" shall include directors, officers, employees and other
corporate agents of the Advisor as well as that corporation itself).
12. PERMISSIBLE INTERESTS.
Trustees, agents, and shareholders of the Trust are or may be interested in
the Advisor (or any successor thereof) as directors, partners, officers, or
shareholders, or otherwise; directors, partners, officers, agents, and
shareholders of the Advisor are or may be interested in the Trust as Trustees,
officers, shareholders or otherwise; and the Advisor (or any successor) is or
may be interested in the Trust as a shareholder or otherwise subject to the
provisions of applicable law. All such interests shall be fully disclosed
between the parties on an ongoing basis and in the Trust's Prospectus as
required by law. In addition, brokerage transactions for the Trust may be
effected through affiliates of the Advisor or any sub-advisor, if effected
pursuant to procedures approved by the Board of Trustees, subject to the rules
and regulations of the SEC.
13. DURATION AND TERMINATION.
This Agreement, unless sooner terminated as provided herein, shall for each
Fund listed on Schedule A attached hereto become effective on the date of
execution or, if later, the date the agreement was approved by both: (a) the
vote of a majority of those Trustees of the Trust who are not parties to such
agreement or interested persons of any such party (the "Independent Trustees"),
cast in person at a meeting called for the purpose of voting on such approval;
and (b) the vote of a majority of the outstanding voting securities of such Fund
(the "Effective Date."), for an initial period of two years from the Effective
Date. Thereafter, the Agreement shall continue in effect for each Fund for
subsequent periods of one year so long as each such continuance is specifically
approved at least annually: (a) by the vote of a majority of the Independent
Trustees, cast in person at a meeting called for the purpose of voting on such
approval, and (b) by the Board of Trustees of the Trust or by the vote of a
majority of the outstanding voting securities of the Fund; provided, however,
that if the shareholders of any Fund fail to approve the Agreement as provided
herein, the Advisor may continue to serve hereunder in the manner and to the
extent permitted by the 1940 Act and rules and regulations thereunder. The
foregoing requirement that continuance of this Agreement be "specifically
approved at least annually" shall be construed in a manner consistent with the
1940 Act and the rules and regulations thereunder.
No amendment to this Agreement shall be effective unless the terms thereof
have been approved as required by the 1940 Act (currently, by the vote of a
majority of the outstanding voting securities of the Fund as prescribed by the
1940 Act (unless shareholder approval of the amendment would not be required
based upon relevant SEC interpretations of Section 15 of the 1940 Act), and by
the vote of a majority of Trustees of the Trust who are not parties to the
Agreement or interested persons of any such party, cast in person at a meeting
called for the purpose of voting on such approval).
This Agreement may be terminated as to any Fund at any time, without the
payment of any penalty by vote of a majority of the Trustees of the Trust or by
vote of a majority of the outstanding voting securities of the Fund on not less
than 30 days nor more than 60 days written notice to the Advisor, or by the
Advisor at any time without the payment of any penalty, on 90 days written
notice to the Trust. This Agreement will automatically and immediately terminate
in the event of its assignment.
This Agreement shall extend to and bind the heirs, executors,
administrators and successors of the parties hereto.
As used in this Section 13, the terms "assignment," "interested persons,"
and a "vote of a majority of the outstanding voting securities" shall have the
respective meanings set forth in the 1940 Act and the rules and regulations
thereunder, subject to such exemptions as may be granted by the SEC.
14. GOVERNING LAW.
This Agreement shall be governed by the internal laws of the State of
Delaware without regard to conflict of law principles; provided, however that
nothing herein shall be construed as being inconsistent with the 1940 Act.
15. NOTICE.
Any notice, advice or report to be given pursuant to this Agreement shall
be deemed sufficient if delivered or mailed by registered, certified or
overnight mail, postage prepaid addressed by the party giving notice to the
other party at the last address furnished by the other party:
To the Advisor at:
Xxxxxxxx X. Xxxxxxxxx
Genworth Financial Wealth Management, Inc.
00000 Xxxxxxx Xxxx., Xxxxx 000
Xxxxxx, XX 00000
To the Trust at:
Xxxxxx X. Xxxxxx
Genworth Variable Insurance Trust
c/o Genworth Financial Wealth Management, Inc.
0000 Xxxxxx Xxxxx Xxxxxxxxx, Xxxxx 000
Xxxxxxxx Xxxx, XX 00000
16. SEVERABILITY.
If any provision of this Agreement shall be held or made invalid by a court
decision, statute, rule or otherwise, the remainder of this Agreement shall not
be affected thereby.
17. ENTIRE AGREEMENT.
This Agreement embodies the entire agreement and understanding relating to
this Agreement's subject matter between the parties hereto, and supersedes all
such prior agreements and understandings. This Agreement may be executed in any
number of counterparts, each of which shall be deemed to be an original, but
such counterparts shall, together, constitute only one instrument.
A copy of the Certificate of Trust of the Trust is on file with the
Secretary of State of the State of Delaware, and notice is hereby given that
this instrument is executed on behalf of the Trustees of the Trust as Trustees,
and is not binding upon any of the Trustees, officers, or shareholders of the
Trust individually but binding only upon the assets and property of the Trust.
No series of the Trust shall be liable for the obligations of any other
series of the Trust. Without limiting the generality of the foregoing, the
Advisor shall look only to the assets of a particular Fund for payment of fees
for services rendered to that Fund.
Where the effect of a requirement of the 1940 Act reflected in any
provision of this Agreement is altered by a rule, regulation or order of the
SEC, whether of special or general application, such provision shall be deemed
to incorporate the effect of such rule, regulation or order.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of the day and year first written above.
GENWORTH FINANCIAL WEALTH GENWORTH VARIABLE
MANAGEMENT, INC. INSURANCE TRUST
By: By:
Attest: Attest:
Title: Title:
Schedule A
to the
Investment Advisory Agreement
between
Genworth Variable Insurance Trust
and
Genworth Financial Wealth Management, Inc.
Pursuant to Section 5, the Trust shall pay the Advisor compensation at an annual
rate as follows:
Fund: Compensation (as a
percentage of daily net
assets):
Genworth Calamos Growth Fund 1.00%
Genworth Columbia Mid Cap Value Fund 0.85%
Genworth Xxxxx NY Venture Fund 0.75%
Genworth Xxxxx Xxxxx Large Cap Value Fund 0.75%
Genworth Xxxx Xxxxx Aggressive Growth Fund 0.70%
Genworth PIMCO Low Duration Fund 0.60%
Genworth PIMCO StocksPlus Fund 0.60%
Genworth Xxxxxx International Capital
Opportunities Fund 0.95%
Genworth Xxxxxxxxx International Value Fund 0.90%
Genworth Western Asset Management Core Plus
Fixed Income Fund 0.65%
