Exhibit No. EX-99.23(d)(4)(l)
SUBADVISORY AGREEMENT
---------------------
THIS AGREEMENT is made and entered into as of the 14th day of
September, 2005, among GARTMORE VARIABLE INSURANCE TRUST, a Delaware statutory
trust (the "Trust"), GARTMORE MUTUAL FUND CAPITAL TRUST (the "Adviser"), a
Delaware statutory trust registered under the Investment Advisers Act of 1940,
as amended (the "Advisers Act"), and EPOCH INVESTMENT PARTNERS, INC., a Delaware
corporation (the "Subadviser"), and also registered under the Advisers Act.
WITNESSETH:
WHEREAS, the Trust is registered with the U.S. Securities and Exchange
Commission (the "SEC") as an open-end management investment company under the
Investment Company Act of 1940, as amended (the "1940 Act");
WHEREAS, the Adviser has, pursuant to an Investment Advisory Agreement
with the Trust dated as of May 2, 2005 (the "Advisory Agreement"), been retained
to act as investment adviser for certain of the series of the Trust which are
listed on Exhibit A to this Agreement (each, a "Fund").
WHEREAS, the Advisory Agreement permits the Adviser to delegate
certain of its duties under the Advisory Agreement to other investment advisers,
subject to the requirements of the 1940 Act; and
WHEREAS, the Adviser desires to retain Subadviser to assist it in the
provision of a continuous investment program for that portion of the Trust's
assets which the Adviser will assign to the Subadviser (the "Subadviser
Assets"), and Subadviser is willing to render such services subject to the terms
and conditions set forth in this Agreement.
NOW, THEREFORE, in consideration of the terms and conditions hereinafter set
forth, 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 (the "Trustees"), and subject to the terms of this Agreement. The
Subadviser hereby accepts such employment and in such capacity, the Subadviser
shall be responsible for the investment management of the Subadviser Assets. It
is recognized that the Subadviser now acts, and that from time to time hereafter
may act, as investment adviser to one or more other investment companies and as
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
each Fund as set forth in the Fund's prospectus and statement of additional
1
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 Trustees, to purchase, hold and sell
investments for the Subadviser Assets and to monitor on a continuous basis the
performance of such Fund investments. In providing these services, the
Subadviser will conduct a continual program of investment, evaluation and, if
appropriate, sale and reinvestment of the Subadviser Assets, without prior
consultation with the Adviser. The Adviser agrees to provide the Subadviser with
such assistance as may be reasonably requested by the Subadviser in connection
with its activities under this Agreement, including, without limitation,
information concerning a Fund, its funds available, or to become available, for
investment, and generally as to the conditions of the Fund's affairs.
(b) COMPLIANCE WITH APPLICABLE LAWS AND GOVERNING DOCUMENTS. In the
performance of its duties and obligations under this Agreement, the Subadviser
shall act in conformity with the Prospectus and the Trust's Agreement and
Declaration of Trust and By-Laws as currently in effect and, as soon as
practical after the Trust, a 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 and will conform to, and comply with, the requirements of the 1940 Act,
the Internal Revenue Code of 1986, as amended (the "Code"), and all other
applicable federal and state laws and regulations. Without limiting the
preceding sentence, the Adviser promptly shall notify the Subadviser as to any
act or omission of the Subadviser hereunder that the Subadviser reasonably deems
to constitute or to be the basis of any noncompliance or nonconformance with any
of the Trust's Declaration of Trust and By-Laws and the Prospectus, the
instructions and directions received in writing from the Adviser or the Trustees
of the Trust or the 1940 Act, the Code, and all other applicable federal and
state laws and regulations. Notwithstanding the foregoing, the Adviser shall
remain responsible for ensuring each Fund's overall compliance with the 1940
Act, the Code and all other applicable federal and state laws and regulations
and the Subadviser is only obligated to comply with this subsection (b) with
respect to the Subadviser Assets. The Adviser timely will provide the Subadviser
with a copy of the minutes of the meetings of the Board of Trustees of the Trust
to the extent they may affect a Fund or the services of the Subadviser, copies
of any financial statements or reports made by a 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.
The Adviser shall perform quarterly and annual tax compliance tests to
ensure that the Fund is in compliance with Subchapter M and Section 817(h) of
the Code. In connection with such compliance tests, the Adviser shall inform the
Subadviser at least ten (10) business days prior to a calendar quarter end if
the Subadviser Assets are out of compliance with the diversification
requirements under either Subchapter M or Section 817(h). If the Adviser
notifies the Subadviser that the Subadviser Assets are not in compliance with
such requirements noted above, the Subadviser will take prompt action to bring
the Subadviser Assets back into compliance within the time permitted under the
Code thereunder.
The Adviser will provide the Subadviser with reasonable advance 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
2
consistent with such changes, provided the Subadviser has received notice of the
effectiveness of such changes from the Trust or the Adviser. For purposes of
this subsection, receipt of a modified Prospectus by the Subadviser shall
constitute notice of the effectiveness of such changes. In addition to such
notice, the Adviser shall provide to the Subadviser a copy of a modified
Prospectus reflecting such changes. The Adviser acknowledges and will ensure
that the Prospectus will at all times be in compliance with all disclosure
requirements under all applicable federal and state laws and regulations
relating to the Trust or a 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 a Fund or to the Adviser specifically
for inclusion in the Prospectus. The Subadviser hereby agrees to provide to the
Adviser in a timely manner such information relating to the Subadviser and its
relationship to, and actions for, the 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 Adviser hereby delegates to the Subadviser
the Adviser's discretionary authority to exercise voting rights with respect to
the securities and other investments in the Subadviser Assets and authorizes the
Subadviser to delegate further such discretionary authority to a designee
identified in a notice given to the Trust and the Adviser. The Subadviser,
including without limitation its designee shall have the power to vote, either
in person or by proxy, all securities in which the Subadviser Assets may be
invested the Fund's assets from time to time, and shall not be required to seek
or take instructions from the Adviser or a Fund or take any action with respect
thereto. If both the Subadviser Assets 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 a
Fund's securities and other information necessary for the Fund to complete
information required by Form N-1A under the 1940 Act and the Securities Act of
1933, as amended (the "Securities Act"), Form N-PX under the 1940 Act, and Form
N-CSR under the Xxxxxxxx-Xxxxx Act of 2002, as amended, respectively.
(d) AGENT. Subject to any other written instructions of the Adviser or
the Trust, the Subadviser is hereby appointed the Adviser's and the Trust's
agent and attorney-in-fact for the limited purposes of executing account
documentation, agreements, contracts and other documents as the Subadviser shall
be requested by brokers, dealers, counterparties and other persons in connection
with its management of the Subadviser Assets. The Subadviser agrees to provide
the Adviser and the Trust with copies of any such agreements executed on behalf
of the Adviser or the Trust.
(e) BROKERAGE. The Subadviser is authorized, subject to the supervision
of the Adviser and the 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 Subadviser may elect and negotiate commissions to
be paid on such transactions. The Subadviser, however, is not required to obtain
3
the consent of the Adviser or the Trustees prior to establishing any such
brokerage account. The Subadviser shall place all orders for the purchase and
sale of Fund 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 a Fund, in its opinion, the most favorable
price and execution available, except to the extent it may be permitted to pay
higher brokerage commissions for brokerage and research services, as provided
below. In using its reasonable efforts to obtain for a Fund the most favorable
price and execution available, the Subadviser, bearing in mind the Fund's best
interests at all times, shall consider all factors it deems relevant, including
price, the size of the transaction, the breadth and nature of the market for the
security, the difficulty of the execution, the amount of the commission, if any,
the timing of the transaction, market prices and trends, the reputation,
experience and financial stability of the Broker involved, and the quality of
service rendered by the Broker in other transactions Notwithstanding the
foregoing, neither the Trust, the Fund nor the Adviser shall instruct the
Subadviser to place orders with any particular Broker with respect to the
Subadviser Assets. Subject to such policies as the Trustees may determine, or as
may be mutually agreed to by the Adviser and the Subadviser, the Subadviser is
authorized, but not obligated to cause and shall not be deemed to have acted
unlawfully or to have breached any duty created by this Agreement or otherwise
solely by reason of its having caused 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.
It is recognized that the services provided by such Brokers may be
useful to the Subadviser in connection with the Subadviser's services to other
clients. On occasions when the Subadviser deems the purchase or sale of a
security to be in the best interests of a Fund as well as other clients of the
Subadviser, the Subadviser, to the extent permitted by applicable laws and
regulations, may, but shall be under no obligation to, aggregate the securities
to be sold or purchased in order to obtain the most favorable price or lower
brokerage commissions and efficient execution. In such event, allocation of
securities so sold or purchased, as well as the expenses incurred in the
transaction, will be made by the Subadviser in the manner the Subadviser
considers to be the most equitable and consistent with its fiduciary obligations
to the Fund and to such other clients. It is recognized that in some cases, this
procedure may adversely affect the price paid or received by the Fund or the
size of the position obtainable for, or disposed of by, the Fund with respect to
the Subadviser Assets.
(f) SECURITIES TRANSACTIONS. The Subadviser and any affiliated person
of the Subadviser will not purchase securities or other instruments from or sell
securities or other instruments to a Fund; provided, however, the Subadviser and
any affiliated person of the Subadviser may purchase securities or other
instruments from or sell securities or other instruments to the Fund if such
transaction is permissible under applicable laws and regulations, including,
without limitation, the 1940 Act and the Advisers Act and the rules and
regulations promulgated thereunder.
4
The Subadviser, on its own behalf and with respect to its
Access Persons (as defined in subsection (e) of Rule 17j-1 under the 1940 Act),
agrees to observe and comply with Rule 17j-1 and the Subadviser'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 at least an annual basis, the Subadviser will
comply with the reporting requirements of Rule 17j-1, which may include either:
(i) certifying to the Adviser that the Subadviser and its Access Persons have
complied with the Subadviser's Code of Ethics with respect to the Subadviser
Assets; or (ii) identifying any violations which have occurred with respect to
the Subadviser Assets. The Subadviser will have also submitted its Code of
Ethics for its initial approval by the Trustees no later than the date of
execution of this agreement and subsequently within six months of any material
change thereto.
(g) BOOKS AND RECORDS. The Subadviser shall maintain separate detailed
records as are required by applicable laws and regulations of all matters
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 the property of the Trust;
except to the extent that the Subadviser is required to maintain the Fund's
records under the Advisers Act or other applicable law and except that the
Subadviser, at its own expense, is entitled to make and keep a copy of the
Fund's Records for its own internal files. The Subadviser acknowledges that the
Fund's Records shall be available to the Adviser or the Trust at any time upon
reasonable request and shall be available for telecopying without delay to the
Adviser during any day that a Fund is open for business as set forth in the
Prospectus.
(h) INFORMATION CONCERNING SUBADVISER ASSETS AND SUBADVISER. From time
to time as the Adviser or the Trust may reasonably request, the Subadviser will
furnish the requesting party reports on portfolio transactions and reports on
Subadviser Assets, all in such detail as the Adviser or the Trust may reasonably
request in good faith. The Subadviser will also inform the Adviser in a timely
manner of material changes in portfolio manager(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 the Trust's or the
Adviser's reasonable request, the Subadviser will make available one or more of
its officers and employees to meet with the Trustees to review the Subadviser
Assets via telephone on a quarterly basis and on a less frequent basis, as
agreed upon by the parties, in person.
Subject to the other provisions of this Agreement, the Subadviser
will also provide such information or perform such additional acts with respect
to the Subadviser Assets as are reasonably required for the Trust or the Adviser
to comply with their respective obligations under applicable laws, including
without limitation, the Code, the 1940 Act, the Advisers Act, and the Securities
Act, and any rule or regulation thereunder.
(i) CUSTODY ARRANGEMENTS. The Trust or the Adviser shall notify the
Subadviser of the identities of its custodian banks and the custody arrangements
therewith with respect to the Subadviser Assets and shall give the Subadviser
written notice of any changes in such custodian banks or custody arrangements.
The Subadviser shall on each business day provide the Adviser and the Trust's
custodian such information as the Adviser and the Trust's custodian may
reasonably request in good faith relating to all transactions concerning the
Subadviser Assets. The Trust shall instruct its custodian banks to (A) carry out
all investment instructions as may be directed by the Subadviser with respect to
the Subadviser Assets (which instructions may be orally given if confirmed in
5
writing); and (B) provide the Subadviser with all operational information
necessary for the Subadviser to trade the Subadviser Assets on behalf of the
Fund. The Subadviser shall have no liability for the acts or omissions of the
authorized custodian(s), unless such act or omission is required by and taken in
reliance upon instructions given to the authorized custodian(s) by a
representative of the Subadviser properly authorized (pursuant to written
instruction by the Adviser) to give such instructions.
(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.
(k) AFFILIATED TRANSACTIONS. In connection with securities transactions
for a Fund, the Subadviser that is (or whose affiliated person is) entering into
the transaction, and any other investment manager that is advising an affiliate
of the Fund (or portion of the Fund) (collectively, the "Managers" for the
purposes of this Section 2(k)) entering into the transaction are prohibited from
consulting with each other concerning transactions for the Fund in securities or
other assets and, if both Managers are responsible for providing investment
advice to the Fund, the Manager's responsibility in providing advice is
expressly limited to a discrete portion of the Fund's portfolio that it manages.
This prohibition does not apply to communications by the Adviser in connection
with the Adviser's (i) overall supervisory responsibility for the general
management and investment of the Fund's assets; (ii) determination of the
allocation of assets among the Manager(s), if any; and (iii) investment
discretion with respect to the investment of Fund assets not otherwise assigned
to a Manager.
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 a Fund, the Trust or the Adviser in any way or
otherwise be deemed an agent of the Fund, the Trust or the Adviser.
4. EXPENSES. During the term of this Agreement, Subadviser will pay all
expenses incurred by it in connection with its activities under this Agreement.
The Subadviser shall, at its sole expense, employ or associate itself with such
persons as it believes to be particularly fitted to assist it in the execution
of its duties under this Agreement. The Subadviser shall not be responsible for
the Trust's, a Fund's or Adviser's expenses, which shall include, but not be
limited to, the cost of securities, commodities and other investments (including
brokerage commissions and other transaction charges, if any) purchased for a
Fund and any losses incurred in connection therewith, expenses of holding or
carrying Subadviser Assets including without limitation expenses of dividends on
stock borrowed to cover a short sale and interest; fees or other charges
incurred in connection with leverage and related borrowings with respect to
Subadviser Assets, organizational and offering expenses (which include but are
not limited to out-of-pocket expenses, but not overhead or employee costs of the
Subadviser); expenses for legal, accounting and auditing services; taxes and
governmental fees; dues and expenses incurred in connection with membership in
investment company organizations; costs of printing and distributing shareholder
reports, proxy materials, prospectuses, stock certificates and distribution of
dividends; charges of the Fund's custodians and sub-custodians, administrators
6
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 fees and expenses of non-interested Trustees); salaries of shareholder
relations personnel; costs of shareholders meetings; insurance; interest;
brokerage costs; and litigation and other extra ordinary or non-recurring
expenses. The Trust or the Adviser, as the case may be, shall reimburse the
Subadviser for any expenses of the Fund or the Adviser as may be reasonably
incurred by such Subadviser on behalf of a Fund or the Adviser. The Subadviser
shall keep and supply to the Trust and the Adviser reasonable records of all
such expenses.
5. COMPENSATION. For the services provided and the expenses assumed
with respect to a Fund pursuant to this Agreement, the Subadviser will be
entitled to the fee listed for each Fund on Exhibit A hereto. Such fees will be
computed daily and paid no later than the seventh (7th) business day following
the end of each month, from the Adviser or the Trust, calculated at an annual
rate based on the Subadviser Assets' average daily net assets.
The method of determining 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 as
described in each Fund's Prospectus. If this Agreement shall be effective for
only a portion of a month, with respect to any Fund, the aforesaid fee shall be
prorated for the portion of such month during which this Agreement is in effect
for such Fund.
6. REPRESENTATIONS AN WARRANTIES OF SUBADVISER. The Subadviser
represents and warrants to the Adviser and the Fund as follows:
(a) The Subadviser is registered a an investment adviser under the
Advisers Act;
(b) The Subadviser has filed a notice of exemption pursuant to Rule
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 corporation duly organized and validly
existing under the laws of the State of Delaware with the power to own and
possess its assets and carry on its business as it is now being conducted and as
proposed to be conducted hereunder;
(d) The execution, delivery and performance by the Subadviser of this
Agreement are within the Subadviser's powers and have been duly authorized by
all necessary action on the part of its directors or shareholders, and no action
by or in respect of, or filing with, any governmental body, agency or official
is required on the part of the Subadviser for 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
7
(e) The Form ADV of the Subadviser provided to the Adviser and the
Trust is a true and complete copy of the form, including that part or parts of
the Form ADV filed with the SEC, that part or parts maintained in the records of
the Adviser, and/or that part or parts provided or offered to clients, in each
case as required under the Advisers Act and rules thereunder, and the
information contained therein is accurate and complete in all material respects
and does not omit to state any material fact necessary in order to make the
statements made, in light of the circumstances under which they were made, not
misleading. In addition, the Subadviser agrees to promptly provide the Trust
with updates of its Form ADV.
7. REPRESENTATIONS AND WARRANTIES OF ADVISER. The Adviser represents
and warrants to the Subadviser as follows:
(a) The Adviser is registered as an investment adviser under the
Advisers Act;
(b) The Adviser has filed a notice of exemption pursuant to Rule 4.14
under the CEA with the CFTC and the NFA or is not required to file such
exemption;
(c) The Adviser is a statutory trust duly organized and validly
existing under the laws of the State of Delaware with the power to own and
possess its assets and carry on its business as it is now being conducted and as
proposed to be conducted hereunder;
(d) The execution, delivery and performance by the Adviser of this
Agreement are within the Adviser's powers and have been duly authorized by all
necessary action on the part of its shareholders or directors, and no action by
or in respect of, or filing with any governmental body, agency or official is
required on the part of the 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.
(g) The Adviser and the Trust have duly entered into the Advisory
Agreement pursuant to which the Trust authorized the Adviser to delegate certain
of its duties under the Advisory Agreement to other investment advisers,
including without limitation, the appointment of a subadviser with respect to
assets of each of the Trust's mutual fund series, including without limitation
the Adviser's entering into and performing this Agreement.
8
8. REPRESENTATIONS AND WARRANTIES OF THE TRUST. The Trust represents
and warrants to the Adviser and the Subadviser as follows:
(a) The Trust is a statutory trust duly formed and validly existing
under the laws of the State of Delaware with the power to own and possess its
assets and carry on its business as it is now being conducted and as proposed to
be conducted hereunder;
(b) The Trust is registered as an investment company under the 1940 Act
and has elected to qualify and has qualified, together with the Fund, as a
regulated investment company under the Code and the Fund's shares are registered
under the Securities Act; 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 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.
(d) The Trust acknowledges that it received a copy of the Subadviser's
Form ADV prior to the execution of this Agreement.
9. SURVIVAL OF REPRESENTATIONS AND WARRANTIES: DUTY TO UPDATE
INFORMATION. All representations and warranties made by the Subadviser and the
Adviser 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 its services in accordance with the terms of this Agreement, but
otherwise, in the absence of willful misfeasance, bad faith or gross negligence
on its part in the performance of its duties or reckless disregard of its
obligation and duties hereunder, the Subadviser, each of its affiliated persons
and all respective partners, officers, directors and employees ("Affiliates") of
the Subadviser and each person, if any, who within the meaning of the Securities
Act controls the Subadviser ("Controlling Persons") shall not be liable to the
Adviser, the Trust or a Fund or any of a Fund's shareholders for any error of
judgment or mistake of law or for any loss suffered by the Adviser or a Fund in
connection with the matters to which the Agreement relates, including without
limitation for any losses that may be sustained in the purchase, holding or sale
of Subadviser Assets. The Adviser shall exercise its best judgment in rendering
its obligations in accordance with the terms of this Agreement, but otherwise
(except as set forth in Section 10(c) below), in the absence of willful
misfeasance, bad faith or gross negligence on the part of the Adviser or a
reckless disregard of its duties hereunder, the Adviser, any affiliated person
of the Adviser and each of its Controlling Persons 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
9
the purchase, holding or sale of Subadviser Assets; provided, however, that
nothing herein shall relieve Adviser and the Subadviser from any of their
respective securities obligations under applicable law, including, without
limitation, the federal and state securities laws and the CEA.
(b) INDEMNIFICATION. The Subadviser shall indemnify the Adviser and the
Trust, and their respective Affiliates and Controlling Persons for any liability
and expenses, including reasonable attorneys' fees and expenses, which the
Adviser, the Trust and/or the Fund and their respective Affiliates and
Controlling Persons may sustain as a result of the Subadviser's willful
misfeasance, bad faith, or gross negligence in the performance of its duties, or
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 and the Trust, and their respective Affiliated Persons and
Controlling Persons for any liability and expenses, including reasonable
attorneys' fees and expenses, to which they may be subjected as a result of the
Subadviser providing inaccurate historical performance calculations concerning
the Subadviser's composite account data or historical performance information on
similarly managed investment companies or accounts, except that the Adviser and
the Trust and their respective Affiliates and Controlling Persons shall not be
indemnified for any liability or expense resulting from the negligence or
willful misconduct of the Adviser, the Trust and/or their respective Affiliates
and Controlling Persons in using such information.
The Adviser shall indemnify the Subadviser, its Affiliates, and its Controlling
Persons for any liability and expenses, including reasonable attorneys fees and
expenses, which may be sustained as a result of the Adviser's willful
misfeasance, bad faith, gross negligence, reckless disregard of its duties
hereunder or violation of applicable law, including, without limitation, the
federal and state securities laws or the CEA.
The Trust shall indemnify the Subadviser, its Affiliates and its
Controlling Persons, for any liability and expenses, including without
limitation reasonable attorneys' fees and expenses, which may be sustained as a
result of the Trust's willful misfeasance, bad faith, gross negligence, reckless
disregard of its duties hereunder or violation of applicable law, including,
without limitation, the federal and state securities laws or the CEA.
(c) The Subadviser shall not be liable to the Adviser for (i) any acts
of the Adviser or any other subadviser to a Fund with respect to the portion of
the assets of that Fund not managed by Subadviser or (ii) acts of the Subadviser
which result from acts of the Adviser, including, but not limited to, a failure
of the Adviser to provide accurate and current information with respect to any
records maintained by the Adviser or any other subadviser to a Fund, which
records are not also maintained by or otherwise available to the Subadviser upon
reasonable request. The Adviser agrees that Subadviser shall manage the
Subadviser Assets as if they were a separate operating Fund as set forth in
Section 2(b) of this Agreement. The Adviser shall indemnify the Subadviser, its
Affiliates and Controlling Persons from any liability arising from the conduct
of the Adviser and any other subadviser with respect to the portion of the
Fund's assets not allocated to the Subadviser.
10
11. DURATION AND TERMINATION.
(a) DURATION. Unless sooner terminated, this Agreement shall, with
respect to the Fund initially covered by this Agreement, continue until February
27, 2007, and, for any Fund subsequently added to this Agreement, shall continue
for an initial period of no more than two years that terminates on the second
February 27 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 Trustees or vote of the lesser
of: (a) 67% of the shares of the Fund represented at a meeting if holders of
more than 50% of the outstanding shares of the Fund are present in person or by
proxy; or (b) more than 50% of the outstanding shares of the Fund; provided that
in either event its continuance also is approved by a majority of the Trustees
who are not "interested persons" (as defined in the 0000 Xxx) of my 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 Trustees, or by "vote of a
majority of the outstanding voting securities" of the Fund (as defined
in the 1940 Act), or by the Adviser, in each case, upon at least sixty
(60) days' written notice to the Subadviser;
(ii) By any party hereto immediately upon written notice to the
other parties in the event of a material breach of any provision of
this Agreement by any of the other parties; or
(iii) By the Subadviser upon at least 60 days' written notice to
the Adviser the Trust.
This Agreement shall not be assigned (as such term is defined in the 0000 Xxx)
and shall terminate automatically in the event of its assignment or upon the
termination of the Advisory Agreement.
12. DUTIES OF THE ADVISER.
(a) The Adviser shall continue to have responsibility for all
services to be provided to a Fund pursuant to the Advisory Agreement and shall
oversee and review the Subadviser's performance of its duties under this
Agreement. Nothing contained in this Agreement shall obligate the Adviser to
provide any funding or other support for the purpose of directly or indirectly
promoting investments in a Fund.
13. REFERENCE TO ADVISER AND SUBADVISER.
(a) 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 Subadviser to a Fund, which references shall not differ in
substance from those included in the Fund's Prospectus and this Agreement, in
any advertising or promotional materials without the prior approval of
11
Subadviser, which approval shall not be unreasonably withheld or delayed. The
Adviser hereby agrees to make all reasonable efforts to cause the Fund and any
affiliate thereof to satisfy the foregoing obligation.
(b) Neither the Subadviser nor any Affiliate or agent of the
Subadviser shall make reference to or use the name of the Adviser or any of its
Affiliates, or any of their clients, except references concerning the identity
of and services provided by the Adviser to a Fund or to the Subadviser, which
references shall not differ in substance from those included in the Prospectus
and this Agreement, in any advertising or promotional materials without the
prior approval of Adviser, which approval shall not be unreasonably withheld or
delayed. The Subadviser hereby agrees to make all reasonable efforts to cause
any Affiliate of the Subadviser to satisfy the foregoing obligation.
14. AMENDMENT. This Agreement may be amended by mutual consent of the
parties, provided that the terms of any material amendment shall be approved by:
(a) the Trustees or by a vote of a majority of the outstanding voting securities
of a Fund (as required by the 1940 Act), and (b) the vote of a majority of those
Trustees who are not "interested persons" of any party to this Agreement cast in
person at a meeting called for the purpose of voting on such approval, if such
approval is required by applicable law.
15. CONFIDENTIALITY. Subject to the duties of the Adviser, the Trust
and the Subadviser to comply with applicable law, including any demand of any
regulatory or taxing authority having jurisdiction, the parties hereto shall
treat as confidential and shall not disclose any and all information pertaining
to each Fund and the actions of the Subadviser, the Adviser and each Fund in
respect thereof; except to the extent:
(a) AUTHORIZED. The Adviser or the Trust has authorized such
disclosure;
(b) COURT OR REGULATORY AUTHORITY. Disclosure of such information
is expressly required or requested by a court or other tribunal of
competent jurisdiction or applicable federal or state regulatory
authorities;
(c) PUBLICLY KNOWN WITHOUT BREACH. Such information becomes known
to the general public without a breach of this Agreement or a similar
confidential disclosure agreement regarding such information;
(d) ALREADY KNOWN. Such information already was known by the party
prior to the date hereof;
(e) RECEIVED FROM THIRD PARTY. Such information was or is hereafter
rightfully received by the party from a third party (expressly
excluding the Fund's custodian, prime broker and administrator) without
restriction on its disclosure and without breach of this Agreement or
of a similar confidential disclosure agreement regarding them; or
(f) INDEPENDENTLY DEVELOPED. The party independently developed such
information.
12
16. NOTICE. Any notice that is required to be given by the parties to
each other under the terms of this Agreement shall be in writing, delivered, or
mailed postpaid to the other party, or transmitted by facsimile with
acknowledgment of receipt, to the parties at the following addresses or
facsimile numbers, which may from time to time be changed by the parties by
notice to the other party:
(a) If to the Subadviser:
Epoch Investment Partners, Inc.
000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxx Xxxxxxx
Facsimile: (000) 000-0000
(b) If to the Adviser:
Gartmore Mutual Fund Capital Trust
0000 Xxxxx Xxxx - Xxxxx 0000
Xxxxxxxxxxxx, XX 00000
Attention: Legal Department
Facsimile: (000) 000-0000
(c) If to the Trust;
Gartmore Variable Insurance Trust
0000 Xxxxx Xxxx - Xxxxx 0000
Xxxxxxxxxxxx, XX 00000
Attention: Legal Department
Facsimile: (000) 000-0000
17. JURISDICTION. This Agreement shall be governed by and construed to
be 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 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.
13
20. CAPTIONS. The captions herein are included for convenience of
reference only and shall be ignored in the construction or interpretation
hereof.
21. SEVERABILITY. If any provision of this Agreement shall be held or
made invalid by a court decision or applicable law, the remainder of the
Agreement shall not be affected adversely and shall remain in full force and
effect.
22. ENTIRE AGREEMENT. This Agreement, together with all exhibits,
attachments and appendices, contains the entire understanding and agreement of
the parties with respect to the subject matter hereof.
23. GARTMORE VARIABLE INSURANCE TRUST AND ITS TRUSTEES. The terms
"Gartmore Variable Insurance Trust" and the "Trustees of Gartmore Variable
Insurance Trust" refer, respectively, to the Trust created and the Trustees, as
trustees but not individually or personally, acting from time to time under a
Declaration of Trust dated as of September 30, 2004, as has been or may be
amended and/or restated from time to time, and to which reference is hereby
made.
SIGNATURES APPEAR ON NEXT PAGE
14
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: Senior Vice President/Chief
Administration Officer
ADVISER
GARTMORE MUTUAL FUND CAPITAL TRUST
By: /s/ Xxxxxx X. Xxxxxxx
--------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Senior Vice President/Chief
Administration Officer
SUBADVISER
EPOCH INVESTMENT PARTNERS, INC.
By: /s/ Xxxxxxx X. Xxxxxxx
--------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: President/C.O.O.
15
EXHIBIT A
SUBADVISORY AGREEMENT
AMONG GARTMORE VARIABLE INSURANCE TRUST,
GARTMORE MUTUAL FUND CAPITAL TRUST and EPOCH INVESTMENT
PARTNERS, INC.
EFFECTIVE SEPTEMBER 14, 2005
FUNDS OF THE TRUST SUB-ADVISORY FEES
------------------ -----------------
GVIT Small Cap Value Fund 0.50% on Subadviser Assets
up to $200 million
0.45% for Subadviser Assets
of $200 million and more
A-1
