Exhibit No. EX-99.23(d)(4)(e)
SUBADVISORY AGREEMENT
THIS AGREEMENT is made and entered into as of this 2nd day of May,
2005, by and among GARTMORE VARIABLE INSURANCE TRUST, a Delaware statutory trust
(the "Trust"), GARTMORE MUTUAL FUND CAPITAL TRUST (the "Adviser") a Delaware
statutory trust registered under the Investment Advisers Act of 1940, as amended
(the "Advisers Act"), and XXXXXXXXX XXXXXX MANAGEMENT INC., a New York
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 that are
listed on Exhibit A to this Agreement (each, a "Fund");
WHEREAS, the Adviser represents that it is willing and possesses legal
authority to render such services subject to the terms and conditions set forth
in this Agreement.
WHEREAS, the Trust and the Adviser each represent that the Advisory
Agreement permits the Adviser to delegate certain of its duties under the
Advisory Agreement to other investment advisers, subject to the requirements of
the 1940 Act; and
WHEREAS, the Adviser desires to retain Subadviser to assist it in the
provision of a continuous investment program for that portion of the Trust's
assets which the Adviser will assign to the Subadviser (the "Subadviser
Assets"), and Subadviser is willing to render such services subject to the terms
and conditions set forth in this Agreement.
NOW, THEREFORE, the parties do mutually agree and promise as follows
with respect to each Fund:
1. APPOINTMENT AS SUBADVISER. The Adviser hereby appoints the
Subadviser to act as investment adviser for and to manage the Subadviser Assets
subject to the supervision of the Adviser and the Board of Trustees of the Trust
and subject to the terms of this Agreement; and the Subadviser hereby accepts
such appointment. In such capacity, the Subadviser shall be responsible for the
investment management of the Subadviser Assets. It is recognized that the
Subadviser and certain of its affiliates now act, and that from time to time
hereafter may act, as investment adviser to one or more other investment
companies and to fiduciary or other managed accounts and that the Adviser and
the Trust cannot object to such activities.
2. DUTIES OF SUBADVISER.
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(a) INVESTMENTS. The Subadviser is hereby authorized and
directed and hereby agrees, subject to the stated investment policies and
restrictions of the Fund as set forth in the Fund's prospectus and statement of
additional information as currently in effect and, as soon as practical after
the Trust, the Fund or the Adviser notifies the Subadviser thereof, as
supplemented or amended from time to time (collectively referred to hereinafter
as the "Prospectus") and subject to the directions of the Adviser and the
Trust's Board of Trustees, to monitor on a continuous basis the performance of
the Subadviser Assets and to conduct a continuous program of investment,
evaluation and, if appropriate, sale and reinvestment of the Subadviser Assets.
The Adviser agrees to provide the Subadviser with such assistance as may be
reasonably requested by the Subadviser in connection with the Subadviser's
activities under this Agreement, including, without limitation, providing
information concerning the Fund, its funds available, or to become available,
for investment and generally as to the conditions of the Fund's or the Trust's
affairs.
(b) COMPLIANCE WITH APPLICABLE LAWS AND GOVERNING DOCUMENTS.
In the performance of its services under this Agreement, the Subadviser shall
act in conformity with the Prospectus and the Trust's Agreement and Declaration
of Trust and By-Laws as currently in effect and, as soon as practical after the
Trust, the Fund or the Adviser notifies the Subadviser thereof, as supplemented,
or amended and/or restated from time to time (referred hereinafter as the
"Declaration of Trust" and "By-Laws," respectively) and with the instructions
and directions received in writing from the Adviser or the Trustees of the Trust
and will conform to, and comply with, the requirements of the 1940 Act, the
Internal Revenue Code of 1986, as amended (the "Code"), and all other applicable
federal and state laws and regulations. Without limiting the preceding sentence,
the Subadviser promptly shall notify the Adviser 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 the Fund's and the Trust's overall compliance with the 1940 Act,
the Code and all other applicable federal and state laws and regulations and the
Subadviser is only obligated to comply with this subsection (b) with respect to
the Subadviser Assets. The Adviser timely will provide the Subadviser with a
copy of the minutes of the meetings of the Board of Trustees of the Trust to the
extent they may affect a Fund or the services of the Subadviser, 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.
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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
consistent with such changes, provided that the Subadviser has received prompt
notice of the effectiveness of such changes from the Trust or the Adviser. In
addition to such notice, the Adviser shall provide to the Subadviser a copy of a
modified Prospectus reflecting such changes. The Adviser acknowledges and will
ensure that the Prospectus will at all times be in compliance with all
disclosure requirements under all applicable federal and state laws and
regulations relating to the Trust or the Fund, including, without limitation,
the 1940 Act, and the rules and regulations thereunder, and that the Subadviser
shall have no liability in connection therewith, except as to the accuracy of
material information furnished in writing by the Subadviser to the Trust or to
the Adviser specifically for inclusion in the Prospectus. The Subadviser hereby
agrees to provide to the Adviser in a timely manner such information relating to
the Subadviser and its relationship to, and actions for, the Trust as may be
required to be contained in the Prospectus or in the Trust's Registration
Statement on Form N-l A.
(c) VOTING OF PROXIES. The Adviser hereby delegates to the
Subadviser the Adviser's discretionary authority to exercise voting rights with
respect to the securities and other investments in the Subadviser Assets and
authorizes the Subadviser to delegate further such discretionary authority to a
designee identified in a notice given to the Trust and the Adviser. The
Subadviser, including without limitation its designee, shall have the power to
vote, either in person or by proxy, all securities in which the Subadviser
Assets may be invested from time to time, and shall not be required to seek or
take instructions from, the Adviser, the Fund or the Trust or take any action
with respect thereto. If both the Subadviser and another entity managing assets
of the Fund have invested the Fund's assets in the same security, the Subadviser
and such other entity will each have the power to vote its pro rata share of the
Fund's security.
The Subadviser will establish a written procedure for proxy
voting in compliance with current applicable rules and regulations, including
but not limited to Rule 30b1-4 under the 1940 Act. The Subadviser will provide
the Adviser or its designee, a copy of such procedure and establish a process
for the timely distribution of the Subadviser's voting record with respect to
the Fund's securities and other information necessary for the Fund to complete
information required by Form N-lA under the 1940 Act and the Securities Act of
1933, as amended (the "Securities Act"), Form N-PX under the 1940 Act, and Form
N-CSR under the Xxxxxxxx-Xxxxx Act of 2002, as amended, respectively.
(d) AGENT. Subject to any other written instructions of the
Adviser or the Trust, the Subadviser is hereby appointed the Adviser's and the
Trust's agent and attorney-in-fact for the limited purposes of executing account
documentation, agreements, contracts and other documents as the Subadviser shall
be requested by brokers, dealers, counterparties and other persons in connection
with its management of the Subadviser Assets. The Subadviser agrees to provide
the Adviser and the Trust with copies of any such agreements executed on behalf
of the Adviser or the Trust.
(e) BROKERAGE. The Subadviser is authorized, subject to the
supervision of the Adviser and the plenary authority of the Trust's Board of
Trustees, to establish and maintain accounts on behalf of the Fund with, and
place orders for the investment and reinvestment, including without limitation
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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 the consent of the Adviser or
the Trust's Board of Trustees prior to establishing any such brokerage account.
The Subadviser shall place all orders for the purchase and sale of portfolio
investments for a Fund's account with Brokers selected by the Subadviser. In the
selection of such Brokers and the placing of such orders, the Subadviser shall
seek to obtain for the Fund the most favorable price and execution available,
except to the extent it may be permitted to pay higher brokerage commissions for
brokerage and research services, as provided below. In using its reasonable
efforts to obtain for a Fund the most favorable price and execution available,
the Subadviser, bearing in mind the best interests of each Fund at all times,
shall consider all factors it deems relevant, including price, the size of the
transaction, the breadth and nature of the market for the security, the
difficulty of the execution, the amount of the commission, if any, the timing of
the transaction, market prices and trends, the reputation, experience and
financial stability of the Broker involved, and the quality of service rendered
by the Broker in other transactions. Notwithstanding the foregoing, neither the
Trust, the Fund nor the Adviser shall instruct the Subadviser to place orders
with any particular Broker(s) with respect to the Subadviser Assets. Subject to
such policies as the Trustees may determine, or as may be mutually agreed to by
the Adviser and the Subadviser, the Subadviser is authorized but not obligated
to cause, and shall not be deemed to have acted unlawfully or to have breached
any duty created by this Agreement or otherwise solely by reason of its having
caused, the Fund to pay a Broker that provides brokerage and research services
(within the meaning of Section 28(e) of the Securities Exchange Act of 1934) to
the Subadviser an amount of commission for effecting a Subadviser Assets
investment transaction that is in excess of the amount of commission that
another Broker would have charged for effecting that transaction if, but only
if, the Subadviser determines in good faith that such commission was reasonable
in relation to the value of the brokerage and research services provided by such
Broker viewed in terms of either that particular transaction or the overall
responsibility of the Subadviser with respect to the accounts as to which it
exercises investment discretion.
It is recognized that the services provided by such Brokers may be
useful to the Subadviser in connection with the Subadviser's services to other
clients. On occasions when the Subadviser deems the purchase or sale of a
security to be in the best interests of the Fund with respect to the Subadviser
Assets as well as other clients of the Subadviser, the Subadviser, to the extent
permitted by applicable laws and regulations, may, but shall be under no
obligation to, aggregate the securities to be sold or purchased in order to
obtain the most favorable price or lower brokerage commissions and efficient
execution. In such event, allocation of securities so sold or purchased, as well
as the expenses incurred in the transaction, will be made by the Subadviser in
the manner the Subadviser considers to be the most equitable and consistent with
its fiduciary obligations to each Fund and to such other clients. It is
recognized that in some cases, this procedure may adversely affect the price
paid or received by the Fund or the size of the position obtainable for, or
disposed of by, the Fund with respect to the Subadviser Assets.
(f) SECURITIES TRANSACTIONS. The Subadviser and any affiliated
person of the Subadviser will not purchase securities or other instruments from
or sell securities or other instrument to the Fund; provided, however, the
Subadviser or any affiliated person of the Subadviser may purchase securities or
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other instruments from or sell securities or other instruments to the Fund if
such transaction is permissible under applicable laws and regulations,
including, without limitation, the 1940 Act and the Advisers Act and the rules
and regulations promulgated thereunder.
The Subadviser, on its own behalf and with respect to its Access
Persons (as defined in subsection (e) of Rule 17j-1 under the 1940 Act), agrees
to observe and comply with Rule 17j-1 and its Code of Ethics (which shall comply
in all material respects with Rule 17j-1), as the same may be amended from time
to time. On at least an annual basis, the Subadviser will comply with the
reporting requirements of Rule 17j-1, which may include either (i) certifying to
the Adviser that the Subadviser and its Access Persons have complied with the
Subadviser's Code of Ethics with respect to the Subadviser Assets or (ii)
identifying any violations which have occurred with respect to the Subadviser
Assets. The Subadviser will have also submitted its Code of Ethics for its
initial approval by the Board of Trustees no later than the date of execution of
this agreement and subsequently within six months of any material change
thereto.
(g) BOOKS AND RECORDS. The Subadviser shall maintain separate
detailed records as are required by applicable laws and regulations of all
matters hereunder pertaining to the Subadviser Assets (the "Fund's Records"),
including, without limitation, brokerage and other records of all securities
transactions. The Subadviser acknowledges that the Fund's Records are property
of the Trust; except to the extent that the Subadviser is required to maintain
the Fund's Records under the Advisers Act or other applicable law and except
that the Subadviser, at its own expense, is entitled to make and keep a copy of
the Fund's Records for its internal files. The Fund's Records shall be available
to the Adviser or the Trust at any time upon reasonable request during normal
business hours and shall be available for telecopying promptly to the Adviser
during any day that the Fund is open for business as set forth in the
Prospectus.
(h) INFORMATION CONCERNING SUBADVISER ASSETS AND SUBADVISEr.
From time to time as the Adviser or the Trust reasonably may request in good
faith, the Subadviser will furnish the requesting party reports on portfolio
transactions and reports on the Sub adviser Assets, all in such reasonable
detail as the parties may reasonably agree in good faith. The Subadviser will
also inform the Adviser in a timely manner of material changes in portfolio
managers responsible for Subadviser Assets, any changes in the ownership or
management of the Subadviser, or of material changes in the control of the
Subadviser. Upon the Trust's or the Adviser's reasonable request, the Subadviser
will make available its officers and employees to meet with the Trust's Board of
Trustees to review the Subadviser Assets via telephone on a quarterly basis and
on a less frequent basis as agreed upon by the parties in person.
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
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the Trust's custodian such information as the Adviser and the Trust's custodian
may reasonably request in good faith relating to all transactions concerning the
Subadviser Assets. The Trust shall instruct its custodian banks to (A) carry out
all investment instructions as may be directed by the Subadviser with respect to
the Subadviser Assets (which instructions may be orally given if confirmed in
writing); and (B) provide the Subadviser with all operational information
necessary for the Subadviser to trade the Subadviser Assets on behalf of the
Fund. The Subadviser shall have no liability for the acts or omissions of the
authorized custodian(s), unless such act or omission is required by and taken in
reliance upon instructions given to the authorized custodian(s) by a
representative of the Subadviser properly authorized (pursuant to written
instruction by the Adviser) to give such instructions.
3. INDEPENDENT CONTRACTOR. In the performance of its services
hereunder, the Subadviser is and shall be an independent contractor and unless
otherwise expressly provided herein or otherwise authorized in writing, shall
have no authority to act for or represent the Fund, the Trust or the Adviser in
any way or otherwise be deemed an agent of the Fund, the Trust or the Adviser.
4. EXPENSES. During the term of this Agreement, Subadviser will
pay all expenses incurred by it in connection with its activities under this
Agreement. The Subadviser shall, at its sole expense, employ or associate itself
with such persons as it believes to be particularly fitted to assist it in the
execution of its duties under this Agreement. The Subadviser shall not be
responsible for the Trust's, the Fund's or Adviser's expenses, which shall
include, but not be limited to, the cost of securities, commodities and other
investments (including brokerage commissions and other transaction charges, if
any) purchased for a Fund and any losses incurred in connection therewith,
expenses of holding or carrying Subadviser Assets, including without limitation
expenses of dividends on stock borrowed to cover a short sale and interest, fees
or other charges incurred in connection with leverage and related borrowings
with respect to the Subadviser Assets, organizational and offering expenses
(which include but are not limited to out-of-pocket expenses, but not overhead
or employee costs of the Subadviser); expenses for legal, accounting and
auditing services; taxes and governmental fees; dues and expenses incurred in
connection with membership in investment company organizations; costs of
printing and distributing shareholder reports, proxy materials, prospectuses,
stock certificates and distribution of dividends; charges of the Fund's
custodians and sub-custodians, administrators and sub-administrators,
registrars, transfer agents, dividend disbursing agents and dividend
reinvestment plan agents; payment for portfolio pricing services to a pricing
agent, if any; registration and filing fees of the SEC; expenses of registering
or qualifying securities of the Fund for sale in the various states; freight and
other charges in connection with the shipment of the Fund's portfolio
securities; fees and expenses of non-interested interested Trustees; salaries of
shareholder relations personnel; costs of shareholders meetings; insurance;
interest; brokerage costs; and litigation and other extraordinary or
non-recurring expenses. The Trust or the Adviser, as the case may be, shall
reimburse the Subadviser for any expenses of the Funds or the Adviser as maybe
reasonably incurred by such Subadviser on behalf of the Fund or the Adviser. The
Subadviser shall keep and supply to the Trust and the Adviser reasonable records
of all such expenses.
5. COMPENSATION. For the services provided pursuant to this
Agreement, the Subadviser is entitled to the fee listed for the Fund on Exhibit
A hereto. Such fees will be computed daily and paid no later than the seventh
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(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 of
the Trust as described in the Fund's Prospectus. If this Agreement shall be
effective for only a portion of a month with respect to the Fund, the aforesaid
fee shall be prorated for the portion of such month during which this Agreement
is in effect for the Fund.
6. REPRESENTATIONS AND WARRANTIES OF SUBADVISER. The Subadviser
represents and warrants to the Adviser and the Trust as follows:
(a) The Subadviser is registered as an investment adviser
under the Advisers Act;
(b) The Subadviser is registered as a Commodity Trading
Advisor under the Commodity Exchange Act, as amended (the "CEA"), with the
Commodity Futures Trading Commission (the "CFTC"), or is not required to file
such registration;
(c) The Subadviser is a corporation duly organized and
properly registered and operating under the laws of the State of New York with
the power to own and possess its assets and carry on its business as it is now
being conducted and as proposed to be conducted hereunder;
(d) The execution, delivery and performance by the Subadviser
of this Agreement are within the Subadviser's powers and have been duly
authorized by all necessary actions of its directors or shareholders, and no
action by or in respect of, or filing with, any governmental body, agency or
official is required on the part of the Subadviser for execution, delivery and
performance by the Subadviser of this Agreement, and the execution, delivery and
performance by the Subadviser of this Agreement do not contravene or constitute
a violation of or a material default under (i) any provision of applicable law,
rule or regulation, (ii) the Subadviser's governing instruments, or (iii) any
agreement, judgment, injunction, order, decree or other instrument binding upon
the Subadviser, and
(e) The Form ADV of the Subadviser provided to the Adviser and
the Trust is a true and complete copy of the form, including that part or parts
of the Form ADV filed with the SEC, that part or parts maintained in the records
of the Adviser, and/or that part or parts provided or offered to clients, in
each case as required under the Advisers Act and rules thereunder, and the
information contained therein is accurate and complete in all material respects
and does not omit to state any material fact necessary in order to make the
statements made, in light of the circumstances under which they were made, not
misleading.
7. REPRESENTATIONS AND WARRANTIES OF ADVISER. The Adviser
represents and warrants to the Subadviser as follows:
(a) The Adviser is registered as an investment adviser under
the Advisers Act;
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(b) The Adviser has filed a notice of exemption pursuant to
Rule 4.14 under the CEA with the CFTC and the National Futures Association or is
not required to file such exemption;
(c) The Adviser is a statutory trust duly organized and
validly existing under the laws of the State of Delaware with the power to own
and possess its assets and carry on its business as it is now being conducted
and as proposed to be conducted hereunder;
(d) The execution, delivery and performance by the Adviser of
this Agreement are within the Adviser's powers and have been duly authorized by
all necessary action on the part of its directors, shareholders or managing
unitholder, and no action by or in respect of, or filing with, any governmental
body, agency or official is required on the part of the Adviser for the
execution, delivery and performance by the Adviser of this Agreement, and the
execution, delivery and performance by the Adviser of this Agreement do not
contravene or constitute a violation of or a material default under (i) any
provision of applicable law, rule or regulation, (ii) the Adviser's governing
instruments, or (iii) any agreement, judgment, injunction, order, decree or
other instrument binding upon the Adviser;
(e) The Form ADV of the Adviser provided to the Subadviser and
the Trust is a true and complete copy of the form, including that part or parts
of the Form ADV filed with the SEC, that part or parts maintained in the records
of the Adviser, and/or that part or parts provided or offered to clients, in
each case as required under the Advisers Act and rules thereunder, and the
information contained therein is accurate and complete in all material respects
and does not omit to state any material fact necessary in order to make the
statements made, in light of the circumstances under which they were made, not
misleading;
(f) The Adviser acknowledges that it received a copy of the
Subadviser's Form ADV prior to the execution of this Agreement; and
(g) The Adviser and the Trust have duly entered into the
Advisory Agreement pursuant to which the Trust authorized the Adviser to
delegate certain of its duties under the Advisory Agreement to other investment
advisers, including without limitation, the appointment of a subadviser with
respect to assets of each of the Trust's mutual fund series, including without
limitation the Adviser's entering into and performing this Agreement.
8. REPRESENTATIONS AND WARRANTIES OF THE TRUST. The Trust
represents and warrants to the Adviser and the Subadviser as follows:
(a) The Trust is a statutory trust duly formed and validly
existing under the laws of the State of Delaware with the power to own and
possess its assets and carry on its business as it is now being conducted and as
proposed to be conducted hereunder;
(b) The Trust is registered as an investment company under the
1940 Act and has elected to qualify and has qualified, together with the Fund,
as a regulated investment company under the Code, and the Fund's shares are
registered under the Securities Act;
(c) The execution, delivery and performance by the Trust of
this Agreement are within the Trust's powers and have been duly authorized by
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all necessary action on the part of the Trust and its Board of Trustees, and no
action by or in respect of, or filing with, any governmental body, agency or
official is required on the part of the Trust for the execution, delivery and
performance by the Adviser of this Agreement, and the execution, delivery and
performance by the Trust of this Agreement do not contravene or constitute a
default under (i) any provision of applicable law, rule or regulation, (ii) the
Trust's governing instruments, or (iii) any agreement, judgment, injunction,
order, decree or other instrument binding upon the Trust; and
(d) The Trust acknowledges that it received a copy of the
Subadviser's Form ADV prior to the execution of this Agreement.
9. SURVIVAL OF REPRESENTATIONS AND WARRANTIES; DUTY TO UPDATE
INFORMATION. All representations and warranties made by the Subadviser, the
Adviser and the Trust pursuant to the recitals above and Sections 6, 7 and 8,
respectively, shall survive for the duration of this Agreement and the parties
hereto shall promptly notify each other in writing upon becoming aware that any
of the foregoing representations and warranties are no longer true or accurate
in all material effects.
10. LIABILITY AND INDEMNIFICATION.
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(a) LIABILITY. The Subadviser shall exercise its best judgment
in rendering its services in accordance with the terms of this Agreement, but
otherwise, in the absence of willful misfeasance, bad faith or gross negligence
on the part of the Subadviser or a reckless disregard of its duties hereunder,
the Subadviser, each of its affiliates and all respective partners, officers,
directors and employees ("Affiliates") and each person, if any, who within the
meaning of the Securities Act controls the Subadviser ("Controlling Persons"),
if any, shall not be subject to any expenses or liability to the Adviser, any
other subadviser to a Fund, the Trust or a Fund or any of a Fund's shareholders,
in connection with the matters to which this Agreement relates, including
without limitation for any losses that may be sustained in the purchase, holding
or sale of Subadviser Assets. The Adviser 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 wilful
misfeasance, bad faith or gross negligence on the part of the Adviser or a
reckless disregard of its duties hereunder, the Adviser, any of its Affiliates
and each of the Adviser's Controlling Persons, if any, shall not be subject to
any liability to the Subadviser, for any act or omission in the case of, or
connected with, rendering services hereunder or for any losses that may be
sustained in the purchase, holding or sale of Subadviser Assets. Notwithstanding
the foregoing, nothing herein shall relieve the Adviser and the Subadviser from
any of their obligations under applicable law, including, without limitation,
the federal and state securities laws and the CEA.
(b) INDEMNIFICATION. The Subadviser shall indemnify the
Adviser, the Trust and the Fund, and their respective Affiliates and Controlling
Persons for any liability and expenses, including without limitation reasonable
attorneys' fees and expenses, which the Adviser, the Trust and the Fund and
their respective Affiliates and Controlling Persons may sustain as a result of
the Subadviser's willful misfeasance, bad faith, gross negligence, reckless
disregard of its duties hereunder or violation of applicable law, including,
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without limitation, the federal and state securities laws or the CEA. The
Adviser shall indemnify the Subadviser, its Affiliates and its Controlling
Persons, for any liability and expenses, including without limitation reasonable
..attorneys' fees and expenses, which may be sustained as a result of the
Adviser's willful misfeasance, bad faith, gross negligence, reckless disregard
of its duties hereunder or violation of applicable law, including, without
limitation, the federal and state securities laws or the CEA.
The Trust shall indemnify the Subadviser, its Affiliates and its
Controlling Persons, for any liability and expenses, including without
limitation reasonable attorneys' fees and expenses, which may be sustained as a
result of the Trust's wilful misfeasance, bad faith, gross negligence, reckless
disregard of its duties hereunder or violation of applicable law, including,
without limitation, the federal and state securities laws or the CEA.
(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.
11. DURATION AND TERMINATION.
-------------------------
(a) DURATION. Unless sooner terminated, this Agreement shall
continue until February 27, 2006, with respect to any Fund covered by this
Agreement initially and, for any Fund subsequently added to this Agreement, an
initial period of no more than two years that terminates on the second February
27th that occurs following the effective date of this Agreement with respect to
such Fund, and thereafter shall continue automatically for successive annual
periods with respect to each of the Funds, provided such continuance is
specifically approved at least annually by the Trust's Board of Trustees or vote
of the lesser of (a) 67% of the shares of the Fund represented at a meeting if
holders of more than 50% of the outstanding shares of the Fund are present in
person or by proxy or (b) more than 50% of the outstanding shares of the Fund;
provided that in either event its continuance also is approved by a majority of
the Trust's Trustees who are not "interested persons" (as defined in the 0000
Xxx) of any party to this Agreement, by vote cast in person at a meeting called
for the purpose of voting on such approval.
(b) TERMINATION. Notwithstanding whatever may be provided
herein to the contrary, this Agreement may be terminated at any time with
respect to the Fund, without payment of any penalty:
(i) By vote of a majority of the Trust's Board of
Trustees, or by "vote of a majority of the
outstanding voting securities" of the Fund (as
defined in the 1940 Act), or by the Adviser, in each
case, upon at least 60 days' written notice to the
Subadviser;
- 10 -
(ii) By any party hereto immediately upon written notice
to the other parties in the event of a breach of any
provision of this Agreement by either of the other
parties; or
(iii) By the Subadviser upon at least 60 days' written
notice to the Adviser and the Trust.
This Agreement shall not be assigned (as such term is defined in the
0000 Xxx) and shall terminate automatically in the event of its
assignment or upon the termination of the Advisory Agreement.
12. DUTIES OF THE ADVISER. The Adviser shall continue to have
responsibility for all services to be provided to the Fund pursuant to the
Advisory Agreement and shall oversee and review the Subadviser's performance of
its duties under this Agreement. Nothing contained in this Agreement shall
obligate the Adviser to provide any funding or other support for the purpose of
directly or indirectly promoting investments in the Fund.
13. REFERENCE TO ADVISER AND SUBADVISER.
------------------------------------
(a) Neither the Adviser nor any Affiliate or agent of the
Adviser shall make reference to or use the name of Subadviser or any of its
Affiliates, or any of their clients, except references concerning the identity
of and services provided by the Subadviser to a Fund, which references shall not
differ in substance from those included in the Prospectus and this Agreement, in
any advertising or promotional materials without the prior approval of
Subadviser, which approval shall not be unreasonably withheld or delayed. The
Adviser hereby agrees to make all reasonable efforts to cause the Fund and any
Affiliate thereof to satisfy the foregoing obligation.
(b) Neither the Subadviser nor any Affiliate or agent of 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 Trust's Board of Trustees or by a vote of a majority of the
outstanding voting securities of the Funds (as required by the 1940 Act), and
(b) the vote of a majority of those Trustees of the. Trust who are not
"interested persons" of any party to this Agreement cast in person at a meeting
called for the purpose of voting on such approval, if such approval is required
by applicable law.
15. CONFIDENTIALITY. Subject to the duties of the Adviser, the
Trust and the Subadviser to comply with applicable law, including any demand of
any regulatory or taxing authority having jurisdiction, the parties hereto shall
- 11 -
treat as confidential and shall not disclose any and all information pertaining
to the Fund and the actions of the Subadviser, the Adviser and the Fund in
respect thereof; except to the extent:
(a) AUTHORIZED. The Adviser or the Trust has authorized such
disclosure;
(b) COURT OR REGULATORY AUTHORITY. Disclosure of such
information is expressly required or requested by a court or other tribunal o f
competent jurisdiction or applicable federal or state regulatory authorities; -
(c) PUBLICLY KNOWN WITHOUT BREACH. Such information becomes
known to the general public without a breach of this Agreement or a similar
confidential disclosure agreement regarding such information;
(d) ALREADY KNOWN. Such information already was known by the
party prior to the date hereof;
(e) RECEIVED FROM THIRD PARTY. Such information was or is
hereafter rightfully received by the party from a third party (expressly
excluding the Fund's custodian, prime broker and administrator) without
restriction on its disclosure and without breach of this Agreement or of a
similar confidential disclosure agreement regarding them; or
(f) INDEPENDENTLY DEVELOPED. The party independently developed
such information.
16. NOTICE. Any notice that is required to be given by the
parties to each other under the terms of this Agreement shall be in writing,
delivered, or mailed postpaid to the other parties, or transmitted by facsimile
with acknowledgment of receipt, to the parties at the following addresses or
facsimile numbers, which may from time to time be changed by the parties by
notice to the other party:
(a) If to the Subadviser:
Xxxxxxxxx Xxxxxx Management Inc.
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxx Xxxxxx, Deputy General Counsel
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
- 12 -
(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 in accordance with substantive laws of the State of Delaware without
reference to choice of law principles thereof and in accordance with the 1940
Act. In the case of any conflict, the 1940 Act shall control.
18. COUNTERPARTS. This Agreement may be executed in one or
more counterparts, each of which shall be deemed an original, all of which shall
together constitute one and the same instrument.
19. CERTAIN DEFINITIONS. For the purposes of this Agreement
and except as otherwise provided herein, "interested person," "affiliated
person," and "assignment" shall have their respective meanings as set forth in
the 1940 Act, subject, however, to such exemptions as may be granted by the SEC.
20. CAPTIONS. The captions herein are included for convenience
of reference only and shall be ignored in the construction or interpretation
hereof.
21. SEVERABILITY. If any provision of this Agreement shall be
held or made invalid by a court decision or applicable law, the remainder of the
Agreement shall not be affected adversely and shall remain in full force and
effect.
22. ENTIRE AGREEMENT. This Agreement, together with all
exhibits, attachments and appendices, contains the entire understanding and
agreement of the parties with respect to the subject matter hereof.
23. GARTMORE VARIABLE INSURANCE TRUST AND ITS TRUSTEES. The
terms "Gartmore Variable Insurance Trust" and the "Trustees of Gartmore Variable
Insurance Trust" refer respectively to the Trust created and the Trustees, as
trustees but not individually or personally, acting from time to time under the
Declaration of Trust made and dated as of September 30, 2004, as has been or may
be amended from time to time, and to which reference is hereby made.
- 13 -
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/ XXXXX XXXXXXXXX
--------------------------
Name: Xxxxx Xxxxxxxxx
Title: Assistant Secretary
ADVISER
GARTMORE MUTUAL FUND CAPITAL TRUST
By: /S/ XXXXXX X. XXXXXXX
-----------------------
Name: Xxxxxx X. Xxxxxxx
Title: Senior Vice President
SUBADVISER
XXXXXXXXX XXXXXX MANAGEMENT INC.
By: /S/ XXXXXX XXXXX
--------------------------
Name: Xxxxxx Xxxxx
Title: Senior Vice President
- 14 -
EXHIBIT A
SUBADVISORY AGREEMENT
BETWEEN GARTMORE VARIABLE INSURANCE TRUST,
GARTMORE MUTUAL FUND CAPITAL TRUST AND
XXXXXXXXX XXXXXX MANAGEMENT INC.
FUNDS OF THE TRUST SUBADVISORY FEES EFFECTIVE DATE
------------------ ---------------- --------------
GVIT Small Company Fund 0.60% of the average daily net assets May 2, 2005
of the Subadviser Assets
EXHIBIT B
SUBADVISORY AGREEMENT
AMONG GARTMORE VARIABLE INSURANCE TRUST,
GARTMORE MUTUAL FUND CAPITAL TRUST
AND XXXXXXXXX XXXXXX MANAGEMENT INC.
EFFECTIVE MAY 2, 2005
In connection with securities transactions for a Fund, the Subadviser that
is (or whose affiliated person is) entering into the transaction, and any other
investment manager that is advising an affiliate of the Fund (or portion of the
Fund) (collectively, the "Managers" for the purposes of this Exhibit) entering
into the transaction are prohibited from consulting with each other concerning
transactions for the Fund in securities or other assets and, if both Managers
are responsible for providing investment advice to the Fund, the Manager's
responsibility in providing advice is expressly limited to 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.
