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SUB-ADVISORY AGREEMENT

 
 


AGREEMENT amended and restated as of the 1st day of June, 2010, by and between Genworth Financial Wealth Management, Inc., a California corporation (the "Advisor"), Xxxxx Selected Advisers, L.P., a Colorado Limited Partnership (the “Sub-Advisor”).

WHEREAS, the Advisor and the Sub-Advisor are registered investment advisers under the Investment Advisers Act of 1940, as amended (the “Advisers Act”) and engage in the business of providing investment management services; and

WHEREAS, the Advisor has been retained to act as investment adviser pursuant to an Investment Advisory Agreement dated October 20, 2006, and amended May 13, 2007 (the “Advisory Agreement”) with AssetMark Funds (the “Trust”), a Delaware statutory trust 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"), currently consisting of several separate series of shares, each having its own investment objectives and policies and which is authorized to create more series; and

WHEREAS, the Advisory Agreement permits the Advisor, subject to the supervision and direction of the Trust’s Board of Trustees, 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 Advisor has retained Sub-Advisor to assist it in the provision of a continuous investment program for that portion of one or more of the Trust’s series’ (each a “Fund”) assets which the Advisor has assigned to the Sub-Advisor (the “Sub-Advisor Assets”) pursuant to a Sub-Advisory Agreement dated as of September 5, 2002, as amended by a letter agreement signed July 7, 2006 (the “Agreement”), and the Sub-Advisor is willing to render such services subject to the terms and conditions set forth in the Agreement.

NOW, THEREFORE, in consideration of mutual covenants recited below, the parties desire to amend and restate the Agreement and therefore agree and promise as follows:

 
 
(a)           Investments.  The Sub-Advisor is hereby authorized and directed and hereby agrees, subject to the stated investment policies and restrictions of each Fund as set forth in such Fund’s prospectus and statement of additional information as currently in effect and as supplemented or amended from time to time (collectively referred to as the “Prospectus”) and subject to the directions of the Advisor and the Trust’s Board of Trustees, as set forth more particularly in Schedule A hereto, as may be amended from time to time, to purchase, hold and sell investments for the Sub-Advisor Assets and to monitor on a continuous basis the performance of the Sub-Advisor Assets.  In providing these services, the Sub-Advisor will conduct a continual program of investment, evaluation and, if appropriate, sale and reinvestment of the Sub-Advisor Assets.  The Advisor agrees to provide the Sub-Advisor information concerning a Fund, its assets available or to become available for investment, and generally as to the conditions of a Fund’s or the Trust’s affairs.
 
 
 
 
 
 
(b)           Compliance with Applicable Laws and Governing Documents.  In the performance of its duties and obligations under this Agreement, the Sub-Advisor shall with respect to Sub-Advisor Assets, act in conformity with the Trust’s Declaration of Trust and By-Laws, the Prospectus(es), and with the instructions and directions received in writing from the Advisor or the Trustees of the Trust and will conform to and comply with the requirements of the 1940 Act, the Advisers Act, the Internal Revenue Code of 1986, as amended (the “Code”), and all other applicable federal and state laws and regulations.  The Advisor will provide the Sub-Advisor with a copy of the minutes of the meetings of the Board of Trustees of the Trust to the extent they may affect a Fund or the duties of the Sub-Advisor, and with the copies of any financial statements or reports made by a Fund to its shareholders, and any further materials or information which the Sub-Advisor may reasonably request to enable it to perform its functions under this Agreement.
 
The Advisor hereby agrees that it will cause the Trust to agree that no shares of any fund whose assets consist at any time or Sub-Advisor Assets will be marketed or knowingly sold to any plan established or which is tax-exempt under Section 457 of the Internal Revenue Code (Governmental Plans).
 
The Advisor will provide the Sub-Advisor with reasonable (30 days) advance notice, in writing, of any change in a Fund’s investment objectives, policies and restrictions as stated in the Prospectus, and the Sub-Advisor shall, in the performance of its duties and obligations under this Agreement, manage the Sub-Advisor Assets consistent with such changes, provided the Sub-Advisor has received such prior notice of the effectiveness of such changes from the Trust or the Advisor.  In addition to such notice, the Advisor shall provide to the Sub-Advisor a copy of a modified Prospectus reflecting such changes. The Sub-Advisor 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 with respect to the Sub-Advisor Assets, and as to the accuracy of material information furnished in writing by the Sub-Advisor to the Trust, to the Fund or to the Advisor specifically for inclusion in the Prospectus.  The Sub-Advisor hereby agrees to provide to the Advisor in a timely manner, in writing, such information relating to the Sub-Advisor and its relationship to, and actions for, a Fund as may be required to be contained in the Prospectus or in the Trust’s registration statement on Form N-1A.
 
The Advisor shall provide the Sub-Advisor with complete copies of each Registration Statement, Application for Exemptive Relief, No Action Relief or any Order or Response thereafter made with the Securities and Exchange Commission or the Internal Revenue Service with respect to the Trust, Sub-Advisor Assets, or any Fund which has Sub-Advisor Assets, promptly after each filing is made.
 
 
 
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(d)           Agent.  Subject to any other written instructions of the Advisor or the Trust, the Sub-Advisor is hereby appointed the Advisor’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 Sub-Advisor shall be requested by brokers, dealers, counterparties and other persons in connection with its management of the Sub-Advisor Assets, provided that, the Sub-Advisor’s actions in executing such documents shall comply with federal and state rules and regulations and the Trust’s governing documents.  The Sub-Advisor agrees to provide the Advisor and the Trust with copies of any such agreements intended to be executed on behalf of the Advisor or the Trust, prior to the execution thereof.
 
(e)           Brokerage.  The Sub-Advisor will place orders pursuant to the Sub-Advisor’s investment determinations for a Fund either directly with the issuer or with any broker or dealer.  In executing portfolio transactions and selecting brokers or dealers, the Sub-Advisor will use its best efforts to seek on behalf of a Fund the best overall execution available.  In assessing the best overall terms available for any transaction, the 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 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, as amended) provided to a Fund and/or other accounts over which the Sub-Advisor may exercise investment discretion.  The Sub-Advisor is authorized, subject to the prior approval of the Trust’s Board of Trustees, 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 if, but only if, the 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 in terms of the overall responsibilities of the Sub-Advisor to a Fund.  In addition, the Sub-Advisor is authorized to allocate purchase and sale orders for portfolio securities to brokers or dealers (including brokers and dealers that are affiliated with the Advisor, the Sub-Advisor, or the Trust’s principal underwriter) to take into account the sale of shares of the Trust if the Sub-Advisor believes that the quality of the transaction and the commission are comparable to what they would be with other qualified firms.
 
 
 
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The Sub-Advisor, including its Access Persons (as defined in subsection (e) of Rule 17j-1 under the 1940 Act), agrees to observe and comply with Rule 17j-1 and 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 Sub-Advisor will comply with the reporting requirements of Rule 17j-1, which may include either (i) certifying to the Advisor that the Sub-Advisor and its Access Persons have complied with the Sub-Advisor’s Code of Ethics with respect to the Sub-Advisor Assets, or (ii) identifying any violations which have occurred with respect to the Sub-Advisor Assets and (iii) certifying that it has adopted procedures reasonably necessary to prevent Access Persons from violating the Sub-Advisor’s Code of Ethics.  The Sub-Advisor will also submit its Code of Ethics for its initial approval by the Board of Trustees and subsequently within six months of any material change of thereto.
 
The Sub-Advisor acknowledges that the Advisor and the Trust may rely on Rule 17a-7, Rule 17a-10, Rule 10f-3, Rule 12d3-1 and Rule 17e-1 under the 1940 Act, and the Sub-Advisor hereby agrees that it shall not consult with any other sub-advisor to the Trust with respect to transactions in securities for the Sub-Advisor Assets or any other transactions of Trust assets.
 
 
(h)           Information Concerning Sub-Advisor Assets and the Sub-Advisor.  From time to time as the Advisor, and any consultants designated by the Advisor, or the Trust may request, the Sub-Advisor will furnish the requesting party reports on portfolio transactions and reports on Sub-Advisor Assets held in the portfolio, all in such detail as the Advisor, its consultant(s) or the Trust may reasonably request.  The Sub-Advisor also will inform the Advisor in a timely manner of material changes in portfolio managers responsible for Sub-Advisor Assets, any changes in the ownership or management of the Sub-Advisor, or of material changes in the control of the Sub-Advisor.  Upon reasonable request, the Sub-Advisor will make available its officers and employees to meet with the Trust’s Board of Trustees to review the Sub-Advisor Assets.
 
 
 
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The Sub-Advisor also will provide such information or perform such additional acts as are customarily performed by a Sub-Advisor and may be required for a Fund or the Advisor to comply with their respective obligations under applicable laws, including, without limitation, the Code, the 1940 Act, the Advisers Act, the Securities Act of 1933, as amended (the “Securities Act”) and any federal or state securities laws, and any rule or regulation thereunder.
 
 
 
 
4.           Expenses.  During the term of this Agreement, Sub-Advisor will pay all expenses incurred by it in connection with its activities under this Agreement other than the costs of securities, commodities and other investments (including brokerage commissions and other transaction charges, if any) purchased or otherwise acquired, or sold or otherwise disposed of for a Fund.  The Sub-Advisor 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 Trust or the Advisor, as the case may be, shall reimburse the Sub-Advisor for any expenses as may be reasonably incurred by the Sub-Advisor, at the request of and on behalf of a Fund or the Advisor. The Sub-Advisor shall keep and supply to the Trust and the Advisor reasonable records of all such expenses.
 
 
If this Agreement is terminated prior to the end of any calendar month, the 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 this 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.

 
(a)           The Sub-Advisor is registered as an investment Advisor under the Advisers Act;
 
 
 
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(b)           The Sub-Advisor is a Limited Partnership duly organized and validly existing under the laws of the state of Colorado, with the power to own and possess its assets and carry on its business as it is now being conducted;
 
(c)           The execution, delivery and performance by the Sub-Advisor of this Agreement are within the Sub-Advisor’s powers and have been duly authorized by all necessary action on the part of its general partner and no action by or in respect of, or filing with, any governmental body, agency or official is required on the part of the Sub-Advisor for the execution, delivery and performance by the Sub-Advisor of this Agreement, and the execution, delivery and performance by the Sub-Advisor of this Agreement do not contravene or constitute a default under: (i) any provision of applicable law, rule or regulation, (ii) the Sub-Advisor’s governing instruments, or (iii) any agreement, judgment, injunction, order, decree or other instrument binding upon the Sub-Advisor; and
 
(d)           The Form ADV of the Sub-Advisor previously provided to the Advisor (a copy of which is attached as Exhibit B to this Agreement) is a true and complete copy of the form as currently filed with the SEC 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 are made, not misleading.  The Sub-Advisor will promptly provide the Advisor and the Trust with a complete copy of all subsequent amendments to its Form ADV.
 
 
(a)           The Advisor is registered as an investment Advisor under the Advisers Act;
 
(b)           The Advisor is a corporation duly organized and validly existing under the laws of the State of California with the power to own and possess its assets and carry on its business as it is now being conducted;
 
(c)           The execution, delivery and performance by the Advisor of this Agreement are within the Advisor’s powers and have been duly authorized by all necessary action on the part of its Board of 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 Advisor for the execution, delivery and performance by the Advisor of this Agreement, and the execution, delivery and performance by the Advisor of this Agreement do not contravene or constitute a default under: (i) any provision of applicable law, rule or regulation, (ii) the Advisor’s governing instruments, or (iii) any agreement, judgment, injunction, order, decree or other instrument binding upon the Advisor;
 
(d) The Form ADV of the Advisor as provided to the Sub-Advisor is a true and complete copy of the form as currently filed with the SEC 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;
 
 
 
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(e) The Advisor shall provide to the Sub-Advisor a complete copy of each amendment to its for ADV;
 
(f)           The Advisor acknowledges that it received a copy of the Sub-Advisor’s Form ADV (a copy of which is attached as Exhibit B) prior to the execution of this Agreement; and
 
(g)           The Advisor and the Trust have duly entered into the Advisory Agreement pursuant to which the Trust authorized the Advisor to enter into this Agreement.
 
 
 

(b)           Indemnification.  The Sub-Advisor shall indemnify the Advisor, the Trust and each Fund, and their respective affiliates and controlling persons for any liability and expenses, including reasonable attorneys’ fees, which the Advisor, the Trust or a Fund and their respective affiliates and controlling persons may sustain as a result of the Sub-Advisor’s willful misfeasance, bad faith, negligence, reckless disregard of its duties hereunder or violation of applicable law. Notwithstanding any other provision in this Agreement, the Sub-Advisor will indemnify the Advisor, the Trust and each Fund, and their respective affiliates and controlling persons for any liability and expenses, including reasonable attorneys’ fees, to which they may be subjected as a result of their reliance upon and use of the historical performance calculations provided by the Sub-Advisor concerning the Sub-Advisor’s composite account data or historical performance information on similarly managed investment companies or accounts, except that the Advisor, the Trust and each Fund and their respective affiliates and controlling persons shall not be indemnified for a loss or expense resulting from their negligence or willful misconduct in using such numbers, or for their failure to conduct reasonable due diligence with respect to such information.

The Advisor shall indemnify the Sub-Advisor, its affiliates and its controlling persons, for any liability and expenses, including reasonable attorneys’ fees, howsoever arising from, or in connection with, the Advisor’s breach of this Agreement or its representations and warranties herein or a violation of applicable law; provided, however, that the Sub-Advisor shall not be indemnified for any liability or expenses which may be sustained as a result of the Sub-Advisor’s willful misfeasance, bad faith, negligence, reckless disregard of its duties hereunder or violation of applicable law.
 
 
 
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(a)           Duration.  This Agreement, unless sooner terminated as provided herein, shall for the Fund(s) listed on Exhibit A attached hereto remain in effect from the later of the date first set forth above or Board approval as required under the 1940 Act (the “Effective Date”), and thereafter, for periods of one year so long as such continuance thereafter is specifically approved at least annually (a) by 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, and (b) by the Trustees of the Trust, or by the vote of a majority of the outstanding voting securities of each Fund (except as such vote may be unnecessary pursuant to relief granted by an exemptive order from the SEC).  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.


This Agreement shall not be assigned and shall terminate automatically in the event of its assignment, except as provided otherwise by any rule, Exemptive Relief, or No Action Letter provided or pursuant to the 1940 Act, or upon the termination of the Advisory Agreement.  In the event that there is a proposed change in control of the Sub-Advisor which would act to terminate this Agreement, if a vote of shareholders to approve continuation of this Agreement is at that time deemed by counsel to the Trust to be required by the 1940 Act, or any rule or regulation thereunder, Sub-Advisor agrees to assume all reasonable costs associated with soliciting shareholders of the appropriate Fund(s) of the Trust, to approve continuation of this Agreement.  Such expenses include the costs of preparation and mailing of a proxy statement, and of soliciting proxies.

This Agreement shall extend to and bind the heirs, executors, administrators and successors of the parties hereto.

 
 
 
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12.           Confidentiality.  Subject to the duties of the Advisor, the Trust (and each Fund), and the Sub-Advisor to comply with applicable law, including any demand of any regulatory or taxing authority having jurisdiction, the parties hereto shall treat as confidential all information pertaining to a Fund and the actions of the Sub-Advisor, the Advisor, the Trust, and a Fund in respect thereof.  In accordance with Section 248.11 of Regulation S-P (17 CFR 248.1-248.30), Sub-Advisor will not directly, or indirectly through an affiliate, disclose any non-public personal information, except as permitted or required by law , as defined in Reg. S-P, received from the Trust or the Advisor, regarding any shareholder, to any person that is not affiliated with the Trust or with Sub-Advisor, and, provided that, any such information disclosed to an affiliate of Sub-Advisor shall be under the same limitations on non-disclosure.
 

(a)           If to the Advisor:
Genworth Financial Wealth Management, Inc.
0000 Xxxxxx Xxxxx Xxxx., Xxxxx 000
Xxxxxxxx Xxxx, XX 00000-0000

(b)           If to the Sub-Advisor:
Xxxxx Selected Advisers, L.P.
0000 Xxxx Xxxxxx Xxxx
Xxxxx 000
Xxxxxx, Xxxxxxx 00000
Attn: Xxxxxxx Xxxx

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.  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.

 
 
 
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ADVISOR
GENWORTH FINANCIAL WEALTH MANAGEMENT, INC.
 
By:__________________________________
Name: Xxxxxxxx X. Xxxxxxxxx
Title: President
 

 
SUB-ADVISOR
XXXXX SELECTED ADVISERS, L.P.
By Xxxxx Investments (General Partner)



By:__________________________________
Name
Title:
 
 
 
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EXHIBIT A

SUBADVISORY AGREEMENT

BETWEEN GENWORTH FINANCIAL WEALTH MANAGEMENT, INC.
AND XXXXX SELECTED ADVISERS, L.P.



Effective June 1, 2010
 


ASSETMARK LARGE CAP VALUE FUND
 

FEE SCHEDULE
 
  ASSETS    COMPENSATION
     
  Up to  $100 Million  45 Basis points
  $100 Million to $500 Million      40 Basis points
  Over $500 Million    35 Basis points
 
 
 
 
 
 
 
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 EXHIBIT B

XXXXX SELECTED ADVISERS, L.P.


FORM ADV

(please attach)

 
 

 

 
 
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SCHEDULE A

Investment Manager Guidelines
XXXXX SELECTED ADVISERS, L.P.
 
LARGE CAP VALUE EQUITY
 

The Fund (including Sub-Advisor Assets) should be managed in accordance with the guidelines established in the Prospectus and SAI. The Sub-Advisor Assets should also be managed in accordance with the following specific guidelines:

1.             Investment Objective
 
The objective of the Large Cap Value strategy is twofold: to outperform the Xxxxxxx 1000 Value Index over a market cycle by investing in a portfolio of well-diversified value-oriented stocks and to generate higher returns than the large cap value peer groups while taking on less risk than the median manager.  Out-performance versus the Xxxxxxx 1000 Value index is expected to be around 300 basis points, annualized on a net of fee basis, over a full market cycle of 3-5 years.  Tracking error versus the Xxxxxxx 1000 Value Index is expected to be in the 4-8% range on an annualized basis over 3-year time period.


2.             Allowable Investments
 
Portfolios should consist primarily of common stock issued by U.S. based corporations. The following instruments are allowed:
 
●
 U.S. dollar denominated common stock
 
● 
American Depository Receipts (ADRs)
 
●
  Convertible securities (in one of the top three ratings categories of an NRSRO)
 
●
  Nonconvertible preferred stock
 
●
  Warrants and rights that can be exercised to obtain stock
 
●
  Real estate investment trusts (REITs) (this was not provided for in the Pro/SAI- if you intend to invest in REITS, we need to know immediately and need to add a disclosure)
 
●
  Securities of non-U.S. issuers


3.             Portfolio Characteristics
 
 
●
 In general, the characteristics shall remain reflective of a large cap value portfolio.
 
 
 
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●
  At least 80% of the AssetMark Large Cap Value Fund’s net assets shall be invested in common stocks and convertible securities of large cap companies with market capitalization within the range of those in the Xxxxxxx 1000 Index at the time of purchase.
 
●
 No more than 10% of the total market value of Sub-Advisor Assets of the AssetMark Large Cap Value Fund shall be invested in cash; historical cash levels have run between 0 to 10%.
 
●
  No more than 10% of the total market value of Sub-Advisor Assets of the AssetMark Large Cap Value Fund shall be invested in ADRs and securities of non-U.S. issuers; and in no event shall the AssetMark Large Cap Value Fund’s total investment in such securities exceed 10% of its total assets.
 
●
 No more than 7.5% of the total market value of Sub-Advisor Assets of the AssetMark Large Cap Value Fund shall be invested in a single issuer.
 
●
  The Sub-Advisor Assets of the AssetMark Large Cap Value Fund will contain approximately 40 to 50 issues.
 
●
 No single industry group shall constitute the greater of more than 2.0 times its comparable representation in the benchmark or 40% of Sub-Advisor Assets of the AssetMark Large Cap Value Fund; provided that the Sub-Advisor will not purchase any securities that would cause more than 25% of the total assets of the AssetMark Large Cap Value Fund to be invested in securities of one or more issuers conducting their principal business activities in the same industry. This 25% limitation does not apply to the securities of other investment companies or investments in obligations issued of guaranteed by the United States Government, its agencies or instrumentalities.

Note:  Keep in mind that an industry is defined by the 4 digit SIC code.

4.             Use of Derivatives
 
Derivative securities, such as futures contracts or options may be used only as a tax deferral mechanism for stocks held in the portfolio or to equitize cash.

5.             Prohibited investments
 
Short selling or buying securities on margin.

 
Quarterly reporting shall include investment performance and notice of changes in organizational structure, ownership and key personnel of the firm.

7.             Guideline Review
 
Xxxxx Selected Advisers, L.P. shall be responsible for reviewing these guidelines with the client or its consultant at least annually to assure that they remain appropriate.
 
 
 
 
 
 
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Filed: July 30th, 2010

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