AMENDED AND RESTATED
INVESTMENT SUB-ADVISORY AGREEMENT
BETWEEN XXXXX FARGO VARIABLE TRUST, XXXXX FARGO
FUNDS MANAGEMENT, LLC AND XXXXX CAPITAL
MANAGEMENT INCORPORATED
This AMENDED AND RESTATED AGREEMENT is made as of this 1st day of March,
2001, as amended and restated as of November 7, 2012, between Xxxxx
Fargo Variable Trust (the "Trust"), a business trust organized under the laws of
the State of Delaware with its principal place of business at 000 Xxxxxx Xxxxxx,
00xx Xxxxx, Xxx Xxxxxxxxx, Xxxxxxxxxx 00000, Xxxxx Fargo Funds Management, LLC
(the "Adviser"), a limited liability company organized under the laws of the
State of Delaware with its principal place of business at 000 Xxxxxx Xxxxxx,
00xx Xxxxx, Xxx Xxxxxxxxx, Xxxxxxxxxx 00000, and Xxxxx Capital Management
Incorporated, a corporation organized under the laws of the State of California,
with its principal place of business at 000 Xxxxxx Xxxxxx, Xxx Xxxxxxxxx,
Xxxxxxxxxx 00000 (the "Sub-Adviser").
WHEREAS, the Trust is registered under the Investment Company Act of 1940,
as amended, (the "1940 Act") as an open-end, series management investment
company;
WHEREAS, the Adviser and Sub-Adviser are registered investment advisers
under the Investment Advisers Act of 1940; and
WHEREAS, the Trust and the Adviser desire that the Sub-Adviser perform
investment advisory services for each of the series of the Trust listed in
Appendix A hereto as it may be amended from time to time (each a "Fund" and
collectively the "Funds"), and the Sub-Adviser is willing to perform those
services on the terms and conditions set forth in this Agreement;
NOW THEREFORE, the Trust, the Adviser and Sub-Adviser agrees as follows:
SECTION 1. THE TRUST; DELIVERY OF DOCUMENTS. The Trust is engaged in the
business of investing and reinvesting its assets in securities of the type and
in accordance with the limitations specified in its Declaration of Trust, as
amended and supplemented, By-Laws (if any) and Registration Statement filed with
the Securities and Exchange Commission (the "Commission") under the 1940 Act and
the Securities Act of 1933 (the "Securities Act"), including any representations
made in the prospectus and statement of additional information relating to the
Funds contained therein and as may be supplemented from time to time, all in
such manner and to such extent as may from time to time be authorized by the
Trust's Board of Trustees (the "Board"). The Board is authorized to issue any
unissued shares in any number of additional classes or series. The Trust has
delivered copies of the documents listed in this Section to the Sub-Adviser and
will from time to time furnish the Sub-Adviser with any amendments thereof.
SECTION 2. APPOINTMENT OF SUB-ADVISER. Subject to the direction and control
of the Board, the Adviser manages the investment and reinvestment of the assets
of the Funds and provides for certain management and services as specified in
the Investment Advisory Agreement between the Trust and the Adviser with respect
to the Funds.
Subject to the direction and control of the Board, the Sub-Adviser shall
manage the investment and reinvestment of the assets of the Funds, and without
limiting the generality of the foregoing, shall provide the management and other
services specified below, all in such manner and to such extent as may be
directed from time to time by the Adviser.
The Sub-Adviser acknowledges that the Fund and other mutual funds advised
by the Adviser (collectively, the "fund complex") may engage in transactions
with certain sub-advisers in the fund complex (and their affiliated persons)
in reliance on exemptions under Rule 10f-3, Rule 12d3-1, Rule 17a-10 and Rule
17e-1 under the 1940 Act. Accordingly, the Sub-Adviser hereby agrees that it
will not consult with any other sub-adviser of a fund in the fund complex that
is not an affiliated person (as that term is defined in the 1940 Act) of Xxxxx
Fargo & Company ("Xxxxx Fargo"), or an affiliated person of such a sub-adviser,
concerning transactions for a fund in securities or other fund assets. With
respect to a multi-managed Fund, the Sub-Adviser shall be limited to managing
only the discrete portion of the Fund's portfolio as may be determined from
time-to-time by the Board or the Adviser, and shall not consult with any
Sub-adviser that is not an affiliated person of Xxxxx Fargo as to any other
portion of the Fund's portfolio concerning transactions for the Fund in
securities or other Fund assets.
SECTION 3. DUTIES OF THE SUB-ADVISER.
(a) The Sub-Adviser shall make decisions with respect to all purchases and
sales of securities and other investment assets for the Funds. To carry out such
decisions, the Sub-Adviser is hereby authorized, as agent and attorney-in-fact
for the Trust, for the account of, at the risk of and in the name of the Trust,
to place orders and issue instructions with respect to those transactions of the
Funds. In all purchases, sales and other transactions in securities for the
Funds, the Sub-Adviser is authorized to exercise full discretion and act for the
Trust in the same manner and with the same force and effect as the Trust might
or could do with respect to such purchases, sales or other transactions, as well
as with respect to all other things necessary or incidental to the furtherance
or conduct of such purchases, sales or other transactions.
(b) The Sub-Adviser will report to the Board at each regular meeting
thereof all material changes in the Funds since the prior report, and will also
keep the Board informed of important developments affecting the Trust, the Funds
and the Sub-Adviser, and on its own initiative will furnish the Board from time
to time with such information as the Sub-Adviser may believe appropriate,
whether concerning the individual companies whose securities are held by a Fund,
the industries in which they engage, or the economic, social or political
conditions prevailing in each country in which the Fund maintains investments.
The Sub-Adviser will also furnish the Board with such statistical and analytical
information with respect to securities in the Funds as the Sub-Adviser may
believe appropriate or as the Board reasonably may request. In making purchases
and sales of securities for the Funds, the Sub-Adviser will comply with the
policies set from time to time by the Board as well as the limitations imposed
by the Trust's Declaration of Trust, as amended and supplemented, By-Laws (if
any), Registration Statement under the Act and the Securities Act, the
limitations in the Act and in the Internal Revenue Code of 1986, as amended
applicable to the Trust and the investment objectives, policies and restrictions
of the Funds.
(c) The Sub-Adviser may from time to time employ or associate with such
persons as the Sub-Adviser believes to be appropriate or necessary to assist in
the execution of the Sub-Adviser's duties hereunder, the cost of performance of
such duties to be borne and paid by the Sub-Adviser. No obligation may be
imposed on the Trust in any such respect.
(d) The Sub-Adviser shall maintain records relating to portfolio
transactions and the placing and allocation of brokerage orders as are required
to be maintained by the Trust under the Act. The Sub-Adviser shall prepare and
maintain, or cause to be prepared and maintained, in such form, for such periods
and in such locations as may be required by applicable law, all documents and
records relating to the services provided by the Sub-Adviser pursuant to this
Agreement required to be prepared and maintained by the Trust
pursuant to the rules and regulations of any national, state, or local
government entity with jurisdiction over the Trust, including the Securities and
Exchange Commission and the Internal Revenue Service. The books and records
pertaining to the Trust which are in possession of the Sub-Adviser shall be the
property of the Trust. The Trust, or the Trust's authorized representatives
(including the Adviser), shall have access to such books and records at all
times during the Sub-Adviser's normal business hours. Upon the reasonable
request of the Trust, copies of any such books and records shall be provided
promptly by the Sub-Adviser to the Trust or the Trust's authorized
representatives.
SECTION 4. CONTROL BY BOARD. As is the case with respect to the Adviser
under the Investment Advisory Agreement, any investment activities undertaken by
the Sub-Adviser pursuant to this Agreement, as well as any other activities
undertaken by the Sub-Adviser on behalf of the Funds, shall at all times be
subject to the direction and control the Trust's Board.
SECTION 5. COMPLIANCE WITH APPLICABLE REQUIREMENTS. In carrying out its
obligations under this Agreement, the Sub-Adviser shall at all times comply
with:
(a) all applicable provisions of the 1940 Act, and any rules and
regulations adopted thereunder;
(b) the provisions of the registration statement of the Trust, as it may be
amended from time to time, under the Securities Act and the 1940 Act;
(c) the provisions of the Declaration of Trust of the Trust, as it may be
amended from time to time;
(d) the provisions of any By-laws of the Trust, if adopted and as it may be
amended from time to time, or resolutions of the Board as may be adopted from
time to time;
(e) the provisions of the Internal Revenue Code of 1986, as amended,
applicable to the Trust or the Funds;
(f) any other applicable provisions of state or federal law; and
In addition, any code of ethics adopted by the Sub-Advisers in compliance
with Rule 17j-1 under the 1940 Act shall include policies, prohibitions and
procedures which substantially conform to the recommendations regarding personal
investing approved by the Board of Governors of the Investment Company
Institute, as such recommendations may be amended from time to time, and that
comply with any amendments to Rule 17j-1 under the 1940 Act.
SECTION 6. BROKER-DEALER RELATIONSHIPS. The Sub-Adviser is responsible for
the purchase and sale of securities for the Funds, broker-dealer selection, and
negotiation of brokerage commission rates. The Sub-Adviser's primary
consideration in effecting a security transaction will be to obtain the best
price and execution. In selecting a broker-
dealer to execute each particular transaction for a Fund, the Sub-Adviser will
take the following into consideration: the best net price available, the
reliability, integrity and financial condition of the broker-dealer; the size of
and difficulty in executing the order; and the value of the expected
contribution of the broker-dealer to the Fund on a continuing basis.
Accordingly, the price to the Fund in any transaction may be less favorable than
that available from another broker-dealer if the difference is reasonably
justified by other aspects of the portfolio execution services offered. Subject
to such policies as the Trust's Board of Trustees may from time to time
determine, the Sub-Adviser shall not be deemed to have acted unlawfully or to
have breached any duty created by this Agreement or otherwise solely by reason
of having caused a Fund to pay a broker or dealer that provides brokerage and
research services to the Sub-Adviser an amount of commission for effecting a
portfolio investment transaction in excess of the amount of commission another
broker or dealer would have charged for effecting that transaction, if the
Sub-Adviser determines in good faith that such amount of commission was
reasonable in relation to the value of the brokerage and research services
provided by such broker or dealer, viewed in terms of either that particular
transaction or the overall responsibilities of the Sub-Adviser with respect to
the Fund and to other clients of the Sub-Adviser. The Sub-Adviser is further
authorized to allocate the orders placed by it on behalf of the Funds to brokers
and dealers who also provide research or statistical material, or other services
to the Funds or to the Sub-Adviser. Such allocation shall be in such amounts and
proportions as the Sub-Adviser shall determine and the Sub-Adviser will report
on said allocations regularly to the Board of Trustees of the Trust indicating
the brokers to whom such allocations have been made and the basis therefor.
SECTION 7. EXPENSES OF THE FUND. All of the ordinary business expenses
incurred in the operations of the Funds and the offering of their shares shall
be borne by the Funds unless specifically provided otherwise in this Agreement.
These expenses borne by the Trust include, but are not limited to, brokerage
commissions, taxes, legal, auditing or governmental fees, the cost of preparing
share certificates, custodian, transfer agent and shareholder service agent
costs, expense of issue, sale, redemption and repurchase of shares, expenses of
registering and qualifying shares for sale, expenses relating to trustees and
shareholder meetings, the cost of preparing and distributing reports and notices
to shareholders, the fees and other expenses incurred by the Funds in connection
with membership in investment company organizations and the cost of printing
copies of prospectuses and statements of additional information distributed to
the Funds' shareholders.
SECTION 8. COMPENSATION. As compensation for the sub-advisory services
provided under this Agreement, the Adviser shall pay the Sub-Adviser fees,
payable monthly, the annual rates indicated on Schedule A hereto, as such
Schedule may be amended or supplemented from time to time. It is understood that
the Adviser shall be responsible for the Sub-Adviser's fee for its services
hereunder, and the Sub-Adviser agrees that it shall have no claim against the
Trust or the Funds with respect to compensation under this Agreement.
SECTION 9. STANDARD OF CARE. The Trust and Adviser shall expect of the
Sub-Adviser, and the Sub-Adviser will give the Trust and the Adviser the benefit
of, the Sub-
Adviser's best judgment and efforts in rendering its services to the Trust, and
as an inducement to the Sub-Adviser's undertaking these services at the
compensation level specified, the Sub-Adviser shall not be liable hereunder for
any mistake in judgment. In the absence of willful misfeasance, bad faith,
negligence or reckless disregard of obligations or duties hereunder on the part
of the Sub-Adviser or any of its officers, directors, employees or agents, the
Sub-Adviser shall not be subject to liability to the Trust or to any
shareholders in the Trust for any act or omission in the course of, or connected
with, rendering services hereunder or for any losses that may be sustained in
the purchase, holding or sale of any security.
SECTION 10. NON-EXCLUSIVITY. The services of the Sub-Adviser to the Adviser
and the Trust are not to be deemed to be exclusive, and the Sub-Adviser shall be
free to render investment advisory and administrative or other services to
others (including other investment companies) and to engage in other activities.
It is understood and agreed that officers or directors of the Sub-Adviser are
not prohibited from engaging in any other business activity or from rendering
services to any other person, or from serving as partners, officers, directors
or trustees of any other firm or trust, including other investment advisory
companies.
SECTION 11. RECORDS. The Sub-Adviser shall, with respect to orders the
Sub-Adviser places for the purchase and sale of portfolio securities of the
Funds, maintain or arrange for the maintenance of the documents and records
required pursuant to Rule 31a-1 under the 1940 Act as well as trade tickets and
confirmations of portfolio trades and such other records as the Adviser or the
Funds' Administrator reasonably requests to be maintained. All such records
shall be maintained in a form acceptable to the Funds and in compliance with the
provisions of Rule 31a-1 or any successor rule. All such records will be the
property of the Funds, and will be available for inspection and use by the Funds
and their authorized representatives (including the Adviser). The Sub-Adviser
shall promptly, upon the Trust's request, surrender to the Funds those records
which are the property of the Trust or any Fund. The Sub-Adviser will promptly
notify the Funds' Administrator if it experiences any difficulty in maintaining
the records in an accurate and complete manner.
SECTION 12. TERM AND APPROVAL. This Agreement shall become effective with
respect to a Fund after it is approved in accordance with the express
requirements of the 1940 Act, and executed by the Trust, Adviser and Sub-Adviser
and shall thereafter continue from year to year, provided that the continuation
of the Agreement is approved in accordance with the requirements of the 1940
Act, which currently requires that the continuation be approved at least
annually:
(a) (i) by the Trust's Board of Trustees or (ii) by the vote of "a majority
of the outstanding voting securities" of the Fund (as defined in Section
2(a)(42) of the 1940 Act), and
(b) by the affirmative vote of a majority of the Trust's Trustees who are
not parties to this Agreement or "interested persons" (as defined in the 0000
Xxx) of a party
to this Agreement (other than as Trustees of the Trust), by votes cast in person
at a meeting specifically called for such purpose.
SECTION 13. TERMINATION. As required under the 1940 Act, this Agreement may
be terminated with respect to a Fund at any time, without the payment of any
penalty, by vote of the Trust's Board of Trustees or by vote of a majority of a
Fund's outstanding voting securities, or by the Adviser or Sub-Adviser, on sixty
(60) days' written notice to the other party. The notice provided for herein may
be waived by the party entitled to receipt thereof. This Agreement shall
automatically terminate in the event of its assignment, the term "assignment"
for purposes of this paragraph having the meaning defined in Section 2(a)(4) of
the 1940 Act, as it may be interpreted by the Commission or its staff in
interpretive releases, or applied by the Commission staff in no-action letters,
issued under the 1940 Act.
SECTION 14. INDEMNIFICATION BY THE SUB-ADVISER. The Trust shall not be
responsible for, and the Sub-Adviser shall indemnify and hold the Trust or any
Fund of the Trust harmless from and against, any and all losses, damages, costs,
charges, counsel fees, payments, expenses and liability arising out of or
attributable to the willful misfeasance, bad faith, negligent acts or reckless
disregard of obligations or duties of the Sub-Adviser or any of its officers,
directors, employees or agents.
SECTION 15. INDEMNIFICATION BY THE TRUST. In the absence of willful
misfeasance, bad faith, negligence or reckless disregard of duties hereunder on
the part of the Sub-Adviser or any of its officers, directors, employees or
agents, the Trust hereby agrees to indemnify and hold harmless the Sub-Adviser
against all claims, actions, suits or proceedings at law or in equity whether
brought by a private party or a governmental department, commission, board,
bureau, agency or instrumentality of any kind, arising from the advertising,
solicitation, sale, purchase or pledge of securities, whether of the Funds or
other securities, undertaken by the Funds, their officers, directors, employees
or affiliates, resulting from any violations of the securities laws, rules,
regulations, statutes and codes, whether federal or of any state, by the Funds,
their officers, directors, employees or affiliates. Federal and state securities
laws impose liabilities under certain circumstances on persons who act in good
faith, and nothing herein shall constitute a waiver or limitation of any rights
which a Fund may have and which may not be waived under any applicable federal
and state securities laws.
SECTION 16. NOTICES. Any notices under this Agreement shall be in writing,
addressed and delivered or mailed postage paid to the other party at such
address as such other party may designate for the receipt of such notice. Until
further notice to the other party, it is agreed that the address of the Trust
shall be 000 Xxxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxxxxxxx, Xxxxxxxxxx 00000,
Attention: Xxxxxxx X. Xxxxx, and that of the Adviser shall be 000 Xxxxxx Xxxxxx,
00xx Xxxxx, Xxx Xxxxxxxxx, Xxxxxxxxxx 00000, Attention: Xxxxxxx X. Xxxxx, and
that of the Sub-Adviser shall be 000 Xxxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxxxxxxx,
Xxxxxxxxxx 00000, Attention: J. Xxxx Xxxxx.
SECTION 17. QUESTIONS OF INTERPRETATION. Any question of interpretation of
any term or provision of this Agreement having a counterpart in or otherwise
derived from a
term or provision of the 1940 Act shall be resolved by reference to such terms
or provision of the 1940 Act and to interpretations thereof, if any, by the
United States Courts or in the absence of any controlling decision of any such
court, by rules, regulations or orders of the Commission, or interpretations of
the Commission or its staff, or Commission staff no-action letters, issued
pursuant to the 1940 Act. In addition, where the effect of a requirement of the
1940 Act or the Advisers Act reflected in any provision of this Agreement is
revised by rule, regulation or order of the Commission, such provision shall be
deemed to incorporate the effect of such rule, regulation or order. The duties
and obligations of the parties under this Agreement shall be governed by and
construed in accordance with the laws of the State of Delaware.
SECTION 18. AMENDMENT. This Agreement supersedes the sub-advisory agreement
among Xxxxx Fargo Variable Trust, Xxxxx Fargo Bank, N.A. and Xxxxx Capital
Management Incorporated dated September 20, 1999, as approved by the Board of
Trustees on March 26, 1999 and October 28, 1999. No provision of this Agreement
may be changed, waived, discharged or terminated orally, but only by an
instrument in writing signed by the party against which enforcement of the
change, waiver, discharge or termination is sought. If shareholder approval of
an amendment is required under the 1940 Act, no such amendment shall become
effective until approved by a vote of the majority of the outstanding shares of
the affected Funds. Otherwise, a written amendment of this Agreement is
effective upon the approval of the Board of Trustees, the Adviser and the
Sub-Adviser.
SECTION 19. XXXXX FARGO NAME. The Sub-Adviser and the Trust each agree that
the name "Xxxxx Fargo," which comprises a component of the Trust's name, is a
property right of the parent of the Adviser. The Trust agrees and consents that:
(i) it will use the words "Xxxxx Fargo" as a component of its corporate name,
the name of any series or class, or all of the above, and for no other purpose;
(ii) it will not grant to any third party the right to use the name "Xxxxx
Fargo" for any purpose; (iii) the Adviser or any corporate affiliate of the
Adviser may use or grant to others the right to use the words "Xxxxx Fargo," or
any combination or abbreviation thereof, as all or a portion of a corporate or
business name or for any commercial purpose, other than a grant of such right to
another registered investment company not advised by the Adviser or one of its
affiliates; and (iv) in the event that the Adviser or an affiliate thereof is no
longer acting as investment adviser to any Fund or class of a Fund, the Trust
shall, upon request by the Adviser, promptly take such action as may be
necessary to change its corporate name to one not containing the words "Xxxxx
Fargo" and following such change, shall not use the words "Xxxxx Fargo," or any
combination thereof, as a part of its corporate name or for any other commercial
purpose, and shall use its best efforts to cause its trustees, officers and
shareholders to take any and all actions that the Adviser may request to effect
the foregoing and to reconvey to the Adviser any and all rights to such words.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed in duplicate by their respective officers on the day and year first
written above.
XXXXX FARGO VARIABLE TRUST
on behalf of the Funds
By:
-------------------------------------
C. Xxxxx Xxxxxxx
Secretary
XXXXX FARGO FUNDS MANAGEMENT, LLC
By:
-------------------------------------
Xxxxxx Xxxx
Executive Vice President
XXXXX CAPITAL MANAGEMENT INCORPORATED
By:
-------------------------------------
Xxxxx Xxxxxx
Chief Operating Officer
APPENDIX A
XXXXX CAPITAL MANAGEMENT INCORPORATED
INVESTMENT SUB-ADVISORY AGREEMENT
XXXXX FARGO VARIABLE TRUST
VARIABLE TRUST FUNDS
VT Discovery Fund
VT Index Asset Allocation Fund
VT International Equity Fund
VT Omega Growth Fund
VT Opportunity Fund
VT Small Cap Growth Fund
VT Small Cap Value Fund(1)
VT Total Return Bond Fund(1)
Appendix A amended: November 18, 2015
(1) On November 18, 2015 the Board of Trustees of Well Fargo Variable Trust
approved the liquidation of the VT Small Cap Value Fund and VT Total Return
Bond Fund effective on or about April 30, 2016.
SCHEDULE A
XXXXX CAPITAL MANAGEMENT
INVESTMENT SUB-ADVISORY AGREEMENT
FEE AGREEMENT
XXXXX FARGO VARIABLE TRUST
This fee agreement is made as of the 1st day of May, 2003, and is amended
as of the 18th day of November 2015, between Xxxxx Fargo Funds Management, LLC
(the "Adviser") and Xxxxx Capital Management Incorporated (the "Sub-Adviser")
and
WHEREAS, the parties and Xxxxx Fargo Variable Trust (the "Trust") have
entered into an Investment Sub-Advisory Agreement ("Sub-Advisory Agreement")
whereby the Sub-Adviser provides investment management advice to each series of
the Trust as listed in Appendix A to the Sub-Advisory Agreement (each a "Fund"
and collectively the "Funds").
WHEREAS, the Sub-Advisory Agreement provides that the fees to be paid to
the Sub-Adviser are to be as agreed upon in writing by the parties.
NOW THEREFORE, the parties agree that the fees to be paid to the
Sub-Adviser under the Sub-Advisory Agreement shall be calculated as follows on a
monthly basis by applying the following annual rates for each Fund listed in
Appendix A:
NAME OF FUND SUB-ADVISORY RATE
------------------------------ ------------------
VT Discovery Fund First 100M 0.45
Next 100M 0.40
Over 200M 0.35
VT Index Asset Allocation Fund First 100M 0.15
Next 100M 0.125
Over 200M 0.10
VT International Equity Fund First 200M 0.45
Over 200M 0.40
VT Omega Growth Fund First 100M 0.45
Next 100M 0.40
Next 300M 0.35
Over 500M 0.30
VT Opportunity Fund First 100M 0.45
Next 100M 0.40
Next 300M 0.35
Over 500M 0.30
VT Small Cap Growth Fund First 100M 0.55
Next 100M 0.50
Over 200M 0.40
VT Small Cap Value Fund(2) First 100M 0.55
Next 100M 0.50
Over 200M 0.40
VT Total Return Bond Fund(2) First 100M 0.20
Next 200M 0.175
Next 200M 0.15
Over 500M 0.10
(2) On November 18, 2015 the Board of Trustees of Well Fargo Variable Trust
approved the liquidation of the VT Small Cap Value Fund and VT Total Return
Bond Fund effective on or about April 30, 2016.
The foregoing fee schedule is agreed to as of November 18, 2015 and shall
remain in effect until changed in writing by the parties.
XXXXX FARGO FUNDS MANAGEMENT, LLC
By:
-------------------------------------
Xxxx Xxxxx
Senior Vice President
XXXXX CAPITAL MANAGEMENT INCORPORATED
By:
-------------------------------------
Xxxxx Xxxxxx
Chief Operating Officer
