Exhibit No. EX-99.d.2.d
SUB-ADVISORY AGREEMENT
AGREEMENT made as of the 20th day of August, 2008, by and between Genworth
Financial Wealth Management, Inc., a California corporation (the "Advisor"), and
Xxxxx Xxxxx Management (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 August 15, 2008 (the
"Advisory Agreement") with Genworth Variable Insurance Trust (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 additional series in
the future; 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 desires to retain the Sub-Advisor to assist the
Advisor 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 will
assign to the Sub-Advisor (the "Sub-Advisor Assets"), and the Sub-Advisor is
willing to render such services, subject to the terms and conditions set forth
in this Agreement; and
WHEREAS, shares of the Fund will not be sold directly to the general
public, but will be sold exclusively to (i) insurance company separate accounts
for use with variable contracts, and (ii) retirement plans.
NOW, THEREFORE, in consideration of mutual covenants recited below, the
parties agree and promise as follows:
1. Appointment as Sub-Advisor. The Advisor hereby appoints the Sub-Advisor
to act as investment adviser for and to manage the Sub-Advisor Assets, subject
to the supervision of the Advisor and the Board of Trustees of the Trust, and
subject to the terms of this Agreement; and the Sub-Advisor hereby accepts such
appointment. In such capacity, the Sub-Advisor shall be responsible for the
investment management of the Sub-Advisor Assets. The Sub-Advisor agrees to
exercise the same degree of skill, care and diligence in performing its services
under this Agreement as the Sub-Advisor exercises in performing similar services
with respect to other fiduciary accounts for which the Sub-Advisor has
investment responsibilities, and that a prudent manager would exercise under the
circumstances.
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2. Duties of the Sub-Advisor.
(a) Investments. The Sub-Advisor is hereby authorized and directed and
hereby agrees, subject to the stated investment objectives, 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 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,
to purchase, hold and sell investments for the Sub-Advisor Assets and to
monitor such investments on a continuous basis. In providing these
services, the Sub-Advisor will conduct an ongoing program of investment,
evaluation and, if appropriate, sale and reinvestment of the Sub-Advisor
Assets.
The Sub-Advisor acknowledges that the Advisor is a wholly-owned
subsidiary of Genworth Financial, Inc., and the purchase, acquisition, or
possession of securities issued by Genworth and/or its affiliated entities
(collectively referred to as "Genworth Securities") by the Fund is
therefore prohibited by the 1940 Act. Accordingly, the Advisor will provide
the Sub-Advisor with a list of Genworth Securities, as updated from time to
time, and the Sub-Advisor is directed and hereby agrees to refrain from the
purchase, acquisition, or possession on behalf of the Fund of any
securities identified by the Advisor to the Sub-Advisor as being Genworth
Securities.
The Advisor agrees to provide the Sub-Advisor information concerning:
(i) a Fund; (ii) its assets available or to become available for
investment; and (iii) the conditions of a Fund's or the Trust's affairs as
relevant to the Sub-Advisor.
(b) Compliance with Applicable Laws, Governing Documents and
Compliance Procedures. In the performance of its duties and obligations
under this Agreement, the Sub-Advisor shall, with respect to Sub-Advisor
Assets, (i) act in conformity with: (A) the Trust's Agreement and
Declaration of Trust (the "Declaration of Trust") and By-Laws; (B) the
Prospectus; (C) the policies and procedures for compliance by the Trust
with the Federal Securities Laws (as that term is defined in Rule 38a-1
under the 0000 Xxx) provided to the Sub-Advisor and applicable to the
services provided by the Sub-Advisor (together, the "Trust Compliance
Procedures"); and (D) the instructions and directions received in writing
from the Advisor or the Trustees of the Trust; and (ii) conform to, and
comply with, the requirements of the 1940 Act, the Advisers Act, and all
other federal laws applicable to registered investment companies and the
Sub-Advisor's duties under this Agreement. The Advisor will provide the
Sub-Advisor with any materials or information that the Sub-Advisor may
reasonably request to enable it to perform its duties and obligations under
this Agreement.
The Sub-Advisor agrees to invest the Fund's assets so as to ensure
that (i) the Fund complies with the diversification requirements necessary
to qualify as a regulated investment company ("RIC") under Subchapter M of
the Internal Revenue Code of 1986, as amended (the "Code"), and the
Treasury Regulations promulgated thereunder; (ii) the Fund maintains such
diversification qualification as a RIC at all times; (iii) the Fund
complies with the diversification requirements set forth in Section 817(h)
of the Code and Treasury Regulations promulgated thereunder (the
"Diversification Requirements"); and (iv) the Fund maintains compliance
with the Diversification Requirements at all times. The Sub-Advisor agrees
to notify the Advisor immediately upon becoming aware that the Sub-Advisor
has failed to satisfy its
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obligations under this clause. The Advisor will notify the Sub-Advisor in
the event that any of the requirements discussed in this paragraph cease to
apply to the Trust and in such a case, the Sub-Advisor will not be required
to comply with the terms of this paragraph.
The Advisor will provide the Sub-Advisor with reasonable (30 days)
advance notice, in writing, of: (i) any change in a Fund's investment
objectives, policies and restrictions as stated in the Prospectus; (ii) any
change to the Declaration of Trust or By-Laws; and (iii) any material
change in the Trust Compliance Procedures; and the Sub-Advisor, in the
performance of its duties and obligations under this Agreement, shall
manage the Sub-Advisor Assets consistently with such changes, provided the
Sub-Advisor has received such prior written 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
and copies of the revised Trust Compliance Procedures, as applicable,
reflecting such changes. 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 materials provided to the Board of Trustees of
the Trust, the Prospectus or in the Trust's registration statement on Form
N-1A, or otherwise as reasonably requested by the Advisor.
In order to assist the Trust and the Trust's Chief Compliance Officer
(the "Trust CCO") to satisfy the requirements contained in Rule 38a-1 under
the 1940 Act, the Sub-Advisor shall provide to the Trust CCO: (i) direct
access to the Sub-Advisor's chief compliance officer (the "Sub-Advisor
CCO"), as reasonably requested by the Trust CCO; (ii) a completed quarterly
informational questionnaire regarding the Sub-Advisor's compliance program
and participation in a quarterly telephone call with the Trust CCO to
discuss the responses on the questionnaire; (iii) quarterly reports
confirming that the Sub-Advisor has complied with the Trust Compliance
Procedures in managing the Sub-Advisor Assets; and (iv) quarterly
certifications indicating whether there were Material Compliance Matters
(as that term is defined by Rule 38a-1(e)(2)) that arose under the Trust
Compliance Procedures that related to the Sub-Advisor's management of the
Sub-Advisor Assets.
(c) Sub-Advisor Compliance Policies and Procedures. The Sub-Advisor
shall promptly provide the Trust CCO with copies of: (i) the Sub-Advisor's
policies and procedures for compliance by the Sub-Advisor with the Federal
Securities Laws (together, the "Sub-Advisor Compliance Procedures"), and
(ii) any material changes to the Sub-Advisor Compliance Procedures. The
Sub-Advisor shall cooperate fully with the Trust CCO so as to facilitate
the Trust CCO's performance of the Trust CCO's responsibilities under Rule
38a-1 to review, evaluate and report to the Trust's Board of Trustees on
the operation of the Sub-Advisor Compliance Procedures, and shall promptly
report to the Trust CCO any Material Compliance Matter arising under the
Sub-Advisor Compliance Procedures involving the Sub-Advisor Assets. The
Sub-Advisor shall provide to the Trust CCO: (i) quarterly reports
confirming the Sub-Advisor's compliance with the Sub-Advisor Compliance
Procedures in managing the Sub-Advisor Assets, and (ii) certifications
indicating whether there were Material Compliance Matters involving the
Sub-Advisor that arose under the Sub-Advisor Compliance Procedures that
affected the Sub-Advisor Assets. At least annually, the Sub-Advisor shall
provide a certification to the Trust CCO confirming that the Sub-Advisor
has in place and has implemented policies and
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procedures that are reasonably designed to ensure compliance by the
Sub-Advisor with the Federal Securities Laws.
(d) Voting of Proxies. Unless otherwise instructed by the Advisor or
the Trust, the Sub-Advisor shall have the power, discretion and
responsibility to vote, either in person or by proxy, all securities in
which the Sub-Advisor Assets may be invested from time to time, and shall
not be required to seek instructions from the Advisor, the Trust or a Fund.
The Sub-Advisor may utilize a third-party voting service and customized
policies designed to promote accountability of a company's management and
board of directors to its shareholders and to align the interests of
management with those of shareholders. The Sub-Advisor shall also provide
its Proxy Voting Policy (the "Proxy Policy") and, if requested by the
Advisor, a summary of such Proxy Policy suitable for including in the
Prospectus, and will provide the Advisor with any material amendment to the
Proxy Policy within a reasonable time after such amendment has taken
effect. If both the Sub-Advisor and another entity managing assets of a
Fund have invested in the same security, the Sub-Advisor and such other
entity will each have the power to vote its pro rata share of the security.
(e) 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 regulations, all other federal laws applicable to
registered investment companies and the Sub-Advisor's duties and
obligations under federal law, this Agreement and the Trust's governing
documents.
(f) Brokerage. The Sub-Advisor will place orders pursuant to the Sub
Advisor's investment determinations for a Fund either directly with an
issuer or with any broker or dealer selected by the Sub-Advisor, pursuant
to this paragraph. 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 or 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
(the "1934 Act")) provided to a Fund and/or other accounts over which the
Sub-Advisor may exercise investment discretion. The Sub-Advisor is
authorized to pay to a broker or dealer who provides such brokerage and
research services a commission for executing a portfolio transaction for
any of the Funds that is in excess of the amount of commission another
broker or dealer would have charged for effecting that transaction 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.
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Such authorization is subject to termination at any time by the Advisor or
by the Board of Trustees of the Trust for any reason.
Under no circumstances will the Sub-Advisor compensate a broker or
dealer for any promotion or sale of Fund shares by directing to the broker
or dealer: (i) portfolio securities transactions on behalf of the Fund; or
(ii) any remuneration, including but not limited to any commission,
xxxx-up, xxxx-down, or other fee (or portion thereof) received or to be
received from such portfolio transactions effected through any other broker
(including a government securities broker) or dealer (including a municipal
securities dealer or a government securities dealer).
The Sub-Advisor may only direct the Fund's portfolio securities
transactions to a broker or dealer that promotes or sells Fund shares as
permitted by the provisions of the 1940 Act (and the rules thereunder) and
the policies and procedures adopted by the Trust, as amended from time to
time. The Advisor will provide the Sub-Advisor with a copy of such policies
and procedures and any amendments thereto.
The Sub-Advisor, when selecting brokers and dealers to effect the
Fund's portfolio securities transactions, shall not take into account the
brokers' and dealers' promotion or sale of shares of the Fund or any other
registered investment company. In addition, the Sub-Advisor shall not enter
into any agreement (whether oral or written) or other understanding under
which the Sub-Advisor directs, or is expected to direct, the Fund's
portfolio securities transactions, or any remuneration, including but not
limited to any commission, xxxx-up, xxxx-down, or other fee (or portion
thereof) received or to be received from such portfolio transactions
effected through any other broker (including a government securities
broker) or dealer (including a municipal securities dealer or a government
securities dealer); and, to a broker (including a government securities
broker) or dealer (including a municipal securities dealer or a government
securities dealer) in consideration for the promotion or sale of shares of
the Fund or any other registered investment company.
In addition, the Sub-Advisor is authorized to allocate purchase and
sale orders for portfolio securities to brokers or dealers that are
affiliated with the Advisor, the Sub-Advisor, the Trust's principal
underwriter, or other sub-advisors (if applicable) 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 and provided
that the transactions are consistent with the Trust's Rule 17e-1 and/or
Rule 10f-3 procedures (as applicable). The Advisor will identify and
provide written notice to the Sub-Advisor of all brokers and dealers
affiliated with the Trust, the Advisor, the Trust's principal underwriter
and the other Sub-Advisors of the Fund, to the extent such information is
necessary for the Sub-Advisor to comply with applicable federal securities
laws, other than those whose sole business is the distribution of mutual
fund shares, who effect securities transactions for customers. The Advisor
shall promptly furnish a written notice to the Sub-Advisor if the
information so provided is no longer accurate.
In connection with its management of the Sub-Advisor Assets and
consistent with its fiduciary obligation to the Trust and other clients,
the Sub-Advisor, to the extent permitted by applicable laws and
regulations, may, but shall be under no obligation to, aggregate the
securities or futures contracts to be sold or purchased in order to obtain
the most favorable price or lower
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brokerage commissions and efficient execution. In such event, allocation of
the securities or futures contracts so purchased or sold, as well as the
expenses incurred in the transaction, will be made by the Sub-Advisor in
the manner the Sub-Advisor considers to be, over time, the most equitable
and consistent with its fiduciary obligations to the Sub-Advisor Assets and
to such other clients.
(g) Securities Transactions. In no instance will any Fund's portfolio
securities be purchased from or sold to the Advisor, the Sub-Advisor, the
Trust's principal underwriter, or any affiliated person of the Trust, the
Advisor, the Sub-Advisor or the Trust's principal underwriter, acting as
principal in the transaction, except to the extent permitted by the SEC and
the 1940 Act, including Rule 17a-7 thereunder.
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.
The Sub-Advisor is authorized to engage in transactions in which the
Sub-Advisor, or an affiliate of the Sub-Advisor, acts as a broker for both
the Fund and for another party on the other side of the transaction
("agency cross transactions"). The Sub-Advisor shall effect any such agency
cross transactions in compliance with Rule 206(3)-2 under the Advisers Act
and any other applicable provisions of the federal securities laws and
shall provide the Advisor with periodic reports describing such agency
cross transactions. By execution of this Agreement, the Advisor authorizes
the Sub-Advisor or its affiliates to engage in agency cross transactions,
as described above. The Advisor may revoke its consent at any time by
written notice to the Sub-Advisor.
The Sub-Advisor hereby represents that it has implemented policies and
procedures that will prevent the disclosure by it, its employees or its
agents of the Trust's portfolio holdings to any person or entity other than
the Advisor, the Trust's custodian, or other persons expressly designated
by the Advisor.
(h) Code of Ethics. The Sub-Advisor hereby represents that it has
adopted policies and procedures and a code of ethics that meet the
requirements of Rule 17j-1 under the 1940 Act and Rule 204A-1 under the
Advisers Act. Copies of such policies and procedures and code of ethics and
any changes or supplements thereto shall be delivered to the Advisor and
the Trust, and any material violation of such policies, and procedures and
code of ethics by personnel of the Sub-Advisor, the sanctions imposed in
response thereto, and any issues arising under such policies, and
procedures and code of ethics shall be reported to the Advisor and the
Trust at the times and in the format reasonably requested by the Advisor or
the Board of Trustees.
(i) Books and Records. The Sub-Advisor shall maintain separate
detailed records of all matters pertaining to the Sub-Advisor Assets,
including, without limitation, brokerage and other records of all
securities transactions. Any records required to be maintained and
preserved pursuant to the provisions of subparagraphs (b)(5), (6), (7),
(9), (10) and (11), and
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paragraph (f) of Rule 31a-1 promulgated under the 1940 Act that are
prepared or maintained by the Sub-Advisor on behalf of the Trust are the
property of the Trust and will be surrendered promptly to the Trust upon
request, provided, however, that the Sub-Advisor may retain a copy of such
records. The Sub-Advisor further agrees to preserve for the periods
prescribed in Rule 31a-2 under the 1940 Act the records required to be
maintained under Rule 31a-1 under the 1940 Act.
(j) 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 will provide the Advisor with information (including
information that is required to be disclosed in the Prospectus) with
respect to the portfolio managers responsible for Sub-Advisor Assets, any
changes in the 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. The Sub-Advisor will promptly
notify the Advisor of any pending investigation, material litigation,
administrative proceeding or any other significant regulatory inquiry. 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.
(k) Valuation of Sub-Advisor Assets. The Sub-Advisor agrees to monitor
the Sub-Advisor Assets and to notify the Advisor or its designee on any day
that the Sub-Advisor determines that a significant event, as defined by the
Sub-Advisor's procedures, has occurred with respect to one or more
securities held in the Sub-Advisor Assets. As requested by the Advisor or
the Trust's Valuation Committee, the Sub-Advisor hereby agrees to provide
additional assistance to the Valuation Committee of the Trust, the Advisor
and the Trust's pricing agents in valuing Sub-Advisor Assets held in the
portfolio. Such assistance may include fair value pricing of portfolio
securities, as requested by the Advisor. The Sub-Advisor agrees that it
will act, at all times, in accordance with the Trust's Valuation
Procedures, and will provide such certifications or sub-certifications
relating to its compliance with the Trust's Valuation Procedures as
reasonably may be requested, from time to time, by the Advisor or the
Trust.
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 federal securities laws, including, without
limitation, the 1940 Act, the Advisers Act, the 1934 Act, the Securities
Act of 1933, as amended (the "1933 Act") and any rule or regulation
thereunder.
(l) Custody Arrangements. The Sub-Advisor, on each business day, shall
provide the Advisor, its consultant(s) and the Trust's custodian such
information as the Advisor and the Trust's custodian may reasonably request
relating to all transactions concerning the Sub-Advisor Assets.
(m) Historical Performance Information. To the extent agreed upon by
the parties, the Sub-Advisor will provide the Trust with historical
performance information on
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similarly managed investment companies or for other accounts to be included
in the Prospectus or for any other uses permitted by applicable law.
(n) Regulatory Examinations. The Sub-Advisor will cooperate promptly
and fully with the Advisor and/or the Trust in responding to any regulatory
or compliance examinations or inspections (including information requests)
relating to the Trust, the Fund or the Advisor brought by any governmental
or regulatory authorities having appropriate jurisdiction (including, but
not limited to, the SEC).
(o) Class Action Filings. The Sub-Advisor is not responsible for
making any class action filings on behalf of the Trust.
3. Independent Contractor. In the performance of its duties hereunder, the
Sub-Advisor is and shall be an independent contractor and, unless otherwise
expressly provided herein or otherwise authorized in writing, shall have no
authority to act for or represent a Fund, the Trust or the Advisor in any way or
otherwise be deemed an agent of a Fund, the Trust or the Advisor.
4. Services to Other Clients. Nothing herein contained shall limit the
freedom of the Sub-Advisor or any affiliated person of the Sub-Advisor to render
investment advisory, supervisory and other services to other investment
companies, to act as investment adviser or investment counselor to other
persons, firms or corporations, or to engage in other business activities. It is
understood that the Sub-Advisor may give advice and take action for its other
clients that may differ from advice given, or the timing or nature of action
taken, for a Fund. The Sub-Advisor is not obligated to initiate transactions for
a Fund in any security that the Sub-Advisor, its principals, affiliates or
employees may purchase or sell for its or their own account or other clients.
5. Expenses. During the term of this Agreement, the 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, at its sole expense, shall 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.
6. Compensation. For the services provided and the expenses assumed with
respect to a Fund pursuant to this Agreement, the Sub-Advisor will be entitled
to the fee listed for the Fund(s) on Exhibit A. Such fees will be computed daily
and payable in arrears no later than the seventh (7th) business day following
the end of each month, from the Advisor on behalf of the Fund(s), calculated at
an annual rate based on the Sub-Advisor Assets' average daily net assets.
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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 ten (10) days after the date of termination.
7. Representations and Warranties of the Sub-Advisor. The Sub-Advisor
represents and warrants to the Advisor and the Trust as follows:
(a) The Sub-Advisor is registered as an investment adviser under the
Advisers Act;
(b) The Sub-Advisor is a Massachusetts business trust duly organized
and validly existing under the laws of the Commonwealth of Massachusetts,
with the power to own and possess its assets and carry on its business as
it is now being conducted. The Sub-Advisor's declaration of trust states
that all persons dealing with Sub-Advisor must look solely to the property
of Sub-Advisor for satisfaction of claims of any nature against
Sub-Advisor, as neigher the trustees, officers, employees nor shareholders
of Sub-Advisor assume any personal liability in connection with its
business or for obligations entered into on its behalf;
(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, and no action, 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
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 on an annual basis.
8. Representations and Warranties of the Advisor. The Advisor represents
and warrants to the Sub-Advisor and the Trust as follows:
(a) The Advisor is registered as an investment adviser 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
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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 Advisor acknowledges that it received a copy of the
Sub-Advisor's Form ADV prior to the execution of this Agreement; and
(e) 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.
9. Survival of Representations and Warranties; Duty to Update Information.
All representations and warranties made by the Sub-Advisor and the Advisor
pursuant to Sections 7 and 8, respectively, of this Agreement shall survive for
the duration of this Agreement and the parties hereto shall promptly notify each
other in writing upon becoming aware that any of the foregoing representations
and warranties are no longer true.
10. Liability and Indemnification.
(a) Liability. The duties of the Sub-Advisor shall be confined to
those expressly set forth herein, with respect to the Sub-Advisor Assets.
The Sub-Advisor shall not be liable for any loss arising out of any
portfolio investment or disposition hereunder, except a loss resulting from
willful misfeasance, bad faith or gross negligence in the performance of
its duties, or by reason of reckless disregard of its obligations and
duties hereunder, except as may otherwise be provided under provisions of
applicable state law that cannot be waived or modified hereby.
(b) Indemnification. The Sub-Advisor shall indemnify the Advisor, the
Trust and each Fund, and their respective affiliates and controlling
persons (the "Sub-Advisor Indemnified 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,
gross negligence, or reckless disregard of its duties hereunder; provided,
however, that the Sub-Advisor Indemnified Persons shall not be indemnified
for any liability or expenses which may be sustained as a direct result of
the Advisor's willful misfeasance, bad faith, gross negligence, or 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 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
10
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 will
be solely responsible for determining the lawful use of the historical
performance data and the Sub-Advisor will not indemnify the Advisor for any
liability and expenses related to the use of the historical performance
data.
The Advisor shall indemnify the Sub-Advisor, its affiliates and its
controlling persons (the "Advisor Indemnified 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 as a result of the Advisor's
willful misfeasance, bad faith, gross negligence, reckless disregard of its
duties hereunder, or violation of applicable law; provided, however, that
the Advisor Indemnified Persons 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, gross negligence, or reckless disregard of its
duties hereunder.
11. Duration and Termination.
(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 of execution or Board approval as
required under the 1940 Act (the "Effective Date"), until two years from
the Effective Date, and thereafter, for periods of one year, so long as
such continuance thereafter is specifically approved at least annually: (i)
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 (ii) 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.
(b) Termination. This Agreement may be terminated as to any Fund at
any time, without the payment of any penalty by: (i) the vote of a majority
of the Trustees of the Trust, the vote of a majority of the outstanding
voting securities of the Fund, or the Advisor, on not less than 60 days
written notice to the Sub-Advisor; or (ii) the Sub-Advisor, on not less
than 60 days written notice to the Advisor and the Trust. This Agreement
may also be terminated as to any Fund at any time by any party hereto
immediately upon written notice to the other parties in the event of a
breach of any material provision of this Agreement by any of the parties.
This Agreement shall not be assigned and shall terminate automatically
in the event of its assignment, except as provided otherwise by any rule,
exemptive order issued by the SEC, 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 that
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,
the Sub-Advisor agrees to assume all reasonable costs associated with
soliciting shareholders of the appropriate Fund(s) of the Trust, to approve
11
continuation of this Agreement. Such expenses include the costs of
preparation and mailing of a proxy statement, and of soliciting proxies.
In the event that such proposed change in control of the Sub-Advisor
shall occur following either: (i) receipt by the Advisor and the Trust of
an exemptive order issued by the SEC with respect to the appointment of
sub-advisors absent shareholder approval, or (ii) the adoption of proposed
Rule 15a-5 under the 1940 Act, the Sub-Advisor agrees to assume all
reasonable costs and expenses (including the costs of mailing and filing)
associated with the preparation of a statement, required by the exemptive
order or Rule 15a-5, containing all information that would be included in a
proxy statement (an "Information Statement").
This Agreement shall extend to and bind the heirs, executors,
administrators and successors of the parties hereto.
12. Amendment. This Agreement may be amended by mutual written consent of
the parties, provided that the terms of any material amendment shall be approved
by: (a) the Trust's Board of Trustees, 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. In addition, any such amendment shall be approved by a vote of the
majority of the Fund's outstanding voting securities, unless shareholder
approval is not required by applicable law or regulation, by exemptive relief
granted by the SEC, or by a No-Action position of the SEC staff.
13. Confidentiality. Any information or recommendations supplied by either
the Advisor or the Sub-Advisor, that are not otherwise in the public domain or
previously known to the other party in connection with the performance of its
obligations and duties hereunder, including portfolio holdings of the Trust,
financial information or other information relating to a party to this
Agreement, are to be regarded as confidential ("Confidential Information") and
held in the strictest confidence. Except as may be required by applicable law or
rule or as requested by regulatory authorities having jurisdiction over a party
to this Agreement, Confidential Information may be used only by the party to
which said information has been communicated and such other persons as that
party believes are necessary to carry out the purposes of this Agreement, the
custodian, and such persons as the Advisor may designate in connection with the
Sub-Advisor Assets and who have entered into a confidentiality agreement with
the Advisor. Nothing in this Agreement shall be construed to prevent the
Sub-Advisor from giving other entities investment advice about, or trading on
their behalf, in the securities of a Fund or the Advisor.
14. Use of Sub-Advisor's Name. During the term of this Agreement, the
Advisor shall have permission to use the Sub-Advisor's name in the marketing of
the Fund, and agrees to furnish the Sub-Advisor at its principal office all
marketing materials, prospectuses, proxy statements and reports to shareholders
prepared for distribution to shareholders of the Fund or the public, which refer
to the Sub-Advisor in any way. Prior to use thereof, the Advisor agrees to
provide the Sub-Advisor with the opportunity to review any materials which
disclose information, the substance of which is not included in the registration
statements, and which refer to the Sub-Advisor in any way.
12
15. Notice. Any notice, advice or report to be given pursuant to this
Agreement shall be deemed sufficient if delivered or mailed by registered,
certified or overnight mail, postage prepaid addressed by the party giving
notice to the other party at the last address furnished by the other party:
(a) If to the Advisor:
Genworth Financial Wealth Management, Inc.
0000 Xxxxxx Xxxxx Xxxx., Xxxxx 000
Xxxxxxxx Xxxx, XX 00000-0000
Attn: Xxxxxx X. Xxxxxx
(b) If to the Sub-Advisor:
Xxxxx Xxxxx Management
000 Xxxxx Xxxxxx
Xxxxxx, XX 00000
Attn: Legal Department
16. 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.
17. Entire Agreement. This Agreement embodies the entire agreement and
understanding between the parties hereto, and supersedes all prior agreements
and understandings relating to this Agreement's subject matter. This Agreement
may be executed in any number of counterparts, each of which shall be deemed to
be an original, but such counterparts shall, together, constitute only one
instrument.
18. Severability. If any provision of this Agreement shall be held or made
invalid by a court decision, statute, rule or otherwise, the remainder of this
Agreement shall not be affected thereby.
19. Certain Definitions. For the purposes of this Agreement and except as
otherwise provided herein, "interested person," "affiliated person,"
"affiliates," "controlling persons" 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, and the term "Fund" or "Funds" shall refer to those
Fund(s) for which the Sub-Advisor provides investment management services and as
are listed on Exhibit A to this Agreement.
20. Captions. The captions herein are included for convenience of reference
only and shall be ignored in the construction or interpretation hereof.
21. Market Timing. The Advisor hereby certifies that there are policies and
procedures designed to detect and deter disruptive trading practices in the
Fund, including "market timing," and the Advisor agrees that it will continue to
enforce and abide by such
13
policies and procedures, as amended from time to time, and comply with all
existing and future laws relating to such matters or to the purchase and sale of
interests in the Fund generally. Sub-Advisor agrees, upon reasonable request
from the Advisor, reasonably to assist the Advisor to detect and deter
disruptive trading practices in the Fund.
22. Sales Data. In performance of its duties and obligations under this
Agreement, the Advisor shall not share sales data for any of the Funds in the
Trust with the Sub-Advisor.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first written above.
ADVISOR
GENWORTH FINANCIAL WEALTH MANAGEMENT, INC.
By: /s/Xxxxxx X. Xxxxxx
Name: Xxxxxx X. Xxxxxx
Title: Senior Vice President and Chief
Operations Officer
SUB-ADVISOR
XXXXX XXXXX MANAGEMENT
By: /s/Katy X. Xxxxx
Name: Katy X. Xxxxx
Title: Vice President
14
