Exhibit No. EX-99.d.2.b
GENWORTH VARIABLE INSURANCE TRUST
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
Columbia Management Advisors, LLC, a Delaware limited liability company (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 of the
Funds set forth on Exhibit A hereto, as it may be amended from time to time,
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 similar fiduciary accounts for which the
Sub-Advisor has investment responsibilities. In rendering the services required
under this Agreement, the Sub-Advisor may, from time to time, employ, delegate
or associate with itself such affiliated persons as it believes necessary to
assist it in carrying out its obligations under this Agreement; provided
however, that (i) such assistance shall not involve such person serving as an
"investment adviser" to the Fund within the meaning of the 1940 Act, (ii) the
Sub-Advisor shall remain liable to the Advisor for the performance of the
Sub-Advisor's obligations under this Agreement and for the acts and omissions of
such other persons, and (iii) the Advisor shall not be responsible for any fees
that any such person may charge to the Sub-Advisor in connection with such
services.
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 written
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 Sub-Advisor is directed and hereby agrees to refrain
from the purchase, acquisition, or possession on behalf of the Fund of any
securities identified in writing 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
(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; provided that the
Sub-Advisor shall not be required to act in conformity with the documents or
instructions set forth in (i) above, or any amendments to such documents or
instructions, until the Advisor has provided copies of such documents or
instructions to the Sub-Advisor in accordance with 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 and will update the list of affiliates
necessary for the Sub-Advisor to comply with Section 2(g) below and the list of
Genworth Securities on a regular basis as may be agreed to by the parties
hereto.
The Sub-Advisor agrees to invest the Fund's assets so as to ensure that (i)
the Fund qualifies 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 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 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
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
relating to the approval, continuation or renewal of this Agreement and the
ongoing monitoring of the Sub-Advisor's performance of its duties hereunder, 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) reasonable, direct
access to the Sub-Advisor's chief compliance officer (the "Sub-Advisor CCO") or
members of his or her office, 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, upon
request, the Sub-Advisor shall provide a certification to the Trust CCO
confirming that the Sub-Advisor has in place and has implemented policies and
procedures that are reasonably designed to ensure compliance by the Sub-Advisor
with the Federal Securities Laws.
(d) Voting of Proxies. Unless otherwise instructed in writing 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 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. For the avoidance of doubt, the
Sub-Advisor shall not be responsible for filing class action proofs of claim or
for taking any related actions on behalf of the Trust in regards to class action
litigation or settlements related to securities currently or previously held in
the Sub-Advisor Assets.
(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 and/or its affiliates
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 for discretionary accounts. Such authorization is subject to
termination at any time by the Advisor or by the Board of Trustees of the Trust
for any reason.
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 of any other registered
investment company or of Genworth variable annuity products. 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) in consideration for the promotion or sale of shares of the Fund or any
other registered investment company or of Genworth variable annuity products.
The Sub-Advisor may only direct the Fund's portfolio securities
transactions to a broker or dealer that promotes or sells Fund shares or
Genworth variable annuity products 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.
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 all brokers and dealers affiliated with the Trust, the Advisor,
the Trust's principal underwriter and any 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 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 Advisor agrees
that the Sub-Advisor shall be deemed to have knowledge of only those affiliated
persons of the Advisor, the Trust's principal underwriter, a Fund's sub-advisors
or any affiliated person of the Trust, the Advisor, the sub-advisors or the
Trust's principal underwriter as have been identified in writing by the Advisor
to the Sub-Advisor.
The Sub-Advisor is authorized, but is not required, 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.
Each of the Sub-Advisor and the Advisor hereby represent that it has
implemented policies and procedures reasonably designed to 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 permitted under such policies and procedures or 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 brokerage and securities transactions pertaining to the
Sub-Advisor Assets. Except for the records of brokerage and securities
transactions described above, the Sub-Advisor shall not be required to maintain
books and records on behalf of the Trust. Any records required to be maintained
and preserved pursuant to the provisions of Rule 31a-1 and Rule 31a-2
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. 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 by it under this Agreement.
(j) Information Concerning Sub-Advisor Assets and the Sub-Advisor. From
time to time as the Advisor, and any consultants designated by the Advisor (who
shall be eligible to receive such information under the Trust Compliance
Procedures), 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. To the
extent not prohibited by applicable law, the Sub-Advisor will promptly notify
the Advisor of any pending material investigation, material litigation,
administrative proceeding or any other significant regulatory inquiry that could
potentially affect the Sub-Advisor's ability to perform the services required
under this Agreement. 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 becomes aware that a "significant event" (as determined by the
Sub-Advisor in its sole judgment) has occurred with respect to one or more
securities held in the Sub-Advisor Assets. As reasonably requested by the
Advisor, the Trust's pricing agent or the Trust's Valuation Committee, the
Sub-Advisor hereby agrees to provide information to the Valuation Committee of
the Trust, the Advisor and the Trust's pricing agent in connection with their
valuing Sub-Advisor Assets held in the portfolio, in such form and content as
may be agreed upon by the parties from time to time, including with respect to
fair value pricing of portfolio securities (it being understood that the
Sub-Advisor shall have no responsibility for the valuation of the portfolio
securities of the Fund).
The Sub-Advisor also will provide such information regarding the
Sub-Advisor and the performance of its duties hereunder as 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) (who will be eligible to receive such
information under the Trust Compliance Procedures) 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 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).
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 accounts or the accounts of
other clients.
5. Expenses. Except to the extent expressly assumed by the Sub-Advisor and
except to the extent required by law to be paid or reimbursed by the
Sub-Advisor, the Sub-Advisor shall have no duty to pay any ordinary operating
expenses incurred in the organization and operation of the Funds. 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, or extraordinary expenses relating to
litigation or restructuring actions with respect to the portfolio securities of
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.
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 limited liability company duly organized and
validly existing under the laws of the State of Delaware, with the power to own
and possess its assets and carry on its business as it is now being conducted;
(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 organizational action, 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, Part II of the Sub-Advisor previously provided to the
Advisor is a true and complete copy of the form as of the date hereof and the
information contained therein, as of the date hereof, 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,
Part II.
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 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 (assuming due execution
by the Advisor); (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.
Shareholders of the Fund have approved this Agreement or are not required under
applicable law and Trust Compliance Procedures to approve 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. Subject to paragraph (a) above, 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
or the Trust's willful misfeasance, bad faith, gross negligence, or reckless
disregard of its duties hereunder, or violation of applicable law.
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 continuation of this Agreement. Such expenses
include the reasonable 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 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. 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 name of, and
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. Any use of the
Sub-Advisor's name, reference to the Sub-Advisor or description of the
Sub-Advisor in such marketing or other materials shall be consistent with the
information regarding the Sub-Advisor contained in the Prospectus.
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:
Columbia Management Advisors, LLC
000 Xxxxxxx Xxxxxx
Xxxxxx, XX 00000
Attn: President
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.
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:
COLUMBIA MANAGEMENT ADVISORS, LLC
By: /s/Xxx X. Xxxxxxx
Name: Xxx X. Xxxxxxx
Title: Managing Director
Head of Channel Management Team
