Exhibit 23(d)(2)
SUBADVISORY AGREEMENT
THIS AGREEMENT is made and entered into on this 15th day of August, 2003,
among GARTMORE MUTUAL FUNDS II, INC. (formerly GAMNA Series Funds, Inc.),the
"Company"), a Maryland corporation (the "Company"), GARTMORE MUTUAL FUND CAPITAL
TRUST (the "Adviser") a Delaware business trust registered under the Investment
Advisers Act of 1940, as amended (the "Advisers Act"), and GARTMORE SEPARATE
ACCOUNTS LLC (the "Subadviser"), a Delaware limited liability corporation, also
registered under the Advisers Act.
W I T N E S S E T H:
WHEREAS, Gartmore Mutual Funds II, Inc. (formerly known as GAMNA Series
Funds, Inc., "the Company") is registered with the Securities and Exchange
Commission (the "SEC") as an open-end management investment company under the
Investment Company Act of 1940, as amended (the "1940 Act");
WHEREAS, the Adviser has, pursuant to an Advisory Agreement with the
Company dated as of August 15, 2003 (the "Advisory Agreement") as subsequently
amended, been retained to act as investment adviser for the investment
portfolios of the Company listed on Exhibit A to this Agreement (each, a
"Fund");
WHEREAS, the Advisory Agreement permits the Adviser to delegate certain of
its duties under the Advisory Agreement to other investment advisers, subject to
the requirements of the 1940 Act; and
WHEREAS, the Adviser desires to retain Subadviser to assist it in the
provision of a continuous investment program for that portion of the Company's
assets which the Adviser will assign to the Subadviser (the "Subadviser
Assets"), and Subadviser is willing to render such services subject to the terms
and conditions set forth in this Agreement.
NOW, THEREFORE, the parties do mutually agree and promise as follows:
1. Appointment as Subadviser. The Adviser hereby retains the Subadviser to
act as investment adviser for and to manage the Subadviser Assets subject to the
supervision of the Adviser and the Board of Directors of the Company and subject
to the terms of this Agreement; and the Subadviser hereby accepts such
employment. In such capacity, the Subadviser shall be responsible for the
investment management of the Subadviser Assets. It is recognized that the
Subadviser and certain of its affiliates now act, and that from time to time
hereafter may act, as investment adviser to one or more other investment
companies and to fiduciary or other managed accounts and that the Adviser and
the Company have no objection to such activities.
2. Duties of Subadviser.
(a) Investments. The Subadviser is hereby authorized and directed and
hereby agrees, subject to the stated investment policies and restrictions of the
Fund as set forth in the Fund's prospectus and statement of additional
information as currently in effect and as supplemented or amended from time to
time (collectively referred to hereinafter as the "Prospectus") and subject to
the directions of the Adviser and the Company's Board of Directors, to purchase,
hold and sell investments for the Subadviser Assets and to monitor on a
continuous basis the performance of the Subadviser Assets. In providing these
services, the Subadviser will conduct a continuous program of investment,
evaluation and, if appropriate, sale and reinvestment of the Subadviser Assets.
The Adviser agrees to provide the Subadviser with such assistance as may be
reasonably requested by the Subadviser in connection with the Subadviser's
activities under this Agreement, including, without limitation, information
concerning the Fund, the funds available, or to become available, for investment
and generally as to the conditions of the Fund's or Company's affairs.
(b) Compliance with Applicable Laws and Governing Documents. In the
performance of the Subadviser's duties and obligations under this Agreement, the
Subadviser shall act in conformity with the Company's Articles of Incorporation
and By-Laws and the Prospectus and with the instructions and directions received
in writing from the Adviser or the Board of Directors of the Company and will
conform to and comply with the requirements of the 1940 Act, the Internal
Revenue Code of 1986, as amended (the "Code"), and all other applicable federal
and state laws and regulations. Notwithstanding the foregoing, the Adviser
shall remain responsible for ensuring the Fund's overall compliance with the
1940 Act, the Code and all other applicable federal and state laws and
regulations and the Subadviser is only obligated to comply with this subsection
(b) with respect to the Subadviser Assets. The Adviser will provide the
Subadviser with a copy of the minutes of the meetings of the Board of Directors
of the Company to the extent the minutes may affect the Fund or the duties of
the Subadviser, and with the copies of any financial statements or reports made
by the Fund to its shareholders, and any further materials or information which
the Subadviser may reasonably request to enable it to perform its functions
under this Agreement.
The Adviser shall perform quarterly and annual tax compliance tests to
ensure that the Fund is in compliance with Subchapter M and Section 817(h) of
the Code. In connection with such compliance tests, the Adviser shall inform
the Subadviser within ten (10) business days of a calendar quarter end if the
Subadviser is out of compliance with the diversification requirements under
either Subchapter M or Section 817(h). If the Adviser notifies the Subadviser
that it is not in compliance with the requirements noted above, the Subadviser
will take prompt action to bring the Fund back into compliance within the time
permitted under the Code.
The Adviser will provide the Subadviser with reasonable advance notice of
any change in the Fund's investment objectives, policies and restrictions as
stated in the Prospectus, and the Subadviser shall, in the performance of its
duties and obligations under this Agreement, manage the Subadviser Assets
consistent with such changes, provided the Subadviser has received prompt notice
of the effectiveness of such changes from the Company or the Adviser. In
addition to such notice, the Adviser shall provide to the Subadviser a copy of a
modified Prospectus reflecting such changes. The Adviser acknowledges and
agrees that the Prospectus will at all times be in compliance with all
disclosure requirements under all applicable federal and state laws and
regulations relating to the Company or the Fund, including, without limitation,
the 1940 Act, and the rules and regulations thereunder, and that the Subadviser
shall have no liability in connection therewith, except as to the accuracy of
material information furnished in writing by the Subadviser to the Company or to
the Adviser specifically for inclusion in the Prospectus. The Subadviser hereby
agrees to provide to the Adviser in a timely manner such information relating to
the Subadviser and its relationship to, and actions for, the Company as may be
required to be contained in the Prospectus or in the Company's Registration
Statement on Form N-1A.
(c) Voting of Proxies. The Subadviser shall have the power to vote, either
in person or by proxy, all securities in which the Subadviser Assets may be
invested from time to time, and shall not be required to seek or take
instructions from, the Adviser, the Fund or the Company or take any action with
respect thereto. If both the Subadviser and another entity managing assets of
the Fund have invested in the same security, the Subadviser and such other
entity will each have the power to vote its pro rata share of the security.
The Subadviser will establish a written procedure for proxy voting in
compliance with current applicable rules and regulations, including but not
limited to Rule 30b1-4 under the 1940 Act. The Subadviser will provide the
Adviser or its designee, a copy of such procedure and establish a process for
the timely distribution of the Subadviser's voting record with respect to the
Fund's securities and other information necessary for the Fund to complete
information required by Form N-1A under the 1940 Act and the Securities Act of
1933, as amended (the "Securities Act"), Form N-PX under the 1940 Act, and Form
N-CSR under the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002, respectively.
(d) Agent. Subject to any other written instructions of the Adviser or the
Company, the Subadviser is hereby appointed the Adviser's and the Company's
agent and attorney-in-fact for the limited purposes of executing account
documentation, agreements, contracts and other documents as the Subadviser shall
be requested by brokers, dealers, counterparties and other persons in connection
with its management of the Subadviser Assets. The Subadviser agrees to provide
the Adviser and the Company with copies of any such agreements executed on
behalf of the Adviser or the Company.
(e) Brokerage. The Subadviser is authorized, subject to the supervision of
the Adviser and the Company's Board of Directors, to establish and maintain
accounts on behalf of the Fund with, and place orders for the purchase and sale
of the Subadviser Assets with or through, such persons, brokers (including, to
the extent permitted by applicable law, any broker affiliated with the
Subadviser) or dealers ("brokers") as Subadviser may elect and negotiate
commissions to be paid on such transactions. The Subadviser, however, is not
required to obtain the consent of the Adviser or the Company's Board of
Directors prior to establishing any such brokerage account. The Subadviser
shall place all orders for the purchase and sale of portfolio investments for
the Fund's account with brokers selected by the Subadviser. In the selection of
such brokers and the placing of such orders, the Subadviser shall seek to obtain
for the Fund the most favorable price and execution available, except to the
extent it may be permitted to pay higher brokerage commissions for brokerage and
research services, as provided below. In using its reasonable efforts to obtain
for the Fund the most favorable price and execution available, the Subadviser,
bearing in mind the best interests of the Fund at all times, shall consider all
factors it deems relevant, including price, the size of the transaction, the
breadth and nature of the market for the security, the difficulty of the
execution, the amount of the commission, if any, the timing of the transaction,
market prices and trends, the reputation, experience and financial stability of
the broker involved, and the quality of service rendered by the broker in other
transactions. Subject to such policies as the Board of Directors may determine,
or as may be mutually agreed to by the Adviser and the Subadviser, the
Subadviser shall not be deemed to have acted unlawfully or to have breached any
duty created by this Agreement or otherwise solely by reason of its having
caused the Fund to pay a broker that provides brokerage and research services
(within the meaning of Section 28(e) of the Securities Exchange Act of 1934, as
amended) to the Subadviser an amount of commission for effecting the Fund
investment transaction that is in excess of the amount of commission that
another broker would have charged for effecting that transaction if, but only
if, the Subadviser determines in good faith that such commission was reasonable
in relation to the value of the brokerage and research services provided by such
broker or dealer viewed in terms of either that particular transaction or the
overall responsibility of the Subadviser with respect to the accounts as to
which it exercises investment discretion.
It is recognized that the services provided by such brokers may be useful
to the Subadviser in connection with the Subadviser's services to other clients.
On occasions when the Subadviser deems the purchase or sale of a security to be
in the best interests of the Fund as well as other clients of the Subadviser,
the Subadviser, to the extent permitted by applicable laws and regulations, may,
but shall be under no obligation to, aggregate the securities to be sold or
purchased in order to obtain the most favorable price or lower brokerage
commissions and efficient execution. In such event, allocation of securities so
sold or purchased, as well as the expenses incurred in the transaction, will be
made by the Subadviser in the manner the Subadviser considers to be the most
equitable and consistent with its fiduciary obligations to the Fund and to such
other clients. It is recognized that in some cases, this procedure may
adversely affect the price paid or received by the Fund or the size of the
position obtainable for, or disposed of by, the Fund.
(f) Securities Transactions. The Subadviser and any affiliated person of
the Subadviser will not purchase securities or other instruments from or sell
securities or other instruments to the Fund; provided, however, the Subadviser
or any affiliated person of the Subadviser may purchase securities or other
instruments from or sell securities or other instruments to the Fund if such
transaction is permissible under applicable laws and regulations, including,
without limitation, the 1940 Act and the Advisers Act and the rules and
regulations promulgated thereunder.
The Subadviser, including its Access Persons (as defined in subsection (e)
of Rule 17j-1 under the 1940 Act), agrees to observe and comply with Rule 17j-1
and its Code of Ethics (which shall comply in all material respects with Rule
17j-1), as the same may be amended from time to time. On at least an annual
basis, the Subadviser will comply with the reporting requirements of Rule 17j-1,
which may include either (i) certifying to the Adviser that the Subadviser and
its Access Persons have complied with the Subadviser's Code of Ethics with
respect to the Subadviser Assets or (ii) identifying any violations which have
occurred with respect to the Subadviser Assets. The Subadviser will have also
submitted its Code of Ethics for its initial approval by the Board of Directors
no later than the date of execution of this agreement and subsequently within
six months of any material change thereto.
(g) Books and Records. In accordance with the 1940 Act and the rules and
regulations promulgated thereunder, the Subadviser shall maintain separate books
and detailed records of all matters pertaining to the Subadviser Assets (the
"Fund's Records"), including, without limitation, a daily ledger of such assets
and liabilities relating thereto and brokerage and other records of all
securities transactions. The Subadviser acknowledges that the Fund's Records
are property of the Company; except to the extent that the Subadviser is
required to maintain the Fund's Records under the Advisers Act or other
applicable law. The Fund's Records (relating to the Subadviser Assets) shall be
available to the Adviser and the Company at any time upon reasonable request
during normal business hours and shall be available for telecopying without
delay to the Adviser or the Company, as the case may be, during any day that the
Fund is open for business.
(h) Information Concerning Subadviser Assets and Subadviser. From time to
time as the Adviser or the Company may request, the Subadviser will furnish the
requesting party reports on portfolio transactions and reports on Subadviser
Assets held in the portfolio, all in such detail as the Adviser or the Company
may reasonably request. The Subadviser will also inform the Adviser in a timely
manner of material changes in portfolio managers responsible for Subadviser
Assets, any changes in the ownership or management of the Subadviser, or of
material changes in the control of the Subadviser. Upon reasonable request, the
Subadviser will make available its officers and employees to meet with the
Company's Board of Directors to review the Subadviser Assets via telephone on a
quarterly basis and in person on a less frequent basis as agreed upon by the
parties. Subadviser shall assist Adviser with providing to the Company's
officers and Board of Directors such periodic reports concerning the Fund's
business and investments as the Board of Directors shall reasonably request, and
supply the reasons for making such investments.
The Subadviser will also provide such information or perform such
additional acts as are customarily performed by a subadviser and may be required
for the Company or the Adviser to comply with their respective obligations under
applicable laws, including without limitation, the Code, the 1940 Act, the
Advisers Act, and the Securities Act, and any rule or regulation thereunder.
(i) Custody Arrangements. The Subadviser shall on each business day
provide the Adviser and the Company's custodian such information as the Adviser
and the Company's custodian may reasonably request relating to all transactions
concerning the Subadviser Assets.
3. Independent Contractor. In the performance of its duties hereunder, the
Subadviser is and shall be an independent contractor and unless otherwise
expressly provided herein or otherwise authorized in writing, shall have no
authority to act for or represent the Fund, the Company or the Adviser in any
way or otherwise be deemed an agent of the Fund, the Company or the Adviser.
4. Expenses. During the term of this Agreement, Subadviser will pay all
expenses incurred by it in connection with its activities under this Agreement
other than the cost of securities, commodities and other investments (including
brokerage commissions and other transaction charges, if any) purchased for the
Fund. The Subadviser shall, at its sole expense, employ or associate itself
with such persons as it believes to be particularly fitted to assist it in the
execution of its duties under this Agreement. The Subadviser shall not be
responsible for the Company's, the Fund's or the Adviser's expenses, which shall
include, but not be limited to, organizational and offering expenses (which
include out-of-pocket expenses, but not overhead or employee costs of the
Subadviser); expenses for legal, accounting and auditing services; taxes and
governmental fees; dues and expenses incurred in connection with membership in
investment company organizations; costs of printing and distributing shareholder
reports, proxy materials, prospectuses, stock certificates and distribution of
dividends; charges of the Fund's custodians and sub-custodians, administrators
and sub-administrators, registrars, transfer agents, dividend disbursing agents
and dividend reinvestment plan agents; payment for portfolio pricing services to
a pricing agent, if any; registration and filing fees of the SEC; expenses of
registering or qualifying securities of the Fund for sale in the various states;
freight and other charges in connection with the shipment of the Fund's
portfolio securities; fees and expenses of non-interested Directors; salaries of
shareholder relations personnel; costs of shareholders meetings; insurance;
interest; brokerage costs; and litigation and other extraordinary or
non-recurring expenses. The Company or the Adviser, as the case may be, shall
reimburse the Subadviser for any expenses of the Funds or the Adviser as may be
reasonably incurred by such Subadviser on behalf of the Fund or the Adviser. The
Subadviser shall keep and supply to the Company and the Adviser reasonable
records of all such expenses.
5. Compensation. For the services provided and the expenses assumed with
respect to the Fund pursuant to this Agreement, the Subadviser will be entitled
to the fee listed for the Fund on Exhibit A. Such fees will be computed daily
and payable no later than the seventh (7th) business day following the end of
each month, by the Adviser or the Company, calculated at an annual rate based on
the Subadviser Assets' average daily net assets.
The method of determining net assets of the Subadviser's Assets for
purposes hereof shall be the same as the method of determining net assets for
purposes of establishing the offering and redemption price of the Shares as
described in the Fund's Prospectus. If this Agreement shall be effective for
only a portion of a month, the aforesaid fee shall be prorated for the portion
of such month during which this Agreement is in effect.
6. Representations and Warranties of Subadviser. The Subadviser represents
and warrants to the Adviser and the Company as follows:
(a) The Subadviser is registered as an investment adviser under the
Advisers Act and is not prohibited under Section 9 of the 1940 Act from acting
as an investment adviser under this Agreement;
(b) The Subadviser is registered as a Commodity Trading Advisor under the
Commodity Exchange Act (the "CEA") with the Commodity Futures Trading Commission
(the "CFTC"), or is not required to file such registration;
(c) The Subadviser is a limited liability corporation duly organized and
properly registered and operating 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;
(d) The execution, delivery and performance by the Subadviser of this
Agreement are within the Subadviser's powers and have been duly authorized by
all necessary 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 Subadvisers
for execution, delivery and performance by the Subadviser of this Agreement, and
the execution, delivery and performance by the Subadviser of this Agreement do
not contravene or constitute a default under (i) any provision of applicable
law, rule or regulation, (ii) the Subadviser's governing instruments, or (iii)
any agreement, judgment, injunction, order, decree or other instrument binding
upon the Subadviser; and
(e) The Form ADV of the Subadviser previously provided to the Adviser is a
true and complete copy of the form as currently filed with the SEC and the
information contained therein is accurate and complete in all material respects
and does not omit to state any material fact necessary in order to make the
statements made, in light of the circumstances under which they were made, not
misleading.
7. Representations and Warranties of Adviser. The Adviser represents and
warrants to the Subadviser as follows:
(a) The Adviser is registered as an investment adviser under the Advisers
Act and is not prohibited under Section 9 of the 1940 Act from acting as
investment adviser under this Agreement;
(b) The Adviser has filed a notice of exemption pursuant to Rule 4.14 under
the CEA with the CFTC and the National Futures Association or is not required to
file such exemption;
(c) The Adviser is a business trust duly organized and validly existing
under the laws of the State of Delaware with the power to own and possess its
assets and carry on its business as it is now being conducted;
(d) The execution, delivery and performance by the Adviser of this
Agreement are within the Adviser's powers and have been duly authorized by all
necessary action on the part of its shareholders or managing unitholder, and no
action by or in respect of, or filing with, any governmental body, agency or
official is required on the part of the Adviser for the execution, delivery and
performance by the Adviser of this Agreement, and the execution, delivery and
performance by the Adviser of this Agreement do not contravene or constitute a
default under (i) any provision of applicable law, rule or regulation, (ii) the
Adviser's governing instruments, or (iii) any agreement, judgment, injunction,
order, decree or other instrument binding upon the Adviser;
(e) The Form ADV of the Adviser previously provided to the Subadviser is a
true and complete copy of the form filed with the SEC and the information
contained therein is accurate and complete in all material respects and does not
omit to state any material fact necessary in order to make the statements made,
in light of the circumstances under which they were made, not misleading;
(f) The Adviser acknowledges that it received a copy of the Subadviser's
Form ADV prior to the execution of this Agreement; and
(g) The Adviser and the Company have duly entered into the Advisory
Agreement pursuant to which the Company authorized the Adviser to enter into
this Agreement.
8. Representations and Warranties of the Company. The Company represents
and warrants to the Adviser and the Subadviser as follows:
(a) The Company is a corporation duly organized and validly existing under
the laws of the State of Maryland with the power to own and possess its assets
and carry on its business as it is now being conducted;
(b) The Company is registered as an investment company under the 1940 Act
and the Fund's shares are registered under the Securities Act; and
(c) The execution, delivery and performance by the Company of this
Agreement are within the Company's powers and have been duly authorized by all
necessary action on the part of the Company and 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 Company for the execution, delivery and
performance by the Adviser of this Agreement, and the execution, delivery and
performance by the Company of this Agreement do not contravene or constitute a
default under (i) any provision of applicable law, rule or regulation, (ii) the
Company's governing instruments, or (iii) any agreement, judgment, injunction,
order, decree or other instrument binding upon the Company.
9. Survival of Representations and Warranties; Duty to Update Information.
All representations and warranties made by the Subadviser, the Adviser and the
Company pursuant to Sections 6, 7 and 8, respectively, shall survive for the
duration of this Agreement and the parties hereto shall promptly notify each
other in writing upon becoming aware that any of the foregoing representations
and warranties are no longer true.
10. Liability and Indemnification.
(a) Liability. The Subadviser shall exercise its best judgment in
rendering the services in accordance with the terms of this Agreement. In the
absence of willful misfeasance, bad faith or gross negligence on the part of the
Subadviser or a reckless disregard of its obligations and duties hereunder, the
Subadviser, each of its affiliates and all respective partners, officers,
directors and employees ("Affiliates") and each person, if any, who within the
meaning of the Securities Act controls the Subadviser ("Controlling Persons")
shall not be liable under this Agreement for any error of judgment or mistake of
law or for any loss suffered by the Adviser and shall not be subject to any
expenses or liability to the Adviser, any other subadviser to the Fund, the
Company or the Fund or any of the Fund's shareholders, in connection with the
performance of this Agreement. Except as set forth in (c) below, the absence of
willful misfeasance, bad faith or gross negligence on the part of the Adviser or
a reckless disregard of its obligations and duties hereunder, the Adviser, any
of its Affiliates and each of the Adviser's Controlling Persons, if any, shall
not be liable to the Subadviser, for any error of judgment or mistake of law or
for any loss in the case of, or connected with, rendering services hereunder;
provided, however, that nothing herein shall relieve the Adviser and the
Subadviser from any of their obligations under applicable law, including,
without limitation, the federal and state securities laws and the CEA.
(b) Indemnification. The Subadviser shall indemnify the Adviser, the
Company and the Fund, and their respective Affiliates and Controlling Persons
for any liability and expenses, including reasonable attorneys' fees, which the
Adviser, the Company and the Fund and their respective Affiliates and
Controlling Persons may sustain as a result of the Subadviser's willful
misfeasance, bad faith, gross negligence, reckless disregard of its duties
hereunder or violation of applicable law, including, without limitation, the
federal and state securities laws or the CEA.
The Adviser shall indemnify the Subadviser, its Affiliates and its
Controlling Persons, for any liability and expenses, including reasonable
attorneys' fees, which may be sustained as a result of the Adviser's wilful
misfeasance, bad faith, gross negligence, reckless disregard of its duties
hereunder or violation of applicable law, including, without limitation, the
federal and state securities laws or the CEA.
(c) The Subadviser shall not be liable to the Adviser for (i) any acts of
the Adviser or any other subadviser to the Fund with respect to the portion of
the assets of that Fund not managed by Subadviser or (ii) acts of the Subadviser
which result from acts of the Adviser, including, but not limited to, a failure
of the Adviser to provide accurate and current information with respect to any
records maintained by the Adviser or any other subadviser to the Fund, which
records are not also maintained by or otherwise available to the Subadviser upon
reasonable request. The Adviser agrees that Subadviser shall manage the
Subadviser Assets as if they were a separate operating Fund as set forth in
Section 2(b) of this Agreement. The Adviser shall indemnify the Subadviser, its
Affiliates and Controlling Persons from any liability arising from the conduct
of the Adviser and any other subadviser with respect to the portion of the
Fund's assets not allocated to the Subadviser.
11. Duration and Termination.
(a) Duration. Unless sooner terminated, this Agreement shall continue until
August 15, 2005, with respect to any Fund covered by the Agreement initially and
for an initial two-year period for any Fund subsequently added to the Agreement,
and thereafter shall continue automatically for successive annual periods with
respect to each such Fund, provided such continuance is specifically approved at
least annually by the Company's Board of Directors or vote of the lesser of (a)
67% of the voting securities of the Fund present at a meeting if holders of more
than 50% of the outstanding voting securities of the Fund are present in person
or represented by proxy or (b) more than 50% of the outstanding voting
securities of the Fund; provided that in either event its continuance also is
approved by a majority of the Company's Directors who are not parties to this
Agreement or "interested persons" (as defined in the ▇▇▇▇ ▇▇▇) of any party to
this Agreement, by vote cast in person at a meeting called for the purpose of
voting on such approval.
(b) Termination. Notwithstanding whatever may be provided herein to the
contrary, this Agreement may be terminated at any time, without payment of any
penalty:
(i) By vote of a majority of the Company's Board of Directors, or by vote
of a majority of the outstanding voting securities (as such term is defined in
the ▇▇▇▇ ▇▇▇) of the Fund, or by the Adviser, in each case, upon at least sixty
(60) days' written notice to the Subadviser;
(ii) By any party hereto immediately upon written notice to the other
parties in the event of a breach of any provision of this Agreement by either of
the other parties; or
(iii) By the Subadviser upon at least sixty (60) days' written notice to
the Adviser and the Company.
This Agreement shall not be assigned (as such term is defined in the ▇▇▇▇ ▇▇▇)
and shall terminate automatically in the event of its assignment or upon the
termination of the Advisory Agreement.
12. Duties of the Adviser. The Adviser shall continue to have
responsibility for all services to be provided to the Fund pursuant to the
Advisory Agreement and shall oversee and review the Subadviser's performance of
its duties under this Agreement. Nothing contained in this Agreement shall
obligate the Adviser to provide any funding or other support for the purpose of
directly or indirectly promoting investments in the Fund.
13. Reference to Adviser and Subadviser.
(a) Neither the Adviser nor any Affiliate or agent of it shall make
reference to or use the name of Subadviser or any of its Affiliates, or any of
their clients, except references concerning the identity of and services
provided by the Subadviser to the Fund, which references shall not differ in
substance from those included in the Prospectus and this Agreement, in any
advertising or promotional materials without the prior approval of Subadviser,
which approval shall not be unreasonably withheld or delayed. The Adviser
hereby agrees to make all reasonable efforts to cause the Fund and any Affiliate
thereof to satisfy the foregoing obligation.
(b) Neither the Subadviser nor any Affiliate or agent of it shall make
reference to or use the name of the Adviser or any of its Affiliates, or any of
their clients, except references concerning the identity of and services
provided by the Adviser to the Fund or to the Subadviser, which references shall
not differ in substance from those included in the Prospectus and this
Agreement, in any advertising or promotional materials without the prior
approval of Adviser, which approval shall not be unreasonably withheld or
delayed. The Subadviser hereby agrees to make all reasonable efforts to cause
any Affiliate of it to satisfy the foregoing obligation.
14. Amendment. This Agreement may be amended by mutual consent of the
parties, provided that the terms of each such amendment shall be approved by: a)
the Company's Board of Directors or by a vote of a majority of the outstanding
voting securities of the Funds (if required by the ▇▇▇▇ ▇▇▇) and b) the vote of
a majority of those Directors of the Company who are not "interested persons" of
any party to this Agreement cast in person at a meeting called for the purpose
of voting on such approval, if such approval is required by applicable law.
15. Confidentiality. Subject to the duties of the Adviser, the Company and
the Subadviser to comply with applicable law, including any demand of any
regulatory or taxing authority having jurisdiction, the parties hereto shall
treat as confidential all information pertaining to the Fund and the actions of
the Subadviser, the Adviser and the Fund in respect thereof.
16. Notice. Any notice that is required to be given by the parties to each
other under the terms of this Agreement shall be in writing, delivered, or
mailed postpaid to the other parties, or transmitted by facsimile with
acknowledgment of receipt, to the parties at the following addresses or
facsimile numbers, which may from time to time be changed by the parties by
notice to the other party:
(a) If to the Subadviser:
Gartmore Separate Accounts LLC
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Legal Department
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
(b) If to the Adviser:
Gartmore Mutual Fund Capital Trust
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Legal Department
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
(c) If to the Company:
Gartmore Mutual Funds II, Inc.
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Legal Department
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
17. Jurisdiction. This Agreement shall be governed by, and construed and
interpreted in accordance with, the law of the State of New York and in
accordance with the 1940 Act. In the case of any conflict, the 1940 Act shall
control.
18. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, all of which shall
together constitute one and the same instrument.
19. Certain Definitions. For the purposes of this Agreement and except as
otherwise provided herein, "interested person," "affiliated person," and
"assignment" shall have their respective meanings as set forth in the 1940 Act,
subject, however, to such exemptions as may be granted by the SEC.
20. Captions. The captions herein are included for convenience of
reference only and shall be ignored in the construction or interpretation
hereof.
21. Severability. If any provision of this Agreement shall be held or made
invalid by a court decision or applicable law, the remainder of the Agreement
shall not be affected adversely and shall remain in full force and effect.
22. Gartmore Mutual Funds II, Inc. (formerly GAMNA Series Funds, Inc.) and
its Directors. The terms "Gartmore Mutual Funds II, Inc." and the "Directors of
Gartmore Mutual Funds II, Inc." refer respectively to the Company created and
the Board of Directors, as directors but not individually or personally, acting
from time to time under the Articles of Incorporation dated as of March 12,
1999, as has been or may be amended from time to time, and to which reference is
hereby made and a copy of which is on file at the office of the Secretary of
State of the State of Maryland and elsewhere as required by law, and to any and
all amendments thereto so filed or hereafter filed. The obligations of the
Company entered into in the name or on behalf thereof by any of Gartmore Mutual
Funds II, Inc.'s Board of Directors, representatives, or agents are not made
individually, but only in their capacities with respect to Gartmore Mutual Funds
II, Inc. Such obligations are not binding upon any of the Board of Directors,
shareholders, or representatives of the Company personally, but bind only the
assets of the Company. All persons dealing with any series of Shares of the
Company must look solely to the assets of the Company belonging to such series
for the enforcement of any claims against the Company.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the
day and year first written above.
COMPANY
GARTMORE MUTUAL FUNDS II, INC.
(formerly GAMNA Series Funds, Inc.)
By:_________________________________
Name:_______________________________
Title:______________________________
ADVISER
GARTMORE MUTUAL FUND CAPITAL TRUST
By:_________________________________
Name:_______________________________
Title:______________________________
SUBADVISER
GARTMORE SEPARATE ACCOUNTS LLC
By:_________________________________
Name:_______________________________
Title:______________________________
EXHIBIT A
SUBADVISORY AGREEMENT
BETWEEN GARTMORE MUTUAL FUNDS II, INC.
(FORMERLY GAMNA SERIES FUND, INC.),
GARTMORE MUTUAL FUND CAPITAL TRUST AND
GARTMORE SEPARATE ACCOUNTS LLC
EFFECTIVE AUGUST 15, 2003
EFFECTIVE
---------------
FUND OF THE COMPANY SUBADVISORY FEE DATE
-------------------- ---------------------------------------------- ---------------
Gartmore Focus Fund
(formerly the GAMNA
Focus Fund). . . . . 0.3575% of the Fund's average daily net assets August 15, 2003
-------------------- ---------------------------------------------- ---------------