EXHIBIT 28(d)(10)
SUB-ADVISORY AGREEMENT
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This Sub-Advisory Agreement ("Agreement") executed as of May 1, 2010 is
between LINCOLN INVESTMENT ADVISORS CORPORATION, a Tennessee corporation (the
"Adviser"), and DELAWARE MANAGEMENT COMPANY, a series of Delaware Management
Business Trust, a Delaware statutory trust (the "Sub-Adviser").
WHEREAS, Lincoln Variable Insurance Products Trust (the "Trust"), on
behalf of the LVIP Delaware Diversified Floating Rate Fund (the "Fund"), has
entered into an Investment Management Agreement with the Adviser, pursuant to
which the Adviser has agreed to provide certain investment management services
to the Fund; and
WHEREAS, the Adviser desires to appoint Sub-Adviser as investment
sub-adviser to provide the investment advisory services to the Fund specified
herein, and Sub-Adviser is willing to serve the Fund in such capacity.
NOW, THEREFORE, in consideration of the mutual covenants herein
contained, and each of the parties hereto intending to be legally bound, it is
agreed as follows:
1. SERVICES TO BE RENDERED BY SUB-ADVISER TO THE FUND.
(a) Subject to the direction and control of the Board of Trustees (the
"Trustees") of the Trust, the Sub-Adviser, at its expense, will furnish
continuously an investment program for the Fund. In the performance of its
duties and obligations under this Agreement, the Sub-Adviser will comply with
the diversification requirements of Section 817 of the Internal Revenue Code of
1986, as amended (the "Code"). The Sub-Adviser will make investment decisions on
behalf of the Fund and place all orders for the purchase and sale of portfolio
securities.
(b) The Sub-Adviser, at its expense, will furnish (i) all necessary
investment and management facilities, including salaries of personnel, required
for it to execute its duties faithfully and (ii) administrative facilities,
including bookkeeping, clerical personnel and equipment necessary for the
efficient conduct of the investment affairs of the Fund (excluding determination
of net asset value per share, portfolio accounting and shareholder accounting
services).
(c) The Sub-Adviser shall vote proxies relating to the Fund's
investment securities in the manner in which the Sub-Adviser believes to be in
the best interests of the Fund, and shall review its proxy voting activities on
a periodic basis with the Trustees. Upon sixty (60) days' written notice to the
Sub-Adviser, the Trustees may withdraw the authority granted to the Sub-Adviser
pursuant to this Section.
(d) In the selection of brokers, dealers or futures commission
merchants and the placing of orders for the purchase and sale of portfolio
investments for the Fund, the Sub-Adviser shall use its best efforts 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 described below. In using its best efforts to
obtain for the Fund the most favorable price and execution available, the
Sub-Adviser, bearing in mind the Fund's best interests at all times, shall
consider all factors it deems relevant, including by way of illustration: price;
the size of the transaction; the nature of the market for the security; the
amount of the commission; the timing of the transaction taking into account
market prices and trends; the reputation, experience and financial stability of
the broker, dealer, or futures commission merchant involved; and the quality of
service rendered by the broker, dealer or futures commission merchant in other
transactions. Subject to such policies as the Trustees may determine, the
Sub-Adviser shall not be deemed to have acted unlawfully or to have breached any
duty created by this Agreement or otherwise solely by reason of its having
caused the Fund to pay a broker, dealer or futures commission merchant that
provides brokerage and research services to the Sub-Adviser an amount of
commission for effecting a portfolio investment transaction in excess of the
amount of commission another broker, dealer or futures commission merchant would
have charged for effecting that transaction, if the Sub-Adviser determines in
good faith that such amount of commission was reasonable in relation to the
value of the brokerage and research services provided by such broker, dealer or
futures commission merchant, viewed in terms of either that particular
transaction or the Sub-Adviser's over-all responsibilities with respect to the
Fund and to other clients of the Sub-Adviser as to which the Sub-Adviser
exercises investment discretion.
(e) The Sub-Adviser will provide advice and assistance to the
Investment Adviser as to the determination of the fair value of certain
investments where market quotations are not readily available for purposes of
calculating net asset value of the Fund in accordance with valuation procedures
and methods established by the Trustees.
(f) The Sub-Adviser shall furnish the Adviser and the Board of Trustees
with such information and reports regarding the Fund's investments as the
Adviser deems appropriate or as the Board of Trustees shall reasonably request.
The Sub-Adviser shall make its officers and employees available to the Adviser
from time to time at such reasonable times as the parties may agree to review
investment policies of the Fund and to consult with the Adviser regarding the
investment affairs of the Fund.
(g) The Sub-Adviser shall not consult with any other sub-adviser to the
Fund or a sub-adviser to a portfolio that is under common control with the Fund
concerning the assets of the Fund, except as permitted by the policies and
procedures of the Fund.
(h) In the performance of its duties, the Sub-Adviser shall be subject
to, and shall perform in accordance with, the following: (i) provisions of the
organizational documents of the Trust that are applicable to the Fund; (ii) the
stated investment objectives, policies and restrictions of the Fund; (iii) the
Investment Company Act of 1940 (the "1940 Act") and the Investment Advisers Act
of 1940 (the "Advisers Act"); (iv) any written instructions and directions of
the Trustees, the Adviser or Fund management; and (v) its general fiduciary
responsibility to the Fund.
(i) The Sub-Adviser shall assist the Fund in the preparation of its
registration statement, prospectus, shareholder reports, marketing materials and
other regulatory filings, or any amendment or supplement thereto (collectively,
"Regulatory Filings") and shall provide the Fund with disclosure for use in the
Fund's Regulatory Filings, including, without limitation, any requested
disclosure related to the Sub-Adviser's investment management personnel,
portfolio manager compensation, Codes of Ethics, firm description, investment
management strategies and techniques, and proxy voting policies.
(j) The Sub-Adviser shall furnish the Adviser, the Board of Trustees
and/or the Chief Compliance Officer of the Trust and/or the Adviser with such
information, certifications and reports as such persons may reasonably deem
appropriate or may request from the Sub-Adviser regarding the Sub-Adviser's
compliance with Rule 206(4)-7 of the Advisers Act and the Federal Securities
Laws, as defined in Rule 38a-1 under the 1940 Act. Such information,
certifications and reports shall include, without limitation, those regarding
the Sub-Adviser's compliance with the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002, Title V of the
▇▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Act, the Code of Ethics of the Sub-Adviser and the Trust and
certifications as to the validity of certain information included in the Fund's
Regulatory Filings. The Sub-Adviser shall make its officers and employees
(including its Chief Compliance Officer) available to the Adviser and/or the
Chief Compliance Officer of the Trust and/or the Adviser from time to time to
examine and review the Sub-Adviser's compliance program and its adherence
thereto.
(k) Except as expressly provided under this Agreement, neither the
Sub-Adviser nor any of its officers or employees shall act upon or disclose to
any person any material non-public information with respect to the Fund, the
Trust or the Adviser, including, without limitation, the portfolio holdings of
the Fund.
(l) The Sub-Adviser shall, as part of a complete portfolio compliance
testing program, perform quarterly diversification testing under Section 817(h)
of the Code based upon its own records with respect to the Fund assets managed
by the Sub-Adviser. However, the Adviser agrees that the official testing for
the Fund's compliance with the Internal Revenue Code of 1986 shall be performed
by the Adviser or by the Fund's custodian. The Sub-Adviser shall provide timely
notice each calendar quarter if, in accordance with its records, such
diversification with respect to the Fund assets managed by the Sub-Adviser was
not satisfied. The Adviser agrees that in the event that the Fund was not in
compliance with Section 817(h) or Section 851 of the Code that it will instruct
the Sub-Adviser on the corrections that it should take within 30 days of the end
of the calendar quarter. If the Fund fails the diversification requirements of
Section 817(h) of the Code, the Sub-Adviser shall assist the Adviser in the
preparation of any request for relief or argument to the Commissioner of the
Internal Revenue Service pursuant to Treas. Reg. Section 1-817-5(c)(2) and
Revenue Procedures 92-95 (or its successor).
2. OTHER AGREEMENTS.
The investment management services provided by the Sub-Adviser under
this Agreement are not to be deemed exclusive, and the Sub-Adviser shall be free
to render similar or different services to others so long as its ability to
render the services provided for in this Agreement shall not be impaired
thereby.
3. COMPENSATION TO BE PAID BY THE ADVISER TO THE SUB-ADVISER.
(a) As compensation for the services to be rendered by the Sub-Adviser
under the provisions of this Agreement, the Adviser will pay to the Sub-Adviser
a fee each month based on the average daily net assets of the Fund during the
month. Such fee shall be calculated in accordance with the fee schedule
applicable to the Fund as set forth in Schedule A attached hereto.
(b) The fee shall be paid by the Adviser, and not by the Fund, and
without regard to any reduction in the fees paid by the Fund to the Adviser
under its management contract as a result of any statutory or regulatory
limitation on investment company expenses or voluntary fee reduction assumed by
the Adviser. Such fee to the Sub-Adviser shall be payable for each month within
10 business days after the end of such month. If the Sub-Adviser shall serve for
less than the whole of a month, the foregoing compensation shall be prorated.
4. AUTOMATIC TERMINATION.
This Agreement shall automatically terminate, without the payment of
any penalty, in the event of its assignment or in the event that the investment
advisory contract between the Adviser and the Fund shall have terminated for any
reason.
5. EFFECTIVE PERIOD; TERMINATION AND AMENDMENT OF THIS AGREEMENT.
(a) This Agreement shall become effective upon its execution, and shall
remain in full force and effect continuously thereafter (unless terminated
automatically as set forth in Section 4) until terminated as set forth below.
Termination of this Agreement pursuant to this Section 5 shall be without the
payment of any penalty.
(b) This Agreement shall continue in effect for a period of more than
two years from the date hereof only so long as continuance is specifically
approved at least annually in conformance with the 1940 Act; provided, however,
that this Agreement may be terminated at any time:
(i) by the Board of Trustees of the Trust or by the vote of a
majority of the outstanding voting securities of the Fund;
(ii) by the Adviser on 60 days' written notice to the
Sub-Adviser; or
(iii) by the Sub-Adviser on 60 days' written notice to the
Adviser.
(c) No amendment to this Agreement shall be effective unless (i) there
is written consent of the parties to this Agreement and (ii) the amendment is
approved in a manner consistent with the 1940 Act as interpreted or permitted by
the U.S. Securities and Exchange Commission ("SEC") and/or its staff.
6. CERTAIN INFORMATION.
The Sub-Adviser shall promptly notify the Adviser in writing of the
occurrence of any of the following events: (a) the Sub-Adviser shall fail to be
registered as an investment adviser under the Advisers Act and under the laws of
any jurisdiction in which the Sub-Adviser is required to be registered as an
investment adviser in order to perform its obligations under this Agreement, (b)
the Sub-Adviser has a reasonable basis for believing that the Fund has ceased to
qualify or might not qualify as a regulated investment company under Subchapter
M of the Code (c) the Sub-Adviser shall have been served or otherwise have
notice of any action, suit, proceeding, inquiry or investigation, at law or in
equity, before or by any court, public board or body, involving the affairs of
the Fund, and (d) the principal officers of the Sub-Adviser or any portfolio
manager of the Fund shall have changed.
7. NONLIABILITY OF SUB-ADVISER.
In the absence of willful misfeasance, bad faith or gross negligence on
the part of the Sub-Adviser, or reckless disregard of its obligations and duties
hereunder, the Sub-Adviser shall not be subject to any liability to the Fund or
to any shareholder of the Fund, for any act or omission in the course of, or
connected with, rendering services hereunder.
8. INDEMNIFICATION.
The Sub-Adviser agrees to indemnify the Adviser and the Funds for, and
hold them harmless against, any and all losses, claims, damages, liabilities
(including amounts paid in settlement with the written consent of the
Sub-Adviser) or litigation (including reasonable legal and other expenses) to
which the Adviser or the Funds may become subject as a result of any untrue
statement of a material fact contained in disclosure provided by the Sub-Adviser
for inclusion in the Fund's Regulatory Filings or any omission of a material
fact required to be stated necessary to make such disclosure not misleading;
provided that the Sub-Adviser shall have been given written notice concerning
any matter for which indemnification is claimed under this Section.
9. RECORDS; RIGHT TO AUDIT.
(a) The Sub-Adviser agrees to maintain in the form and for the period
required by Rule 31a-2 under the 1940 Act, all records relating to the Fund's
investments made by the Sub-Adviser that are required to be maintained by the
Fund pursuant to the requirements of Rule 31a-1 under the 1940 Act. The
Sub-Adviser agrees that all records that it maintains on behalf of the Fund are
the property of the Fund, and the Sub-Adviser will surrender promptly to the
Fund any such records upon the Fund's request; provided, however, that the
Sub-Adviser may retain a copy of such records. In addition, for the duration of
this Agreement, the Sub-Adviser shall preserve for the periods prescribed by
Rule 31a-2 under the 1940 Act any such records as are required to be maintained
by it pursuant to this Agreement and shall transfer all such records to any
entity designated by the Adviser upon the termination of this Agreement.
(b) The Sub-Adviser agrees that all accounts, books and other records
maintained and preserved by it as required hereby will be subject at any time,
and from time to time, to such reasonable periodic, special and other
examinations by the SEC, the Fund's auditors, any representative of the Fund,
the Adviser, or any governmental agency or other instrumentality having
regulatory authority over the Fund.
10. MARKETING MATERIALS.
(a) The Fund shall furnish to the Sub-Adviser, prior to its use, each
piece of advertising, supplemental sales literature or other promotional
material in which the Sub-Adviser or any of its affiliates is named. No such
material shall be used except with prior written permission of the Sub-Adviser
or its delegate. The Sub-Adviser agrees to respond to any request for approval
on a prompt and timely basis. Failure by the Sub-Adviser to respond within ten
(10) calendar days to the Fund shall relieve the Fund of the obligation to
obtain the prior written permission of the Sub-Adviser.
(b) The Sub-Adviser shall furnish to the Fund, prior to its use, each
piece of advertising, supplemental sales literature or other promotional
material in which the Fund, the Adviser or any of the Adviser's affiliates is
named. No such material shall be used except with prior written permission of
the Fund or its delegate. The Fund agrees to respond to any request for approval
on a prompt and timely basis. Failure by the Fund to respond within ten (10)
calendar days to the Sub-Adviser shall relieve the Sub-Adviser of the obligation
to obtain the prior written permission of the Fund.
11. GOVERNING LAW.
This Agreement shall be governed by the 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.
12. SEVERABILITY/INTERPRETATION.
If any provision of this Agreement is held invalid by a court decision,
statute, rule or otherwise, the remainder of this Agreement shall not be
affected thereby. This Agreement shall be binding upon and shall inure to the
benefit of the parties hereto and their respective successors. 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.
13. CERTAIN DEFINITIONS.
For the purposes of this Agreement, the terms "vote of a majority of
the outstanding voting securities," "interested persons," and "assignment" shall
have the meaning defined in the 1940 Act, and subject to such orders or
no-action letters as may be granted by the SEC and/or its staff.
IN WITNESS WHEREOF, the parties have caused this instrument to be
signed by their duly authorized representatives, all as of the day and year
first above written.
LINCOLN INVESTMENT ADVISORS
CORPORATION
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: President
DELAWARE MANAGEMENT COMPANY, a
series of Delaware Management
Business Trust
/s/ See ▇▇▇▇ ▇▇▇▇
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Name: See ▇▇▇▇ ▇▇▇▇
Title: Executive Vice President
Accepted and agreed to
as of the day and year
first above written:
LINCOLN VARIABLE INSURANCE PRODUCTS TRUST,
on behalf the LVIP Delaware Diversified Floating Rate Fund
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: President