EXHIBIT NO. EX-99.6(c)(1)
SUBADVISORY AGREEMENT
THIS AGREEMENT is made and entered into on this ___ day of ____, 2003,
among GARTMORE MUTUAL FUNDS, an Ohio business trust (the "Trust"), GARTMORE
MUTUAL FUND CAPITAL TRUST (the "Adviser") a Delaware business trust registered
under the Investment Advisers Act of 1940 (the "Advisers Act"), and SSI
INVESTMENT MANAGEMENT INC., a California corporation (the "Subadviser"), also
registered under the Advisers Act.
W I T N E S S E T H:
WHEREAS, the Trust is registered with the Securities and Exchange
Commission (the "SEC") as an open-end management investment company under the
Investment Company Act of 1940 (the "1940 Act");
WHEREAS, the Adviser has, pursuant to an Advisory Agreement with the Trust
dated as of October 31, 1997 (the "Advisory Agreement") as subsequently amended,
been retained to act as investment adviser for certain of the series of the
Trust which are 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 Trust'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 Trustees of the Trust 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 Trust 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 Trust's Board of Trustees, 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 a Fund, their funds available, or to become available, for investment
and generally as to the conditions of a Fund's or Trust's affairs.
(b) Compliance with Applicable Laws and Governing Documents. In the
performance of its duties and obligations under this Agreement, the Subadviser
shall act in conformity with the Trust's Declaration of Trust and By-Laws and
the Prospectus and with the instructions and directions received in writing from
the Adviser or the Trustees of the Trust 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
each 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 Trustees of the Trust to the extent they may affect
a Fund or the duties of the Subadviser, and with the copies of any financial
statements or reports made by a 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 a 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,
2
provided the Subadviser has received prompt notice of the effectiveness of such
changes from the Trust 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 Trust 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 Trust 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 Trust as may be required to be contained
in the Prospectus or in the Trust'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 Trust or take any action with
respect thereto. If both the Subadviser and another entity managing assets of a
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.
(d) Agent. Subject to any other written instructions of the Adviser or the
Trust, the Subadviser is hereby appointed the Adviser'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 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 Trust with copies of any such agreements executed on behalf
of the Adviser or the Trust.
(e) Brokerage. The Subadviser is authorized, subject to the supervision of
the Adviser and the Trust's Board of Trustees, to establish and maintain
accounts on behalf of each 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 Trust's Board of Trustees
prior to establishing any such brokerage account. The Subadviser shall place all
orders for the purchase and sale of portfolio investments for a 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 a
Fund the most favorable price and execution available, the Subadviser, bearing
in mind the best interests of each Fund at all times, shall consider all factors
it
3
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 Trustees 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 a 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) to the Subadviser an
amount of commission for effecting a 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 a 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 each Fund and to such
other clients. It is recognized that in some cases, this procedure may adversely
affect the price paid or received by a 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 instrument 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
4
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
Trustees no later than the date of execution of this agreement and subsequently
within six months of any material change thereto.
(g) Books and Records. The Subadviser shall maintain separate detailed
records of all matters pertaining to the Subadviser Assets (the "Fund's
Records"), including, without limitation, brokerage and other records of all
securities transactions. The Subadviser acknowledges that the Fund's Records are
property of the Trust; 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 at any time upon reasonable request during normal business hours and
shall be available for telecopying without delay to the Adviser 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 Trust 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 Trust 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
Trust's Board of Trustees 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.
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 Trust 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 of 1933, as amended (the "Securities Act"),
and any rule or regulation thereunder.
(i) Custody Arrangements. The Subadviser shall on each business day
provide the Adviser and the Trust's custodian such information as the Adviser
and the Trust's custodian may reasonably request relating to all transactions
concerning the Subadviser Assets.
(j) Historical Performance Information. To the extent agreed upon by the
parties, the Subadviser 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.
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,
5
the Trust or the Adviser in any way or otherwise be deemed an agent of the Fund,
the Trust 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 a
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 Trust's, the Fund's or 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 Securities and
Exchange Commission (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 Trustees; salaries of shareholder relations
personnel; costs of shareholders meetings; insurance; interest; brokerage costs;
and litigation and other extraordinary or non-recurring expenses. The Trust 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
Trust and the Adviser reasonable records of all such expenses.
5. Compensation. For the services provided and the expenses assumed with
respect to a Fund pursuant to this Agreement, the Subadviser will be entitled to
the fee listed for each 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, from the Adviser or the Trust, calculated at an annual rate based on the
Subadviser Assets' average daily net assets.
The method of determining net assets of the Fund 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 Trust as follows:
(a) The Subadviser is registered as an investment adviser under the
Advisers Act;
6
(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 corporation duly organized and properly
registered and operating 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;
(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;
(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
7
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 Trust have duly entered into the Advisory
Agreement pursuant to which the Trust authorized the Adviser to enter into
this Agreement.
8. Representations and Warranties of the Trust. The Trust represents and
warrants to the Adviser and the Subadviser as follows:
(a) The Trust is a business trust duly organized and validly existing
under the laws of the State of Ohio with the power to own and possess its
assets and carry on its business as it is now being conducted;
(b) The Trust 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 Trust of this
Agreement are within the Trust's powers and have been duly authorized by
all necessary action on the part of the Trust and its Board of Trustees,
and no action by or in respect of, or filing with, any governmental body,
agency or official is required on the part of the Trust for the execution,
delivery and performance by the Adviser of this Agreement, and the
execution, delivery and performance by the Trust of this Agreement do not
contravene or constitute a default under (i) any provision of applicable
law, rule or regulation, (ii) the Trust's governing instruments, or (iii)
any agreement, judgment, injunction, order, decree or other instrument
binding upon the Trust.
9. Survival of Representations and Warranties; Duty to Update
Information. All representations and warranties made by the Subadviser, the
Adviser and the Trust 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 wilful
8
misfeasance, bad faith or gross negligence on the part of the Subadviser or
a reckless disregard of its 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 for any error of judgment or mistake of law and shall not be subject
to any expenses or liability to the Adviser, any other subadviser to a
Fund, the Trust or a Fund or any of a Fund's shareholders, in connection
with the matters to which this Agreement relates. Except as set forth in
(c) below, the absence of wilful misfeasance, bad faith or gross negligence
on the part of the Adviser or a reckless disregard of its duties hereunder,
the Adviser, any of its Affiliates and each of the Adviser's Controlling
Persons, if any, shall not be subject to any liability to the Subadviser,
for any act or omission in the case of, or connected with, rendering
services hereunder or for any losses that may be sustained in the purchase,
holding or sale of Subadviser Assets; 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
Trust and each Fund, and their respective Affiliates and Controlling
Persons for any liability and expenses, including reasonable attorneys'
fees, which the Adviser, the Trust and a Fund and their respective
Affiliates and Controlling Persons may sustain as a result of the
Subadviser'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. Notwithstanding any other provision in this Agreement, the Subadviser
will indemnify the Adviser, the Trust and each Fund, and their respective
Affiliates and Controlling Persons for any liability and expenses,
including reasonable attorneys' fees, to which they may be subjected as a
result of their reliance upon and use of the historical performance
calculations provided by the Subadviser concerning the Subadviser's
composite account data or historical performance information on similarly
managed investment companies or accounts, except that the Adviser, the
Trust and the Fund, and their respective Affiliates and Controlling Persons
shall not be indemnified for a loss or expense resulting from their
negligence, willful misconduct in using such numbers, or for their failure
to conduct reasonable due diligence with respect to such information.
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 a 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
9
current information with respect to any records maintained by the Adviser
or any other subadviser to a 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 ____________, 2004, 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 Trust's Board
of Trustees or vote of the lesser of (a) 67% of the shares of the Fund
represented at a meeting if holders of more than 50% of the outstanding
shares of the Fund are present in person or by proxy or (b) more than 50%
of the outstanding shares of the Fund; provided that in either event its
continuance also is approved by a majority of the Trust's Trustees who are
not "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 Trust's Board of Trustees, or
by vote of a majority of the outstanding voting securities of the
Fund, or by the Adviser, in each case, upon at least 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 60 days' written notice to
the Adviser and the Trust.
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
10
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 a 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 a 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 any material amendment shall be approved by:
a) the Trust's Board of Trustees or by a vote of a majority of the outstanding
voting securities of the Funds (as required by the ▇▇▇▇ ▇▇▇) 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, if such approval is required by applicable law.
15. Confidentiality. Subject to the duties of the Adviser, the Trust 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:
11
(a) If to the Subadviser:
[ADDRESS
PHONE
FAX]
(b) If to the Adviser:
Gartmore Mutual Fund Capital Trust
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Legal Department
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
(c) If to the Trust:
Gartmore Mutual Funds
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Legal Department
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
17. Jurisdiction. This Agreement shall be governed by and construed to be
consistent with the Advisory Agreement and in accordance with substantive laws
of the State of Ohio without reference to choice of law principles thereof 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 and its Trustees. The terms "Gartmore Mutual
Funds" and the "Trustees of Gartmore Mutual Funds" refer respectively to the
Trust created and the Trustees,
12
as trustees but not individually or personally, acting from time to time under a
Declaration of Trust dated as of October 30, 1997, 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 Ohio and
elsewhere as required by law, and to any and all amendments thereto so filed or
hereafter filed. The obligations of the Trust entered into in the name or on
behalf thereof by any of Gartmore Mutual Funds' Trustees, representatives, or
agents are not made individually, but only in their capacities with respect to
Gartmore Mutual Funds. Such obligations are not binding upon any of the
Trustees, shareholders, or representatives of the Trust personally, but bind
only the assets of the Trust. All persons dealing with any series of Shares of
the Trust must look solely to the assets of the Trust belonging to such series
for the enforcement of any claims against the Trust.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the
day and year first written above.
TRUST
GARTMORE MUTUAL FUNDS
By:
-------------------------------
Name:
Title:
ADVISER
GARTMORE MUTUAL FUND CAPITAL TRUST
By:
-------------------------------
Name:
Title:
SUBADVISER
SSI INVESTMENT MANAGEMENT INC.
By:
-------------------------------
Name:
Title:
13
EXHIBIT A
SUBADVISORY AGREEMENT
BETWEEN GARTMORE MUTUAL FUNDS,
GARTMORE MUTUAL FUND CAPITAL TRUST and
SSI INVESTMENT MANAGEMENT INC.
Effective ______________, 2003
Fund of the Trust Subadvisory Fee Effective Date
----------------- --------------- --------------
Gartmore Long-Short Equity 1.00% on Subadviser Assets ______, 2003
Plus Fund up to $350 million
0.75% on Subadviser Assets
over $350 million
14