INVESTMENT ADVISORY AGREEMENT
THIS AGREEMENT is made and entered into as of this 2nd day of May, 2005
between GARTMORE VARIABLE INSURANCE TRUST (formerly Nationwide Separate Account
Trust) (the "Trust"), a Delaware statutory trust, and GARTMORE GLOBAL ASSET
MANAGEMENT TRUST (formerly Villanova Global Asset Management Trust) (the
"Adviser"), a Delaware statutory trust, registered under the Investment Advisers
Act of 1940, as amended (the "Advisers Act").
W I T N E S S E T H:
WHEREAS, the Trust is registered with the U.S. Securities and Exchange
Commission (the "SEC") as an open-end management investment company under the
Investment Company Act of 1940, as amended (the "1940 Act");
WHEREAS, the Trust desires to retain the Adviser to furnish certain
investment advisory services, as described herein, with respect to certain of
the series of the Trust, all as now are or may be hereafter listed on Exhibit A
to this Agreement (each, a "Fund"); and
WHEREAS, the Adviser represents that it is willing and possesses legal
authority to render such services subject to the terms and conditions set forth
in this Agreement.
NOW, THEREFORE, the Trust and the Adviser do mutually agree and promise
as follows:
1. APPOINTMENT AS ADVISER. The Trust hereby appoints the Adviser to act
as investment adviser to each Fund subject to the terms and conditions set forth
in this Agreement. The Adviser hereby accepts such appointment and agrees to
furnish the services hereinafter described for the compensation provided for in
this Agreement.
2. DUTIES OF ADVISER.
(a) INVESTMENT MANAGEMENT SERVICES. (1) Subject to the supervision of
the Trust's Board of Trustees (and except as otherwise permitted under
the terms of any exemptive relief obtained by the Adviser from the
Securities and Exchange Commission, or by rule or regulation), the
Adviser will provide, or arrange for the provision of, a continuous
investment program and overall investment strategies for each Fund,
including investment research and management with respect to all
securities and investments and cash equivalents in each Fund. The
Adviser will determine, or arrange for others to determine, from time
to time what securities and other investments will be purchased,
retained or sold by each Fund and will implement, or arrange for others
to implement, such determinations through the placement, in the name of
a Fund, of orders for the execution of portfolio transactions with or
through such Brokers or dealers as may be so selected. The Adviser will
provide, or arrange for the provision of, the services under this
Agreement in accordance with the stated investment policies and
restrictions of each Fund as set forth in that Fund's current
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 Trust's Board of Trustees.
(2) Subject to the provisions of this Agreement and the 1940
Act and any exemptions thereto, the Adviser is authorized to appoint
one or more qualified subadvisers (each a "Subadviser") to provide each
Fund with certain services required by this Agreement. Each Subadviser
shall have such investment discretion and shall make all determinations
with respect to the investment of a Fund's assets as shall be assigned
to that Subadviser by the Adviser and the purchase and sale of
portfolio securities with respect to those assets and shall take such
steps as may be necessary to implement its decisions. The Adviser shall
not be responsible or liable for the investment merits of any decision
by a Subadviser to purchase, hold, or sell a security for a Fund.
(3) Subject to the supervision and direction of the Trustees,
the Adviser shall (i) have overall supervisory responsibility for the
general management and investment of a Fund's assets; (ii) determine
the allocation of assets among the Subadvisers, if any; and (iii) have
full investment discretion to make all determinations with respect to
the investment of Fund assets not otherwise assigned to a Subadviser.
(4) The Adviser shall research and evaluate each Subadviser,
if any, including (i) performing initial due diligence on prospective
Subadvisers and monitoring each Subadviser's ongoing performance; (ii)
communicating performance expectations and evaluations to the
Subadvisers; and (iii) recommending to the Trust's Board of Trustees
whether a Subadviser's contract should be renewed, modified or
terminated. The Adviser shall also recommend changes or additions to
the Subadvisers and shall compensate the Subadvisers.
(5) The Adviser shall provide to the Trust's Board of Trustees
such periodic reports concerning a Fund's business and investments as
the Board of Trustees shall reasonably request.
(b) COMPLIANCE WITH APPLICABLE LAWS AND GOVERNING DOCUMENTS.
In the performance of its duties and obligations under this Agreement,
the Adviser shall act in conformity with the Trust's Agreement and
Declaration of Trust, as from time to time amended and/or restated, and
By-Laws, as from time to time amended and/or restated, and the
Prospectus and with the instructions and directions received from 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") (including the requirements for qualification as a
regulated investment company) and all other applicable federal and
state laws and regulations.
2
The Adviser acknowledges and agrees that subject to the
supervision and directions of the Trust's Board of Trustees, it shall
be solely responsible for compliance with all disclosure requirements
under all applicable federal and state laws and regulations relating to
the Trust or a Fund, including, without limitation, the 1940 Act, and
the rules and regulations thereunder, except that each Subadviser shall
have liability in connection with information furnished by the
Subadviser to a Fund or to the Adviser.
(c) CONSISTENT STANDARDS. It is recognized that the Adviser
will perform various investment management and administrative services
for entities other than the Trust and the Funds; in connection with
providing such services, the Adviser agrees to exercise the same skill
and care in performing its services under this Agreement as the Adviser
exercises in performing similar services with respect to the other
fiduciary accounts for which the Adviser has investment
responsibilities.
(d) BROKERAGE. The Adviser is authorized, subject to the
supervision of the Trust's Board of Trustees, (1) to establish and
maintain accounts on behalf of each Fund with, and to place orders for
the purchase and sale of assets not allocated to a Subadviser, with or
through, such persons, brokers or dealers ("Brokers") as Adviser may
select; and (2) to negotiate commissions to be paid on such
transactions. In the selection of such Brokers and the placing of such
orders, the Adviser shall seek to obtain for a 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
Adviser, bearing in mind the Fund's best interests at all times, shall
consider all factors it deems relevant, including price, the size of
the transaction, the nature of the market for the security, 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, the 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 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, as amended) to the Adviser 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 Adviser
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 responsibilities of the Adviser with respect
to the accounts as to which it exercises investment discretion.
3
It is recognized that the services provided by such Brokers
may be useful to the Adviser in connection with the Adviser's services
to other clients. On occasions when the Adviser deems the purchase or
sale of a security to be in the best interests of a Fund as well as
other clients of the Adviser, the Adviser, 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 Adviser in the manner the Adviser considers to be the most
equitable and consistent with its fiduciary obligations to each Fund
and to such other clients.
(e) SECURITIES TRANSACTIONS. The Adviser will not purchase
securities or other instruments from or sell securities or other
instruments to a Fund; PROVIDED, HOWEVER, the Adviser may purchase
securities or other instruments from or sell securities or other
instruments to a 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 or any exemption therefrom.
The Adviser agrees to observe and comply with Rule 17j-1 under
the 1940 Act and the Trust's Code of Ethics, as the same may be amended
from time to time.
(f) BOOKS AND RECORDS. In accordance with the 1940 Act and the
rules and regulations promulgated thereunder, the Adviser shall
maintain separate books and detailed records of all matters pertaining
to the Funds and the Trust (the "Fund's Books and Records"), including,
without limitation, a daily ledger of such assets and liabilities
relating thereto and brokerage and other records of all securities
transactions. The Adviser acknowledges that the Fund's Books and
Records are property of the Trust. In addition, the Fund's Books and
Records shall be available to the Trust at any time upon request and
shall be available for telecopying without delay to the Trust during
any day that the Funds are open for business.
3. EXPENSES. During the term of this Agreement, the Adviser 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 Adviser 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 Adviser shall
be responsible for the expenses and costs for the officers of the Trust and the
Trustees of the Trust who are "interested persons" (as defined in the 0000 Xxx)
of the Adviser.
4
It is understood that the Trust will pay all of its own expenses
including, without limitation, (1) all charges and expenses of any custodian or
depository appointed by the Trust for the safekeeping of its cash, securities
and other assets, (2) all charges and expenses paid to an administrator
appointed by the Trust to provide administrative or compliance services, (3) the
charges and expenses of any transfer agents and registrars appointed by the
Trust, (4) the charges and expenses of independent certified public accountants
and of general ledger accounting and internal reporting services for the Trust,
(5) the charges and expenses of dividend and capital gain distributions, (6) the
compensation and expenses of Trustees of the Trust who are not "interested
persons" of the Adviser, (7) brokerage commissions and issue and transfer taxes
chargeable to the Trust in connection with securities transactions to which the
Trust is a party, (8) all taxes and fees payable by the Trust to Federal, State
or other governmental agencies, (9) the cost of stock certificates representing
shares of the Trust, (10) all expenses of shareholders' and Trustees' meetings
and of preparing, printing and distributing prospectuses and reports to
shareholders, (11) charges and expenses of legal counsel for the Trust in
connection with legal matters relating to the Trust, including without
limitation, legal services rendered in connection with the Trust's existence,
financial structure and relations with its shareholders, (12) insurance and
bonding premiums, (13) association membership dues, (14) bookkeeping and the
costs of calculating the net asset value of shares of the Trust's Funds, and
(15) expenses relating to the issuance, registration and qualification of the
Trust's shares.
4. COMPENSATION. For the services provided and the expenses assumed
with respect to a Fund pursuant to this Agreement, the Adviser will be entitled
to the fee listed for each Fund on Exhibit A. Such fees will be computed daily
and payable monthly at an annual rate based on a Fund's average daily net
assets.
The method of determining net assets of a 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
each 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.
Notwithstanding any other provision of this Agreement, the Adviser may
from time to time agree not to impose all or a portion of its fee otherwise
payable hereunder (in advance of the time such fee or portion thereof would
otherwise accrue). Any such fee reduction may be discontinued or modified by the
Adviser at any time.
5. REPRESENTATIONS AND WARRANTIES OF ADVISER. The Adviser represents
and warrants to the Trust as follows:
(a) The Adviser is registered as an investment adviser under
the Advisers Act;
5
(b) The Adviser is a statutory trust duly organized, validly
existing and in good standing under the laws of the State of Delaware
with the power to own and possess its assets and carry on its business
as it is now being conducted;
(c) The execution, delivery and performance by the 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
and/or 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 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;
(d) The Form ADV of the Adviser previously provided to the
Trust is a true and complete copy of the form, including that part or
parts of the Form ADV filed with the SEC, that part or parts maintained
in the records of the Adviser, and/or that part or parts provided or
offered to clients, in each case as required under the Advisers Act and
rules thereunder, and the information contained in such Form ADVis
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.
6. SURVIVAL OF REPRESENTATIONS AND WARRANTIES; DUTY TO UPDATE
INFORMATION. All representations and warranties made by the Adviser pursuant to
Section 5 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.
7. LIABILITY AND INDEMNIFICATION.
(a) LIABILITY. In the absence of willful misfeasance, bad
faith or gross negligence on the part of the Adviser or a reckless
disregard of its duties hereunder, the Adviser shall not be subject to
any liability to a Fund or the Trust, 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 Fund
assets; PROVIDED, HOWEVER, that nothing herein shall relieve the
Adviser from any of its obligations under applicable law, including,
without limitation, the federal and state securities laws.
(b) INDEMNIFICATION. The Adviser shall indemnify the Trust and
its officers and trustees, for any liability and expenses, including
attorneys fees, which may be sustained as a result of the Adviser'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.
6
8. DURATION AND TERMINATION.
(a) DURATION. Unless sooner terminated, this Agreement shall
continue until February 27, 2006 with respect to any Fund covered by
this Agreement initially and, for any Fund subsequently added to this
Agreement, an initial period of no more than two years that terminates
on the second February 27th that occurs following the effective date of
this Agreement with respect to such Fund, and thereafter shall continue
automatically for successive annual periods; provided that such
continuance is specifically approved at least annually by the Trust's
Board of Trustees or the vote of the lesser of (a) 67% of the shares of
a 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; and provided
further 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 0000 Xxx) 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 by vote of a majority of the Trust's
Board of Trustees, or, with respect to a Fund, by "vote of a majority
of the outstanding voting securities" (as defined in the 0000 Xxx) of
that Fund, or by the Adviser, in each case, not less than sixty (60)
days' written notice to the other party.
This Agreement shall not be assigned (as such term is defined in the
0000 Xxx) and shall terminate automatically in the event of its assignment.
9. SERVICES NOT EXCLUSIVE. The services furnished by the Adviser
hereunder are not to be deemed exclusive, and the Adviser shall be free to
furnish similar services to others so long as its services under this Agreement
are not impaired thereby. It is understood that the action taken by the Adviser
under this Agreement may differ from the advice given or the timing or nature of
action taken with respect to other clients of the Adviser, and that a
transaction in a specific security may not be accomplished for all clients of
the Adviser at the same time or at the same price.
10. AMENDMENT. This Agreement may be amended by mutual consent of the
parties, provided that the terms of each such amendment shall be approved by the
Trust's Board of Trustees or by a vote of a majority of the outstanding voting
securities of a Fund (as required by the 1940 Act).
11. CONFIDENTIALITY. Subject to the duties of the Adviser and the Trust
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 a Fund and the Trust and the actions of the
Adviser and the Funds in respect thereof.
7
12. 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 party, 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 Adviser:
Gartmore Global Asset Management Trust
0000 Xxxxx Xxxx - Xxxxx 0000
Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000
Attention: Legal Department
Facsimile: (000) 000-0000
(b) If to the Trust:
Gartmore Variable Insurance Trust
0000 Xxxxx Xxxx - Xxxxx 0000
Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000
Attention: Legal Department
Facsimile: (000) 000-0000
13. JURISDICTION. This Agreement shall be governed by and construed to
be in accordance with substantive laws of the State of Delaware 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.
14. COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, and all of which shall
together constitute one and the same instrument.
15. CERTAIN DEFINITIONS. For the purposes of this Agreement,
"interested person," "affiliated person," "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.
16. CAPTIONS. The captions herein are included for convenience of
reference only and shall be ignored in the construction or interpretation
hereof.
17. 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.
18. GARTMORE VARIABLE INSURANCE TRUST AND ITS TRUSTEES. The terms
"Gartmore Variable Insurance Trust" and the "Trustees of Gartmore Variable
Insurance Trust" refer respectively to the Trust created and the Trustees, as
8
trustees but not individually or personally, acting from time to time under an
Agreement and Declaration of Trust dated as of September 30, 2004, as has been
or may be amended from time to time, and to which reference is hereby made.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on
the day and year first written above.
ADVISER:
GARTMORE GLOBAL ASSET
MANAGEMENT TRUST
By:
---------------------
Name:
---------------------
Title:
---------------------
TRUST:
GARTMORE VARIABLE INSURANCE
TRUST
By:
---------------------
Name:
---------------------
Title:
---------------------
9
EXHIBIT A
INVESTMENT ADVISORY AGREEMENT
BETWEEN
GARTMORE VARIABLE INSURANCE TRUST
(FORMERLY NATIONWIDE SEPARATE ACCOUNT TRUST)
AND
GARTMORE GLOBAL ASSET MANAGEMENT TRUST
(FORMERLY VILLANOVA GLOBAL ASSET MANAGEMENT TRUST)
FUNDS OF THE TRUST ADVISORY FEES EFFECTIVE DATE
------------------ ------------- --------------
Gartmore GVIT Emerging Markets Fund1* 1.15% on assets up to $500 million May 2, 2005
1.10% on assets of $500 million and more
but less than $2 billion
1.05% for assets of $2 billion and more
Gartmore GVIT International Growth Fund1* 1.00% on assets up to $500 million May 2, 2005
0.95% on assets of $500 million and more
but less than $2 billion
0.90% for assets of $2 billion and more
Gartmore GVIT European Leaders Fund 1.00% of the Fund's average Not Seeded
daily net assets
Gartmore GVIT Global Small Companies Fund 1.15% of the Fund's average Not Seeded
daily net assets
Gartmore GVIT OTC Fund 1.00% of the Fund's average Not Seeded
daily net assets
Gartmore GVIT Asia Pacific Leaders Fund 1.00% of the Fund's average Not Seeded
daily net assets
Gartmore GVIT Global Financial 1.00% on May 2, 2005
Services Fund1* assets up to $500 million
0.95% on assets of $500
million and more but less
than $2 billion
0.90% for assets of $2 billion and
more
Gartmore GVIT Global Utilities Fund1* 0.80% on assets up to $500 million May 2, 2005
0.75% on assets of $500 million and
more but less than $2 billion
0.70% for assets of $2 billion and more
Gartmore GVIT Developing Markets Fund1* 1.15% on assets up to $500 million May 2, 2005
1.10% on assets of $500 million or more
but less than $2 billion
1.05% for assets of $2 billion and more
10
* Upon effectiveness and implementation of the performance fee structure
referenced below, the base management fee for each of these funds will be
reduced by 10 basis points at each breakpoint in the schedule.
1Performance fees for the Gartmore GVIT Emerging Markets, Gartmore GVIT
Developing Markets, Gartmore GVIT International Growth, Gartmore GVIT Global
Financial Services and Gartmore GVIT Global Utilities Funds. (This performance
fee structure will be implemented upon SEC approval and effectiveness of the
Registration Statement disclosing such fees.)
The base advisory fee for these Funds as set forth above is adjusted each
quarter beginning one year after implementation of the Performance Fee,
depending upon a Fund's investment performance for the 12 months preceding the
end of that month relative to the investment performance of each respective
Fund's benchmark as listed below. The base fee is either increased or decreased
proportionately by the following amounts at each breakpoint, based upon whether
a Fund has out-performed or under-performed its respective benchmark (using the
performance of each such Fund's Class III Shares to measure), by more or less
than a maximum of 500 basis points over the preceding rolling 12 month period as
follows:
+/- 100 bps under/outperformance +/- 2bps
+/- 200 bps under/outperformance +/- 4bps
+/- 300 bps under/outperformance +/- 6bps
+/- 400 bps under/outperformance +/- 8bps
+/- 500 bps or more under/outperformance +/- 10bps
The investment performance of each Fund will be the sum of: (1) the change in
each Fund's value during such period; (2) the value of the Fund's cash
distributions (from net income and realized net gains) having an ex-dividend
date during such calculation period; and (3) the value of any capital gains
taxes paid or accrued during such calculation period for undistributed realized
long-term capital gains from the Fund. For this purpose, the value of
distributions per share of realized capital gains, of dividends per share paid
from investment income and of capital gains taxes per share reinvested in the
Fund will be the Fund's value in effect at the close of business on the record
date for the payment of such distributions and the date on which provision is
made for such taxes, after giving effect to such distribution, dividends and
taxes.
BENCHMARK INDEX PERFORMANCE:
The performance of each respective benchmark Index for a calculation
period, expressed as a percentage of each Index, at the beginning of such period
will be the sum of: (1) the change in the level of the Index during such period;
and (2) the value, as calculated consistent with the Index, of cash
distributions having an ex-dividend date during such period made by those
companies whose securities comprise the Index. For this purpose, cash
distributions on the securities that comprise the Index will be treated as if
they were reinvested in the Index at least as frequently as the end of each
calendar quarter following payment of the dividend.
BENCHMARK INDICES:
1. Gartmore GVIT Emerging Markets Fund MSCI Emerging Markets Index
2. Gartmore GVIT International Growth Fund MSCI All Country World Free ex U.S. Index
3. Gartmore GVIT Global Financial Services Fund MSCI World Financial Index
4. Gartmore GVIT Global Utilities Fund 60% MSCI World Telecom Services Index/40% MSCI
World Utilities Service Index
5. Gartmore GVIT Developing Markets Fund MSCI Emerging Markets Index
11
