Exhibit 23 (d)(3)(a)
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INVESTMENT ADVISORY AGREEMENT
THIS AGREEMENT is made and entered into on this 30th day of August, 2000
between NATIONWIDE MUTUAL FUNDS (the "Trust"), an Ohio business trust, and
VILLANOVA GLOBAL ASSET MANAGEMENT TRUST (the "Adviser"), a Delaware business
trust registered under the Investment Advisers Act of 1940 (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 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 Declaration of Trust and By-Laws
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.
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, to establish and maintain accounts on behalf of
each Fund with, and 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 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) 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.
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 Trust who are "interested
persons" (as defined in the 0000 Xxx) of the Adviser.
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;
(b) The Adviser is a business 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 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.
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.
8. Duration and Termination.
(a) Duration. Unless sooner terminated, this Agreement shall continue
until August 31, 2002 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, provided 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; 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
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 by vote of a majority of the outstanding voting
securities of a 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.
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:
Villanova Global Asset Management Trust
0000 Xxxxx Xxxx
Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000
Attention: Legal Department.
Facsimile: (000) 000-0000
(b) If to the Trust:
Nationwide Mutual Funds
Three Xxxxxxxxxx Xxxxx
Xxxxxxxx, XX 00000
Attention: Xxxxx X. Xxxxx, Xx.
13. Jurisdiction. This Agreement shall be governed by and construed to be 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.
14. 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.
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. Nationwide Mutual Funds and its Trustees. The terms "Nationwide Mutual
Funds" and the "Trustees of Nationwide Mutual Funds" refer respectively to
the Trust created and the Trustees, 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 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 Nationwide Mutual Fund's Trustees, representatives, or agents are
not made individually, but only in their capacities with respect to
Nationwide 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.
ADVISER
VILLANOVA GLOBAL ASSET MANAGEMENT TRUST
By: /s/ Xxxxx X. Xxxxx
Name: Xxxxx X. Xxxxx
Title:
TRUST
NATIONWIDE MUTUAL FUNDS
By: /s/ Xxxxx X. Xxxxxxx
Name: Xxxxx X. Xxxxxxx
Title: Assistant Treasurer
EXHIBIT A
NATIONWIDE MUTUAL FUNDS
Investment Advisory Agreement
Funds of the Trust Advisory Fees
Gartmore International Growth Fund 1.00% of the Fund's average daily
net assets
Gartmore European Growth Fund 1.00% of the Fund's average daily net
Assets
Gartmore Global Leaders Fund 1.00% of the Fund's average daily net
assets
Gartmore Emerging Markets Fund 1.15% of the Fund's average daily net
assets
Gartmore Global Small Companies Fund 1.15% of the Fund's average daily net
assets
Dated as of August 30, 2000.
ADVISER
VILLANOVA GLOBAL ASSET MANAGEMENT TRUST
By: /s/ Xxxxx X. Xxxxx
Name: Xxxxx X. Xxxxx
Title:
TRUST
NATIONWIDE MUTUAL FUNDS
By: /s/ Xxxxx X. Xxxxxxx
Name: Xxxxx X. Xxxxxxx
Title: Assistant Treasurer
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