SUBADVISORY AGREEMENT
Exhibit 23(d)(2)(v)
THIS SUBADVISORY AGREEMENT (“Agreement”) is made and entered into as of the 1st day of
January, 2008, among NATIONWIDE VARIABLE INSURANCE TRUST (formerly Gartmore Variable Insurance
Trust) (the “Trust”), a Delaware statutory trust, NATIONWIDE FUND ADVISORS (formerly
Gartmore Mutual Fund Capital Trust) (the “Adviser”), a Delaware business trust registered
under the Investment Advisers Act of 1940 (the “Advisers Act”), and NATIONWIDE ASSET
MANAGEMENT, LLC, an Ohio limited liability company (the “Subadviser”), and also registered
under the Advisers Act.
WITNESSETH:
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 Adviser has, pursuant to an Investment Advisory Agreement with the Trust dated as
of May 1, 2007 (the “Advisory Agreement”), 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 now
acts, 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 each Fund as set forth
in that 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 continual program of investment,
evaluation and, if appropriate, sale and reinvestment of each fund’s Subadviser Assets. The
Adviser agrees to provide the Subadviser with such assistance as may be reasonably requested
by the Subadviser in connection with its activities under this Agreement, including, without
limitation, information concerning each Fund, its funds available, or to become available,
for investment and generally as to the conditions of the Fund’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 Prospectus and the Trust’s Agreement and Declaration of Trust and
By-Laws as currently in effect and, as soon as practical after the Trust, the Fund or the
Adviser notifies the Subadviser thereof, as supplemented, amended and/or restated from time
to time (referred to hereinafter as the “Declaration of Trust” and
“By-Laws,” respectively) 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 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, 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 a 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 by the Subadviser to a Fund 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, a Fund as may be required to be contained in the Prospectus or in the Trust’s
registration statement on Form N-1 A.
(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 or the Fund
or take any action with respect thereto. If both the Subadviser and another entity
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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.
The Subadviser will establish a written procedure for proxy voting in compliance with
current applicable rules and regulations, including but not limited to Rule 30b1-4 under the
1940 Act. The Subadviser will provide the Adviser or its designee, a copy of such procedure
and establish a process for the timely distribution of the Subadviser’s voting record with
respect to the Fund’s securities and other information necessary for the Fund to complete
information required by Form N-1A under the 1940 Act and the Securities Act of 1933, as
amended (the “Securities Act”), Form N-PX under the 1940 Act, and Form N-CSR under
the Xxxxxxxx-Xxxxx Act of 2002, as amended, respectively.
(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
the Fund with, and place orders for the purchase and sale of the Subadviser Assets with or
through, such persons, brokers or dealers (collectively, “Broker(s)”) 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 such Fund’s best interests at all times, shall consider all
factors it deems relevant, including price, the size of the transaction, the breadth and
nature of the market for the security, the difficulty of the execution, the amount of the
commission, if any, the timing of the transaction, market prices and trends, the reputation,
experience and financial stability of the Broker involved, and the quality of service
rendered by the broker in other transactions. Subject to such policies as the 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
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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 and its affiliates with respect to the accounts as to which it and its
affiliates exercise investment discretion.
It is recognized that the services provided by such Brokers may be useful to the
Subadviser in connection with the Subadviser’s and its affiliates’ 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 and its affiliates,
the Subadviser, to the extent permitted by applicable laws and regulations, may, but shall
be under no obligation to, aggregate the securities to be sold or purchased in order to
obtain the most favorable price or lower brokerage commissions and efficient execution. In
such event, allocation of securities so sold or purchased, as well as the expenses incurred
in the transaction, will be made by the Subadviser in the manner the Subadviser considers to
be the most equitable and consistent with its fiduciary obligations to the Fund and to such
other clients. It is recognized that in some cases, this procedure may adversely affect the
price paid or received by the Fund or the size of the position obtainable for, or disposed
of by, the Fund.
(f) Securities Transactions. The Subadviser and any affiliated person of the
Subadviser will not purchase securities or other instruments from or sell securities or
other instruments to a Fund; provided, however, the Subadviser and any affiliated person of
the Subadviser 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 or orders, 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 the Subadviser’s 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 a quarterly basis, the Subadviser will either (i) certify 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) identify any violations which
have occurred with respect to the Subadviser Assets.
(g) Books and Records. The Subadviser shall maintain separate detailed records
of all matters pertaining to management of the Trust (the “Subadviser’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. The
Subadviser’s Records 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. The Subadviser shall not be
responsible for the provision of administrative, bookkeeping or accounting services to the
Trust. The Adviser hereby acknowledges that the Subadviser is not responsible for pricing
portfolio securities, and that the Adviser, the Trust and the Subadviser will rely on the
pricing agent chosen by the Board of Trustees for the prices of securities; provided,
however, that to the extent that such pricing agents are unable to
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provide prices for certain securities, the Subadviser will assist the Adviser in
obtaining a price for such securities.
(h) Information Concerning Subadviser Assets and Subadviser. From time to time
as the Adviser or a Fund 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 a Fund 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.
The Subadviser will maintain compliance procedures for each Fund that it believes is
adequate to ensure each Fund’s compliance, and will provide such information as may be
required for a Fund or the Adviser to comply with their respective obligations, under
applicable laws, including, without limitation, the Code, the 1940 Act, the Advisers Act,
the Securities Act and any state securities laws, 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 in such form as may be mutually agreed upon 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 a Fund, the Trust
or the Adviser in any way or otherwise be deemed an agent of a 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, a Fund’s or Adviser’s expenses, including any extraordinary and non-recurring
expenses. The Trust or the Adviser, as the case may be, shall reimburse the Subadviser for any
expenses of a Fund or the Adviser as may be reasonably incurred by such Subadviser on behalf of
such Fund or the Adviser, including any extraordinary and non-recurring expenses. The Subadviser
shall keep and supply to the Trust and the Adviser reasonable records of all such expenses.
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5. Compensation. For the services provided and the expenses assumed with respect to
the Fund pursuant to this Agreement, the Subadviser will be entitled to the fee listed for 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 asset value of the Subadviser Assets for purposes hereof shall be the
same as the method of determining net asset value for purposes of establishing the offering and
redemption price of the shares of the Trust 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 Fund as follows:
(a) The Subadviser is registered as an investment adviser under the Advisers Act;
(b) The Subadviser has filed a notice of exemption pursuant to Rule 4.14 under the
Commodity Exchange Act, as amended (the “CEA”), with the Commodity Futures Trading
Commission (the “CFTC”) and the National Futures Association (the “NFA”), or
is not required to file such exemption;
(c) The Subadviser is a limited liability company, 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;
(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 on the
part of its Board of Managers, and no action by, or in respect of or filing with, any
governmental body, agency or official is required on the part of the Subadviser for the
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;
(e) The Form ADV of the Subadviser provided to the Adviser 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 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. In addition, the
Subadviser agrees to promptly provide the Trust with updates of its Form ADV.
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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 NFA 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 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;
(e) The Form ADV of the Adviser provided to the Subadviser and 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 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 statutory trust duly formed 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;
(b) The Trust is registered as an investment company under the 1940 Act and the Fund’s
shares are registered under the Securities Act;
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(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 o f; 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; and
(d) The Trust acknowledges that it received a copy of the Subadviser’s Form ADV prior
to execution of this Agreement.
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. In the absence of willful 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 members, officers, directors,
managers and employees (“Affiliates”) and each person, if any, who within the
meaning of the Securities Act controls the Subadviser (“Controlling Persons”) shall
not be subject to any expenses or liability to the Adviser, the Trust or a Fund or any of a
Fund’s shareholders. 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, 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 and the Trust,
and their respective Affiliates and Controlling Persons for any liability and expenses,
including reasonable attorneys’ fees, which the Adviser and the Trust and their respective
Affiliates and Controlling Persons may sustain as a result of the Subadviser’s willful
misfeasance, bad faith, gross negligence, reckless disregard of its duties hereunder or
violation of applicable law, including, without limitation, the federal and state securities
laws or the CEA. Subject to the above standard of care, the Subadviser will indemnify the
Adviser and the Trust, 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 the Subadviser providing inaccurate historical performance calculations
concerning the Subadviser’s composite account data or
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historical performance information on similarly managed investment companies or
accounts, except that the Adviser and the Trust and their respective Affiliates and
Controlling Persons shall not be indemnified for any liability or expense resulting from
their negligence or willful misconduct in using 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 willful misfeasance, bad faith, gross negligence, reckless
disregard of its duties hereunder or violation of applicable law, including, without
limitation, the federal and state securities laws or the CEA.
11. Duration and Termination.
(a) Duration. Unless sooner terminated, this Agreement shall continue until
May 1, 2009, 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 May 1st that occurs following the effective date of this
Agreement with respect to such Fund, and thereafter shall continue automatically for
successive annual periods with respect to each of the Funds, 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 a Fund represented at a meeting if holders of more than
50% of the outstanding shares of a Fund are present in person or by proxy or (b) more than
50% of the outstanding shares of a 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:
(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 (as defined in the
1940 Act), 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.
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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 or upon the termination of the
Advisory Agreement.
12. Duties of the Adviser. The Adviser shall continue to have responsibility for all
services to be provided to the Fund pursuant to the Advisory Agreement and shall oversee and review
the Subadviser’s performance of its duties under this Agreement. Nothing contained in this
Agreement shall obligate the Adviser to provide any funding or other support for the purpose of
directly or indirectly promoting investments in each Fund.
13. Reference to Subadviser. Neither the Adviser nor any Affiliate or agent of the
Adviser 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 Subadviser to
a Fund, which references shall not differ in substance from those included in the Fund’s 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.
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 Fund (as required
by the 1940 Act), 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 Funds 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 Funds and the actions of the Subadviser, the Adviser and the Funds in respect
thereof.
16. Notice. Any notice that is required to be given by the parties to each other
under the terms of this Agreement shall be in writing, delivered, or mailed postpaid to the other
parties, or transmitted by facsimile with acknowledgment of receipt, to the parties at the
following addresses or facsimile numbers, which may from time to time be changed by the parties by
notice to the other party:
(a) If to the Subadviser:
Nationwide Asset Management, LLC
Xxx Xxxxxxxxxx Xxxxx
Xxxxxxxx, XX 00000
Attn: President
Facsimile: (000) 000-0000
Xxx Xxxxxxxxxx Xxxxx
Xxxxxxxx, XX 00000
Attn: President
Facsimile: (000) 000-0000
With a copy to:
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Nationwide Mutual Insurance Company
Xxx Xxxxxxxxxx Xxxxx
Xxxxxxxx, XX 00000
Attn: Office of General Counsel/Investments
Facsimile: (000) 000-0000
Xxx Xxxxxxxxxx Xxxxx
Xxxxxxxx, XX 00000
Attn: Office of General Counsel/Investments
Facsimile: (000) 000-0000
(b) If to the Adviser:
Nationwide Fund Advisors
0000 Xxxxx Xxxx — Xxxxx 0000
Xxxxxxxxxxxx, XX 00000
Attention: Legal Department
Facsimile: (000) 000-0000
0000 Xxxxx Xxxx — Xxxxx 0000
Xxxxxxxxxxxx, XX 00000
Attention: Legal Department
Facsimile: (000) 000-0000
(c) If to the Trust:
Nationwide Variable Insurance Trust
0000 Xxxxx Xxxx — Xxxxx 0000
Xxxxxxxxxxxx, XX 00000
Attention: Legal Department
Facsimile: (000) 000-0000
0000 Xxxxx Xxxx — Xxxxx 0000
Xxxxxxxxxxxx, XX 00000
Attention: Legal Department
Facsimile: (000) 000-0000
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 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.
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. Nationwide Variable Insurance Trust and its Trustees. The terms “Nationwide
Variable Insurance Trust” and the “Trustees of Nationwide Variable Insurance Trust”
refer respectively to the Trust created and the Trustees, as trustees but not individually or
personally,
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acting from time to time under the Declaration of Trust made and 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.
| TRUST NATIONWIDE VARIABLE INSURANCE TRUST |
||||
| By: | /s/ Xxxx X. Xxxxx | |||
| Name: | Xxxx X. Xxxxx | |||
| Title: | President | |||
| ADVISER NATIONWIDE FUND ADVISORS |
||||
| By: | /s/ Xxxx X. Xxxxx | |||
| Name: | Xxxx X. Xxxxx | |||
| Title: | President | |||
| SUBADVISER NATIONWIDE ASSET MANAGEMENT, LLC |
||||
| By: | /s/ Xxxx X. Xxxxxx | |||
| Name: | Xxxx X. Xxxxxx | |||
| Title: | President | |||
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EXHIBIT A
SUBADVISORY AGREEMENT
BY AND AMONG
NATIONWIDE VARIABLE INSURANCE TRUST,
NATIONWIDE FUND ADVISORS
and
NATIONWIDE ASSET MANAGEMENT, LLC
SUBADVISORY AGREEMENT
BY AND AMONG
NATIONWIDE VARIABLE INSURANCE TRUST,
NATIONWIDE FUND ADVISORS
and
NATIONWIDE ASSET MANAGEMENT, LLC
Effective January 1, 2008*
| Funds of the Trust | Advisory Fees — through December31, 2008 | Advisory Fees — commencing January 1,2009 | ||
Nationwide NVIT
|
0.15% on assets up to $250 million | 0.175% on assets up to $250 | ||
Government Bond
|
0.125% on assets of $250 million | million | ||
Fund
|
and more | 0.15% on assets of $250 million | ||
| but less than $1 billion | and more | |||
| 0.10% on assets of $1 billion and | but less than $1 billion | |||
| more | 0.125% on assets of $1 billion and more | |||
Nationwide NVIT Money Market Fund |
0.04% on all assets | 0.05% on all assets | ||
Nationwide NVIT Money Market Fund II |
0.04% on all assets | 0.05% on all assets |
| * | As most recently approved at the September 13, 2007 Board meeting. |
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EXHIBIT B
SUBADVISORY AGREEMENT AMONG
NATIONWIDE VARIABLE INSURANCE TRUST,
NATIONWIDE FUND ADVISORS and
NATIONWIDE ASSET MANAGEMENT, LLC
Effective January 1, 2008
SUBADVISORY AGREEMENT AMONG
NATIONWIDE VARIABLE INSURANCE TRUST,
NATIONWIDE FUND ADVISORS and
NATIONWIDE ASSET MANAGEMENT, LLC
Effective January 1, 2008
In connection with securities transactions for a Fund, the Subadviser that is (or whose
affiliated person is) entering into the transaction, and any other investment manager that is
advising an affiliate of the Fund (or portion of the Fund) (collectively, the “Managers”
for the purposes of this Exhibit) entering into the transaction are prohibited from consulting with
each other concerning transactions for the Fund in securities or other assets and, if both Managers
are responsible for providing investment advice to the Fund, the Manager’s responsibility in
providing advice is expressly limited to a discrete portion of the Fund’s portfolio that it
manages.
This prohibition does not apply to communications by the Adviser in connection with the
Adviser’s (i) overall supervisory responsibility for the general management and investment of the
Fund’s assets; (ii) determination of the allocation of assets among the Manager(s), if any; and
(iii) investment discretion with respect to the investment of Fund assets not otherwise assigned to
a Manager. This prohibition also does not apply to communications or disclosures required by
applicable law or necessary in order to comply (or ensure compliance) with applicable law.
