SUBADVISORY AGREEMENT
Exhibit 23(d)(2)(w)
THIS AGREEMENT is made and entered into effective the 24th day of March, 2008, by and among
NATIONWIDE VARIABLE INSURANCE TRUST (the “Trust”), a Delaware statutory trust, NATIONWIDE FUND
ADVISORS (the “Adviser”) a Delaware business trust registered under the Investment Advisers Act of
1940, as amended (the “Advisers Act”), and RIVERSOURCE INVESTMENTS, LLC, a limited liability
company under the laws of the State of Minnesota (the “Subadviser”), and also registered under 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 Adviser has, pursuant to an Investment Advisory Agreement with the Trust dated of
the 1st day of May, 2007 (the “Advisory Agreement”), been retained to act as investment adviser for
certain of the series of the Trust that are listed on Exhibit A to this Agreement (each, a “Fund”);
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;
WHEREAS, the Trust and the Adviser each represent that 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 each Fund’s assets that the Adviser will assign
to the Subadviser, 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 with respect to each
Fund:
1. Appointment as Subadviser. The Adviser hereby appoints the Subadviser to act as investment
adviser for and to manage that portion or all of the assets of the Fund that the Adviser from time
to time upon reasonable prior notice allocates to, and puts under the control of, the Subadviser
(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. The Subadviser hereby accepts such
appointment and, in such capacity, agrees to 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 cannot
object 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
soon as practical after the Trust, the Fund or the Adviser notifies the Subadviser thereof,
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 monitor on a continuous basis the performance of the Subadviser Assets and to
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, providing
information concerning the Fund, its funds available or to become available for investment,
and generally as to the conditions of the Fund’s or the Trust’s affairs.
(b) Compliance with Applicable Laws and Governing Documents. In the performance of its
services 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. Without limiting the preceding sentence, the Adviser promptly shall notify the
Subadviser as to any act or omission of the Subadviser hereunder that the Adviser reasonably
deems to constitute or to be the basis of any noncompliance or nonconformance with any of
the Trust’s Declaration of Trust and By-Laws and the Prospectus, the instructions and
directions received in writing from the Adviser or the Trustees of the Trust or the 1940
Act, the Code, and all other applicable federal and state laws and regulations.
Notwithstanding the foregoing, the Adviser shall remain responsible for ensuring the Fund’s
and the Trust’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 timely 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 the Fund or the services of the Subadviser, copies of
any financial statements or reports made by the 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 at least ten (10) business
days prior to a calendar quarter end if the Subadviser Assets are out of
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compliance with the diversification requirements under either Subchapter M or Section
817(h). If the Adviser notifies the Subadviser that the Subadviser Assets are not in
compliance with such requirements noted above, the Subadviser will take prompt action to
bring the Subadviser Assets back into compliance within the time permitted under the Code
thereunder.
The Adviser will provide the Subadviser with reasonable advance notice of any change in
the 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 that 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 will ensure 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 when requested in writing by the Adviser (or
without request upon the occurrence of any event that materially alters the accuracy of
information previously provided by the Subadviser) 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 Adviser hereby delegates to the Subadviser the Adviser’s
discretionary authority to exercise voting rights with respect to the securities and other
investments in the Subadviser Assets and authorizes the Subadviser to delegate further such
discretionary authority to a designee identified in a notice given to the Trust and the
Adviser. The Subadviser, including without limitation its designee (for which the
Subadviser shall remain liable), 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 the Fund have invested the Fund’s assets in the same security, the Subadviser and
such other entity will each have the power to vote its pro rata share of the Fund’s
security. The Subadviser shall not be responsible for any other corporate actions relating
to the Fund, including administrative filings, such as proofs of claims or claims in class
actions, but will promptly forward any materials related to such actions received by the
Subadviser to the Adviser.
The Subadviser will establish a written procedure for proxy voting in compliance with
Rule 206(4)-6 under the Advisers 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
required to be maintained by the Subadviser under Rule 204-2(c)(2) under
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the Advisers Act 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 plenary authority of the Trust’s Board of Trustees, to establish and maintain
accounts on behalf of the Fund with, and place orders for the investment and reinvestment,
including without limitation 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 (collectively “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 the 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 each 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 the Fund the most favorable price and execution available, the Subadviser,
bearing in mind the best interests of the Fund 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. Notwithstanding the foregoing, neither the Trust, the Fund
nor the Adviser shall instruct the Subadviser to place orders with any particular Broker(s)
with respect to the Subadviser Assets. Subject to such policies as the Trustees may
determine, or as may be mutually agreed to by the Adviser and the Subadviser, the Subadviser
is authorized but not obligated to cause, and shall not be deemed to have acted unlawfully
or to have breached any duty created by this Agreement or otherwise solely by reason of its
having caused, the Fund to pay a Broker 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 Subadviser Assets’ 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 viewed in terms of either that particular transaction or
the overall responsibility of the Subadviser with
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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 the Fund with respect to the Subadviser Assets 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 the Fund or the size of the position
obtainable for, or disposed of by, the Fund with respect to the Subadviser Assets. The
Subadviser shall not be responsible for any loss caused by any act or omission of any
broker-dealer unless the Subadviser’s selection of the relevant broker-dealer constitutes a
breach of the standard of care set forth in Section 10 of this Agreement.
(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 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, on its own behalf and with respect to 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: (i) describe for the Adviser any issues arising under the Subadviser’s Code of Ethics
since the last report to the Adviser, including, but not limited to, information about
material violations of its Code of Ethics and sanctions imposed in response to the material
violations; and (ii) certify that the Subadviser has adopted procedures reasonably necessary
to prevent Access Persons from violating its Code of Ethics. 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 as are
required of an investment adviser of a registered investment company pursuant to the 1940
Act and the Advisers Act 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
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Fund’s Records under the Advisers Act or other applicable law and except that the
Subadviser, at its own expense, is entitled to make and keep a copy of the Fund’s Records
for its internal files. The Fund’s Records shall be available to the Adviser or the Trust
at any time upon reasonable request during normal business hours and shall be available for
telecopying promptly to the Adviser during any day that the Fund is open for business as set
forth in the Prospectus.
(h) Information Concerning Subadviser Assets and Subadviser. From time to time as the
Adviser or the Trust reasonably may request in good faith, the Subadviser will furnish the
requesting party reports on portfolio transactions and reports on the Subadviser Assets, all
in such reasonable detail as the parties may reasonably agree in good faith. 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 principal executive
officers of the Subadviser, or of material changes in the control of the Subadviser. Upon
the Trust’s or the Adviser’s 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.
Subject to the other provisions of this Agreement, the Subadviser will also provide
such information or perform such additional acts with respect to the Subadviser Assets as
are reasonably 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, and any rule or regulation thereunder.
(i) Custody Arrangements. The Subadviser shall not act as custodian or take possession
of any assets of the Fund. The Trust or the Adviser shall notify the Subadviser of the
identities of its custodian banks and the custody arrangements therewith with respect to the
Subadviser Assets and shall give the Subadviser written notice of any changes in such
custodian banks or 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 good faith relating to all transactions concerning the
Subadviser Assets. The Trust shall instruct its custodian banks to (A) carry out all
investment instructions as may be directed by the Subadviser with respect to the Subadviser
Assets (which instructions may be orally given if confirmed in writing); and (B) provide the
Subadviser with all operational information necessary for the Subadviser to trade the
Subadviser Assets on behalf of the Fund. The Subadviser shall have no liability for the
acts or omissions of the authorized custodian(s), unless (1) such act or omission is
required by and taken in reliance upon instructions given to the authorized custodian(s) by
a representative of the Subadviser properly authorized to give such instructions, or (2) a
different standard of care applies to either the custodian or a subadviser pursuant to the
then applicable agreement for custodial services between the Trust and the custodian. The
records provided by the Adviser and the Trust’s custodian shall be the official records
relating to the Subadviser Assets, and the Subadviser shall not be responsible for the
accuracy of such records.
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3. Independent Contractor. In the performance of its services 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, 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. 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, the cost of securities, commodities and other investments (including brokerage
commissions and other transaction charges, if any) purchased for the Fund and any losses incurred
in connection therewith, expenses of holding or carrying Subadviser Assets, including, without
limitation, expenses of dividends on stock borrowed to cover a short sale and interest, fees or
other charges incurred in connection with leverage and related borrowings with respect to the
Subadviser Assets, organizational and offering expenses (which include, but are not limited to,
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 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 Fund 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 pursuant to this Agreement, the Subadviser is
entitled to the fee listed for the Fund on Exhibit A hereto. Such fees will be computed daily and
paid no later than the seventh (7th) business day following the end of each month, from the
Adviser, calculated at an annual rate based on the Subadviser Assets’ average daily net assets.
The method of determining the 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 with respect to the Fund, the
aforesaid fee shall be prorated for the portion of such month during which this Agreement is in
effect for the Fund.
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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;
(b) The Subadviser is registered as a Commodity Trading Advisor under the Commodity
Exchange Act, as amended (the “CEA”), with the Commodity Futures Trading Commission (the
“CFTC”), or is not required to file such registration;
(c) The Subadviser is a limited liability company duly organized and properly
registered and operating under the laws of the State of Minnesota with the power to own and
possess its assets and carry on its business as it is now being conducted and as proposed to
be conducted hereunder;
(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 actions of its
directors or shareholders, 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
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 violation of, or a material 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 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.
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 and as proposed to be conducted hereunder;
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(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 directors, shareholders or managing unitholder, and the person executing this Agreement
on behalf of the Adviser is authorized to do so, 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 violation of, or a material 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 previously 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 delegate certain of its duties under the Advisory
Agreement to other investment advisers, including without limitation, the appointment of a
subadviser with respect to assets of each of the Trust’s mutual fund series, including
without limitation the Adviser’s entering into and performing 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 and as proposed to be conducted hereunder;
(b) The Trust is registered as an investment company under the 1940 Act and has elected
to qualify and has qualified, together with the Fund, as a regulated investment company
under the Code, and the Fund’s shares are registered under the Securities Act;
(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 the person executing this Agreement on behalf of the
Trust is authorized to do so, 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
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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 the 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 the
recitals above and 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 or accurate in all
material effects.
10. Liability and Indemnification.
(a) Liability. The Subadviser shall exercise its best judgment in rendering its
services in accordance with the terms of this Agreement, but otherwise, in the absence of
willful misfeasance, bad faith or 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”), if
any, shall not be subject to any expenses or liability to the Adviser, any other subadviser
to the Fund, the Trust or the Fund or any of the Fund’s shareholders, in connection with the
matters to which this Agreement relates, including without limitation for any losses that
may be sustained in the purchase, holding or sale of Subadviser Assets. The Adviser shall
exercise its best judgment in rendering its obligations in accordance with the terms of this
Agreement, but otherwise (except as set forth in Section 10(c) below), in the absence of
willful misfeasance, bad faith or 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. Notwithstanding the foregoing, 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 the
Fund, and their respective Affiliates and Controlling Persons for any liability and
expenses, including without limitation reasonable attorneys’ fees and expenses, which the
Adviser, the Trust and/or the Fund 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. The
10
Adviser shall indemnify the Subadviser, its Affiliates and its Controlling Persons, for
any liability and expenses, including without limitation reasonable attorneys’ fees and
expenses, 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.
The Trust shall indemnify the Subadviser, its Affiliates and its Controlling Persons,
for any liability and expenses, including without limitation reasonable attorneys’ fees and
expenses, which may be sustained as a result of the Trust’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.
(c) The Subadviser shall not be liable to the Adviser for (i) any acts of the Adviser
or any other subadviser to the Fund with respect to the portion of the assets of the Fund
not managed by Subadviser or assets over which the Subadviser has no discretionary
investment management authority pursuant to this Agreement, 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 current information with respect to any records maintained
by the Adviser or any other subadviser to the 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. The Adviser understands and acknowledges that the Subadviser
does not guarantee to provide any particular rate of return, market value or performance of
any of the Subadviser Assets.
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 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 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.
11
(b) Termination. Notwithstanding whatever may be provided herein to the contrary, this
Agreement may be terminated at any time with respect to the Fund, 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 not more than 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 not more than 60 days’ written notice to the Adviser and
the Trust.
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 the Fund.
13. Reference to Adviser and Subadviser.
(a) 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 the Subadviser to the 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 the 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
Adviser agrees that the Subadviser may identify the Adviser or the Fund by name in the
Subadviser’s current client list. Such list may be used with third parties. The Subadviser
hereby agrees to make all reasonable efforts to cause any Affiliate of the Subadviser to
satisfy the foregoing obligation.
12
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. Services to Other Clients. The Adviser understands, and has advised the Fund’s Board of
Trustees, that the Subadviser now acts, or may in the future act, as an investment adviser to
fiduciary and other managed accounts and as investment adviser or subadviser to other investment
companies. Further, the Adviser understands, and has advised the Fund’s Board of Trustees that the
Subadviser and its affiliates may give advice and take action for its accounts, including
investment companies, which differs from advice given on the timing or nature of action taken for
the Fund. The Subadviser is not obligated to initiate transactions for the Fund in any security
which the Subadviser, its partners, affiliates or employees may purchase or sell for their own
accounts or other clients.
16. 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 and shall not disclose any and all
information pertaining to the Fund and the actions of the Subadviser, the Adviser and the Fund in
respect thereof; except to the extent:
(a) Authorized. The Adviser or the Trust has authorized such disclosure;
(i) The Adviser hereby authorizes the disclosure by the Subadviser of certain
confidential information to an affiliate of the Subadviser, provided that: (A) such
disclosure is permitted by Subadviser’s privacy policies in effect from time to time and
provided to the Adviser; (B) such affiliate agrees to be bound by the Confidentiality
provisions of this Section 16; and (C) the Subadviser agrees to be fully liable to the Trust
and the Adviser for any security breach or unauthorized disclosure of confidential
information by the affiliate
(b) Court or Regulatory Authority. Disclosure of such information is expressly
required or requested by a court or other tribunal of competent jurisdiction or applicable
federal or state regulatory authorities;
(c) Publicly Known Without Breach. Such information becomes known to the general
public without a breach of this Agreement or a similar confidential disclosure agreement
regarding such information;
(d) Received From Third Party. Such information was or is hereafter rightfully
received by the party from a third party (expressly excluding the Fund’s custodian, prime
broker and administrator) without restriction on its disclosure and without breach of this
Agreement or of a similar confidential disclosure agreement regarding them; or
13
(e) Independently Developed. The party independently developed such information.
(f) Permitted by Policies. Such information is permitted to be disclosed by the Fund’s
policy regarding disclosure of portfolio holdings.
(g) Required to Provide Services. Such information is required to be provided by the
Subadviser to a third party or an affiliate in order to provide the services contemplated in
this Agreement, and such third party or affiliate agrees in writing, or is otherwise
obligated by law or regulation, to maintain the confidentiality of all such information and
to not redisclose such information to another party.
17. 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: | |||
| RiverSource Investments, LLC | ||||
| 00000 Xxxxxxxxxx Xxxxxxxxx Xxxxxx | ||||
| Xxxxxxxxxxx, XX 00000 | ||||
| Attn: Manager of Global Administration | ||||
| With a copy to the following address: | ||||
| Ameriprise Financial, Inc. | ||||
| 00000 Xxxxxxxxxx Xxxxxxxxx Xxxxxx | ||||
| Xxxxxxxxxxx, XX 00000 | ||||
| Attn: Chief Legal Officer, RiverSource Investments, LLC | ||||
| (b) | If to the Adviser: | |||
| Nationwide Fund Advisors | ||||
| 0000 Xxxxx Xxxx | ||||
| Xxxxxxxxxxxx, XX 00000 | ||||
| Attention: Legal Department | ||||
| Facsimile: (000) 000-0000 | ||||
| (c) | If to the Trust: | |||
| Nationwide Variable Insurance Trust | ||||
| 0000 Xxxxx Xxxx | ||||
| Xxxxxxxxxxxx, XX 00000 | ||||
| Attention: Legal Department | ||||
| Facsimile: (000) 000-0000 |
14
18. Jurisdiction. This Agreement shall be governed by and construed 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.
19. 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.
20. 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.
21. Captions. The captions herein are included for convenience of reference only and shall be
ignored in the construction or interpretation hereof.
22. 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.
23. Entire Agreement. This Agreement, together with all exhibits, attachments and appendices,
contains the entire understanding and agreement of the parties with respect to the subject matter
hereof.
24. Force Majeure. No party to this Agreement will be responsible for nonperformance
resulting from acts beyond the reasonable control of such party, provided that such party uses
commercially reasonable efforts to avoid or remove such causes of nonperformance and continues
performance under this Agreement with reasonable dispatch as soon as such causes are removed.
25. 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, acting from
time to time under the Amended and Restated Agreement and Declaration of Trust made and dated as of
October 28, 2004, as has been or may be amended and/or restated from time to time, and to which
reference is hereby made.
26. Multi-Manager Funds. In connection with securities transactions for the 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 section) 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. The Adviser agrees to furnish a list of Managers to Subadviser,
and to advise of any changes to the list. The Adviser shall make a good faith effort
15
to ensure that the advisory contracts of each of the Managers contain the same prohibitions as
this Section 26.
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.
[The remainder of this page is intentionally left blank.]
16
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/ Xxxxxxx X. Xxxxxxx | |||
| Name: | Xxxxxxx X. Xxxxxxx | |||
| Title: | President | |||
| ADVISER NATIONWIDE FUND ADVISORS |
||||
| By: | /s/ Xxxxxxx X. Xxxxxxx | |||
| Name: | Xxxxxxx X. Xxxxxxx | |||
| Title: | President | |||
| SUBADVISER RIVERSOURCE INVESTMENTS, LLC |
||||
| By: | /s/ Xxxxx X. Xxxxxx | |||
| Name: | Xxxxx X. Xxxxxx | |||
| Title: | Chief Operating Officer | |||
17
EXHIBIT A
SUBADVISORY AGREEMENT
AMONG
NATIONWIDE VARIABLE INSURANCE TRUST,
NATIONWIDE FUND ADVISORS
AND RIVERSOURCE INVESTMENTS, LLC
SUBADVISORY AGREEMENT
AMONG
NATIONWIDE VARIABLE INSURANCE TRUST,
NATIONWIDE FUND ADVISORS
AND RIVERSOURCE INVESTMENTS, LLC
Effective March 24, 2008*
| Funds of the Trust | Subadvisory Fees | |
NVIT Multi-Manager Mid Cap Value Fund
|
0.45% on Subadviser Assets up to $300 million; 0.425 % on Subadviser Assets of $300 million and more |
| * | As approved at the Board of Trustees Meeting held on January 9, 2008. |
