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.
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.
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.
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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.
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.
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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.
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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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(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.
(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.
(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.
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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.
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(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.
(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.
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(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;
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(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.
(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 |
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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.
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.
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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.]
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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 |
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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. |