Exhibit No. Ex-99.d.2.j
SUBADVISORY AGREEMENT
THIS AGREEMENT is made and entered into as of the 1st day of May, 2007,
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, as amended
(the "Advisers Act"), and EPOCH INVESTMENT PARTNERS, INC., a Delaware
corporation (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, in consideration of the terms and conditions hereinafter set
forth, 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 (the
"Trustees"), and subject to the terms of this Agreement. The Subadviser hereby
accepts such employment and 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 as
fiduciary or other managed accounts and that the Adviser and the Trust have no
objection to such activities.
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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 the 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 Trustees, to purchase, hold and sell investments for
the Subadviser Assets and to monitor on a continuous basis the
performance of such Fund investments. In providing these services, the
Subadviser will conduct a continual program of investment, evaluation
and, if appropriate, sale and reinvestment of the Subadviser Assets,
without prior consultation with the Adviser. 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 a
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, a Fund or the Adviser
notifies the Subadviser thereof, as supplemented, or 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 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 Subadviser
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 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
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 a Fund or the services of the Subadviser, copies of any
financial statements or reports made by a 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
compliance with the diversification
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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 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 notice of the
effectiveness of such changes from the Trust or the Adviser. For
purposes of this subsection, receipt of a modified Prospectus by the
Subadviser shall constitute notice of the effectiveness of such
changes. 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 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, 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 shall have the power to vote, either in person
or by proxy, all securities in which the Subadviser Assets may be
invested the Fund's assets from time to time, and shall not be required
to seek or take instructions from the Adviser or a Fund or take any
action with respect thereto. If both the Subadviser Assets and another
entity 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 a 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
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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 Trustees, to establish and maintain
accounts on behalf of each Fund with, and place orders for the 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,
"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 Trustees prior to establishing
any such brokerage account. The Subadviser shall place all orders for
the purchase and sale of Fund 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
a Fund, in its opinion, 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 the 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 Notwithstanding the
foregoing, neither the Trust, the Fund nor the Adviser shall instruct
the Subadviser to place orders with any particular Broker 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 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
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 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 a Fund 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 the Fund and to such other clients. It is recognized that in some
cases, this
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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.
(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 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 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 at least an annual basis, the Subadviser will comply with the
reporting requirements of Rule 17j-1, which may include either: (i)
certifying 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) identifying any violations which have
occurred with respect to the Subadviser Assets. The Subadviser will
have also submitted its Code of Ethics for its initial approval by the
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 by applicable laws and regulations of
all matters 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 the property of the Trust; except to the extent that the
Subadviser is required to maintain the 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 own internal files. The Subadviser acknowledges that
the Fund's Records shall be available to the Adviser or the Trust at
any time upon reasonable request and shall be available for telecopying
without delay to the Adviser during any day that a 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 may reasonably request,
the Subadviser will furnish the requesting party reports on portfolio
transactions and reports on Subadviser Assets, all in such detail as
the Adviser or the Trust may reasonably request in good faith. The
Subadviser will also inform the Adviser in a timely manner of material
changes in portfolio manager(s) 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 the Trust's or
the Adviser's reasonable request, the Subadviser will make available
one or more of its officers and employees to meet with the Trustees to
review the Subadviser Assets via telephone on a quarterly basis and on
a less frequent basis, as agreed upon by the parties, in person.
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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 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 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
(pursuant to written instruction by the Adviser) to give such
instructions.
(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.
(k) AFFILIATED TRANSACTIONS. 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 Section
2(k)) 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.
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
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authority to act for or represent a 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, a 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 a
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
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 fees and expenses of non-interested Trustees); salaries of shareholder
relations personnel; costs of shareholders meetings; insurance; interest;
brokerage costs; and litigation and other extra ordinary 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 a 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 and the expenses assumed
with respect to a Fund pursuant to this Agreement, the Subadviser will be
entitled to the fee listed for each 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 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 as
described in each Fund's Prospectus. If this Agreement shall be effective for
only a portion of a month, with respect to any Fund, the aforesaid fee shall be
prorated for the portion of such month during which this Agreement is in effect
for such Fund.
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6. REPRESENTATIONS AN WARRANTIES OF SUBADVISER. The Subadviser
represents and warrants to the Adviser and the Fund as follows:
(a) The Subadviser is registered a 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 ("NFA"), or is not required to file such
exemption;
(c) The Subadviser is a corporation 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;
(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 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 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; and
(e) The Form ADV of the Subadviser 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. In addition, the Subadviser agrees to promptly
provide the Trust with updates of its Form ADV.
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 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 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; and
(f) The Adviser acknowledges that it received a copy of the
Subadviser's Form ADV prior to the execution of this Agreement.
(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; and
(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 Trustees, 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 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.
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(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 and the
Adviser 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. 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 gross negligence on its part in the performance of its duties
or reckless disregard of its obligation and duties hereunder, the
Subadviser, each of its affiliated persons and all respective partners,
officers, directors and employees ("Affiliates") of the Subadviser and
each person, if any, who within the meaning of the Securities Act
controls the Subadviser ("Controlling Persons") shall not be liable to
the Adviser, the Trust or a Fund or any of a Fund's shareholders for
any error of judgment or mistake of law or for any loss suffered by the
Adviser or a Fund in connection with the matters to which the 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 gross negligence on the part of the Adviser
or a reckless disregard of its duties hereunder, the Adviser, any
affiliated person of the Adviser and each of its Controlling Persons
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 Adviser and the Subadviser from any of their respective
securities 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 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, or gross
negligence in the performance of its duties, or reckless disregard of
its duties hereunder or violation of applicable law, including, without
limitation, the federal and state securities laws or the CEA.
Notwithstanding any other provision in this Agreement, the Subadviser
will indemnify the Adviser and the Trust, and their respective
Affiliated Persons and Controlling Persons for any liability and
expenses, including reasonable attorneys' fees and expenses, to which
10
they may be subjected as a result of the Subadviser providing
inaccurate historical performance calculations concerning the
Subadviser's composite account data or 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 the negligence or willful misconduct of the
Adviser, the Trust and/or their respective Affiliates and Controlling
Persons 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 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 a Fund with respect
to the portion of the assets of that Fund not managed by Subadviser 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 a 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.
11. DURATION AND TERMINATION.
(a) DURATION. Unless sooner terminated, this Agreement shall,
with respect to the Fund initially covered by this Agreement, continue
until May 1, 2008, and, for any Fund subsequently added to this
Agreement, shall continue for 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 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 Trustees who are not "interested
persons" (as defined in the 0000 Xxx) of my party to this Agreement, by
vote cast in person at a meeting called for the purpose of voting on
such approval.
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(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 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 sixty (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 material breach
of any provision of this Agreement by any of the other
parties; or
(iii) By the Subadviser upon at least 60 days'
written notice to the Adviser 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.
(a) The Adviser shall continue to have responsibility for all
services to be provided to a 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 a 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 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.
(b) Neither the Subadviser nor any Affiliate or agent of the
Subadviser 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 a
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 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 Trustees or by a vote of a majority of the outstanding voting securities
of a Fund (as required by the 1940 Act), and (b) the vote of a majority of those
Trustees 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 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 each Fund and the actions of the Subadviser, the Adviser and each Fund in
respect thereof; except to the extent:
(a) AUTHORIZED. The Adviser or the Trust has authorized such
disclosure;
(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) ALREADY KNOWN. Such information already was known by the
party prior to the date hereof;
(e) 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
(f) INDEPENDENTLY DEVELOPED. The party independently developed
such information.
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 party, or transmitted by facsimile with
acknowledgment of receipt, to the parties at the following addresses or
facsimile numbers, which may from time to time be changed by the parties by
notice to the other party:
(a) If to the Subadviser:
Epoch Investment Partners, Inc.
000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxx Xxxxxxx
Facsimile: (000) 000-0000
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(b) If to the Adviser:
Nationwide Fund Advisors
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
17. JURISDICTION. This Agreement shall be governed by and construed to
be in accordance with substantive laws of the State of Delaware without
reference to choice of law principles thereof and in accordance with the 1940
Act, In the case of 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.
14
22. 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.
23. 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 a
Declaration of Trust dated as of September 30, 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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IN WITNESS WHEREOF, the parties hereto have executed this Agreement on
the day and year first written above.
TRUST
NATIONWIDE VARIABLE INSURANCE TRUST
By:
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
ADVISER
NATIONWIDE FUND ADVISORS
By:
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
SUBADVISER
EPOCH INVESTMENT PARTNERS, INC.
By:
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
16
EXHIBIT A
SUBADVISORY AGREEMENT
AMONG
NATIONWIDE VARIABLE INSURANCE TRUST,
NATIONWIDE FUND ADVISORS AND
EPOCH INVESTMENT PARTNERS, INC.
EFFECTIVE MAY 1, 2007*
FUNDS OF THE TRUST SUB-ADVISORY FEES
------------------ -----------------
Nationwide Multi-Manager 0.50% on Subadviser Assets
NVIT Small Cap Value Fund up to $200 million
0.45% for Subadviser Assets
of $200 million and more
*As most recently approved at the January 11, 2007 Board Meeting.
