EX-99(d)(4)(g)
SUBADVISORY AGREEMENT
THIS AGREEMENT is made and entered into effective the 1st day of May, 2007,
by and among NATIONWIDE MUTUAL FUNDS (formerly Gartmore Mutual Funds) (the
"Trust"), a Delaware statutory trust, NATIONWIDE FUND ADVISORS (formerly
Gartmore Mutual Fund Capital Trust) (the "Adviser") a Delaware statutory trust
registered under the Investment Advisers Act of 1940, as amended (the "Advisers
Act"), and NATIONWIDE SEPARATE ACCOUNTS, LLC, a limited liability company
organized under the laws of the State of New York (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 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 the Subadviser to assist it in the
provision of a continuous investment program for that portion of the Fund's
assets that the Adviser will assign to the Subadviser, and the 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; and the
Subadviser hereby accepts such appointment. In such capacity, the Subadviser
shall 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 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
requirements under either Subchapter M or Section 817(h). If the Adviser
notifies the Subadviser that the Subadviser Assets are not in compliance with
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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 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 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 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 will establish a written procedure for proxy voting in
compliance with current applicable rules and regulations, including but not
limited to Rule 30b1-4 under the 1940 Act. The Subadviser will provide the
Adviser or its designee, a copy of such procedure and establish a process for
the timely distribution of the Subadviser's voting record with respect to the
Fund's securities and other information necessary for the Fund to complete
information required by Form N-lA 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.
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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 the
Subadviser may elect and negotiate commissions to be paid on such transactions.
The Subadviser, however, is not required to obtain the consent of the Adviser or
the Trust's Board of Trustees prior to establishing any such brokerage account.
The Subadviser shall place all orders for the purchase and sale of portfolio
investments for a Fund's account with Brokers selected by the Subadviser. In the
selection of such Brokers and the placing of such orders, the Subadviser shall
seek to obtain for the Fund the most favorable price and execution available,
except to the extent it may be permitted to pay higher brokerage commissions for
brokerage and research services, as provided below. In using its reasonable
efforts to obtain for a Fund the most favorable price and execution available,
the Subadviser, bearing in mind the best interests of each 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 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.
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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 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 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 by applicable laws and regulations of all
matters hereunder 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 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 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 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 on a less
frequent basis as agreed upon by the parties in person.
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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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.
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, the 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 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 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 Funds 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.
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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.
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 New York 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.
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7. Representations and Warranties of Adviser. The Adviser represents
and warrants to the Subadviser as follows:
a. The Adviser is registered as an investment adviser under the
Advisers Act;
b. The Adviser has filed a notice of exemption pursuant to Rule 4.14
under the CEA with the CFTC and the 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;
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 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;
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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 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 Trust 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 gross negligence
on the part of the Subadviser or a reckless disregard of its duties hereunder,
the Subadviser, each of its affiliates and all respective 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 a Fund, the Trust or a Fund or any of a 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 gross negligence on the part of the Adviser or
a reckless disregard of its duties hereunder, the Adviser, any of its Affiliates
and each of the Adviser's Controlling Persons, if any, shall not be subject to
any liability to the Subadviser, for any act or omission in the case of, or
connected with, rendering services hereunder or for any losses that may be
sustained in the purchase, holding or sale of Subadviser Assets. 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.
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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
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 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 the 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 continue
until May 1, 2008 with respect to any Fund covered by this Agreement initially
and for any Fund subsequently added to this Agreement, an initial period of no
more than two years that terminates on the second May 1st that occurs following
the effective date of this Agreement with respect to such Fund, and thereafter
shall continue automatically for successive annual periods with respect to each
of the Funds; provided that such continuance is specifically approved at least
annually by the Trust's Board of Trustees or the vote of the lesser of (a) 67%
of the shares of a Fund represented at a meeting if holders of more than 50% of
the outstanding shares of the Fund are present in person or by proxy or (b) more
than 50% of the outstanding shares of the Fund; provided further 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.
10
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 the Subadviser or any of its
Affiliates, or any of their clients, except references concerning the identity
of and services provided by the Subadviser to a 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 the
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 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 the 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.
11
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 Funds (as required by the 1940 Act), and (b) the vote
of a majority of those Trustees of the Trust who are not "interested persons" of
any party to this Agreement cast in person at a meeting called for the purpose
of voting on such approval, if such approval is required by applicable law.
15. Confidentiality. Subject to the duties of the Adviser, the 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;
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 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 parties:
If to the Subadviser:
Nationwide Separate Accounts, LLC
00 Xxxxx Xxxxxxxx
Xxxxxxxxx, XX 00000
12
If to the Adviser:
Nationwide Fund Advisors
0000 Xxxxx Xxxx
Xxxxxxxxxxxx, XX 00000
Attention: Legal Department
Facsimile: (000) 000-0000
If to the Trust:
Nationwide Mutual Funds
0000 Xxxxx Xxxx
Xxxxxxxxxxxx, XX 00000
Attention: Legal Department
Facsimile: (000) 000-0000
17. 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.
18. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, all of which shall
together constitute one and the same instrument.
19. Certain Definitions. For the purposes of this Agreement and except
as otherwise provided herein, "interested person," "affiliated person," and
"assignment" shall have their respective meanings as set forth in the 1940 Act,
subject, however, to such exemptions as may be granted by the SEC.
20. Captions. The captions herein are included for convenience of
reference only and shall be ignored in the construction or interpretation
hereof.
21. Severability. If any provision of this Agreement shall be held or
made invalid by a court decision or applicable law, the remainder of the
Agreement shall not be affected adversely and shall remain in full force and
effect.
22. 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 Mutual Funds and its Trustees. The terms "Nationwide
Mutual Funds" and the "Trustees of Nationwide Mutual Funds" refer respectively
to the Trust created and the Trustees, as trustees but not individually or
personally, acting from time to time under the Declaration of Trust made and
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.
13
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on
the day and year first written above.
TRUST:
NATIONWIDE MUTUAL FUNDS
By:/s/ Xxxx Xxxxx
-------------------------------------
Name: Xxxx Xxxxx
Title: President
ADVISER:
NATIONWIDE FUND ADVISORS
By:/s/ Xxxxxx X. Xxxxxxx
-------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: SVP-COO
SUBADVISER:
NATIONWIDE SEPARATE ACCOUNTS, LLC
By: /s/ Xxxx Xxxxx
-------------------------------------
Name: Xxxx Xxxxx
Title: President
14
EXHIBIT A
SUBADVISORY AGREEMENT
AMONG
NATIONWIDE FUND ADVISORS,
NATIONWIDE MUTUAL FUNDS
AND NATIONWIDE SEPARATE ACCOUNTS, LLC
Effective May 1, 2007
Funds of the Trust Subadvisory Fees
------------------------------------------------------- --------------------------------------------------------
Nationwide Mid Cap Growth Leaders Fund 0.40% on Subadviser Assets up to $250 million
0.35% on Subadviser Assets of $250 million or more
15
EXHIBIT B
SUBADVISORY AGREEMENT AMONG
NATIONWIDE MUTUAL FUNDS,
NATIONWIDE FUND ADVISORS AND
NATIONWIDE SEPARATE ACCOUNTS, LLC
Effective May 1, 2007
In connection with securities transactions for a Fund, the Subadviser that is
(or whose affiliated person is) entering into the transaction, and any other
investment manager that is advising an affiliate of the Fund (or portion of the
Fund) (collectively, the "Managers" for the purposes of this Exhibit) entering
into the transaction are prohibited from consulting with each other concerning
transactions for the Fund in securities or other assets and, if both Managers
are responsible for providing investment advice to the Fund, the Manager's
responsibility in providing advice is expressly limited to a discrete portion of
the Fund's portfolio that it manages.
This prohibition does not apply to communications by the Adviser in connection
with the Adviser's (i) overall supervisory responsibility for the general
management and investment of the Fund's assets; (ii) determination of the
allocation of assets among the Manager(s), if any; and (iii) investment
discretion with respect to the investment of Fund assets not otherwise assigned
to a Manager.
TRUST:
NATIONWIDE MUTUAL FUNDS
By:/s/Xxxx Xxxxx
----------------------------------------
Name: Xxxx Xxxxx
Title: President
ADVISER:
NATIONWIDE FUND ADVISORS
By:/s/Xxxxxx X. Xxxxxxx
----------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: SVP-COO
SUBADVISER:
NATIONWIDE SEPARATE ACCOUNTS, LLC
By:/s/Xxxx Xxxxx
----------------------------------------
Name: Xxxx Xxxxx
Title: President
