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Exhibit 5(d)
INVESTMENT ADVISORY AGREEMENT
THIS AGREEMENT is made and entered into on this ___ day of January,
1997 between NATIONWIDE SEPARATE ACCOUNT TRUST (the "Trust"), a Massachusetts
business trust, and NATIONWIDE ADVISORY SERVICES, INC. (the "Adviser"), an Ohio
corporation registered under the Investment Advisers Act of 1940 (the "Advisers
Act").
W I T N E S S E T H :
WHEREAS, the Trust is registered with the Securities and Exchange
Commission (the "SEC") as an open-end management investment company under the
Investment Company Act of 1940 (the "1940 Act");
WHEREAS, the Trust desires to retain the Adviser to furnish certain
investment advisory and administrative services, as described herein, to a newly
created portfolio of the Trust, the Nationwide Income Fund (the "Fund"); and
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.
NOW, THEREFORE, the Trust and Adviser do mutually agree and promise as
follows:
1. Appointment as Adviser. The Trust hereby appoints the Adviser to act
as investment adviser to the Fund subject to the terms and conditions set forth
in this Agreement. The Adviser hereby accepts such appointment and agrees to
furnish the services hereinafter described for the compensation provided for in
this Agreement.
2. Duties of Adviser.
(a) Investment Management Services. (1) Subject to the
supervision of the Trust's Board of Trustees, the Adviser will provide,
or arrange for the provision of, a continuous investment program for
the Fund, including investment research and management with respect to
all securities and investments and cash equivalents in the Fund. The
Adviser will determine, or arrange for others to determine, from time
to time what securities and other investments will be purchased,
retained or sold by the Fund and will implement, or arrange for others
to implement, such determinations through the placement, in the name of
the Fund, of orders for the execution of portfolio transactions with or
through such brokers or dealers as may be selected. The Adviser will
provide, or arrange for the provision of, the services under this
Agreement in accordance with the stated investment policies and
restrictions of the Fund as set forth in the Fund's current prospectus
and statement of additional information as currently in effect and as
supplemented or amended from time to time (collectively referred
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to hereinafter as the "Prospectus") and subject to the directions of
the Trust's Board of Trustees.
(2) Subject to the provisions of this Agreement and the 1940
Act, the Adviser intends to, and is authorized to, appoint one or more
qualified subadvisers (each a "Subadviser") to provide the Fund with
certain services required by this Agreement. Each Subadviser shall have
full investment discretion and shall make all determinations with
respect to the investment of the Fund's assets assigned to that
Subadviser and the purchase and sale of portfolio securities with
respect to those assets and shall take such steps as may be necessary
to implement its decisions. The Adviser shall not be responsible or
liable for the investment merits of any decision by a Subadviser to
purchase, hold, or sell a security for the Fund.
(3) Subject to the supervision and direction of the Trustees,
the Adviser shall (i) have overall supervisory responsibility for the
general management and investment of the Fund's assets; (ii) determine
the allocation of assets among the Subadvisers; and (iii) have full
investment discretion to make all determinations with respect to the
investment of Fund assets not assigned to a Subadviser.
(4) The Adviser shall research and evaluate each Subadviser,
including (i) performing initial due diligence on prospective
Subadviser and monitoring each Subadviser's ongoing performance; (ii)
communicating performance expectations and evaluations to the
Subadvisers; and (iii) recommending to the Trust's Board of Trustees
whether a Subadviser's contract should be renewed, modified or
terminated. The Adviser shall also recommend changes or additions to
the Subadvisers and shall compensate the Subadvisers.
(5) The Adviser shall provide to the Trust's Board of Trustees
such periodic reports concerning the Fund's business and investments as
the Board of Trustees shall reasonably request.
(b) Compliance with Applicable Laws and Governing Documents.
In the performance of its duties and obligations under this Agreement,
the Adviser shall act in conformity with the Trust's Declaration of
Trust and By-Laws and the Prospectus and with the instructions and
directions received from 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") (including the requirements for
qualification as a regulated investment company) and all other
applicable federal and state laws and regulations.
The Adviser acknowledges and agrees that subject to the
supervision and directions of the Trust's Board of Trustees, it shall
be solely responsible for 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, except that each Subadviser shall
have liability in connection with material information furnished by the
Subadviser to the Fund or to the Adviser.
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(c) Consistent Standards. It is recognized that the Adviser
will perform various investment management and administrative services
for entities other than the Trust and the Fund; in connection with
providing such services, the Adviser agrees to exercise the same skill
and care in performing its services under this Agreement as the Adviser
exercises in performing similar services with respect to the other
fiduciary accounts for which the Adviser has investment
responsibilities.
(d) Brokerage. The Adviser is authorized, subject to the
supervision of the Trust's Board of Trustees, to establish and maintain
accounts on behalf of the Fund with, and place orders for the purchase
and sale of assets not allocated to a Subadviser, with or through, such
persons, brokers or dealers ("brokers") as Adviser may elect and
negotiate commissions to be paid on such transactions. The Adviser
shall place all orders for the purchase and sale of such portfolio
investments for the Fund's account with brokers selected by the
Adviser. In the selection of such brokers and the placing of such
orders, the Adviser 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 the Fund the most favorable price and execution
available, the Adviser, 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 nature of the market for the
security, the amount of the commission, if any, the timing of the
transaction, market prices and trends, the reputation, experience and
financial stability of the broker involved, and the quality of service
rendered by the broker in other transactions. Subject to such policies
as the Trustees may determine, the Adviser 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 to the Adviser 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.
It is recognized that the services provided by such brokers
may be useful to the Adviser in connection with the Adviser's services
to other clients. On occasions when the Adviser deems the purchase or
sale of a security to be in the best interests of the Fund as well as
other clients of the Adviser, the Adviser, 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 Adviser in the manner the Adviser considers to be the most
equitable and consistent with its fiduciary obligations to the Fund and
to such other clients.
(e) Securities Transactions. The Adviser will not purchase
securities or other instruments from or sell securities or other
instruments to the Fund; provided, however, the Adviser may purchase
securities or other instruments from or sell securities or other
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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 Adviser agrees to observe and comply with Rule 17j-1 under
the 1940 Act and the Trust's Code of Ethics, as the same may be amended
from time to time.
(f) Books and Records. Pursuant to the 1940 Act and the rules
and regulations promulgated thereunder, the Adviser shall maintain
separate books and detailed records of all matters pertaining to the
Fund and the Trust (the "Fund's Books and Records"), including, without
limitation, a daily ledger of such assets and liabilities relating
thereto and brokerage and other records of all securities transactions.
The Adviser shall also require that its Access Persons (as defined in
subsection (e) of Rule 17j-1 under the 0000 Xxx) provide the Adviser
with monthly reports of their personal securities transactions. The
Fund's Books and Records shall be available to the Trust at any time
upon request and shall be available for telecopying without delay to
the Trust during any day that the Fund is open for business.
3. Expenses. During the term of this Agreement, the Adviser will pay
all expenses incurred by it in connection with its activities under this
Agreement other than the cost of securities, commodities and other investments
(including brokerage commissions and other transaction charges, if any)
purchased for the Fund. The Adviser 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 Adviser shall
also reimburse the Trust for the compensation and expenses of the Trustees of
Trust who are "interested persons" (as defined in the 0000 Xxx) of the Adviser.
It is understood that the Trust will pay all of its own expenses
including, without limitation, (1) all charges and expenses of any custodian or
depository appointed by the Trust for the safekeeping of its cash, securities
and other assets, (2) the charges and expenses of independent certified public
accountants and of general ledger accounting and internal reporting services for
the Trust, (3) the charges and expenses of any transfer agents and registrars
appointed by the Trust, (4) the charges and expenses of dividend and capital
gain distributions, (5) the compensation and expenses of Trustees of the Trust
who are not "interested persons" of the Adviser, (6) brokerage commissions and
issue and transfer taxes chargeable to the Trust in connection with securities
transactions to which the Trust is a party, (7) all taxes and fees payable by
the Trust to Federal, State or other governmental agencies, (8) the cost of
stock certificates representing shares of the Trust, (9) all expenses of
shareholders' and Trustees' meetings and of preparing, printing and distributing
prospectuses and reports to shareholders, (10) charges and expenses of legal
counsel for the Trust in connection with legal matters relating to the Trust,
including without limitation, legal services rendered in connection with the
Trust's existence, financial structure and relations with its shareholders, and
expenses which the Trust has herein assumed, (11) insurance and bonding
premiums, (12) association membership dues, (13) bookkeeping and the calculation
of the net asset value of shares of the Trust's funds, and (14) expenses
relating to the issuance, registration and qualification of the Trust's shares.
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4. Compensation. For the services provided and the expenses assumed
with respect to the Fund pursuant to this Agreement, the Adviser will be
entitled to a fee, computed daily and payable monthly, calculated at the annual
rate of 1.00% of the Fund's average daily net assets.
The method of determining net assets of the Fund for purposes hereof
shall be the same as the method of determining net assets for purposes of
establishing the offering and redemption price of the Shares as described in the
Fund's Prospectus. If this Agreement shall be effective for only a portion of a
month, the aforesaid fee shall be prorated for the portion of such month during
which this Agreement is in effect.
Notwithstanding any other provision of this Agreement, the Adviser may
from time to time agree not to impose all or a portion of its fee otherwise
payable hereunder (in advance of the time such fee or portion thereof would
otherwise accrue). Any such fee reduction may be discontinued or modified by the
Adviser at any time.
5. Representations and Warranties of Adviser. The Adviser represents
and warrants to the Trust as follows:
(a) The Adviser is registered as an investment adviser under
the Advisers Act;
(b) The Adviser is a corporation duly organized and validly
existing under the laws of the State of Ohio with the power to own and
possess its assets and carry on its business as it is now being
conducted;
(c) 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, 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;
(d) The Form ADV of the Adviser previously provided to the
Trust is a true and complete copy of the form filed with the SEC 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.
6. Survival of Representations and Warranties; Duty to Update
Information. All representations and warranties made by the Adviser pursuant to
Section 5 shall survive for the
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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.
7. Liability and Indemnification.
(a) Liability. In the absence of wilful misfeasance, bad faith
or gross negligence on the part of the Adviser or a reckless disregard
of its duties hereunder, the Adviser shall not be subject to any
liability to the Fund or the Trust, 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 Fund assets;
provided, however, that nothing herein shall relieve the Adviser from
any of its obligations under applicable law, including, without
limitation, the federal and state securities laws. In addition, in no
case shall the Adviser be liable for actions taken or not taken by it
in accordance with specified information, instructions or requests
given or made to the Adviser by an officer or Trustee of the Trust.
(b) Indemnification. The Adviser shall indemnify the Trust and
its officers and trustees, for any liability and expenses, including
attorneys fees, which may be sustained as a result of the Adviser's
wilful 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.
8. Duration and Termination.
(a) Duration. Unless sooner terminated, this Agreement shall
continue until October 20, 1997 and thereafter shall continue
automatically for successive annual periods, provided such continuance
is specifically approved at least annually by the Trust's Board of
Trustees or vote of the lesser of (a) 67% of the shares of the Fund
represented at a meeting if holders of more than 50% of the outstanding
shares of the Fund are present in person or by proxy or (b) more than
50% of the outstanding shares of the Fund; provided that in either
event its continuance also is approved by a majority of the Trust's
Trustees who are not "interested persons" (as defined in the 0000 Xxx)
of any party to this Agreement, by vote cast in person at a meeting
called for the purpose of voting on such approval.
(b) Termination. Notwithstanding whatever may be provided
herein to the contrary, this Agreement may be terminated at any time,
without payment of any penalty 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, or by the Adviser, in each case, upon sixty
(60) days' written notice to the other party.
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.
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9. Services Not Exclusive. The services furnished by the Adviser
hereunder are not to be deemed exclusive, and the Adviser shall be free to
furnish similar services to others so long as its services under this Agreement
are not impaired thereby. It is understood that the action taken by the Adviser
under this Agreement may differ from the advice given or the timing or nature of
action taken with respect to other clients of the Adviser, and that a
transaction in a specific security may not be accomplished for all clients of
the Adviser at the same time or at the same price.
10. Amendment. This Agreement may be amended by mutual consent of the
parties, provided that the terms of each such amendment shall be approved by the
Trust's Board of Trustees or by a vote of a majority of the outstanding voting
securities of the Fund (as required by the 1940 Act).
11. Confidentiality. Subject to the duties of the Adviser and the Fund
to comply with applicable law, including any demand of any regulatory or taxing
authority having jurisdiction, the parties hereto shall treat as confidential
all information pertaining to the Fund and the actions of the Adviser and the
Fund in respect thereof.
12. 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:
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(a) If to the Adviser:
Nationwide Advisory Services, Inc.
Xxx Xxxxxxxxxx Xxxxx, 00-X
Xxxxxxxx, XX 00000
Attention: Xxxxx X. Xxxxx, Xx.
Facsimile: (000) 000-0000
(b) If to the Fund:
Nationwide Separate Account Trust
Xxx Xxxxxxxxxx Xxxxx, 00-X
Xxxxxxxx, XX 00000
Attention: Xxxxx X. Xxxxx, Xx.
Facsimile: (000) 000-0000
13. Jurisdiction. This Agreement shall be governed by and construed to
be in accordance with substantive laws of the Commonwealth of Massachusetts
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.
14. 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.
15. Certain Definitions. For the purposes of this Agreement,
"interested person," "affiliated person," "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.
16. Captions. The captions herein are included for convenience of
reference only and shall be ignored in the construction or interpretation
hereof.
17. 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.
18. Nationwide Separate Account Trust and its Trustees. The terms
"Nationwide Separate Account Trust" and the "Trustees of Nationwide Separate
Account 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 June 30, 1981, as has been or may be amended
from time to time, and to which reference is hereby made and a copy of which is
on file at the office of the Secretary of State of The Commonwealth of
Massachusetts and elsewhere as required by law, and to any and all amendments
thereto so filed or hereafter filed. The obligations of the Trust entered into
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in the name or on behalf thereof by any of Nationwide Separate Account Trust's
Trustees, representatives, or agents are not made individually, but only in
their capacities with respect to Nationwide Separate Account Trust. Such
obligations are not binding upon any of the Trustees, shareholders, or
representatives of the Trust personally, but bind only the assets of the Trust.
All persons dealing with any series of Shares of the Trust must look solely to
the assets of the Trust belonging to such series for the enforcement of any
claims against the Trust.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on
the day and year first written above.
ADVISER
NATIONWIDE ADVISORY SERVICES, INC.
By:__________________________________
Name:
Title:
TRUST
NATIONWIDE SEPARATE ACCOUNT TRUST
By:__________________________________
Name:
Title:
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