--------------------------------------------------------------------------------
EXHIBIT (d)(5)(f)
--------------------------------------------------------------------------------
SUBADVISORY AGREEMENT
THIS AGREEMENT is made and entered into on this 5th day of May, 2000 among
NATIONWIDE SEPARATE ACCOUNT TRUST, a Massachusetts business trust (the "Trust"),
VILLANOVA MUTUAL FUND CAPITAL TRUST (the "Adviser"), a Delaware business trust
registered under the Investment Advisers Act of 1940 (the "Advisers Act"), and
XXXXXX INVESTMENT PARTNERS, INC., a Pennsylvania Corporation (the "Subadviser"),
also registered under the Advisers Act.
WITNESSETH:
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 "I940 Act");
WHEREAS, the Adviser has, pursuant to an Advisory Agreement with the Trust
dated as of November 1, 1997 (the "Advisory Agreement") as subsequently amended,
effective as of September 1, 1999, 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 subject to the
supervision and direction of the Trust's Board of Trustees 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 Fund'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, 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 and
subject to the terms of this Agreement; and the Subadviser hereby accepts
such employment. In such capacity, the Subadviser shall be responsible for
the investment management of the Subadviser Assets. The Subadviser agrees
to exercise the same skill and care in performing its services under the
Agreement as the Subadviser exercises in performing similar services with
respect to other fiduciary accounts for which the Subadviser has investment
responsibilities. 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 have
no objection to such activities.
-- 172 --
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 such 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 Trust's Board of Trustees, to purchase, hold and sell
investments for the Subadviser Assets and to monitor on a continuous
basis the performance of the Subadviser Assets. In providing these
services, the Subadviser will conduct a continual 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 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 or the Trust'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 Trust's Declaration of
Trust and By-Laws and the Prospectus 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 Investment Advisers Act of 1940 (the "Advisers Act"), the
Internal Revenue Code of 1986, as amended (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 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 duties of the
Subadviser, and with the 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 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 prior 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
agrees 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 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 Fund 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 Subadviser 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 Trust or a Fund or take any
action with respect thereto. If both the Subadviser 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.
(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, provided that, the Subadviser's actions in
executing such documents shall comply with federal and state rules and
regulations and the Trust's governing documents. 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.
-- 173 --
(e) Brokerage. The Subadviser is authorized, subject to the supervision of
the Adviser and 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 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 ("brokers")
as Subadviser may elect and negotiate commissions to be paid on such
transactions. The Subadviser, however, is not required to obtain the
consent of the Adviser or the Trust's Board of Trustees prior to
establishing any such brokerage account. The Subadviser shall place
all orders for the purchase and sale of portfolio investments for 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 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 a 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. Subject to such policies as the Trustees may
determine, or as may be mutually agreed to by the Adviser and the
Subadviser, the Subadviser 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 or dealer 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 a Fund and to such other
clients. It is recognized that in some cases, this procedure may
adversely affect the price paid or received by a Fund or the size of
the position obtainable for, or disposed of by, the Fund.
(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 or any exemption therefrom.
The Subadviser, including 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 also submit its Code of Ethics for its initial
approval by the Board of Trustees prior to September 1, 2000 and
subsequently within six months of any material change of thereto.
-- 174 --
(g) Books and Records. The Subadviser shall maintain separate detailed
records 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 property of the Trust. The Fund's Records
(relating to the Subadviser Assets) shall be available to the Adviser
at any time upon reasonable request during normal business hours and
shall be available for telecopying without delay to the Adviser during
any day that the Fund is open for business.
(h) Information Concerning Subadviser Assets and Subadviser. From time to
time as the Adviser or the Trust may request, the Subadviser will
furnish the requesting party reports on portfolio transactions and
reports on Subadviser Assets held in the portfolio, all in such detail
as the Adviser or the Trust may reasonably request. 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 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.
The Subadviser will also provide such information or perform such
additional acts as are customarily performed by a subadviser and may
be required for the Fund or the Adviser to comply with their
respective obligations under applicable laws, including, without
limitation, the Code, the 1940 Act, the Advisers Act, the Securities
Act of 1933, as amended (the "Securities Act") and any federal or
state securities laws, and any rule or regulation thereunder.
(i) 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 relating to
all transactions concerning the Subadviser Assets.
(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.
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
authority to act for or represent the Fund, the Trust or the Adviser in any
way or otherwise be deemed an agent of the Fund, the Trust or the Adviser.
4. Expenses. During the term of this Agreement, Subadviser will pay all
expenses incurred by it in connection with its activities under this
Agreement other than the cost of securities, commodities and other
investments (including brokerage commissions and other transaction charges,
if any) purchased for a Fund. 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,
organizational and offering expenses (which include 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 a 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 Securities and Exchange Commission (the "SEC"); expenses
of registering or qualifying securities of the Fund for sale in the various
states; freight and other charges in connection with the shipment of the
Fund's portfolio securities; fees and expenses of non-interested Trustees;
salaries of shareholder relations personnel; costs of shareholders
meetings; insurance; interest; brokerage costs; and litigation and other
extraordinary or non-recurring expenses. The Trust or the Adviser, as the
case may be, shall reimburse the Subadviser for any expenses of the Fund or
the Adviser as may be reasonably incurred by the Subadviser on behalf of
the Fund or the Adviser. The Subadviser shall keep and supply to the Trust
and the Adviser reasonable records of all such expenses.
5. Compensation. For the services provided 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. Such fees will be
computed daily and payable in arrears 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.
-- 175 --
The method of determining net assets of a 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 Fund's shares as described in such
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. The rights of compensation under this
Agreement for services performed as of the termination date shall survive
termination of this Agreement.
6. Representations and Warranties of Subadviser. The Subadviser represents and
warrants to the Adviser and the Fund 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 ("CTA")
(or is exempt from such registration) under the Commodity Exchange Act
(the "CEA") with the Commodity Futures Trading Commission (the
"CFTC");
(c) The Subadviser is a corporation duly organized and validly existing
under the laws of the Commonwealth of Pennsylvania with the power to
own and possess its assets and carry on its business as it is now
being conducted;
(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 Board of
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;
(e) The Form ADV of the Subadviser previously provided to the Adviser (a
true copy of which is attached as Exhibit B to this Agreement) is a
true and complete copy of the form as currently 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. The
Subadviser will promptly provide the Adviser and the Trust with a
complete copy of all subsequent amendments to 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 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;
(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
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
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 is a
true and complete copy of the form as currently 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;
(f) The Adviser acknowledges that it received a copy of the Subadviser's
Form ADV (a copy of which is attached as Exhibit B) prior to the
execution of this Agreement; and
-- 176 --
(g) The Adviser and the Trust have duly entered into the Advisory
Agreement pursuant to which the Trust authorized the Adviser to enter
into 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 business trust duly organized and validly existing
under the laws of the Commonwealth of Massachusetts with the power to
own and possess its assets and carry on its business as it is now
being conducted;
(b) The Trust is registered as an investment company under the 1940 Act
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 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 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.
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 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 the services in accordance with the terms of this Agreement.
In the absence of wilful 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") shall not be liable for any
error of judgment or mistake of law and shall not be subject to any
expenses or liability to the Adviser, the Trust or a Fund or any of a
Fund's shareholders, in connection with the matters to which this
Agreement relates. 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; provided, however, that nothing herein shall relieve the
Adviser and the Subadviser from any of their obligations under
applicable law, including, without limitation, the federal and state
securities laws and the CEA.
(b) Indemnification. The Subadviser shall indemnify the Adviser, the Trust
and each Fund, and their respective Affiliates and Controlling Persons
for any liability and expenses, including reasonable attorneys' fees,
which the Adviser, the Trust and a 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. Notwithstanding any other provision in this
Agreement, the Subadviser will indemnify the Adviser, the Trust and
each Fund, and their respective Affiliates and Controlling Persons for
any liability and expenses, including reasonable attorneys' fees, to
which they may be subjected as a result of their reliance upon and use
of the historical performance calculations provided by the Subadviser
concerning the Subadviser's composite account data or historical
performance information on similarly managed investment companies or
accounts, except that the Adviser, the Trust and each Fund and their
respective Affiliates and Controlling Persons shall not be indemnified
for a loss or expense resulting from their negligence or willful
misconduct in using such numbers, or for their failure to conduct
reasonable due diligence with respect to such information.
-- 177 --
The Adviser shall indemnify the Subadviser, its Affiliates and
its Controlling Persons, for any liability and expenses, including
reasonable attorneys' fees, howsoever arising from, or in connection
with, this Agreement or the perfomance by the Subadviser of its duties
hereunder; provided, however, that the Subadviser shall not be
indemnified for any liability or expenses which may be sustained as a
result of the Adviser's willfull 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.
11. Duration and Termination.
(a) Duration. Unless sooner terminated, this Agreement shall continue
until May 1, 2002 with respect to any Fund covered by the Agreement
initially and for an initial two-year period for any Fund subsequently
added to the Agreement, and thereafter shall continue automatically
for successive annual periods with respect to each such Fund, provided
such continuance is specifically approved at least annually by the
Trust's Board of Trustees or vote of the lesser of (a) 67% of the
shares of the Fund represented at a meeting if holders of more than
50% of the outstanding shares of the Fund are present in person or by
proxy or (b) more than 50% of the outstanding shares of the Fund;
provided that in either event its continuance also is approved by a
majority of the Trust's Trustees who are not "interested persons" (as
defined in the 1940 Act) 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:
(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, or by the Adviser, in each case, upon at least 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
(ii) By the Subadviser upon at least 60 days' written notice to the
Adviser and the Trust.
This Agreement shall not be assigned (as such term is defined in
the 1940 Act) 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. Neither the Adviser nor any Affiliate
or agent of it shall make reference to or use the name of Subadviser or any
of its Affiliates, or any of their clients, except in reference 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 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.
14. Amendment. This Agreement may be amended by mutual consent of the parties,
provided that the terms of any material amendment shall be approved by: a)
the Trust's Board of Trustees or by a vote of a majority of the outstanding
voting securities of the Fund (but only to the extent required by the 1940
Act and not covered by any exemptive order received by the Trust from the
SEC) 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 each
Fund) 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 all information pertaining to
the Fund and the actions of the Subadviser, the Adviser and the Fund in
respect thereof.
-- 178 --
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 party:
(c) If to the Subadviser:
Xxxxxx Investment Partners, Inc.
0000 Xxxxxxxxx Xxxxx, Xxxxx 000
Xxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxxx
Xxxxxxxxx: (000) 000-0000
(d) If to the Adviser:
Villanova Mutual Fund Capital Trust
Xxx Xxxxxxxxxx Xxxxx
Xxxxxxxx, XX 00000-2220
Attention: Xxxxx X. Xxxxx, Xx.
Facsimile: (000) 000-0000
(e) If to the Trust:
Nationwide Separate Account Trust
One Nationwide Plaza
Columbus, OH 43215-2220
Attention: Xxxxx X. Xxxxx, Xx.
Facsimile: (000) 000-0000
17. Jurisdiction. This Agreement shall be governed by and construed to be
consistent with the Advisory Agreement and 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.
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. 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 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.
-- 179 --
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the
day and year first written above
TRUST
NATIONWIDE SEPARATE ACCOUNT TRUST
By: /s/ Xxxxx X. Xxxxxxx
Name: Xxxxx X. Xxxxxxx
Title: Assistant Treasurer
ADVISER
VILLANOVA MUTUAL FUND CAPITAL TRUST
By: /s/ Xxxxx X. Xxxxx, Xx.
Name: Xxxxx X. Xxxxx, Xx.
Title:
SUBADVISER
XXXXXX INVESTMENT PARTNERS, INC.
By: /s/ Xxxxxxx X. Xxxxxxx
Name: Xxxxxxx X. Xxxxxxx
Title: President & COO
EXHIBIT A
SUBADVISORY AGREEMENT
BETWEEN NATIONWIDE SEPARATE ACCOUNT TRUST, VILLANOVA MUTUAL
FUND CAPITAL TRUST AND XXXXXX XXXXXXXX & XXXXXXXX, LLP
EFFECTIVE MAY 1, 2000
FUND OF THE TRUST ADVISORY FEES
Nationwide Growth Focus II Fund 0.55% on Subadviser Net Assets up to
$500 million
0.45% for Subadviser Assets of
$500 million and more but less than
$2 billion
0.40% on Subadviser Assets of up to
$2 billion and more
Performance Fee
This base advisory fee is adjusted each quarter, beginning one year after
commencement of operations, depending on the Nationwide Growth Focus II Fund's
investment performance for the 36 months* preceding the end of that month,
relative to the investment performance of the Fund's benchmark, the Xxxxxxx 1000
Growth Index. The base fee is either increased or decreased by the following
amounts at each breakpoint, based on whether the Subadviser has out- or
under-performed the Xxxxxxx 1000 Growth Index by more or less than 1200 basis
points over the preceding rolling 36 month period:
For assets up to $500 million +/- 22 basis points
Assets of $500 million and more +/- 18 basis points
But less than $2 billion
Assets of $2 billion and more +/- 16 basis points
The investment performance of the Nationwide Growth Focus II Fund will be the
sum of: (1) the change in the Fund's value during such period; (2) the value of
the Fund's cash distributions (from net income and realized net gains) having a
record date during such calculation period; and (3) the value of any capital
gains taxes paid or accrued during such calculations period for undistributed
realized long-term capital gains from the Fund. For this purpose, the value of
distributions per share of realized capital gains, of dividends per share paid
from investment income and of capital gains taxes per share reinvested in the
Fund at the Fund's value in effect at the close of business on the record date
for the payment of such distributions and dividends and the date on which
provision is made for such taxes, after giving effect to such distribution,
dividends and taxes.
-- 180 --
Xxxxxxx 1000 Growth Index Performance.
The performance of the Xxxxxxx 1000 Growth Index for a calculation period,
expressed as a percentage of the Xxxxxxx 1000 Growth Index, at the beginning of
such period will be the sum of: (1) the change in the level of the Xxxxxxx 1000
Growth Index during such period; and (2) the value, as calculated consistent
with the Xxxxxxx 1000 Growth Index during, of cash distributions having an
ex-dividend date during such period made by those companies whose securities
comprise the Xxxxxxx 1000 Growth Index. For this purpose, cash distributions on
the securities that comprise the Xxxxxxx 1000 Growth Index will be treated as if
they were reinvested in the Xxxxxxx 1000 Growth Index at least as frequently as
the end of each calendar quarter following payment of the dividend.
* After the first twelve months of operations of the Fund, the performance fee
will be phased in on a progressive basis over the next 24 months. The
performance fee will be calculated on a progressive basis by multiplying the
applicable performance fee by a fraction, the numerator of which is the number
of months since commencement of operations and the denominator of which is 36
(the total phase in period). Beginning thirty six months after commencement of
operations, the performance fee will be applied completely.
--------------------------------------------------------------------------------
-- 181 --
