Exhibit No. EX-99.23(d)(4)(b)
SUBADVISORY AGREEMENT
THIS AGREEMENT is made and entered into as of the 2nd day of May, 2005,
among GARTMORE VARIABLE INSURANCE TRUST (formerly Nationwide Separate Account
Trust), a Delaware statutory trust (the "Trust"), GARTMORE MUTUAL FUND CAPITAL
TRUST (formerly Villanova Mutual Fund Capital Trust) (the "Adviser"), a Delaware
statutory trust registered under the Investment Advisers Act of 1940 (the
"Advisers Act"), and Gartmore Global Partners, a Delaware general partnership
(the "Subadviser"), and also registered under the Advisers Act.
W I T N E S S E T H:
WHEREAS, the Trust is registered with the U.S. Securities and Exchange
Commission (the "SEC") as an open-end management investment company under the
Investment Company Act of 1940, as amended (the "1940 Act");
WHEREAS, the Adviser has, pursuant to an Investment Advisory Agreement
with the Trust dated as of May 2, 2005 (the "Advisory Agreement") as
subsequently amended, 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 Subadviser is regulated by the Securities and Exchange
Commission as an investment adviser under the Advisers Act and is also
authorised and regulated by the Financial Services Authority ("FSA") of the
United Kingdom in the conduct of its investment business;
WHEREAS, the Advisory Agreement permits the Adviser to delegate certain
of its duties under the Advisory Agreement to other investment advisers, subject
to the requirements of the 1940 Act; and
WHEREAS, the Adviser desires to retain Subadviser to assist it in the
provision of a continuous investment program for that portion of the Trust's
assets which the Adviser will assign to the Subadviser (the "Subadviser
Assets"), and Subadviser is willing to render such services subject to the terms
and conditions set forth in this Agreement.
NOW, THEREFORE, 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
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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 have no objection to such activities.
2. DUTIES OF SUBADVISER.
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(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
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 the Subadviser's activities under this Agreement,
including, without limitation, information concerning a Fund, their
funds available, or to become available, for investment and generally
as to the conditions of a Fund's or Trust's affairs. In particular, but
without prejudice to the generality of the foregoing, the Adviser shall
authorize and instruct the Trust's custodian to provide such
information to the Subadviser as it may reasonably require, and to act
upon the Subadviser's instructions given in the proper performance by
the Subadviser of this Agreement.
(b) COMPLIANCE WITH APPLICABLE LAWS AND GOVERNING DOCUMENTS.
In the performance of its duties and obligations under this Agreement,
the Subadviser shall act in conformity with the Prospectus and the
Trust's Agreement and Declaration of Trust and By-Laws as currently in
effect and, as soon as practical after the Trust, the Fund or the
Adviser notifies the Subadviser thereof, as supplemented, or amended
and/or restated from time to time (referred to hereinafter as the
"Declaration of Trust" and "By-Laws," respectively) and with the
instructions and directions received in writing from the Adviser or the
Trustees 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. Notwithstanding the foregoing, the Adviser shall
remain responsible for ensuring each Fund's overall compliance with the
1940 Act and the Code 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 copies of any
financial statements or reports made by the Fund to its shareholders,
and any further materials or information which the Subadviser may
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reasonably request to enable it to perform its functions under this
Agreement. Notwithstanding the foregoing, the Adviser acknowledges that
the Subadviser may also be subject to requirements by FSA, and will
comply with such requirements to the extent they are not inconsistent
with applicable federal and state laws and regulations in the United
States. At a minimum, the Subadviser must comply with the laws of the
United States, but may also choose to comply with more stringent FSA
requirements if the Subadviser deems necessary.
The Adviser will also 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 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 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 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 following the
Adviser's written request 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 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 Fund or
the Trust 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.
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-1A under the 1940 Act and the Securities Act of
1933, as amended (the "Securities Act"), Form N-PX under the 1940 Act,
and Form N-CSR under the Xxxxxxxx-Xxxxx Act of 2002, as amended,
respectively.
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(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
managing the Subadviser Assets, and executing account documentation,
agreements, contracts and other documents as the Subadviser shall enter
into with brokers, dealers, counterparties and other persons in
connection with its management of the Subadviser Assets. The Subadviser
agrees to provide the Adviser and the Trust with copies of any such
agreements executed on behalf of the Adviser or the Trust.
(e) BROKERAGE. The Subadviser is authorized, subject to the
supervision of the Adviser and the Trust's Board of Trustees, to
establish and maintain accounts on behalf of each Fund with, and place
orders for the purchase and sale of the Subadviser Assets with or
through, such persons, brokers (including, to the extent permitted by
applicable law, any broker affiliated with the Subadviser) or dealers
(collectively, "Broker(s)") as 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 the 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. 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 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.
Notwithstanding the foregoing, the Adviser acknowledges that the
Subadviser may also be subject to requirements by FSA, and will comply
with such requirements to the extent they are not inconsistent with
applicable federal and state laws and regulations in the United States.
At a minimum, the Subadviser must comply with the laws of the United
States, but may also choose to comply with more stringent FSA
requirements if the Subadviser deems necessary.
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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
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.
(f) SECURITIES TRANSACTIONS. The Subadviser and any affiliated
person of the Subadviser may purchase securities or other instruments
from or sell securities or other instruments to a Fund only 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, 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 the Trust's Code of Ethics (which shall
comply in all material respects with Rule 17j-1), as the same may be
amended from time to time. On a quarterly basis, the Subadviser will
either (i) certify to the Adviser that the Subadviser and its Access
Persons have complied with the Trust's Code of Ethics with respect to
the Subadviser Assets or (ii) identify any violations which have
occurred with respect to the Subadviser Assets.
(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;
however, nothing in this clause shall be interpreted to provide the
Adviser or the Trust with any property right in any software used by
the Subadviser to maintain such records. 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 relevant Fund is open for business. The Trust acknowledges
that the Subadviser may be obligated under applicable law and
regulation to maintain copies of the Fund's Records for certain periods
prescribed by such law and regulation and that it will permit the
Subadviser to maintain such records as may be so required both during
the term of this Agreement and thereafter.
(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
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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 management team(s) responsible for
Subadviser Assets, any changes in the ownership or management of the
Subadviser, or of material changes in the control of the Subadviser.
Upon 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
as may be reasonably requested from time to time, and may be 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 of 1933,
as amended (the "Securities Act"), 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 Fund Investments.
(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. The Trust and the Adviser
both acknowledge that the Subadviser may be bound by applicable law and
regulation which may restrict its ability to disclose details such
information, and this Agreement shall not be construed as requiring the
Subadviser to disclose any such information where such disclosure would
result in the Subadviser being in breach of such applicable law or
regulation.
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, including any
tax arising on any transaction, 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,
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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 Funds 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 and the Subadviser Assets pursuant to this
Agreement, the Subadviser will be entitled to the fee listed for each Fund on
Exhibit A hereto. Such fees will be computed daily and payable no later than the
seventh (7th) business day following the end of each month, from the Adviser or
the Trust, calculated at an annual rate based on the Subadviser Assets' average
daily net assets.
The method of determining 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 a 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.
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 has filed a notice of exemption pursuant to
Section 4.14 under the Commodity Exchange Act, as amended (the "CEA"),
with the Commodity Futures Trading Commission (the "CFTC") and the
National Futures Association ("NFA"), or is not required to file such
exemption;
(c) The Subadviser is a partnership 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 Subadviser
of this Agreement are within the Subadviser's powers and have been duly
authorized by all necessary action by the Subadvisers 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
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regulation, (ii) the Subadviser's governing instruments, or (iii) any
agreement, judgment, injunction, order, decree or other instrument
binding upon the Subadviser; and
(e) The Form ADV of the Subadviser provided to the Adviser is
a true and complete copy of the form, including that part or parts of
the Form ADV filed with the SEC, that part or parts maintained in the
records of the Adviser, and/or that part or parts provided or offered
to clients, in each case as required under the Advisers Act and rules
thereunder, and the information contained therein is accurate and
complete in all material respects and does not omit to state any
material fact necessary in order to make the statements made, in light
of the circumstances under which they were made, not misleading. In
addition, the Subadviser agrees to promptly provide the Trust with
updates of its Form ADV.
7. REPRESENTATIONS AND WARRANTIES OF ADVISER. The Adviser
represents and warrants to the Subadviser as follows:
(a) The Adviser is registered as an investment adviser under
the Advisers Act;
(b) The Adviser has filed a notice of exemption pursuant to
Section 4.14 under the CEA with the CFTC and the National Futures
Association or is exempt from doing so;
(c) The Adviser is a statutory 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, the appointment of the Subadviser and the delegation to
the Subadviser of the duties and powers delegated to it under 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 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
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statements made, in light of the circumstances under which they were
made, not misleading; and
(f) The Adviser acknowledges that it received a copy of the
Subadviser's Form ADV prior to the execution of this Agreement; and
(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 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;
(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.
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(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
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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 wilful 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 the Fund, and their respective Affiliates and
Controlling Persons for any liability and expenses, including
reasonable attorneys' fees, which the Adviser, the Trust and the Fund
and their respective Affiliates and Controlling Persons may sustain as
a result of the Subadviser'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 or the CEA. Notwithstanding any other provision in this
Agreement, the Subadviser will indemnify the Adviser, the Trust and the
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 the Fund, and their
respective Affiliates and Controlling Persons shall not be indemnified
for a loss or expense resulting from their negligence, willful
misconduct or the violation of the 1940 Act or federal or state
securities laws in using such numbers, or for their failure to conduct
reasonable due diligence with respect to such information.
The Adviser shall indemnify the Subadviser, its Affiliates and
its Controlling Persons, for any liability and expenses, including
reasonable 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 or
the CEA, or as a result of any negligence, willful misconduct or the
violation of the 1940 Act or federal or state securities laws on the
part of the Adviser in the reliance upon and/or use of any historical
performance calculations provided by the Subadviser concerning the
Subadviser's composite account data or historical performance
information or similarly managed investment companies.
11. DURATION AND TERMINATION.
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(a) DURATION. Unless sooner terminated, this Agreement shall
continue until February 27, 2006, with respect to any Fund covered by
this Agreement initially and, for any Fund subsequently added to this
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Agreement, an initial period of no more than two years that terminates
on the second February 27th that occurs following the effective date of
this Agreement with respect to such Fund, and thereafter shall continue
automatically for successive annual periods with respect to each of the
Funds, provided such continuance is specifically approved at least
annually by the Trust's Board of Trustees or vote of the lesser of (a)
67% of the shares of the Funds represented at a meeting if holders of
more than 50% of the outstanding shares of the Funds are present in
person or by proxy or (b) more than 50% of the outstanding shares of
the Funds; 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:
(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 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
(iii) 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
0000 Xxx) and shall terminate automatically in the event of its
assignment or upon the termination of the Advisory Agreement. Upon
termination of this Agreement, the Trust will immediately discontinue
the use of the historical performance information provided by the
Subadviser provided under Section 2(j) hereof.
Termination will be without prejudice to the settlement of any
outstanding fees and the completion of transactions already initiated.
If on termination any money is due or will or may become due in the
future as a result of a commitment entered into by the Subadviser ("an
outstanding amount") then the Subadviser may at its discretion sell
such of the Subadviser Assets as it may in its discretion select in
order to realize funds sufficient to cover any outstanding amount (but
only to the extent that insufficient funds are otherwise available for
the purpose). The Subadviser may also cancel, close out, terminate or
reverse any transaction or enter into any other transaction or do
anything which has the effect of reducing or eliminating any
outstanding amount or of reducing or eliminating any liability under
any contracts, positions or commitments undertaken under this
Agreement.
11
12. DUTIES OF THE ADVISER.
----------------------
(a) RESPONSIBILITY FOR OTHER SERVICES. The Adviser shall
continue to have responsibility for all services to be provided to the
Trust 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 Trust.
(b) DELIVERY OF DOCUMENTS. The Adviser will provide the
Subadviser with copies of each of the following:
(i) The Trust's Certificate of Trust and Declaration of
Trust;
(ii) The most recent Prospectus and Statement of
Additional Information relating to the Trust;
(iii) The Trust's Bylaws; and
(iv) The Trust's Code of Ethics.
The Adviser will notify the Subadviser as soon as it becomes
aware of any change in the above documents, and supply a copy of the
amended document or documents. The Subadviser shall not be liable
either for the breach of any provision or otherwise under this
Agreement, where such breach or other liability relates to a failure to
comply with the above documents, in circumstances where the Subadviser
was not aware at the relevant time of the amendment of the relevant
document or documents and, if not for such amendment, such breach or
other liability would not have occurred.
13. REFERENCE TO SUBADVISER. Neither the Adviser nor any Affiliate
or agent of the Adviser shall make reference to or use the name of Subadviser or
any of its Affiliates, or any of their clients, except references concerning the
identity of and services provided by the Subadviser to the Fund, which
references shall not differ in substance from those included in the Prospectus
and this Agreement, in any advertising or promotional materials without the
prior approval of Subadviser, which approval shall not be unreasonably withheld
or delayed. The Adviser hereby agrees to make all reasonable efforts to cause
the Fund and any Affiliate thereof to satisfy the foregoing obligation.
14. AMENDMENT. This Agreement may be amended by mutual written
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.
12
15. CONFIDENTIALITY. Subject to the duties of the Adviser, the
Trust and the Subadviser to comply with the terms of this Agreement and
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.
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:
(a) If to the Subadviser:
Gartmore Global Partners
0000 Xxxxx Xxxx - Xxxxx 0000
Xxxxxxxxxxxx, XX 00000
Attention: Legal Department
Facsimile: (000) 000-0000
(b) If to the Adviser:
Gartmore Mutual Fund Capital Trust
0000 Xxxxx Xxxx - Xxxxx 0000
Xxxxxxxxxxxx, XX 00000
Attention: Legal Department
Facsimile: (000) 000-0000
(c) If to the Trust:
Gartmore Variable Insurance Trust
0000 Xxxxx Xxxx - Xxxxx 0000
Xxxxxxxxxxxx, XX 00000
Attention: Legal Department
Facsimile: (000) 000-0000
17. JURISDICTION. This Agreement shall be governed by and
construed to be consistent with the Advisory Agreement and 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.
13
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. GARTMORE VARIABLE INSURANCE TRUST AND ITS TRUSTEES. The terms
"Gartmore Variable Insurance Trust" and the "Trustees of Gartmore Variable
Insurance Trust" refer respectively to the Trust created and the Trustees, as
trustees but not individually or personally, acting from time to time under the
Declaration of Trust made and dated as of September 30, 2004, as has been or may
be amended from time to time, and to which reference is hereby made.
23. AGENT NOT PRINCIPAL. The Subadviser shall enter into
transaction under this Agreement as agent on behalf of the Adviser or Trust and
not as principal.
24. SOFT COMMISSIONS. The subadviser may effect transactions under
the Agreement with or through the agency of a person who provides services under
a Soft Commission Agreement, as defined in the rules of FSA, and will report
such transactions to the Adviser upon request. All such transactions must comply
with applicable federal and state regulations in the United States and any
mutually agreed upon policies and procedures.
14
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on
the day and year first written above.
TRUST
GARTMORE VARIABLE INSURANCE TRUST
(formerly Nationwide
Separate Account Trust)
By: /S/ XXXXX XXXXXXXXX
--------------------------------
Name: Xxxxx Xxxxxxxxx
Title: Assistant Secretary
ADVISER
GARTMORE MUTUAL FUND CAPITAL TRUST
(formerly Villanova
Mutual Fund Capital Trust)
By: /S/ XXXXXX X. XXXXXXX
--------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Senior Vice President
SUBADVISER
Gartmore Global Partners
By: /S/ XXXX XXXXXXXX
--------------------------------
Name: Xxxx Xxxxxxxx
Title: General Counsel, Europe
15
EXHIBIT A
SUBADVISORY AGREEMENT
BETWEEN
GARTMORE VARIABLE INSURANCE TRUST
GARTMORE MUTUAL FUND CAPITAL TRUST
AND GARTMORE GLOBAL PARTNERS
EFFECTIVE MAY 2, 2005
FUNDS OF THE TRUST ADVISORY FEES
------------------ -------------
GVIT Small Company Fund 0.60% of the Fund's average daily net assets
Gartmore GVIT Worldwide Leaders Fund(1)* 0.60% of assets up to $50 million
0.55% for assets of $50 million or more
--------------------
* Upon effectiveness and implementation of the performance fee structure
referenced above, the base management fee for each of these funds will be
reduced by 5 basis points at each breakpoint in the schedule.
(1) Performance fee for Gartmore GVIT Worldwide Leaders Fund
The base advisory fee for the Fund as set forth above is adjusted each quarter
beginning one year after implementation of the performance fee, depending upon
the Fund's investment performance for the 12 months preceding the end of that
month relative to the investment performance of the Fund's benchmark, the MSCI
World Index. The base fee is either increased or decreased proportionately by
the following amounts at each breakpoint, based upon whether a Fund has
out-performed or under-performed the MSCI World Index (using the performance of
the Fund's Class III Shares to measure), by more or less than a maximum of 500
basis points over the preceding rolling 12 month period as follows:
+/- 100 bps under/outperformance 2bps
+/- 200 bps under/outperformance 4bps
+/- 300 bps under/outperformance 6bps
+/- 400 bps under/outperformance 8bps
+/- 500 bps or more under/outperformance 10bps
The investment performance of the 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 an ex-dividend date during such
calculation period; and (3) the value of any capital gains taxes paid or accrued
during such calculation 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 will be the Fund's value
in effect at the close of business on the record date for the payment of such
distributions and the date on which provision is made for such taxes, after
giving effect to such distribution, dividends and taxes.
MSCI World Index:
The performance of the MSCI World Index for a calculation period, expressed
as a percentage of each Index, at the beginning of such period will be the sum
of: (1) the change in the level of the Index during such period; and (2) the
value, as calculated consistent with the Index, of cash distributions having an
ex-dividend date during such period made by those companies whose securities
comprise the Index. For this purpose, cash distributions on the securities that
comprise the Index will be treated as if they were reinvested in the Index at
least as frequently as the end of each calendar quarter following payment of the
dividend.
16
EXHIBIT B
SUBADVISORY AGREEMENT
AMONG GARTMORE VARIABLE INSURANCE TRUST, GARTMORE GLOBAL ASSET
MANAGEMENT TRUST and GARTMORE GLOBAL PARTNERS
EFFECTIVE MAY 2, 2005
In connection with securities transactions for a Fund, the Subadviser that is
(or whose affiliated person is) entering into the transaction, and any other
subadviser that is advising an affiliate of the Fund (or portion of the Fund)
(collectively, the "Subadvisers" 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 Subadvisers
are responsible for providing investment advice to the Fund, the Subadvisers'
responsibility in providing advice is expressly limited with respect to a
discrete portion of the Fund's portfolio.
This prohibition does not apply to communications in connection with the
Investment 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 Subadviser(s); and (iii) investment discretion
with respect to the investment of Fund assets not otherwise assigned to a
Subadviser.
