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Exhibit (d)2(e)
SUBADVISORY AGREEMENT
THIS AGREEMENT is made and entered into on this 6th day of July, 1999
among NATIONWIDE SEPARATE ACCOUNT TRUST, a Massachusetts business trust (the
"Trust"), on behalf of the Nationwide Small Company Fund (the "Fund"),
NATIONWIDE ADVISORY SERVICES, INC. (the "Adviser"), an Ohio corporation
registered under the Investment Advisers Act of 1940, as amended (the "Advisers
Act"), and CREDIT SUISSE ASSET MANAGEMENT, LLC (the "Subadviser"), a Delaware
limited liability corporation also registered under the Advisers Act.
WITNESSETH:
WHEREAS, the Trust, a Massachusetts business trust (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, as
amended (the "1940 Act");
WHEREAS, the Adviser has, pursuant to an Advisory Agreement with the
Trust dated as of October 20, 1995 (the "Advisory Agreement"), been retained to
act as investment adviser for the Fund, one of the Trust's portfolios;
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 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. INVESTMENT DESCRIPTION: APPOINTMENT AS SUBADVISER. The Fund desires
to employ its capital by investing and reinvesting in securities of the kind and
in accordance with the limitations specified in the Trust's Declaration of Trust
and By-laws, as may be amended from time to time (the "Charter Documents"), and
in its Prospectus and Statement of Additional Information as may be in effect
from time to time (collectively, the "Prospectus") and which are filed with the
Securities and Exchange Commission as part of the Trust's Registration Statement
on Form N-1A, as amended from time to time, and in such manner and to such
extent as may be approved by the Board of Trustees of the Trust. Copies of the
Prospectus and Charter Documents, each as currently in effect, have been or will
be submitted to the 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. It is recognized that the Subadviser now
acts, and that from time to time hereafter may act, as investment adviser to one
or more other investment companies and to fiduciary or other managed accounts
and that the Adviser and the Trust have no objection to such activities.
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2. DUTIES OF SUBADVISER.
(a) INVESTMENTS. The Subadviser is hereby authorized and directed and
hereby agrees, subject to the stated investment policies and restrictions of the
Fund as set forth in the Prospectus and subject to the directions of the Adviser
and the Fund's Board of Trustees, to purchase, hold and sell investments for the
Subadviser assets ("Fund Investments") and to monitor on a continuous basis the
performance of such Fund Investments. Subject to the supervision of the Board of
Trustees and the Adviser, the Subadviser will: (1) manage the Subadviser Assets
in accordance with the Fund's investment objective, policies and limitations as
stated in the Prospectus and the Charter Documents and as the objective,
policies and limitations apply to the Subadviser Assets and in compliance with
the 1940 Act and the Advisers Act; (2) make investment decisions for the Fund;
(3) place purchase and sale orders for portfolio transactions for the Fund; and
(4) manage otherwise uninvested cash assets included in 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 to 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 the Fund, its funds available, or to become available, for investment
and generally as to the conditions of the Fund's affairs.
(b) COMPLIANCE WITH APPLICABLE LAWS AND GOVERNING DOCUMENTS. In the
performance of its duties and obligations under this Agreement, the Subadviser
shall act in conformity with the 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 Board of Trustees of the Trust and will use its best efforts
to 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. Notwithstanding the foregoing, the Adviser shall remain
responsible for ensuring the 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 reasonable advance notice
of any change in the Fund's investment objectives, policies and restrictions as
stated in the Prospectus, and the Subadviser shall use its best efforts to, in
the performance of its duties and obligations under this Agreement, manage the
Fund Investments consistent with such changes, provided the Subadviser has
received prompt written notice of the effectiveness of such changes from the
Trust or the Adviser. 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.
In fulfilling these requirements and its other requirements and
obligations hereunder, the Subadviser shall be entitled to rely on and act in
accordance with, and the Adviser and the Trust agree to hold the Subadviser
harmless for relying on and acting in accordance with, (1) information, which is
not clearly inaccurate on its face, provided to it by the Trust's administrator,
fund accountant or custodian and (2) instructions, which may be standing
instructions, from the Adviser. The Adviser agrees to provide or cause to be
provided to the Subadviser on an ongoing basis upon request by the Subadviser,
such information as is requested by the Subadviser for the performance of its
obligations under this Agreement, and the Subadviser shall not be in breach of
any term of this Agreement or be deemed to have acted negligently if the Adviser
fails to provide or cause to be
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provided such information and the Subadviser relies on the information most
recently furnished to it.
(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 or the Fund or take any action with respect
thereto. If both the Subadviser and another entity managing assets of the 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 assets of the Fund. 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 the Fund with, and place orders for the purchase and sale
of the Fund Investments with or through, such persons, brokers 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 the Fund's account with brokers selected by
the Subadviser. In the selection of such brokers and the placing of such orders,
the Subadviser shall use its reasonable efforts to 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 Fund's, best interests at all times, shall consider all factors it
deems relevant, including price, the size of the transaction, the breadth and
nature of the market for the security, the difficulty of the execution, the
amount of the commission, if any, the timing of the transaction, market prices
and trends, the reputation, experience and financial stability of the broker
involved, and the quality of service rendered by the broker or dealer 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 the Fund to
pay a broker that provides brokerage and research services 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.
It is recognized that the services provided by such brokers may be
useful to the Subadviser in connection with the Subadviser's services to other
clients. On occasions when the Subadviser deems the purchase or sale of a
security to be in the best interests of the Fund as well as other clients of the
Subadviser, the Subadviser, to the extent permitted by applicable laws and
regulations, may, but shall be under no obligation to, aggregate the securities
to be sold or purchased in order to obtain the most favorable price or lower
brokerage commissions and efficient execution. In such event, allocation of
securities so sold or purchased, as well as the expenses incurred in the
transaction, will be made by the Subadviser in the manner the Subadviser
considers to be the most equitable and consistent with its fiduciary obligations
to the Fund and to such other clients. It is recognized that in some cases, this
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.
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(f) SECURITIES TRANSACTIONS. The Subadviser and any affiliated
person of the Subadviser will not purchase securities or other
instruments from or sell securities or other instruments to the Fund;
PROVIDED, HOWEVER , the Subadviser may purchase securities or other
instruments from or sell securities or other instruments to the Fund if
such transaction is permissible under applicable laws and regulations,
including, without limitation, the 1940 Act and the Advisers Act and
the rules and regulations promulgated thereunder.
The Subadviser, 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 a quarterly basis, the Subadviser will either (i)
certify 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) identify any material violations which have
occurred with respect to the Subadviser Assets. In addition, Subadviser
will report at least annually to the Adviser concerning any other
violations of the Subadviser's Code of Ethics which required
significant remedial action and which were not previously reported.
(g) BOOKS AND RECORDS. Pursuant to the 1940 Act and the rules
and regulations promulgated thereunder, the Subadviser shall maintain
separate books and records of all matters pertaining to the Subadviser
Assets (the "Fund's Books and Records"). The Fund's Books and 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 unreasonable delay to the
Adviser during any day that the Fund is open for business.
(h) INFORMATION CONCERNING FUND INVESTMENTS AND SUBADVISER.
From time to time as the Adviser or the Fund may reasonably request,
the Subadviser will furnish the requesting party reports on portfolio
transactions and reports on Fund Investments held in the portfolio, all
in such detail as the Adviser or the Fund may reasonably request. The
Subadviser will also inform the Adviser in a timely manner of material
changes in portfolio managers responsible for Subadviser Assets or of
material changes in the control of the Subadviser. The Subadviser will
make available its officers and employees to meet with the Trust's
Board of Trustees on reasonable notice to review the Fund Investments.
Under normal circumstances, employees of the Subadviser shall not be
obligated to attend in person more than one Board meeting per year.
(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.
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 or the Adviser in any way or
otherwise be deemed an agent of the Fund 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 fees and commissions and other transaction charges, if any) purchased
for the Fund. The Adviser, the Trust and the Fund shall be responsible for all
expenses of the operations of the Fund including, without limitation, brokerage
fees and commissions and other transaction charges, if any. The Subadviser shall
not be responsible for the Trust's, the Fund's or the Adviser's expenses. The
Trust or the Adviser, as the case may be, shall reimburse the Subadviser for any
expenses of the Trust, the Fund or the Adviser as may be reasonably incurred by
such Subadviser on behalf of the Fund or the Adviser, including without
limitation all expenses incurred by the Subadviser in connection with the
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attendance in person by any officer or employee of the Subadviser at the request
of the Adviser or the Trust, at any meeting of the Board of Trustees. 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 the Fund pursuant to this Agreement, the Subadviser will be
entitled to a fee, 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 the annual rate of .60% of the Subadviser Assets' 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 Subadviser
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
Subadviser at any time.
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 has filed a notice of exemption pursuant to
Rule 4.14 under the Commodity Exchange Act (the "CEA") with the
Commodity Futures Trading Commission (the "CFTC") and the National
Futures Association, or is not required to file such exemption;
(c) The Subadviser is a limited liability corporation duly
organized and validly existing under the laws of the State of Delaware
with the power to own and possess its assets and carry on its business
as it is now being conducted;
(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 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 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; and
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
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with the CFTC and the National Futures Association or is not required
to file such exemption;
(c) 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;
(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, 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 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; and
(f) The Adviser acknowledges that it received a copy of the
Subadviser's Form ADV prior to the execution of this Agreement.
8. REPRESENTATIONS AND WARRANTIES OF THE TRUST AND THE FUND.
(a) The Trust is registered as an investment company under the
1940 Act and the Fund's shares are registered under the Securities Act
of 1933 , as amended ("Securities Act");
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(b) The Trust, on behalf of the Fund, has filed a notice of
exemption pursuant to Rule 4.5 under the CEA with the CFTC and the
National Futures Association or is not required to file such exemption;
(c) The Trust is a Massachusetts 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; and
(d) The Trust and the Fund have full power and authority under
applicable law and have taken all actions necessary and appropriate to
enter into and perform this Agreement.
9. SURVIVAL OF REPRESENTATIONS AND WARRANTIES: DUTY TO UPDATE
INFORMATION. All representations and warranties made by the Subadviser and the
Adviser pursuant to Sections 6, 7 and 8, respectively, shall survive for the
duration of this Agreement and the parties hereto shall promptly notify each
other in writing upon becoming aware that any of the foregoing representations
and warranties are no longer true.
10. LIABILITY AND INDEMNIFICATION.
(a) LIABILITY. 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, any affiliated
person of the Subadviser and each person, if any, who within the
meaning of the Securities Act controls the Subadviser ("Controlling
Persons") shall not be subject to any expenses or liability to the
Adviser, the Trust or the Fund or any of the Fund's shareholders, and,
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 affiliated person of the Adviser and each
of its Controlling Persons shall not be subject to any liability to the
Subadviser, for any act or omission in the case of, or connected with,
rendering services hereunder or for any losses that may be sustained in
the purchase, holding or sale of Fund Investments.
(b) INDEMNIFICATION. The Subadviser shall indemnify the
Adviser and the Trust, and their respective officers and directors and
trustees, for any liability and expenses, including attorneys' fees,
which may be sustained as a result or the Subadviser's wilful
misfeasance, bad faith, gross negligence, reckless disregard of its
duties hereunder. The Adviser shall indemnify the Subadviser, its
affiliates, its Controlling Persons and its officers and directors, for
any liability and expenses, including attorneys fees, which may be
sustained as a result of (i) the Adviser's wilful misfeasance, bad
faith, gross negligence, reckless disregard of its duties hereunder or
(ii) arising out of the Adviser's responsibilities to the Trust and the
Fund which may include, but not be limited to, responsibilities based
upon any act or omission by the Adviser, any of its employees or
representatives or any affiliate of or any person acting on behalf of
the Adviser, or may be based upon any untrue statement or alleged
untrue statement of material fact contained in the Prospectus or any
sales literature relating to the Fund, or alleged omission to state
therein a material fact known or which should have been known and was
required to be stated therein or necessary to make the statements
therein not misleading, unless such statement or omission was made in
reliance upon written information to the Adviser by the Subadviser. The
Trust also agrees to indemnify the Subadviser for any act or act or
omission by the Trust, any of its officers or representatives or any
affiliate of or any person acting on behalf of the Trust, or any untrue
statement or alleged untrue statement of material fact contained in the
Prospectus or any sales literature relating to the Fund, or alleged
omission to state therein a material fact known or which should have
been known and was required to be stated therein or necessary to make
the statements therein not misleading, unless such statement or
omission was made in reliance upon written information provided to the
Trust by the Subadviser.
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11. DURATION AND TERMINATION.
(a) DURATION. Unless sooner terminated, this Agreement shall
continue until July 1, 2000 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:
(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
sixty (60) days' written notice to the Subadviser;
(ii) By any party hereto immediately upon written
notice to the other parties in the event of a material breach
of any provision of this Agreement by either of the other
parties; or
(iii) By the Subadviser upon sixty (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. In the
event this Agreement is terminated or is not approved in the foregoing
manner, the provisions contained in Sections 9 and 10 shall remain in
effect; however, the parties will have no obligation to notify the
others of changes to the representations.
12. REFERENCE TO SUBADVISER. Neither the Adviser, the Trust nor any
affiliate or agent of either shall make reference to or use the name of "Credit
Suisse Asset Management, LLC" or any derivative thereof or logo associated with
that name or the name of any of its affiliates, or any of their clients, except
references concerning the identity of and services provided by Subadviser to the
Fund, which references shall not differ in substance from those included in the
Fund's Prospectus and this Agreement, in any advertising or promotional
materials without the prior approval of Subadviser, which approval shall not be
unreasonably withheld or delayed.
Upon termination of this Agreement in accordance with Section 11( b)
hereof, the Adviser, the Trust and the Fund, and any affiliate of any of them,
shall cease to make such reference or use such name (or derivative or logo).
13. AMENDMENT. This Agreement may be amended by written amendment
signed by 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 (as required by the 0000 Xxx) 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.
14. CONFIDENTIALITY. Subject to the duties of the Subadviser to comply
with applicable law, including any demand of any regulatory or taxing authority
having jurisdiction, the Subadviser shall treat
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as confidential all records and other information pertaining to the Fund or the
Adviser which the Subadviser maintains or receives as a result of its
responsibilities under this Agreement. In addition, subject to the duties to
comply with any applicable law, the Adviser and the Fund agree to treat as
confidential any information concerning the Subadviser, including its investment
policies or objectives, which the Adviser and the Fund receive as the result of
their actions under this Agreement.
15. 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, to the parties at the following addresses,
which may from time to time be changed by the parties by notice to the other
party:
(a) If to the Subadviser:
Credit Suisse Asset Management, LLC
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: General Counsel
(b) 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
(c) If to the Trust:
Nationwide Separate Account Trust
Xxx Xxxxxxxxxx Xxxxx, 00-X
Xxxxxxxx, XX 00000
Attention: Xxxxx X. Xxxxx, Xx.
Facsimile: (000) 000-0000
16. 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.
17. 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.
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18. 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.
19. CAPTIONS. The captions herein are included for convenience of
reference only and shall be ignored in the construction or interpretation
hereof.
20. 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.
21. 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 oh 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.
TRUST
NATIONWIDE SEPARATE ACCOUNT TRUST
By:
----------------------------------
Name: Xxxxx X. Xxxxx, Xx.
Title: Treasurer
ADVISER
NATIONWIDE ADVISORY SERVICES, INC.
By:
----------------------------------
Name: Xxxxxxxxxxx X. Xxxx
Title: Treasurer
SUBADVISER
CREDIT SUISSE ASSET MANAGEMENT, LLC
By:
----------------------------------
Name:
Title:
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AMENDMENT TO SUBADVISORY AGREEMENT
EFFECTIVE AS OF September 1, 1999
This AMENDMENT is made part of SUBADVISORY AGREEMENT (the "Agreement") dated as
of the 6th day of July, 1999, among Nationwide Separate Account Trust, a
Massachusetts business trust (the "Trust"), Nationwide Advisory Services, Inc.,
an Ohio corporation (the "Adviser") and Credit Suisse Asset Management, LLC, a
Delaware limited liability corporation (the "Subadviser") and is consented to by
Villanova Mutual Fund Capital Trust, a Delaware business trust ("Villanova MF").
WHEREAS, the Adviser wishes to transfer its mutual fund investment advisory
business to Villanova MF and is asking the Trust and the Subadviser to agree to
amend the Agreement so that Adviser's rights and responsibilities are
transferred to Villanova MF (the "Transfer");
WHEREAS, the Trust is registered with the Securities and Exchange Commission as
an investment company under the Investment Company Act of 1940 (the "1940 Act");
WHEREAS, Villanova MF is wholly owned by Villanova Capital, Inc., a Delaware
corporation, under the majority ownership of Nationwide Financial Services,
Inc., a Delaware corporation which through its wholly owned subsidiary,
Nationwide Life Insurance Corporation, wholly owns the Adviser, and thus
Villanova MF and the Adviser are under common control;
WHEREAS, all of the persons who will serve as the directors of Villanova
Capital, Inc. immediately after the Transfer are persons who have served as
directors of the Adviser prior to the Transfer;
WHEREAS, substantially all of the persons who will serve as officers of
Villanova MF immediately after the Transfer are persons who have served as
officers of the Adviser prior to the Transfer;
WHEREAS, the personnel who perform the services required of the Adviser under
the Agreement will continue to perform the same services after the Transfer;
WHEREAS, with respect to the services provided under the Agreement, the business
and operations of Villanova MF after the Transfer will be substantially the same
as the business and operations of the Adviser prior to the Transfer;
WHEREAS, the Transfer will not result in any reduction in the nature or quality
of the services which have been provided under the Agreement by the Adviser;
WHEREAS, the Transfer in and of itself will not result in a change in the fees
or reimbursements required to be paid under the Agreement;
WHEREAS, the Transfer will not affect the business or operations of the
Subadviser, or the nature or quality of the services provided under the
Agreement by the Subadviser;
WHEREAS, in view of the foregoing, the Transfer should not constitute an
assignment of the Agreement within the meaning of the 1940 Act; and
WHEREAS, the Trust's Board of Trustees has approved this amendment to the
Agreement pursuant to Section 14 of the Agreement;
NOW, THEREFORE, in consideration of the mutual premises and covenants set forth
herein, the parties hereby agree as follows:
1. Effective September 1, 1999 (the "Effective Date"), the Adviser will
transfer to Villanova MF all of its rights and responsibilities under the
Agreement, including but not limited to, such rights and responsibilities
relating to the supervision of the Subadviser's activities with respect to
the Trust's portfolios and to the obtaining of
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information from, and provision of information to, the Subadviser.
2. On the Effective Date, Villanova MF will assume such rights and
responsibilities of the Adviser, subject to the terms of the Agreement.
3. On the Effective Date, Adviser shall be relieved of all of its rights and
responsibilities under the Agreement.
4. All other provisions of the Agreement shall remain in full force and
effect.
5. The Trust represents and warrants that it possesses the requisite power and
authority to enter into and perform its obligations under this amendment.
6. The Adviser represents and warrants that it possesses the requisite power
and authority to enter into and perform its obligations under this
amendment.
7. The Subadviser represents and warrants that it possesses the requisite
power and authority to enter into and perform its obligations under this
amendment.
8. Villanova MF represents and warrants that it possesses the requisite power
and authority to enter into and perform its obligations under this
amendment, and that it is registered with the U.S. Securities and Exchange
Commission as an investment adviser pursuant to the Investment Advisers Act
of 1940.
9. The Adviser and Villanova MF together represent and warrant that the
transfer of the Agreement will not constitute an assignment of the
Agreement within the meaning of the 1940 Act.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to the
Agreement to be duly executed as of the day and year first written above.
NATIONWIDE ADVISORY SERVICES, INC. CREDIT SUISSE ASSET MANAGEMENT, LLC
By: _______________________________ By: ___________________________
Title: _______________________________ Title: ___________________________
Date: _______________________________ Date: ___________________________
Agreed and Consented to by:
NATIONWIDE SEPARATE ACCOUNT TRUST VILLANOVA MUTUAL FUND CAPITAL TRUST
By: _______________________________ By: ___________________________
Title: _______________________________ Title: ___________________________
Date: _______________________________ Date: ___________________________
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