Exhibit No. Ex-99.d.2.l
SUBADVISORY AGREEMENT
THIS AGREEMENT is made and entered into as of the 1st day of May, 2007
and will be come effective with respect to the Fund(s) set forth on Exhibit A on
May 1, 2007, among NATIONWIDE VARIABLE INSURANCE TRUST (formerly Gartmore
Variable Insurance Trust) (the "Trust"), a Delaware statutory trust, NATIONWIDE
FUND ADVISORS (formerly Gartmore Mutual Fund Capital Trust) (the "Adviser"), a
Delaware business trust registered under the Investment Advisers Act of 1940, as
amended (the "Advisers Act"), and THE BOSTON COMPANY ASSET MANAGEMENT, LLC, a
Massachusetts limited liability company (the "Subadviser"), and also registered
under the Advisers Act.
WITNESSETH:
WHEREAS, the Trust is registered with the U.S. Securities and Exchange
Commission (the "SEC") as an open-end management investment company under the
Investment Company Act of 1940, as amended (the "1940 Act");
WHEREAS, the Adviser has, pursuant to an Investment Advisory Agreement
with the Trust dated as of May 1, 2007 (the "Advisory Agreement"), 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 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, in consideration of the terms and conditions hereinafter set
forth, 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 (the "Trustees"), and subject to the terms of this Agreement. The
Subadviser hereby accepts such employment and 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 as
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
each 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 Trustees, to purchase, hold and sell
investments for the Subadviser Assets and to monitor on a continuous basis the
performance of such Fund investments. In providing these services, the
Subadviser will conduct a continual program of investment, evaluation and, if
appropriate, sale and reinvestment of the Subadviser Assets, without prior
consultation with the Adviser. 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 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 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, a 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 and will conform to, and comply with, the requirements of the 1940 Act,
the Internal Revenue Code of 1986, as amended (the "Code"), (including the
requirements for qualification as a regulated investment company), and all other
applicable federal and state laws and regulations. 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 reasonable advance written
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 written notice of the effectiveness of such changes from the Trust or
the Adviser. For purposes of this subsection, receipt of a modified Prospectus
by the Subadviser shall constitute notice of the effectiveness of 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 a 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 a 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.
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(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 a Fund or take any action with respect thereto.
If both the Subadviser Assets and another entity's 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 a
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.
(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 for the limited purposes of executing account documentation, agreements,
contracts and other documents as the Subadviser shall be requested by brokers,
dealers, counterparties and other persons in connection with its management of
the Subadviser Assets. The Subadviser agrees to provide the Adviser and the
Trust with copies of any such agreements executed on behalf of the Adviser or
the Trust.
(e) BROKERAGE. The Subadviser is authorized, subject to the supervision
of the Adviser and the 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 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 Trustees prior to establishing any such
brokerage account. The Subadviser shall place all orders for the purchase and
sale of Fund 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, in its opinion, 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 Fund's best
interests at all times, shall consider all factors it deems relevant, including
price, the size of the transaction, the nature of the market for the security,
the 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.
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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 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 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.
(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 a Fund; provided, however, the Subadviser and
any affiliated person of the Subadviser may purchase securities or other
instruments from or sell securities or other instruments to the Fund if such
transaction is permissible under applicable laws and regulations, including,
without limitation, the 1940 Act and the Advisers Act and the rules and
regulations promulgated thereunder.
The Subadviser, 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 Subadviser'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 at
least an annual basis, the Subadviser will comply with the reporting
requirements of Rule 17j-1, which may include either: (i) certifying to the
Adviser that the Subadviser and its Access Persons have complied with the
Subadviser's Code of Ethics with respect to the Subadviser Assets; or (ii)
identifying any violations which have occurred with respect to the Subadviser
Assets. The Subadviser will have also submitted its Code of Ethics for its
initial approval by the Trustees no later than the date of execution of this
agreement and subsequently within six months of any material change thereto.
(g) BOOKS AND RECORDS. Pursuant to the 1940 Act and the rules and
regulations promulgated thereunder, the Subadviser shall maintain separate books
and detailed records of all matters pertaining to the Subadviser Assets (the
"Funds' Books and Records"), including, without limitation, a daily ledger of
such assets and liabilities relating thereto and brokerage and other records of
all securities transactions. The Funds' Books and Records (relating to the
Subadviser Assets) shall be available to the Adviser at any time upon request
and shall be available for telecopying without delay to the Adviser during any
day that a Fund is open for business.
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(h) INFORMATION CONCERNING SUBADVISER ASSETS AND SUBADVISER. From time
to time as the Adviser or a Fund may reasonably request, the Subadviser will
furnish the requesting party reports on portfolio transactions and reports on
Subadviser Assets held in the portfolio, as well as on other investment
information, compliance, tax and/or related data relating to a Fund, all in such
detail as the Adviser or a Fund may reasonably request. The Subadviser will also
inform the Adviser in a timely manner of material changes in primary portfolio
manager(s) responsible for Subadviser Assets or of material changes in the
control of the Subadviser. The Subadviser will make available one or more of its
officers and employees to meet with the Trustees on reasonable due notice to
review the Subadviser Assets.
The Subadviser will also provide such information or perform such
additional acts as are customari1y performed by a subadviser and may be required
for a 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 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 a 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, a Fund's or Adviser's 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 such Subadviser on
behalf of a Fund or the Adviser. The Subadviser shall keep and supply to the
Trust and the Adviser reasonable records of all such expenses.
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5. COMPENSATION. For the services provided 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 hereto. Such fees will be
computed daily and paid no later than the seventh (7th) business day following
the end of each month, from the Adviser or the Trust, calculated at an annual
rate based on the Subadviser Assets' average daily net assets.
The method of determining 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 as
described in each Fund's Prospectus. If this Agreement shall be effective for
only a portion of a month, with respect to any Fund, the aforesaid fee shall be
prorated for the portion of such month during which this Agreement is in effect
for such Fund.
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 AN WARRANTIES OF SUBADVISER. The Subadviser
represents and warrants to the Adviser and the Fund as follows:
(a) The Subadviser is registered a an investment adviser under the
Advisers Act;
(b) The Subadviser is exempt from registration as a commodity trading
adviser under Section 4m(3) of the Commodity Exchange Act, as amended;
(c) The Subadviser is a Massachusetts limited liability Company 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 as proposed to be conducted hereunder;
(d) The execution, delivery and performance by the Subadviser of this
Agreement are within the Subadviser's powers and have been duly authorized by
all necessary 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; and
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(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 Rule 4.14
under the CEA with the CFTC and the NFA or is not required to file such
exemption;
(c) The Adviser is a business trust duly organized and validly existing
under the laws of the State of Delaware with the power to own and possess its
assets and carry on its business as it is now being conducted and as proposed to
be conducted hereunder;
(d) The execution, delivery and performance by the Adviser of this
Agreement are within the Adviser's powers and have been duly authorized by all
necessary action on the part of its shareholders or directors, 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
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. The Trust represents
and warrants to the Adviser and the Subadviser as follows:
(a) The Trust is a statutory trust duly formed and validly existing
under the laws of the State of Delaware with the power to own and possess its
assets and carry on its business as it is now being conducted and as proposed to
be conducted hereunder;
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(b) The Trust is registered as an investment company under the 1940 Act
and 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 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.
(d) The Trust acknowledges that it received a copy of the Subadviser's
Form ADV prior to the execution of this Agreement.
9. SURVIVAL OF REPRESENTATIONS AND WARRANTIES: DUTY TO UPDATE
INFORMATION. All representations and warranties made by the Subadviser 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 willful misfeasance, bad faith or
gross negligence on its part in the performance of its duties or reckless
disregard of its obligation and 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
liable to the Adviser, the Trust or a Fund or any of a Fund's shareholders for
any error of judgment or mistake of law or for any loss suffered by the Adviser
or a Fund in connection with the matters to which the Agreement relates, and, 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
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 Subadviser Assets;
provided, however, that nothing herein shall relieve Adviser and the Subadviser
from any of their respective securities obligations under applicable law,
including, without limitation, the federal and state securities laws and the
CEA.
(b) INDEMNIFICATION. The Subadviser shall indemnify the Adviser and the
Trust, and their respective officers and directors and trustees, and employees
for any liability and expenses, including reasonable ATTORNEYS' fees, which may
be sustained as a result of the Subadviser's willful misfeasance, bad faith, or
gross negligence in the performance of its duties, or reckless disregard of its
duties hereunder. Notwithstanding any other provision in this Agreement, the
Subadviser will indemnify the Adviser and the Trust, and their respective
Affiliated Persons and Controlling Persons for any liability and expenses,
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including reasonable attorneys' fees, to which they may be subjected as a result
of the Subadviser providing inaccurate historical performance calculations
concerning the Subadviser's composite account data or historical performance
information on similarly managed investment companies or accounts, except that
the Adviser and the Trust and their respective affiliated persons and
Controlling Persons shall not be indemnified for any liability or expense
resulting from their negligence or willful misconduct in using such information.
The Adviser shall indemnify the Subadviser, its affiliated persons, its
Controlling Persons and its officers and directors, and employees for any
liability and expenses, including attorneys fees, which may be sustained as a
result of the Adviser's willful misfeasance, bad faith, gross negligence,
reckless disregard of its duties hereunder or violation of applicable law,
including, without limitation, the federal and state securities laws or the CEA.
11. DURATION AND TERMINATION.
(a) DURATION. Unless sooner terminated, this Agreement shall continue
until May 1, 2008, with respect to any Fund covered by this Agreement initially
and, for any Fund subsequently added to this Agreement, an initial period of no
more than two years that terminates on the second May 1st that occurs following
the effective date of this Agreement with respect to such Fund, and thereafter
shall continue automatically for successive annual periods with respect to each
of the Funds, provided such continuance is specifically approved at least
annually by the 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 Trustees who are not
"interested persons" (as defined in the 0000 Xxx) of my 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 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 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 any of the other parties; or
(iii) By the Subadviser upon at least 120 days' written notice
to the Adviser 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.
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12. DUTIES OF THE ADVISER. The Adviser shall continue to have
responsibility for all services to be provided to a 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 a Fund.
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 provided by
Subadviser to a 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. 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 Trustees or by a vote of a majority of the outstanding voting securities
of a Fund (as required by the 1940 Act), and (b) the vote of a majority of those
Trustees 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 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 each Fund and the actions of
the Subadviser, the Adviser and each 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 party, or transmitted by facsimile with
acknowledgment of receipt, to the parties at the following addresses or
facsimile numbers, which may from time to time be changed by the parties by
notice to the other party:
(a) If to the Subadviser:
The Boston Company Asset Management, LLC
Xxx Xxxxxx Xxxxx, 00xx Xxxxx
Xxxxxx, XX 00000
Attention:
Facsimile: (000) 000-0000
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(b) If to the Adviser:
Nationwide Fund Advisors
0000 Xxxxx Xxxx - Xxxxx 0000
Xxxxxxxxxxxx, XX 00000
Attention: Legal Department
Facsimile: (000) 000-0000
(c) If to the Trust;
Nationwide 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 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 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 VARIABLE INSURANCE TRUST AND ITS TRUSTEES. The terms
"Nationwide Variable Insurance Trust" and the "Trustees of Nationwide 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 a
Declaration of Trust dated as of September 30, 2005, as has been or may be
amended from time to time, and to which reference is hereby made.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement on
the day and year first written above.
TRUST
NATIONWIDE VARIABLE INSURANCE TRUST
By:
----------------------------------
Name:
--------------------------------
Title:
-------------------------------
ADVISER
NATIONWIDE FUND ADVISORS
By:
----------------------------------
Name:
--------------------------------
Title:
-------------------------------
SUBADVISER
THE BOSTON COMPANY ASSET MANAGEMENT, LLC
By:
----------------------------------
Name:
--------------------------------
Title:
-------------------------------
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EXHIBIT A
SUBADVISORY AGREEMENT
AMONG NATIONWIDE VARIABLE INSURANCE TRUST,
NATIONWIDE FUND ADVISORS
and THE BOSTON COMPANY
EFFECTIVE MAY 1, 2007*
FUNDS OF THE TRUST ADVISORY FEES
-------------------------------- ----------------------------------
NVIT International Value Fund 0.375% on Subadviser Assets up to
$500 million;
0.30% for Subadviser Assets of
$500 million and more.
*As most recently approved at the January 11, 2007 Board Meeting.
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EXHIBIT B
SUBADVISORY AGREEMENT
AMONG NATIONWIDE VARIABLE INSURANCE TRUST,
NATIONWIDE FUND ADVISORS
and THE BOSTON COMPANY ASSET MANAGEMENT, LLC
EFFECTIVE MAY 1, 2007
In connection with securities transactions for a Fund, the Subadviser that is
(or whose affiliated person is) entering into the transaction, and any other
investment manager that is advising an affiliate of the Fund (or portion of the
Fund) (collectively, the "Managers" for the purposes of this Exhibit) entering
into the transaction are prohibited from consulting with each other concerning
transactions for the Fund in securities or other assets and, if both Managers
are responsible for providing investment advice to the Fund, the Manager's
responsibility in providing advice is expressly limited to a discrete portion of
the Fund's portfolio that it manages.
This prohibition does not apply to communications by the Adviser in connection
with the Adviser's (i) overall supervisory responsibility for the general
management and investment of the Fund's assets; (ii) determination of the
allocation of assets among the Manager(s), if any; and (iii) investment
discretion with respect to the investment of Fund assets not otherwise assigned
to a Manager.
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