EX-99(d)(4)(a)
INTERIM SUBADVISORY AGREEMENT
THIS INTERIM SUBADVISORY AGREEMENT is made and entered into as of the
27th day of April, 2007, to become effective on May 1, 2007, by and among
NATIONWIDE MUTUAL FUNDS (a.k.a. "Gartmore Mutual Funds," until May 1, 2007), a
Delaware statutory trust (the "Trust"), Nationwide Fund Advisors (a.k.a.
"Gartmore Mutual Fund Capital Trust," until May 1, 2007) (the "Adviser") a
Delaware statutory trust registered under the Investment Advisers Act of 1940,
as amended (the "Advisers Act"), and NORTHPOINTE CAPITAL LLC, a limited
liability company under the laws of the State of Delaware (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 the 28th day of February, 2005 (the "Previous
Advisory Agreement"), been retained to act as investment adviser for each series
of the Trust including those Funds that are listed on Exhibit A to this Interim
Subadvisory Agreement (each, a "Fund");
WHEREAS, the Trust and the Adviser each represent that as permitted
under the Previous Advisory Agreement, the Adviser has delegated certain of its
duties under the Previous Advisory Agreement to other investment advisers,
subject to the requirements of the 1940 Act;
WHEREAS, the Adviser has so delegated certain of those duties to
Subadviser to assist it in the provision of a continuous investment program for
that portion of certain Funds' assets that the Adviser assigns to the
Subadviser, and Subadviser currently renders such services subject to the terms
and conditions set forth in its Subadvisory Agreement by and among the Trust,
the Adviser and the Subadvisor dated February 28, 2005 ("Previous Subadvisory
Agreement") Agreement;
WHEREAS, the Previous Subadvisory Agreement and Advisory Agreement will
automatically terminate upon their assignment (as defined in the 1940 Act),
which assignment will occur upon the closing of the sale of the Adviser by
Nationwide Mutual Insurance Company ("NM") to Nationwide Financial Services,
Inc. ("NFS") (the "Transaction") which Transaction is scheduled to close at the
close of business on April 30, 2007;
WHEREAS, the Board of Trustees of the Trust has unanimously approved a
new subadvisory agreement ("New Subadvisory Agreement") to become effective upon
the closing of the Transaction and termination of the Previous Subadvisory
Agreement and has submitted the New Subadvisory Agreement to shareholders of
each Fund to which the Subadviser provides subadvisory services;
WHEREAS, shareholders of certain of such Funds have not yet approved
the New Subadvisory Agreement;
WHEREAS, the Board of Trustees of the Trust desires to ensure the
provision of investment subadvisory services by the Subadviser to each such Fund
continues without interruption following the closing of the Transaction and
termination of the Trust's Previous Subadvisory Agreement with respect to such
Funds, until such time as shareholders of each such Fund approve the New
Subadvisory Agreement; and
WHEREAS, Rule 15a-4 adopted under the 1940 Act provides a temporary
exemption from the shareholder approval requirements of Section 15(a) of the
1940 Act upon Board approval of an interim agreement containing specified
conditions ("Interim Subadvisory Agreement").
NOW, THEREFORE, the parties do mutually agree and promise as follows
with respect to each Fund:
1. APPOINTMENT AS SUBADVISER. The Adviser hereby appoints the
Subadviser to act as investment adviser for and to manage that portion or all of
the assets of the Fund that the Adviser from time to time upon reasonable prior
notice allocates to, and puts under the control of, the Subadviser (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 appointment. In such capacity, the Subadviser
shall be responsible for the 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 cannot object to such activities.
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 Fund's prospectus and statement of
additional information 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 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 monitor on a continuous basis the performance of
the Subadviser Assets and to conduct a continuous 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, providing
information concerning the Fund, its funds available, or to become available,
for investment and generally as to the conditions of the Fund's or the Trust's
affairs.
(b) COMPLIANCE WITH APPLICABLE LAWS AND GOVERNING DOCUMENTS.
In the performance of its services 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
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effect and, as soon as practical after the Trust, the Fund or the Adviser
notifies the Subadviser thereof, as supplemented, 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, including Rule 15a-4 thereunder,
the Internal Revenue Code of 1986, as amended (the "Code"), and all other
applicable federal and state laws and regulations. Without limiting the
preceding sentence, the Adviser promptly shall notify the Subadviser as to any
act or omission of the Subadviser hereunder that the Adviser reasonably deems to
constitute or to be the basis of any noncompliance or nonconformance with any of
the Trust's Declaration of Trust and By-Laws and the Prospectus, the
instructions and directions received in writing from the Adviser or the Trustees
of the Trust or the 1940 Act, the Code, and all other applicable federal and
state laws and regulations. Notwithstanding the foregoing, the Adviser shall
remain responsible for ensuring the Fund's and the Trust'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 timely 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 services of the
Subadviser, copies of any financial statements or reports made by a Fund to its
shareholders, and any further materials or information which the Subadviser may
reasonably request to enable it to perform its functions under this Agreement.
The Adviser shall perform quarterly and annual tax compliance
tests to ensure that the Fund is in compliance with Subchapter M and Section
817(h) of the Code. In connection with such compliance tests, the Adviser shall
inform the Subadviser at least ten (10) business days prior to a calendar
quarter end if the Subadviser Assets are out of compliance with the
diversification requirements under either Subchapter M or Section 817(h). If the
Adviser notifies the Subadviser that the Subadviser Assets are not in compliance
with such requirements noted above, the Subadviser will take prompt action to
bring the Subadviser Assets back into compliance within the time permitted under
the Code thereunder.
The Adviser will provide the Subadviser with reasonable
advance notice of any change in a Fund's investment objectives, policies and
restrictions as stated in the Prospectus, and the Subadviser shall, in the
performance of its duties and obligations under this Agreement, manage the
Subadviser Assets consistent with such changes, provided that 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 will ensure 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
Trust 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 Trust as may be required to be contained in the Prospectus or in the Trust's
Registration Statement on Form N-1A.
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(c) VOTING OF PROXIES. The Adviser hereby delegates to the
Subadviser the Adviser's discretionary authority to exercise voting rights with
respect to the securities and other investments in the Subadviser Assets and
authorizes the Subadviser to delegate further such discretionary authority to a
designee identified in a notice given to the Trust and the Adviser. The
Subadviser, including without limitation its designee, 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 the Fund have invested the Fund's assets in the same security, the Subadviser
and such other entity will each have the power to vote its pro rata share of the
Fund's 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 ▇▇▇▇▇▇▇▇-▇▇▇▇▇ 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 and attorney-in-fact for the limited purposes of executing account
documentation, agreements, contracts and other documents as the Subadviser shall
be requested by brokers, dealers, counterparties and other persons in connection
with its management of the Subadviser Assets. 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 plenary authority of the Trust's Board of
Trustees, to establish and maintain accounts on behalf of the Fund with, and
place orders for the investment and reinvestment, including without limitation
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 "Brokers") as
Subadviser may elect and negotiate commissions to be paid on such transactions.
The Subadviser, however, is not required to obtain the consent of the Adviser or
the Trust's Board of Trustees prior to establishing any such brokerage account.
The Subadviser shall place all orders for the purchase and sale of portfolio
investments for a Fund's account with Brokers selected by the Subadviser. In the
selection of such Brokers and the placing of such orders, the Subadviser shall
seek to obtain for 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 a 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
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transactions. Notwithstanding the foregoing, neither the Trust, the Fund nor the
Adviser shall instruct the Subadviser to place orders with any particular
Broker(s) with respect to the Subadviser Assets. Subject to such policies as the
Trustees may determine, or as may be mutually agreed to by the Adviser and the
Subadviser, the Subadviser is authorized but not obligated to cause, and 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 (within the meaning
of Section 28(e) of the Securities Exchange Act of 1934) to the Subadviser an
amount of commission for effecting a Subadviser Assets 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.
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 with respect to the Subadviser
Assets 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 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 with respect to the Subadviser Assets.
(f) SECURITIES TRANSACTIONS. The Subadviser and any affiliated
person of the Subadviser will not purchase securities or other instruments from
or sell securities or other instruments to the Fund; provided, however, the
Subadviser or any affiliated person of the Subadviser may purchase securities or
other instruments from or sell securities or other instruments to the Fund if
such transaction is permissible under applicable laws and regulations,
including, without limitation, the 1940 Act and the Advisers Act and the rules
and regulations promulgated thereunder.
The Subadviser, on its own behalf and with respect to its
Access Persons (as defined in subsection (e) of Rule 17j-1 under the 1940 Act),
agrees to observe and comply with Rule 17j-1 and its Code of Ethics (which shall
comply in all material respects with Rule 17j-1), as the same may be amended
from time to time. On at least an annual basis, the Subadviser will comply with
the reporting requirements of Rule 17j-1, which may include either (i)
certifying to the Adviser that the Subadviser and its Access Persons have
complied with the Subadviser's Code of Ethics with respect to the Subadviser
Assets or (ii) identifying any violations which have occurred with respect to
the Subadviser Assets. The Subadviser will have also submitted its Code of
Ethics for its initial approval by the Board of Trustees
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no later than the date of execution of this agreement and subsequently within
six months of any material change thereto.
(g) BOOKS AND RECORDS. The Subadviser shall maintain separate
detailed records as are required by applicable laws and regulations of all
matters hereunder 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; except to the extent that the Subadviser is required to maintain
the Fund's Records under the Advisers Act or other applicable law and except
that the Subadviser, at its own expense, is entitled to make and keep a copy of
the Fund's Records for its internal files. The Fund's Records shall be available
to the Adviser or the Trust at any time upon reasonable request during normal
business hours and shall be available for telecopying promptly to the Adviser
during any day that the Fund is open for business as set forth in the
Prospectus.
(h) INFORMATION CONCERNING SUBADVISER ASSETS AND SUBADVISER.
From time to time as the Adviser or the Trust reasonably may request in good
faith, the Subadviser will furnish the requesting party reports on portfolio
transactions and reports on the Subadviser Assets, all in such reasonable detail
as the parties may reasonably agree in good faith. The Subadviser will also
inform the Adviser in a timely manner of material changes in portfolio managers
responsible for Subadviser Assets, any changes in the ownership or management of
the Subadviser, or of material changes in the control of the Subadviser. Upon
the Trust's or the Adviser's 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 via telephone on a quarterly basis and on a less
frequent basis as agreed upon by the parties in person.
Subject to the other provisions of this Agreement, the
Subadviser will also provide such information or perform such additional acts
with respect to the Subadviser Assets as are reasonably 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, and any rule or regulation thereunder.
(i) CUSTODY ARRANGEMENTS. The Trust or the Adviser shall
notify the Subadviser of the identities of its custodian banks and the custody
arrangements therewith with respect to the Subadviser Assets and shall give the
Subadviser written notice of any changes in such custodian banks or 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 in good faith relating to all transactions concerning the
Subadviser Assets. The Trust shall instruct its custodian banks to (A) carry out
all investment instructions as may be directed by the Subadviser with respect to
the Subadviser Assets (which instructions may be orally given if confirmed in
writing); and (B) provide the Subadviser with all operational information
necessary for the Subadviser to trade the Subadviser Assets on behalf of the
Fund. The Subadviser shall have no liability for the acts or omissions of the
authorized custodian(s), unless such act or omission is required by and taken in
reliance upon instructions given to the authorized custodian(s) by a
representative of the Subadviser properly authorized (pursuant to written
instruction by the Adviser) to give such instructions.
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3. INDEPENDENT CONTRACTOR. In the performance of its services
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.
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, the cost of securities, commodities and other investments (including
brokerage commissions and other transaction charges, if any) purchased for a
Fund and any losses incurred in connection therewith, expenses of holding or
carrying Subadviser Assets, including, without limitation, expenses of dividends
on stock borrowed to cover a short sale and interest, fees or other charges
incurred in connection with leverage and related borrowings with respect to the
Subadviser Assets, organizational and offering expenses (which include, but are
not limited to, out-of-pocket expenses, but not overhead or employee costs of
the Subadviser); expenses for legal, accounting and auditing services; taxes and
governmental fees; dues and expenses incurred in connection with membership in
investment company organizations; costs of printing and distributing shareholder
reports, proxy materials, prospectuses, stock certificates and distribution of
dividends; charges of 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 Fund or the Adviser. The
Subadviser shall keep and supply to the Trust and the Adviser reasonable records
of all such expenses.
5. COMPENSATION. For the services provided pursuant to this Agreement,
the Subadviser is entitled to the fee listed for the 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 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 the Fund's Prospectus. If this Agreement
shall be effective for only a portion of a month with respect to the Fund, the
aforesaid fee shall be prorated for the portion of such month during which this
Agreement is in effect for the Fund.
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Notwithstanding any other provision in this Agreement, all compensation
earned by the Subadviser hereunder respectively as to each Fund of the Trust
listed on Exhibit A of this Interim Subadvisory Agreement shall be held in an
interest-bearing escrow account with the Trust's custodian or a bank until such
time as the holders of a majority of the outstanding voting securities of the
applicable Fund approve, within 150 days from the effective date of this Interim
Subadvisory Agreement, the New Subadvisory Agreement. Upon such approval by the
shareholders of a Fund, the escrowed amount (including interest earned) for such
Fund will be paid to the Subadviser. However, should the New Subadvisory
Agreement not be approved by the holders of a Fund's outstanding voting
securities within 150 days from the effective date of this Interim Subadvisory
Agreement, the Subadviser will be paid for each such Fund from the escrow
account the lesser of (i) any costs incurred in performing services under this
Interim Agreement (plus interest earned on that amount while in escrow); or (ii)
the total amount in the escrow account (plus interest earned). Subadviser shall
submit to the Adviser, on a monthly basis, a report itemizing its costs, as
defined herein, including any supporting documentation.
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 is registered as a Commodity Trading
Advisor under the Commodity Exchange Act, as amended (the "CEA"), with the
Commodity Futures Trading Commission (the "CFTC"), or is not required to file
such registration;
(c) The Subadviser is a limited liability company duly
organized and properly registered and operating under the laws of the State of
Oregon 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 actions of its 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 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 violation of, or a material 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
(e) The Form ADV of the Subadviser provided to the Adviser 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
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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.
7. REPRESENTATIONS AND WARRANTIES OF ADVISER. The Adviser represents
and warrants to the Subadviser as follows:
(a) The Adviser is registered as an investment adviser under
the Advisers Act;
(b) The Adviser has filed a notice of exemption pursuant to
Rule 4.14 under the CEA with the CFTC and the National Futures Association or is
not required to file such exemption;
(c) The Adviser is a 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
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 directors, 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 violation of, or a material 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;
(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
delegate certain of its duties under the Advisory Agreement to other investment
advisers, including without limitation, the appointment of a subadviser with
respect to assets of each of the Trust's mutual fund series, including without
limitation the Adviser's entering into and performing this Agreement.
8. REPRESENTATIONS AND WARRANTIES OF THE TRUST. The Trust represents
and warrants to the Adviser and the Subadviser as follows:
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(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;
(b) The Trust is registered as an investment company under the
1940 Act and has elected to qualify and has qualified, together with the Fund,
as a regulated investment company under the Code, and the Fund's shares are
registered under the Securities Act;
(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; and
(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, the
Adviser and the Trust pursuant to the recitals above and 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 or accurate
in all material effects.
10. LIABILITY AND INDEMNIFICATION.
(a) LIABILITY. The Subadviser shall exercise its best judgment
in rendering its services in accordance with the terms of this Agreement, but
otherwise, in the absence of willful misfeasance, bad faith or gross negligence
on the part of the Subadviser or a reckless disregard of its duties hereunder,
the Subadviser, each of its affiliates and all respective partners, officers,
directors and employees ("Affiliates") and each person, if any, who within the
meaning of the Securities Act controls the Subadviser ("Controlling Persons"),
if any, shall not be subject to any expenses or liability to the Adviser, any
other subadviser to a Fund, the Trust or a Fund or any of a Fund's shareholders,
in connection with the matters to which this Agreement relates, including
without limitation for any losses that may be sustained in the purchase, holding
or sale of Subadviser Assets. The Adviser shall exercise its best judgment in
rendering its obligations in accordance with the terms of this Agreement, but
otherwise (except as set forth in Section 10(c) below), in the absence of
willful misfeasance, bad faith or gross negligence on the part of the Adviser or
a reckless disregard of its duties hereunder, the Adviser, any of its Affiliates
and each of the Adviser's Controlling Persons, if any, shall not be subject to
any liability to the Subadviser, for any act or omission in the case of, or
connected with, rendering services hereunder or for any losses that may be
sustained in the purchase, holding or sale of Subadviser Assets. Notwithstanding
the foregoing, nothing herein shall relieve the Adviser and the
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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 without limitation reasonable
attorneys' fees and expenses, which the Adviser, the Trust and/or the Fund and
their respective Affiliates and Controlling Persons may sustain as a result of
the Subadviser's willful misfeasance, bad faith, gross negligence, reckless
disregard of its duties hereunder or violation of applicable law, including,
without limitation, the federal and state securities laws or the CEA. The
Adviser shall indemnify the Subadviser, its Affiliates and its Controlling
Persons, for any liability and expenses, including without limitation reasonable
attorneys' fees and expenses, 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.
The Trust shall indemnify the Subadviser, its Affiliates and
its Controlling Persons, for any liability and expenses, including without
limitation reasonable attorneys' fees and expenses, which may be sustained as a
result of the Trust'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.
(c) The Subadviser shall not be liable to the Adviser for (i)
any acts of the Adviser or any other subadviser to a Fund with respect to the
portion of the assets of that Fund not managed by Subadviser, or (ii) acts of
the Subadviser which result from acts of the Adviser, including, but not limited
to, a failure of the Adviser to provide accurate and current information with
respect to any records maintained by the Adviser or any other subadviser to a
Fund, which records are not also maintained by or otherwise available to the
Subadviser upon reasonable request. The Adviser agrees that Subadviser shall
manage the Subadviser Assets as if they were a separate operating Fund as set
forth in Section 2(b) of this Agreement. The Adviser shall indemnify the
Subadviser, its Affiliates and Controlling Persons from any liability arising
from the conduct of the Adviser and any other subadviser with respect to the
portion of the Fund's assets not allocated to the Subadviser.
11. DURATION AND TERMINATION.
(a) DURATION. This Agreement shall become effective on May 1,
2007, and shall remain in full force and effect continuously until the date not
later than 150 days from the effective date of this Interim Subadvisory
Agreement, unless sooner terminated as provided herein.
(b) TERMINATION. This Interim Subadvisory Agreement will
terminate as to any Fund listed on attached Exhibit A, upon the approval of the
New Subadvisory Agreement by a majority of such Fund's outstanding voting
securities. This Interim Subadvisory Agreement may also be terminated at any
time, upon the vote of a majority of the Trustees, or with respect to any Fund,
by the vote of a majority of such Fund's outstanding voting securities, as
defined in the 1940 Act, upon not more than 10 (ten) calendar days written
notice to the Advisor. Also, the
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Adviser may at any time terminate this Agreement by not less than sixty days'
written notice to the Subadviser, and the Subadviser may at any time terminate
this Agreement by not less than sixty days' written notice to the Adviser.
This Agreement shall not be assigned (as such term is defined in the
▇▇▇▇ ▇▇▇) and shall terminate automatically in the event of its assignment or
upon the termination of the Advisory Agreement.
12. DUTIES OF THE ADVISER. The Adviser shall continue to have
responsibility for all services to be provided to the Fund pursuant to the
Advisory Agreement and shall oversee and review the Subadviser's performance of
its duties under this Agreement. Nothing contained in this Agreement shall
obligate the Adviser to provide any funding or other support for the purpose of
directly or indirectly promoting investments in the Fund.
13. REFERENCE TO ADVISER AND SUBADVISER.
(a) 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 a Fund, which references shall not
differ in substance from those included in the Prospectus and this Agreement, in
any advertising or promotional materials without the prior approval of
Subadviser, which approval shall not be unreasonably withheld or delayed. The
Adviser hereby agrees to make all reasonable efforts to cause the Fund and any
Affiliate thereof to satisfy the foregoing obligation.
(b) Neither the Subadviser nor any Affiliate or agent of the
Subadviser shall make reference to or use the name of the Adviser or any of its
Affiliates, or any of their clients, except references concerning the identity
of and services provided by the Adviser to a Fund or to the Subadviser, 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 Adviser, which approval shall not be unreasonably withheld or
delayed. The Subadviser hereby agrees to make all reasonable efforts to cause
any Affiliate of the Subadviser to satisfy the foregoing obligation.
14. AMENDMENT. This Agreement may be amended by mutual consent of the
parties, provided that the terms of any material amendment shall be approved by:
(a) the Trust's Board of Trustees or by a vote of a majority of the outstanding
voting securities of the 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.
15. CONFIDENTIALITY. Subject to the duties of the Adviser, the Trust
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 and shall not disclose any and all information pertaining
to the Fund and the actions of the Subadviser, the Adviser and the Fund in
respect thereof; except to the extent:
(a) AUTHORIZED. The Adviser or the Trust has authorized such
disclosure;
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(b) COURT OR REGULATORY AUTHORITY. Disclosure of such
information is expressly required or requested by a court or other tribunal of
competent jurisdiction or applicable federal or state regulatory authorities;
(c) PUBLICLY KNOWN WITHOUT BREACH. Such information becomes
known to the general public without a breach of this Agreement or a similar
confidential disclosure agreement regarding such information;
(d) ALREADY KNOWN. Such information already was known by the
party prior to the date hereof;
(e) RECEIVED FROM THIRD PARTY. Such information was or is
hereafter rightfully received by the party from a third party (expressly
excluding the Fund's custodian, prime broker and administrator) without
restriction on its disclosure and without breach of this Agreement or of a
similar confidential disclosure agreement regarding them; or
(f) INDEPENDENTLY DEVELOPED. The party independently developed
such information.
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:
NorthPointe Capital, LLC
▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
(b) If to the Adviser:
Nationwide Fund Advisors
(a.k.a. "Gartmore Mutual Fund Capital Trust,"
until May 1, 2007)
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇, ▇▇▇▇▇
Attention: Legal Department
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
(c) If to the Trust:
Nationwide Mutual Funds
(a.k.a. "Gartmore Mutual Funds," until May 1, 2007)
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Legal Department
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
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17. JURISDICTION. This Agreement shall be governed by and construed 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.
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. ENTIRE AGREEMENT. This Agreement, together with all exhibits,
attachments and appendices, contains the entire understanding and agreement of
the parties with respect to the subject matter hereof.
23. NATIONWIDE MUTUAL FUNDS (A.K.A. "GARTMORE MUTUAL FUNDS") AND ITS
TRUSTEES. The terms "Nationwide Mutual Funds" or "Gartmore Mutual Funds" and the
"Trustees of Nationwide Mutual Funds" or "Trustees of Gartmore Mutual Funds"
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
and/or restated 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 MUTUAL FUNDS
(a.k.a. Gartmore Mutual Funds)
By: /S/▇▇▇▇ ▇▇▇▇▇
------------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇
Title: President
ADVISER
NATIONWIDE FUND ADVISORS
(a.k.a. Gartmore Mutual Fund Capital Trust)
By: /S/▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: SVP-COO
SUBADVISER
NORTHPOINTE CAPITAL LLC
By: /S/▇▇▇▇ ▇▇▇▇▇
------------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇
Title: President
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EXHIBIT A
TO INTERIM SUBADVISORY AGREEMENT
BETWEEN
NATIONWIDE MUTUAL FUNDS,
NATIONWIDE FUND ADVISORS
AND
NORTHPOINTE CAPITAL, LLC
Effective May 1, 2007
------------------------------------------------------------------------------- ---------------------------------------------------
Funds of the Trust Subadvisory Fees
------------------------------------------------------------------------------- ---------------------------------------------------
Nationwide Micro Cap Equity 0.90% of the Subadviser Assets' average daily
net assets
------------------------------------------------------------------------------- ---------------------------------------------------
Nationwide Small Cap Leaders Fund (Small Cap Growth Sleeve) 0.55% of the Subadviser Assets' average daily
net assets
------------------------------------------------------------------------------- ---------------------------------------------------
TRUST
NATIONWIDE MUTUAL FUNDS
(a.k.a. Gartmore Mutual Funds)
By: /s/▇▇▇▇ ▇▇▇▇▇
-------------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇
Title: President
ADVISER
NATIONWIDE FUND ADVISORS
(a.k.a. Gartmore Mutual Fund Capital Trust)
By: /s/▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: SVP-COO
SUBADVISER
NORTHPOINTE CAPITAL LLC
By: /s/▇▇▇▇ ▇▇▇▇▇
-------------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇
Title: President
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EXHIBIT B
INTERIM SUBADVISORY AGREEMENT AMONG
NATIONWIDE MUTUAL FUNDS,
NATIONWIDE FUND ADVISORS and
NORTHPOINTE CAPITAL, 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.
TRUST
NATIONWIDE MUTUAL FUNDS
(a.k.a. Gartmore Mutual Funds)
By: /S/▇▇▇▇ ▇▇▇▇▇
----------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇
Title: President
ADVISER
NATIONWIDE FUND ADVISORS
(a.k.a. Gartmore Mutual Fund Capital Trust)
By: /S/▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: SVP-COO
SUBADVISER
NORTHPOINTE CAPITAL LLC
By: /S/▇▇▇▇ ▇▇▇▇▇
----------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇
Title: President
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