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Exhibit (5)(c)(3)
SUBADVISORY AGREEMENT
THIS AGREEMENT is made and entered into on this 2nd day of November,
1998, among Nationwide Investing Foundation III, an Ohio business trust (the
"Trust"), Nationwide Advisory Services, Inc. (the "Adviser"), an Ohio
corporation registered under the Investment Advisers Act of 1940, as amended
(the "Advisers Act"), and ▇▇▇▇▇▇▇ ▇▇▇▇▇ Asset Management, a New York limited
partnership (the "Subadviser"), also registered under the Advisers Act.
W I T N E S S E T H :
WHEREAS, the Trust is registered with the Securities and Exchange
Commission (the "SEC") as an open-end management investment company under the
Investment Company Act of 1940 (the "1940 Act");
WHEREAS, the Adviser has, pursuant to an Advisory Agreement with the
Trust dated as of May 9, 1998 ("Advisory Agreement"), as amended November 2,
1998, 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, the parties do mutually agree and promise as follows:
1. Appointment as Subadviser. The Adviser hereby retains the Subadviser
to act as investment adviser for and to manage the Subadviser Assets subject to
the supervision of the Adviser and the Board of Trustees of the Trust and
subject to the terms of this Agreement; and the Subadviser hereby accepts such
employment. In such capacity, the Subadviser shall be responsible for the
investment management of the Subadviser Assets. It is recognized that the
Subadviser and certain of its affiliates now act, and that from time to time
hereafter may act, as investment adviser to one or more other investment
companies and to fiduciary or other managed accounts and that the Adviser and
the Trust have no objection to such activities.
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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 Funds as set forth in the Funds' prospectus and
statement of additional information as currently in effect and as
supplemented or amended from time to time (collectively referred to
hereinafter as the "Prospectus") and subject to the directions of the
Adviser and the Trust's Board of Trustees, to purchase, hold and sell
investments for the Subadviser Assets and to monitor on a continuous
basis the performance of the Subadviser Assets. In providing these
services, the Subadviser will conduct a continual program of
investment, evaluation and, if appropriate, sale and reinvestment of
the Subadviser Assets. The Adviser agrees to provide the Subadviser
with such assistance as may be reasonably requested by the Subadviser
in connection with the Subadviser's activities under this Agreement,
including, without limitation, information concerning the Funds, their
funds available, or to become available, for investment and generally
as to the conditions of the Funds' or Trust's affairs.
(b) Compliance with Applicable Laws and Governing Documents.
In the performance of its duties and obligations under this Agreement,
the Subadviser shall act in conformity with the Trust's Declaration of
Trust and By-Laws and the Prospectus and with the instructions and
directions received in writing from the Adviser or the Trustees of the
Trust and will conform to and comply with the requirements of the 1940
Act, the Internal Revenue Code of 1986, as amended (the "Code"), and
all other applicable federal and state laws and regulations.
Notwithstanding the foregoing, the Adviser shall remain responsible for
ensuring each Fund's overall compliance with the 1940 Act and the Code
and the Subadviser is only obligated to comply with this subsection (b)
with respect to the Subadviser Assets. Adviser shall perform quarterly
and annual tax compliance tests to ensure that the Portfolios are in
compliance with Subchapter M of the Code and Section 817(h) of the
Code. Adviser shall apprise the Subadviser promptly after each quarter
end of any noncompliance with the diversification requirements in such
Code provisions. If so advised, the Subadviser shall take prompt action
to bring the Portfolio(s) back into compliance with such Code
diversification provisions, as directed by the Adviser. The Adviser
will provide the Subadviser with a copy of the minutes of the meetings
of the Board of Trustees of the Trust to the extent they may affect the
Funds or the duties of the Subadviser, and with copies of any financial
statements or reports made by the Funds to their shareholders, and any
further materials or information which the Subadviser may reasonably
request to enable it to perform its functions under this Agreement.
The Adviser will also provide the Subadviser with reasonable
advance notice of any change in a Fund's investment objectives,
policies and restrictions as stated in the Prospectus, and the
Subadviser shall, in the performance of its duties and obligations
under this Agreement, manage the Subadviser Assets consistent with such
changes, provided the Subadviser has received prompt notice of the
effectiveness of such changes, from the Trust
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or the Adviser. In addition to such notice, the Adviser shall provide
to the Subadviser a copy of a modified Prospectus reflecting such
changes. The Adviser acknowledges and agrees that the Prospectus will
at all times be in compliance with all disclosure requirements under
all applicable federal and state laws and regulations relating to the
Trust or the Funds, 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 in writing 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.
(c) Voting of Proxies. The Subadviser, consistent with
Subadviser's standard proxy voting policies, shall have the power to
vote, either in person or by proxy, all securities in which the
Subadviser Assets may be invested from time to time, and shall not be
required to seek or take instructions from, the Adviser, the Fund or
the Trust or take any action with respect thereto. If both the
Subadviser and another entity managing assets of a Fund have invested
in the same security, the Subadviser and such other entity will each
have the power to vote its pro rata share of the security.
(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 Trust's Board of Trustees, to
establish and maintain accounts on behalf of the Fund with, and place
orders for the purchase and sale of the Subadviser Assets with or
through, such persons, brokers (including, to the extent permitted by
applicable law, any broker affiliated with the Subadviser) or dealers
("brokers") as the Subadviser may elect and negotiate commissions to be
paid on such transactions. The Subadviser, however, is not required to
obtain the consent of the Adviser or the Trust's Board of Trustees
prior to establishing any such brokerage account. The Subadviser shall
place all orders for the purchase and sale of portfolio investments for
the Funds' 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 Funds 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
Funds the most favorable price and execution available, the Subadviser,
bearing in
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mind the best interests of each Fund at all times, shall consider all
factors it deems relevant, including price, the size of the
transaction, the breadth and nature of the market for the security, the
difficulty of the execution, the amount of the commission, if any, the
timing of the transaction, market prices and trends, the reputation,
experience and financial stability of the broker involved, and the
quality of service rendered by the broker in other transactions.
Subject to such policies as the Trustees may determine, or as may be
mutually agreed to by the Adviser and the Subadviser, the Subadviser
shall not be deemed to have acted unlawfully or to have breached any
duty created by this Agreement or otherwise solely by reason of its
having caused a Fund to pay a broker that provides brokerage and
research services (within the meaning of Section 28(e) of the
Securities Exchange Act of 1934) to the Subadviser an amount of
commission for effecting a Fund investment transaction that is in
excess of the amount of commission that another broker would have
charged for effecting that transaction if, but only if, the Subadviser
determines in good faith that such commission was reasonable in
relation to the value of the brokerage and research services provided
by such broker or dealer viewed in terms of either that particular
transaction or the overall responsibility of the Subadviser with
respect to the accounts as to which it exercises investment discretion.
It is recognized that the services provided by such brokers
may be useful to the Subadviser in connection with the Subadviser's
services to other clients. On occasions when the Subadviser deems the
purchase or sale of a security to be in the best interests of a Fund as
well as other clients of the Subadviser, the Subadviser, to the extent
permitted by applicable laws and regulations, may, but shall be under
no obligation to, aggregate the securities to be sold or purchased. In
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 Funds
and to such other clients. It is recognized that in some cases, this
procedure may adversely affect the price paid or received by the Funds
or the size of the position obtainable for, or disposed of by, the
Funds.
(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 a Fund if such transaction is
permissible, whether by specific rule or otherwise, 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 a quarterly basis, the Subadviser will
either (i) certify to the Adviser that the Subadviser and its Access
Persons have complied in
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all material respects 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.
(g) Books and Records. Subadviser agrees to maintain, in the
form and for the period required by Rule 31a-2 under the Investment
Company Act of 1940, all records relating to the Subadviser's Assets
required to be maintained by the Trust pursuant to the requirements of
Rule 31a-1(b)(5), (6), (7), (9) and (10) under that Act. Any records
required to be maintained and preserved pursuant to the provisions of
Rule 31a-1 and Rule 31a-2 promulgated under the Investment Company Act
of 1940 which are prepared or maintained by Subadviser on behalf of the
Trust are the property of the Trust and will be surrendered promptly to
the Trust or Adviser on request.
Subadviser agrees that all accounts, books and other records maintained
and preserved by it as required hereby will be subject at any time, and
from time to time, to such reasonable periodic, special and other
examinations by the Securities and Exchange Commission, the Trust's
auditors, the Trust's officers or any representative of the Trust, the
Adviser, or any governmental agency or other instrumentality having
regulatory authority over the Trust.
(h) Information Concerning Subadviser Assets and Subadviser.
From time to time as the Adviser or the Trust may request, the
Subadviser will furnish the requesting party reports on portfolio
transactions and reports on Subadviser Assets held in the portfolio,
all in such detail as the Adviser or the Trust may reasonably request.
The Subadviser will also inform the Adviser in a timely manner of
material changes in portfolio managers responsible for Subadviser
Assets, any changes in the ownership or management of the Subadviser,
or of material changes in the control of the Subadviser. Upon
reasonable request, the Subadviser will periodically make available its
officers and employees to meet with the Trust's Board of Trustees to
review the Subadviser Assets.
The Subadviser will also provide such information or perform
such additional acts as reasonably requested by the Trust or the
Adviser to comply with their respective obligations under applicable
laws, including without limitation, the Code, the 1940 Act, the
Advisers Act, and the Securities Act of 1933, as amended (the
"Securities Act"), and any rule or regulation thereunder.
(i) Custody Arrangements. The Subadviser shall on each
business day provide the Adviser and the Trust's custodian such
information as the Adviser and the Trust's custodian may reasonably
request relating to all transactions concerning the 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
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similarly managed investment companies or for other accounts to be included in
the Prospectus or for any other uses permitted by applicable law.
3. Independent Contractor. In the performance of its duties hereunder,
the Subadviser is and shall be an independent contractor and unless otherwise
expressly provided herein or otherwise authorized in writing, shall have no
authority to act for or represent the Trust or the Adviser in any way or
otherwise be deemed an agent of 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, taxes and other transaction charges, if any) purchased
for the Funds. The Subadviser shall, at its sole expense, employ or associate
itself with such persons as it believes to be particularly fitted to assist it
in the execution of its duties under this Agreement. The Subadviser shall not be
responsible for the Trust's, the Fund's or Adviser's expenses, which shall
include, but not be limited to, organizational and offering expenses (which
include out-of-pocket expenses, but not overhead or employee costs of the
Subadviser); expenses for legal, accounting and auditing services; taxes and
governmental fees; dues and expenses incurred in connection with membership in
investment company organizations; costs of printing and distributing shareholder
reports, proxy materials, prospectuses, stock certificates and distribution of
dividends; charges of the Funds' custodians and sub-custodians, administrators
and sub-administrators, registrars, transfer agents, dividend disbursing agents
and dividend reinvestment plan agents; payment for portfolio pricing services to
a pricing agent, if any; registration and filing fees of the Securities and
Exchange Commission (the "SEC"); expenses of registering or qualifying
securities of the Funds for sale in the various states; freight and other
charges in connection with the shipment of the Funds' portfolio securities; fees
and expenses of non-interested Trustees; salaries of shareholder relations
personnel; costs of shareholders meetings; insurance; interest; brokerage costs;
and litigation and other extraordinary or non-recurring expenses. The Trust or
the Adviser, as the case may be, shall reimburse the Subadviser for any expenses
of the Funds or the Adviser as may be reasonably incurred by such Subadviser on
behalf of the Funds or the Adviser. The Subadviser shall keep and supply to the
Trust and the Adviser reasonable records of all such expenses.
5. Compensation. For the services provided and the expenses assumed
with respect to the Funds and the Subadviser Assets pursuant to this Agreement,
the Subadviser will be entitled to the fee listed for each Fund on Exhibit A.
Such fees will be computed daily and payable 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 assets of a Fund for purposes hereof
shall be the same as the method of determining net assets for purposes of
establishing the offering and redemption price of the shares of that Fund as
described in the Funds' Prospectus. If this Agreement shall be effective
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for only a portion of a month, the aforesaid fee shall be prorated for the
portion of such month during which this Agreement is in effect.
6. Representations and Warranties of Subadviser. The Subadviser
represents and warrants to the Adviser and the Trust as follows:
(a) The Subadviser is registered as an investment adviser
under the Advisers Act;
(b) The Subadviser is registered as a commodity trading
adviser under the Commodity Exchange Act (the "CEA") with the Commodity
Futures Trading Commission (the "CFTC");
(c) The Subadviser is a limited partnership duly organized and
validly existing under the laws of the State of New York 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, 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 as currently filed with
the SEC and the information contained therein is accurate and complete
in all material respects and does not omit to state any material fact
necessary in order to make the statements made, in light of the
circumstances under which they were made, not misleading.
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;
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(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 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 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;
(f) The Adviser acknowledges that it received a copy of the
Subadviser's Form ADV prior to the execution of this Agreement; and
(g) The Adviser and the Trust have duly entered into the
Advisory Agreement pursuant to which the Trust authorized the Adviser
to enter into this Agreement.
8. Representations and Warranties of the Trust. The Trust represents
and warrants to the Adviser and the Subadviser as follows:
(a) The Trust is a business trust 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;
(b) The Trust is registered as an investment company under the
1940 Act and the Fund's shares are registered under the Securities Act;
and
(c) The execution, delivery and performance by the Trust of
this Agreement are within the Trust's powers and have been duly
authorized by all necessary action on the part of the Trust and its
Board of Trustees, and no action by or in respect of, or filing with,
any governmental body, agency or official is required on the part of
the Trust for the execution, delivery and performance by the Adviser of
this Agreement, and the execution, delivery and performance by the
Trust of this Agreement do not contravene or constitute a default under
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(i) any provision of applicable law, rule or regulation, (ii) the
Trust's governing instruments, or (iii) any agreement, judgment,
injunction, order, decree or other instrument binding upon the Trust.
9. Survival of Representations and Warranties; Duty to Update
Information. All representations and warranties made by the Subadviser, the
Adviser and the Trust pursuant to Sections 6, 7 and 8, respectively, shall
survive for the duration of this Agreement and the parties hereto shall promptly
notify each other in writing upon becoming aware that any of the foregoing
representations and warranties are no longer true.
10. Liability and Indemnification.
(a) Liability. The Subadviser shall exercise its best judgment
in rendering the services in accordance with the terms of this
Agreement. In the absence of wilful misfeasance, bad faith or gross
negligence on the part of the Subadviser or a reckless disregard of its
duties hereunder, the Subadviser, each of its affiliates and all
respective partners, officers, directors and employees ("Affiliates")
and each person, if any, who within the meaning of the Securities Act
controls the Subadviser ("Controlling Persons") shall not be liable for
any error of judgment or mistake of law and shall not be subject to any
expenses or liability to the Adviser, the Trust or the Funds or any of
the Funds' shareholders, in connection with the matters to which this
Agreement relates. In the absence of wilful misfeasance, bad faith or
gross negligence on the part of the Adviser or a reckless disregard of
its duties hereunder, the Adviser, any of its Affiliates and each of
the Adviser's Controlling Persons, if any, shall not be subject to any
liability to the Subadviser, for any act or omission in the case of, or
connected with, rendering services hereunder or for any losses that may
be sustained in the purchase, holding or sale of Subadviser Assets;
provided, however, that nothing herein shall relieve the Adviser and
the Subadviser from any of their obligations under applicable law,
including, without limitation, the federal and state securities laws
and the CEA.
(b) Indemnification. The Subadviser shall indemnify the
Adviser, the Trust, and the Fund, and their respective Affiliates and
Controlling Persons for any liability and expenses, including
reasonable attorneys' fees, which the Adviser, the Trust, and the Fund,
and their respective Affiliates and Controlling Persons may sustain as
a result of the Subadviser's wilful misfeasance, bad faith, gross
negligence, reckless disregard of its duties hereunder or violation of
applicable law, including, without limitation, the federal and state
securities laws or the CEA. Notwithstanding any other provision in this
Agreement, the Subadviser will indemnify the Adviser, the Trust, and
the Fund, and their respective Affiliates and Controlling Persons for
any liability and expenses, including reasonable attorneys' fees, to
which they may be subjected as a result of their use of the historical
performance calculations provided by the Subadviser concerning the
Subadviser's composite account data or historical performance
information on similarly managed investment
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companies or accounts to the extent that such information is
inaccurate, except that the Adviser and the Trust and their respective
Affiliates and Controlling Persons shall not be indemnified for a loss
or expense resulting from their misconduct in using such numbers
(including, but not limited to, Advisers altering or modifying such
numbers or using such data in a manner inconsistent with all applicable
law), or for their failure to conduct reasonable due diligence with
respect to such information.
The Adviser shall indemnify the Subadviser, its Affiliates and
its Controlling Persons, for any liability and expenses, including
reasonable attorneys' fees, which may be sustained as a result of the
Adviser's wilful misfeasance, bad faith, gross negligence, reckless
disregard of its duties hereunder or violation of applicable law,
including, without limitation, the federal and state securities laws or
the CEA, or as a result of any negligence or willful misconduct on the
part of the Adviser in the reliance upon and/or use of any historical
performance calculations provided by the Subadviser concerning the
Subadviser's composite account data or historical performance
information or similarly managed investment companies.
11. Duration and Termination.
(a) Duration. Unless sooner terminated, this Agreement shall
continue until November 2, 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 Funds
represented at a meeting if holders of more than 50% of the outstanding
shares of the Funds are present in person or by proxy or (b) more than
50% of the outstanding shares of the Funds; provided that in either
event its continuance also is approved by a majority of the Trust's
Trustees who are not "interested persons" (as defined in the ▇▇▇▇ ▇▇▇)
of any party to this Agreement, by vote cast in person at a meeting
called for the purpose of voting on such approval.
(b) Termination. Notwithstanding whatever may be provided
herein to the contrary, this Agreement may be terminated at any time,
without payment of any penalty:
(i) By vote of a majority of the Trust's Board of
Trustees, or by vote of a majority of the outstanding voting
securities of the Fund, or by the Adviser, in each case, upon
at least 60 days' written notice to the Subadviser;
(ii) By any party hereto immediately upon written
notice to the other parties in the event of a breach of any
provision of this Agreement by either of the other parties; or
(iii) By the Subadviser upon at least 60 days'
written notice to the Adviser and the Trust.
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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.
In the event of termination of this Agreement, all compensation due to
Subadviser through the date of termination will be calculated on a pro-rated
basis through the date of termination and paid within fifteen business days of
the date of termination.
12. Duties of the Adviser. The Adviser shall continue to have
responsibility for all services to be provided to the Trust pursuant to the
Advisory Agreement and shall oversee and review the Subadviser's performance of
its duties under this Agreement. Nothing contained in this Agreement shall
obligate the Adviser to provide any funding or other support for the purpose of
directly or indirectly promoting investments in the Trust.
13. Reference to Subadviser. Neither Adviser nor the Trust will publish
or distribute any information, including but not limited to registration
statements, advertising or promotional material, regarding the provision of
investment advisory services by Subadviser pursuant to this Agreement, or use in
advertising, publicity or otherwise the name of Subadviser or any of its
affiliates, or any trade name, trademark, trade device, service ▇▇▇▇, symbol or
any abbreviation, contraction or simulation thereof of Subadviser or its
affiliates, without prior written consent of Subadviser. The consent of
Subadviser shall be required but shall not be unreasonably withheld or delayed
by Subadviser. Specifically, Subadviser shall notify Adviser of its approval or
disapproval of such materials within four (4) business days following receipt of
such materials thereof from Adviser. Any disapproval shall indicate Subadviser's
reasons therefore. Any failure by Subadviser to respond within four (4) business
days shall be deemed to constitute a waiver of Subadviser's right to review such
materials; provided, however, that Adviser shall apprise Subadviser of any such
waiver at the time Adviser first uses such material. Notwithstanding the
foregoing, Adviser may distribute information regarding the provision of
investment advisory services by Subadviser to the Trust's Board of Trustees
("Board Materials") without the prior written consent of Subadviser. Adviser
will provide copies of the Board Materials to Subadviser within a reasonable
time following distribution to the Trust's Board of Trustees.
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 (if required by the ▇▇▇▇ ▇▇▇) 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
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jurisdiction, the parties hereto shall treat as confidential all information
pertaining to the Fund and the actions of the Subadviser, the Adviser and the
Fund in respect thereof.
16. Notice. Any notice that is required to be given by the parties to
each other under the terms of this Agreement shall be in writing, delivered, or
mailed postpaid to the other parties, or transmitted by facsimile with
acknowledgment of receipt, to the parties at the following addresses or
facsimile numbers, which may from time to time be changed by the parties by
notice to the other party:
(a) If to the Subadviser:
▇▇▇▇▇▇▇ Sachs Asset Management
▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ Grip
Facsimile:
(b) If to the Trust:
Nationwide Investing Foundation III
Three ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇.
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
(c) If to the Adviser:
Nationwide Advisory Services, Inc.
Three ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇.
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
17. Jurisdiction. This Agreement shall be governed by and construed to
be consistent with the Advisory Agreement and in accordance with substantive
laws of the State of Ohio 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.
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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. Trust and its Trustees. The Trust is a business trust organized
under Chapter 1746, Ohio Revised Code and under a Declaration of Trust dated as
of October 30, 1997, and to which reference is hereby made and a copy of which
is on file at the office of the Secretary of State of Ohio, and to any and all
amendments thereto so filed or hereafter filed. The obligations of the Trust
entered into in the name or on behalf thereof by any of Nationwide Investing
Foundation III Trustees, officers, employees, or agents are not made
individually, but only in their capacities with respect to the Trust. Such
obligations are not binding upon any of the Trustees, shareholders, officers, or
employees of the Trust personally, but bind only the assets of the Trust, as set
forth in Section 1746.13(A), Ohio Revised Code. 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.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement on
the day and year first written above.
TRUST
Nationwide Investing Foundation II
By:
-----------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇.
Title: Treasurer
ADVISER
Nationwide Advisory Services, Inc.
By:
-----------------------------------
Name: ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: Treasurer
SUBADVISER
▇▇▇▇▇▇▇ Sachs Asset Management
By:
-----------------------------------
Name:
-----------------------------------
Title:
-----------------------------------
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EXHIBIT A
SUBADVISORY AGREEMENT
BETWEEN
NATIONWIDE ADVISORY SERVICES, INC.,
NATIONWIDE INVESTING FOUNDATION III
AND ▇▇▇▇▇▇▇ ▇▇▇▇▇ ASSET MANAGEMENT
EFFECTIVE NOVEMBER 2, 1998
Funds of the Trust Advisory Fees
------------------ -------------
Prestige Large Cap Growth Fund 0.40% on Subadviser Assets up to $150 million
0.30% for Subadviser Assets of $150 million or more
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