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EXHIBIT (d)(5)(j)
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SUBADVISORY AGREEMENT
THIS AGREEMENT is made and entered into on this 15th day of August, 2001,
among Nationwide Separate Account Trust, a Massachusetts business trust (the
"Trust"), Villanova Mutual Fund Capital Trust (the "Adviser"), a Delaware
business trust registered under the Investment Advisers Act of 1940, as amended
(the "Advisers Act"), and Gartmore Global Partners, a Delaware general
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 November 1, 1997 (the "Advisory Agreement") as subsequently amended,
been retained to act as investment adviser for certain of the series of the
Trust which are listed on Exhibit A to this Agreement (each, a "Fund");
WHEREAS, the Subadviser is regulated by the Securities and Exchange
Commission as an investment adviser under the Advisers Act and is also regulated
by the Investment Management Regulatory Organisation Limited ("IMRO") of the
United Kingdom in the conduct of its investment business and is a member of
IMRO;
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.
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
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.
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The Adviser agrees to provide the Subadviser with such assistance
as may be reasonably requested by the Subadviser in connection with
the Subadviser's activities under this Agreement, including, without
limitation, information concerning a Fund, their funds available, or
to become available, for investment and generally as to the conditions
of a Fund's or Trust's affairs. In particular, but without prejudice
to the generality of the foregoing, the Adviser shall authorize and
instruct the Trust's custodian to provide such information to the
Subadviser as it may reasonably require, and to act upon the
Subadviser's instructions given in the proper performance by the
Subadviser of this Agreement.
(b) Compliance with Applicable Laws and Governing Documents. In the
performance of its duties and obligations under this Agreement, the
Subadviser shall act in conformity with the 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. The Adviser will
provide the Subadviser with a copy of the minutes of the meetings of
the Board of Trustees of the Trust to the extent they may affect a
Fund or the duties of the Subadviser, and with copies of any financial
statements or reports made by the Fund to its shareholders, and any
further materials or information which the Subadviser may reasonably
request to enable it to perform its functions under this Agreement.
Notwithstanding the foregoing, the Adviser acknowledges that the
Subadviser may also be subject to requirements by IMRO, and will
comply with such requirements to the extent they are not inconsistent
with applicable federal and state laws and regulations in the United
States. At a minimum, the Subadviser must comply with the laws of the
United States, but may also choose to comply with more stringent IMRO
requirements if the Subadviser deems necessary.
The Adviser will also provide the Subadviser with reasonable
advance notice of any change in a Fund's investment objectives,
policies and restrictions as stated in the Prospectus, and the
Subadviser shall, in the performance of its duties and obligations
under this Agreement, manage the Subadviser Assets consistent with
such changes, provided the Subadviser has received prompt notice of
the effectiveness of such changes from the Trust or the Adviser. In
addition to such notice, the Adviser shall provide to the Subadviser a
copy of a modified Prospectus reflecting such changes. The Adviser
acknowledges and agrees that the Prospectus will at all times be in
compliance with all disclosure requirements under all applicable
federal and state laws and regulations relating to the Trust or the
Fund, including, without limitation, the 1940 Act, and the rules and
regulations thereunder, and that the Subadviser shall have no
liability in connection therewith, except as to the accuracy of
material information furnished by the Subadviser to the Trust or to
the Adviser specifically for inclusion in the Prospectus. The
Subadviser hereby agrees to provide to the Adviser in a timely manner
following the Adviser's written request such information relating to
the Subadviser and its relationship to, and actions for, the Trust as
may be required to be contained in the Prospectus or in the Trust's
Registration Statement on Form N-1A.
(c) Voting of Proxies. The Subadviser shall have the power to vote, either
in person or by proxy, all securities in which the Subadviser Assets
may be invested from time to time, and shall not be required to seek
or take instructions from, the Adviser, the Fund or the Trust or take
any action with respect thereto. If both the Subadviser and another
entity managing assets of a Fund have invested in the same security,
the Subadviser and such other entity will each have the power to vote
its pro rata share of the security.
(d) Agent. Subject to any other written instructions of the Adviser or the
Trust, the Subadviser is hereby appointed the Adviser's and the
Trust's agent and attorney-in-fact for the limited purposes of
managing the Subadviser Assets, and executing account documentation,
agreements, contracts and other documents as the Subadviser shall
enter into with brokers, dealers, counterparties and other persons in
connection with its management of the Subadviser Assets. The
Subadviser agrees to provide the Adviser and the Trust with copies of
any such agreements executed on behalf of the Adviser or the Trust.
(e) Brokerage. The Subadviser is authorized, subject to the supervision of
the Adviser and the Trust's Board of Trustees, to establish and
maintain accounts on behalf of each Fund with, and place orders for
the purchase and sale of the Subadviser Assets with or through, such
persons, brokers (including, to the extent permitted by applicable
law, any broker affiliated with the Subadviser) or dealers ("brokers")
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as the Subadviser may elect and negotiate commissions to be paid on
such transactions. The Subadviser, however, is not required to obtain
the consent of the Adviser or the Trust's Board of Trustees prior to
establishing any such brokerage account. The Subadviser shall place
all orders for the purchase and sale of portfolio investments for a
Fund's account with brokers selected by the Subadviser. In the
selection of such brokers and the placing of such orders, the
Subadviser shall seek to obtain for the Fund the most favorable price
and execution available, except to the extent it may be permitted to
pay higher brokerage commissions for brokerage and research services,
as provided below. In using its reasonable efforts to obtain for the
Fund the most favorable price and execution available, the Subadviser,
bearing in mind the best interests of each Fund at all times, shall
consider all factors it deems relevant, including price, the size of
the transaction, the breadth and nature of the market for the
security, the difficulty of the execution, the amount of the
commission, if any, the timing of the transaction, market prices and
trends, the reputation, experience and financial stability of the
broker involved, and the quality of service rendered by the broker in
other transactions. Subject to such policies as the Trustees may
determine, or as may be mutually agreed to by the Adviser and the
Subadviser, the Subadviser shall not be deemed to have acted
unlawfully or to have breached any duty created by this Agreement or
otherwise solely by reason of its having caused a Fund to pay a broker
that provides brokerage and research services (within the meaning of
Section 28(e) of the Securities Exchange Act of 1934) to the
Subadviser an amount of commission for effecting a Fund investment
transaction that is in excess of the amount of commission that another
broker would have charged for effecting that transaction if, but only
if, the Subadviser determines in good faith that such commission was
reasonable in relation to the value of the brokerage and research
services provided by such broker 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. Notwithstanding the foregoing, the Adviser
acknowledges that the Subadviser may also be subject to requirements
by IMRO, and will comply with such requirements to the extent they are
not inconsistent with applicable federal and state laws and
regulations in the United States. At a minimum, the Subadviser must
comply with the laws of the United States, but may also choose to
comply with more stringent IMRO requirements if the Subadviser deems
necessary.
It is recognized that the services provided by such brokers may be useful
to the Subadviser in connection with the Subadviser's services to
other clients. On occasions when the Subadviser deems the purchase or
sale of a security to be in the best interests of a Fund as well as
other clients of the Subadviser, the Subadviser, to the extent
permitted by applicable laws and regulations, may, but shall be under
no obligation to, aggregate the securities to be sold or purchased. In
such event, allocation of securities so sold or purchased, as well as
the expenses incurred in the transaction, will be made by the
Subadviser in the manner the Subadviser considers to be the most
equitable and consistent with its fiduciary obligations to each Fund
and to such other clients. It is recognized that in some cases, this
procedure may adversely affect the price paid or received by the Fund
or the size of the position obtainable for, or disposed of by, the
Fund.
(f) Securities Transactions. The Subadviser and any affiliated person of
the Subadviser may purchase securities or other instruments from or
sell securities or other instruments to a Fund only if such
transaction is permissible under applicable laws and regulations,
including, without limitation, the 1940 Act and the Advisers Act and
the rules and regulations promulgated thereunder.
The Subadviser, including its Access Persons (as defined in
subsection (e) of Rule 17j-1 under the 1940 Act), agrees to observe
and comply with Rule 17j-1 and the Trust's Code of Ethics (which shall
comply in all material respects with Rule 17j-1), as the same may be
amended from time to time. On a quarterly basis, the Subadviser will
either (i) certify to the Adviser that the Subadviser and its Access
Persons have complied with the Trust's Code of Ethics with respect to
the Subadviser Assets or (ii) identify any violations which have
occurred with respect to the Subadviser Assets.
(g) Books and Records. The Subadviser shall maintain separate detailed
records of all matters pertaining to the Subadviser Assets (the
"Fund's Records"), including, without limitation, brokerage and other
records of all securities transactions. The Subadviser acknowledges
that the Fund's Records are property of the Trust; however, nothing in
this clause shall be interpreted to provide the Adviser or the Trust
with any property right in any software used by the Subadviser to
maintain such records. The Fund's Records (relating to the Subadviser
Assets) shall be available to the Adviser at any time upon reasonable
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request during normal business hours and shall be available for
telecopying without delay to the Adviser during any day that the
relevant Fund is open for business. The Trust acknowledges that the
Subadviser may be obligated under applicable law and regulation to
maintain copies of the Fund's Records for certain periods prescribed
by such law and regulation and that it will permit the Subadviser to
maintain such records as may be so required both during the term of
this Agreement and thereafter.
(h) Information Concerning Subadviser Assets and Subadviser. From time to
time as the Adviser or the Trust may request, the Subadviser will
furnish the requesting party reports on portfolio transactions and
reports on Subadviser Assets held in the portfolio, all in such detail
as the Adviser or the Trust may reasonably request. The Subadviser
will also inform the Adviser in a timely manner of material changes in
portfolio management team(s) responsible for Subadviser Assets, any
changes in the ownership or management of the Subadviser, or of
material changes in the control of the Subadviser. Upon reasonable
request, the Subadviser will make available its officers and employees
to meet with the Trust's Board of Trustees to review the Subadviser
Assets.
The Subadviser will also provide such information or perform such
additional acts as are customarily performed by a subadviser, and as
may be reasonably requested from time to time, and may be required for
the Trust or the Adviser to comply with their respective obligations
under applicable laws, including without limitation, the Code, the
1940 Act, the Advisers Act, and the Securities Act of 1933, as amended
(the "Securities Act"), and any rule or regulation thereunder.
(i) Custody Arrangements. The Subadviser shall on each business day
provide the Adviser and the Trust's custodian such information as the
Adviser and the Trust's custodian may reasonably request relating to
all transactions concerning the Fund Investments.
(j) Historical Performance Information. To the extent agreed upon by the
parties, the Subadviser will provide the Trust with historical
performance information on similarly managed investment companies or
for other accounts to be included in the Prospectus or for any other
uses permitted by applicable law. The Trust and the Adviser both
acknowledge that the Subadviser may be bound by applicable law and
regulation which may restrict its ability to disclose details such
information, and this Agreement shall not be construed as requiring
the Subadviser to disclose any such information where such disclosure
would result in the Subadviser being in breach of such applicable law
or regulation.
3. Independent Contractor. In the performance of its duties hereunder, the
Subadviser is and shall be an independent contractor and unless otherwise
expressly provided herein or otherwise authorized in writing, shall have no
authority to act for or represent the Fund, the Trust or the Adviser in any
way or otherwise be deemed an agent of the Fund, the Trust or the Adviser.
4. Expenses. During the term of this Agreement, Subadviser will pay all
expenses incurred by it in connection with its activities under this
Agreement other than the cost of securities, commodities and other
investments (including brokerage commissions and other transaction charges,
including any tax arising on any transaction, if any) purchased for a Fund.
The Subadviser shall, at its sole expense, employ or associate itself with
such persons as it believes to be particularly fitted to assist it in the
execution of its duties under this Agreement. The Subadviser shall not be
responsible for the Trust's, the Fund's or Adviser's expenses, which shall
include, but not be limited to, organizational and offering expenses (which
include out-of-pocket expenses, but not overhead or employee costs of the
Subadviser); expenses for legal, 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 Securities and
Exchange Commission (the "SEC"); expenses of registering or qualifying
securities of the Fund for sale in the various states; freight and other
charges in connection with the shipment of the Fund's portfolio securities;
fees and expenses of non-interested Trustees; salaries of shareholder
relations personnel; costs of shareholders meetings; insurance; interest;
brokerage costs; and litigation and other extraordinary or non-recurring
expenses. The Trust or the Adviser, as the case may be, shall reimburse the
Subadviser for any expenses of the Funds or the Adviser as may be
reasonably incurred by such Subadviser on behalf of the Funds or the
Adviser. The Subadviser shall keep and supply to the Trust and the Adviser
reasonable records of all such expenses.
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5. Compensation. For the services provided and the expenses assumed with
respect to a Fund and the Subadviser Assets pursuant to this Agreement, the
Subadviser will be entitled to the fee listed for each Fund on Exhibit A.
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 a Fund's Prospectus. If this Agreement shall be effective
for only a portion of a month, the aforesaid fee shall be prorated for the
portion of such month during which this Agreement is in effect.
6. Representations and Warranties of Subadviser. The Subadviser represents and
warrants to the Adviser and the Trust as follows:
(a) The Subadviser is registered as an investment adviser under the
Advisers Act;
(b) The Subadviser has filed a notice of exemption pursuant to Section
4.14 under the Commodity Exchange Act (the "CEA") with the Commodity
Futures Trading Commission (the "CFTC") and the National Futures
Association ("NFA"), or is not required to file such exemption;
(c) The Subadviser is a partnership duly organized and validly existing
under the laws of the State of Delaware with the power to own and
possess its assets and carry on its business as it is now being
conducted;
(d) The execution, delivery and performance by the Subadviser of this
Agreement are within the Subadviser's powers and have been duly
authorized by all necessary action by the Subadvisers board of
directors or shareholders and no action by or in respect of, or filing
with, any governmental body, agency or official is required on the
part of the Subadviser for the execution, delivery and performance by
the Subadviser of this Agreement, and the execution, delivery and
performance by the Subadviser of this Agreement do not contravene or
constitute a default under (i) any provision of applicable law, rule
or 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 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 Section 4.14
under the CEA with the CFTC and the National Futures Association or is
exempt from doing so;
(c) The Adviser is a 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;
(d) The execution, delivery and performance by the Adviser of this
Agreement, the appointment of the Subadviser and the delegation to the
Subadviser of the duties and powers delegated to it under this
Agreement, are within the Adviser's powers and have been duly
authorized by all necessary action on the part of its shareholders or
managing unitholder, and no action by or in respect of, or filing
with, any governmental body, agency or official is required on the
part of the Adviser for the execution, delivery and performance by the
Adviser of this Agreement, and the execution, delivery and performance
by the Adviser of this Agreement do not contravene or constitute a
default under (i) any provision of applicable law, rule or regulation,
(ii) the Adviser's governing instruments, or (iii) any agreement,
judgment, injunction, order, decree or other instrument binding upon
the Adviser;
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(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 Commonwealth of Massachusetts with the power to
own and possess its assets and carry on its business as it is now
being conducted;
(b) The Trust is registered as an investment company under the 1940 Act
and the Fund's shares are registered under the Securities Act: and
(c) The execution, delivery and performance by the Trust of this Agreement
are within the Trust's powers and have been duly authorized by all
necessary action on the part of the Trust and its Board of Trustees,
and no action by or in respect of, or filing with, any governmental
body, agency or official is required on the part of the Trust for the
execution, delivery and performance by the Adviser of this Agreement,
and the execution, delivery and performance by the Trust of this
Agreement do not contravene or constitute a default under (i) any
provision of applicable law, rule or regulation, (ii) the Trust's
governing instruments, or (iii) any agreement, judgment, injunction,
order, decree or other instrument binding upon the Trust.
9. Survival of Representations and Warranties; Duty to Update Information. All
representations and warranties made by the Subadviser, the Adviser and the
Trust pursuant to Sections 6, 7 and 8, respectively, shall survive for the
duration of this Agreement and the parties hereto shall promptly notify
each other in writing upon becoming aware that any of the foregoing
representations and warranties are no longer true.
10. Liability and Indemnification.
(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 a Fund or any of a
Fund's shareholders, in connection with the matters to which this
Agreement relates. In the absence of wilful misfeasance, bad faith or
gross negligence on the part of the Adviser or a reckless disregard of
its duties hereunder, the Adviser, any of its Affiliates and each of
the Adviser's Controlling Persons, if any, shall not be subject to any
liability to the Subadviser, for any act or omission in the case of,
or connected with, rendering services hereunder or for any losses that
may be sustained in the purchase, holding or sale of Subadviser
Assets; provided, however, that nothing herein shall relieve the
Adviser and the Subadviser from any of their obligations under
applicable law, including, without limitation, the federal and state
securities laws and the CEA.
(b) Indemnification. The Subadviser shall indemnify the Adviser, the Trust
and the Fund, and their respective Affiliates and Controlling Persons
for any liability and expenses, including reasonable attorneys' fees,
which the Adviser, the Trust and the Fund and their respective
Affiliates and Controlling Persons may sustain as a result of the
Subadviser's wilful misfeasance, bad faith, gross negligence, reckless
disregard of its duties hereunder or violation of applicable law,
including, without limitation, the federal and state securities laws
or the CEA. Notwithstanding any other provision in this Agreement, the
Subadviser will indemnify the Adviser, the Trust and the Fund, and
their respective Affiliates and Controlling Persons for any liability
and expenses, including reasonable attorneys' fees, to which they may
be subjected as a result of their reliance upon and use of the
historical performance calculations provided by the Subadviser
concerning the Subadviser's composite account data or historical
performance information on similarly managed investment companies or
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accounts, except that the Adviser, the Trust and the Fund, and their
respective Affiliates and Controlling Persons shall not be indemnified
for a loss or expense resulting from their negligence, willful
misconduct or the violation of the 1940 Act or federal or state
securities laws in using such numbers, or for their failure to conduct
reasonable due diligence with respect to such information.
The Adviser shall indemnify the Subadviser, its Affiliates and
its Controlling Persons, for any liability and expenses, including
reasonable attorneys' fees, which may be sustained as a result of the
Adviser's wilful misfeasance, bad faith, gross negligence, reckless
disregard of its duties hereunder or violation of applicable law,
including, without limitation, the federal and state securities laws
or the CEA, or as a result of any negligence, willful misconduct or
the violation of the 1940 Act or federal or state securities laws on
the part of the Adviser in the reliance upon and/or use of any
historical performance calculations provided by the Subadviser
concerning the Subadviser's composite account data or historical
performance information or similarly managed investment companies.
11. Duration and Termination.
(a) Duration. This Agreement begins effective as of the date referenced
above, after which point the assets of the Fund(s) shall be
transferred to the management of the Subadviser under the terms of
this Agreement. Unless sooner terminated, this Agreement shall
continue until June 30, 2003, with respect to any Fund covered by the
Agreement initially and for an initial two-year period for any Fund
subsequently added to the Agreement, 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 1940 Act) 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.
This Agreement shall not be assigned (as such term is
defined in the 1940 Act) and shall terminate automatically in the
event of its assignment or upon the termination of the Advisory
Agreement. Upon termination of this Agreement, the Trust will
immediately discontinue the use of the historical performance
information provided by the Subadviser provided under Section
2(j) hereof.
Termination will be without prejudice to the settlement of
any outstanding fees and the completion of transactions already
initiated. If on termination any money is due or will or may
become due in the future as a result of a commitment entered into
by the Subadviser ("an outstanding amount") then the Subadviser
may at its discretion sell such of the Subadviser Assets as it
may in its discretion select in order to realize funds sufficient
to cover any outstanding amount (but only to the extent that
insufficient funds are otherwise available for the purpose). The
Subadviser may also cancel, close out, terminate or reverse any
transaction or enter into any other transaction or do anything
which has the effect of reducing or eliminating any outstanding
amount or of reducing or eliminating any liability under any
contracts, positions or commitments undertaken under this
Agreement.
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12. Duties of the Adviser.
(a) Responsibility for other services. The Adviser shall continue to have
responsibility for all services to be provided to the Trust pursuant
to the Advisory Agreement and shall oversee and review the
Subadviser's performance of its duties under this Agreement. Nothing
contained in this Agreement shall obligate the Adviser to provide any
funding or other support for the purpose of directly or indirectly
promoting investments in the Trust.
(b) Delivery of documents. The Adviser will provide the Subadviser with
copies of each of the following:-
(i) The Trust's Certificate of Trust and Declaration of Trust;
(ii) The most recent Prospectus and Statement of Additional
Information relating to the Trust;
(iii) The Trust's Bylaws; and
(iv) The Trust's Code of Ethics.
The Adviser will notify the Subadviser as soon as it becomes
aware of any change in the above documents, and supply a copy of
the amended document or documents. The Subadviser shall not be
liable either for the breach of any provision or otherwise under
this Agreement, where such breach or other liability relates to a
failure to comply with the above documents, in circumstances
where the Subadviser was not aware at the relevant time of the
amendment of the relevant document or documents and, if not for
such amendment, such breach or other liability would not have
occurred.
13. Reference to Subadviser. Neither the Adviser nor any Affiliate or agent of
it shall make reference to or use the name of Subadviser or any of its
Affiliates, or any of their clients, except references concerning the
identity of and services provided by the Subadviser to the Fund, which
references shall not differ in substance from those included in the
Prospectus and this Agreement, in any advertising or promotional materials
without the prior approval of Subadviser, which approval shall not be
unreasonably withheld or delayed. The Adviser hereby agrees to make all
reasonable efforts to cause the Fund and any Affiliate thereof to satisfy
the foregoing obligation.
14. Amendment. This Agreement may be amended by mutual written consent of the
parties, provided that the terms of any material amendment shall be
approved by: a) the Trust's Board of Trustees or by a vote of a majority of
the outstanding voting securities of the Funds (as required by the 1940
Act) and b) the vote of a majority of those Trustees of the Trust who are
not "interested persons" of any party to this Agreement cast in person at a
meeting called for the purpose of voting on such approval, if such approval
is required by applicable law.
15. Confidentiality. Subject to the duties of the Adviser, the Trust and the
Subadviser to comply with the terms of this Agreement and applicable law,
including any demand of any regulatory or taxing authority having
jurisdiction, the parties hereto shall treat as confidential all
information pertaining to the Fund and the actions of the Subadviser, the
Adviser and the Fund in respect thereof.
16. Notice. Any notice that is required to be given by the parties to each
other under the terms of this Agreement shall be in writing, delivered, or
mailed postpaid to the other parties, or transmitted by facsimile with
acknowledgment of receipt, to the parties at the following addresses or
facsimile numbers, which may from time to time be changed by the parties by
notice to the other party:
(a) If to the Subadviser:
Gartmore Global Partners
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention:
Facsimile:
(b) If to the Adviser:
Villanova Mutual Fund Capital Trust
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention:
Facsimile:
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(c) If to the Trust:
Nationwide Separate Account Trust
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention:
Facsimile:
16. Jurisdiction. This Agreement shall be governed by and construed to be
consistent with the Advisory Agreement and in accordance with substantive
laws of the Commonwealth of Massachusetts without reference to choice of
law principles thereof and in accordance with the 1940 Act. In the case of
any conflict, the 1940 Act shall control.
17. Counterparts. This Agreement may be executed in one or more counterparts,
each of which shall be deemed an original, all of which shall together
constitute one and the same instrument.
18. 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.
19. Captions. The captions herein are included for convenience of reference
only and shall be ignored in the construction or interpretation hereof.
20. Severability. If any provision of this Agreement shall be held or made
invalid by a court decision or applicable law, the remainder of the
Agreement shall not be affected adversely and shall remain in full force
and effect.
21. Trust and its Trustees. The Trust is a business trust organized under a
Declaration of Trust dated as of June 30, 1981, as has been or may be
amended from time to time, and to which reference is hereby made and a copy
of which is on file at the office of the Secretary of State of The
Commonwealth of Massachusetts and elsewhere as required by law, and to any
and all amendments thereto so filed or hereafter filed. The obligations of
the Trust entered into in the name or on behalf thereof by any of
Nationwide Separate Account Trust's Trustees, representatives, or agents
are not made individually, but only in their capacities with respect to
Nationwide Separate Account Trust. Such obligations are not binding upon
any of the Trustees, shareholders, officers, or employees of the Trust
personally, but bind only the assets of the Trust. All persons dealing with
any series of Shares of the Trust must look solely to the assets of the
Trust belonging to such series for the enforcement of any claims against
the Trust.
22. Agent Not Principal. The Subadviser shall enter into transaction under this
Agreement as agent on behalf of the Adviser or Trust and not as principal.
23. Soft Commissions. The subadviser may effect transactions under the
Agreement with or through the agency of a person who provides services
under a Soft Commission Agreement, as defined in the rules of IMRO, and
will report such transactions to the Adviser upon request. All such
transactions must comply with applicable federal and state regulations in
the United States and any mutually agreed upon policies and procedures.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on
the day and year first written above.
TRUST
NATIONWIDE SEPARATE ACCOUNT TRUST
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Treasurer
ADVISER
VILLANOVA MUTUAL FUND CAPITAL TRUST
By: /s/ ▇▇▇ ▇▇▇▇
Name: ▇▇▇ ▇▇▇▇
Title: CFO
SUBADVISER
GARTMORE GLOBAL PARTNERS
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title:
-- 218 --
EXHIBIT A
SUBADVISORY AGREEMENT
BETWEEN
VILLANOVA MUTUAL FUND CAPITAL TRUST
NATIONWIDE SEPARATE ACCOUNT TRUST
AND GARTMORE GLOBAL PARTNERS
EFFECTIVE AUGUST 15, 2001
FUNDS OF THE TRUST ADVISORY FEES
Nationwide Small Company Fund 0.60% of the Fund's average daily net
assets
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