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Exhibit(d)3(a)
SUBADVISORY AGREEMENT
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THIS AGREEMENT is made and entered into on this 14th day of June,
1999, among NATIONWIDE SEPARATE ACCOUNT TRUST, a Massachusetts business trust
(the "Trust"), on behalf of the Nationwide Income Fund (the "Fund"), NATIONWIDE
ADVISORY SERVICES, INC. (the "Adviser"), an Ohio corporation registered under
the Investment Advisers Act of 1940 (the "Advisers Act"), and NCM CAPITAL
MANAGEMENT GROUP, INC. (the "Subadviser"), a North Carolina corporation 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 January 16, 1998 (the "Advisory Agreement"), been retained to
act as investment adviser for the Fund, one of the Trust's portfolios;
WHEREAS, the Advisory Agreement permits the Adviser to delegate
certain of its duties under the Advisory Agreement to other investment advisers,
subject to the requirements of the 1940 Act; and
WHEREAS, the Adviser desires to retain Subadviser to assist it in the
provision of a continuous investment program for that portion of the Fund's
assets which the Adviser will assign to the Subadviser (the "Subadviser
Assets"), and Subadviser is willing to render such services subject to the terms
and conditions set forth in this Agreement.
NOW, THEREFORE, the parties do mutually agree and promise as follows:
1. 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 now acts, and that from time to time hereafter may act, as investment
adviser to one or more other investment companies and to other managed accounts
and that the Adviser and the Trust have no objection to such activities.
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2. DUTIES OF SUBADVISER.
(a) INVESTMENTS. The Subadviser is hereby authorized and directed
and hereby agrees, subject to the stated investment policies and
restrictions of the Fund as set forth in the Fund's current 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 Fund's Board of Trustees, to purchase, hold and sell
investments for the Subadviser Assets and to monitor on a continuous
basis the performance of such 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 its activities under this Agreement, including,
without limitation, information concerning the Fund, its funds
available, or to become available, for investment and generally as to
the conditions of the Fund's affairs.
(b) COMPLIANCE WITH APPLICABLE LAWS AND GOVERNING DOCUMENTS. In
the performance of its duties and obligations under this Agreement,
the Subadviser shall act in conformity with the Trust's Declaration of
Trust and By-Laws and the Prospectus and with the instructions and
directions received in writing from the Adviser or the 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")
(including the requirements for qualification as a regulated
investment company), and all other applicable federal and state laws
and regulations. Notwithstanding the foregoing, the Adviser shall
remain responsible for ensuring the Fund's overall compliance with the
1940 Act, the Code and all other applicable federal and state laws and
regulations and the Subadviser is only obligated to comply with this
subsection (b) with respect to the Subadviser Assets.
The Adviser will provide the Subadviser with reasonable advance
notice of any change in the Fund's investment objectives, policies and
restrictions as stated in the Prospectus, and the Subadviser shall, 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. For purposes of this
subsection, receipt of a modified Prospectus by the Subadviser shall
constitute notice of the effectiveness of such changes. The Adviser
acknowledges and agrees that the Prospectus will at all times be in
compliance with all disclosure requirements under all applicable
federal and state laws and regulations relating to the Trust or 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 Fund or to the
Adviser specifically for inclusion in the Prospectus. The Subadviser
hereby agrees to provide to the Adviser in a timely manner such
information relating to the
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Subadviser and its relationship to, and actions for, the Fund 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 or the Fund or
take any action with respect thereto. If both the Subadviser and
another entity managing assets of the Fund have invested in the same
security, the Subadviser and such other entity will each have the
power to vote its pro rata share of the security.
(d) AGENT. Subject to any other written instructions of the
Adviser or the Trust, the Subadviser is hereby appointed the Adviser's
and the Trust's agent and attorney-in-fact for the limited purposes of
executing account documentation, agreements, contracts and other
documents as the Subadviser shall be requested by brokers, dealers,
counterparties and other persons in connection with its management of
the 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 upon the written request 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 or dealers ("brokers") as Subadviser
may elect and negotiate commissions to be paid on such transactions.
The Subadviser, however, is not required to obtain the consent of the
Adviser or the Trust's Board of Trustees prior to establishing any
such brokerage account. The Subadviser shall place all orders for the
purchase and sale of portfolio investments for the Fund's account with
brokers selected by the Subadviser. In the selection of such brokers
and the placing of such orders, the Subadviser shall seek to obtain
for the Fund the most favorable price and execution available, except
to the extent it may be permitted to pay higher brokerage commissions
for brokerage and research services, as provided below. In using its
reasonable efforts to obtain for the Fund the most favorable price and
execution available, the Subadviser, bearing in mind the Fund's best
interests at all times, shall consider all factors it deems relevant,
including price, the size of the transaction, the breadth and nature
of the market for the security, the difficulty of the execution, the
amount of the commission, if any, the timing of the transaction,
market prices and trends, the reputation, experience and financial
stability of the broker involved, and the quality of service rendered
by the broker in other transactions. Subject to such policies as the
Trustees may determine, or as may be mutually agreed to by the Adviser
and the Subadviser, the Subadviser shall not be deemed to have acted
unlawfully or to have breached any duty created by this Agreement or
otherwise solely by reason of its having caused the Fund to pay a
broker that provides brokerage and research services (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
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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 the Fund
as well as other clients of the Subadviser, the Subadviser, to the
extent permitted by applicable laws and regulations, may, but shall be
under no obligation to, aggregate the securities to be sold or
purchased in order to obtain the most favorable price or lower
brokerage commissions and efficient execution. In such event,
allocation of securities so sold or purchased, as well as the expenses
incurred in the transaction, will be made by the Subadviser in the
manner the Subadviser considers to be the most equitable and
consistent with its fiduciary obligations to the Fund and to such
other clients. It is recognized that in some cases, this procedure may
adversely affect the price paid or received by the Fund or the size of
the position obtainable for, or disposed of by, the Fund.
(f) SECURITIES TRANSACTIONS. The Subadviser and any affiliated
person of the Subadviser will not purchase securities or other
instruments from or sell securities or other instruments to the Fund;
provided, however, the Subadviser may purchase securities or other
instruments from or sell securities or other instruments to the Fund
if such transaction is permissible under applicable laws and
regulations, including, without limitation, the 1940 Act and the
Advisers Act and the rules and regulations promulgated thereunder.
The Subadviser, including its Access Persons (as defined in
subsection (e) of Rule 17j-1 under the 1940 Act), agrees to observe
and comply with Rule 17j-1 and 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 with the Subadviser=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 Books and 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. The Fund's Books and Records (relating to the Subadviser
Assets) shall be available to the Adviser at any time upon reasonable
request during normal business hours and shall be available for
telecopying without delay to the Adviser during any day that the Fund
is open for business.
(h) INFORMATION CONCERNING FUND INVESTMENTS AND SUBADVISER. From
time to time as the Adviser or the Fund may request, the Subadviser
will furnish the requesting party
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reports on portfolio transactions and reports on Subadviser Assets
held in the portfolio, all in such detail as the Adviser or the Fund
may reasonably request. The Subadviser will also inform the Adviser in
a timely manner of material changes in portfolio managers responsible
for Subadviser Assets, or of material changes in the control of the
Subadviser. 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 may
be required for the Fund or the Adviser to comply with their
respective obligations under applicable laws, including, without
limitation, the Code, the 1940 Act, the Advisers Act, the Securities
Act of 1933, as amended (the "Securities Act") and any state
securities laws, and any rule or regulation thereunder.
(i) CUSTODY ARRANGEMENTS. The Subadviser shall on each business
day provide the Adviser and the Trust's custodian such information as
the Adviser and the Trust's custodian may reasonably request relating
to all transactions concerning the Subadviser Assets.
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, if any)
purchased for the 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. The
Trust or the Adviser, as the case may be, shall reimburse the Subadviser for any
expenses of the Fund or the Adviser as may be reasonably incurred by such
Subadviser on behalf of 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 and the expenses assumed
with respect to the Fund pursuant to this Agreement, the Subadviser will be
entitled to the fee, computed daily and payable no later than the seventh (7th)
business day following the end of each month, from the Adviser or the Trust,
calculated at an annual rate of 0.25% of the Subadviser Assets' average daily
net assets for the first $100 million of Subadviser Assets and 0.15% of the
Subadvisers' average daily net assets on Subadviser Assets in excess of $100
million. This fee for the Subadviser is subject to an annual minimum fee of
$15,000.
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The method of determining net assets of the Fund for purposes hereof
shall be the same as the method of determining net assets for purposes of
establishing the offering and redemption price of the Shares as described in the
Fund's Prospectus. If this Agreement shall be effective for only a portion of a
month, the aforesaid fee shall be prorated for the portion of such month during
which this Agreement is in effect.
6. REPRESENTATIONS AND WARRANTIES OF SUBADVISER. The Subadviser
represents and warrants to the Adviser and the Fund as follows:
(a) The Subadviser is registered as an investment adviser under
the Advisers Act;
(b) The Subadviser has filed a notice of exemption pursuant to
Rule 4.14 under the Commodity Exchange Act (the "CEA") with the
Commodity Futures Trading Commission (the "CFTC") and the National
Futures Association (the ANF""), or is not required to file such
exemption;
(c) The Subadviser is a corporation duly organized and validly
existing under the laws of the State of North Carolina with the power
to own and possess its assets and carry on its business as it is now
being conducted;
(d) The execution, delivery and performance by the Subadviser
of this Agreement are within the Subadviser's powers and have been duly
authorized by all necessary action on the part of its partners, 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. In addition,
the Subadviser agrees to promptly provide the Trust with updates of its
Form ADV.
7. REPRESENTATIONS AND WARRANTIES OF ADVISER. The Adviser represents
and warrants to the Subadviser as follows:
(a) The Adviser is registered as an investment adviser under the
Advisers Act;
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(b) The Adviser has filed a notice of exemption pursuant to Rule
4.14 under the CEA with the CFTC and the NFA or is not required to
file such exemption;
(c) The Adviser is a 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 shareholder 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 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,
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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. Except to the extent that the Subadviser is liable
to the Trust or any other party as a direct result of the action or
inaction of the Subadviser and 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 subject to any expenses or liability to the
Adviser, the Trust or the Fund or any of the Fund's shareholders. 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
and the Trust, and their respective Affiliates and Controlling Persons
for any liability and expenses, including reasonable attorneys' fees,
which the Adviser and the Trust 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. 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.
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11. DURATION AND TERMINATION.
(a) DURATION. Unless sooner terminated, this Agreement shall
continue until January 15, 2000, and thereafter shall continue
automatically for successive annual periods, provided such continuance
is specifically approved at least annually by the Trust's Board of
Trustees or vote of the lesser of (a) 67% of the shares of the Fund
represented at a meeting if holders of more than 50% of the
outstanding shares of the Fund are present in person or by proxy or
(b) more than 50% of the outstanding shares of the Fund; provided that
in either event its continuance also is approved by a majority of the
Trust's Trustees who are not "interested persons" (as defined in the
▇▇▇▇ ▇▇▇) 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
▇▇▇▇ ▇▇▇) 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 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 Subadviser to the Fund, which references
shall not differ in substance from those included in the Fund's Prospectus and
this Agreement, in any advertising or promotional materials without the prior
approval of Subadviser, which approval shall not be unreasonably withheld or
delayed. The Adviser hereby agrees to make all reasonable efforts to cause the
Fund and any Affiliate thereof to satisfy the foregoing obligation.
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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 Fund (as 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 Fund
and the Subadviser to comply with applicable law, including any demand of any
regulatory or taxing authority having jurisdiction, the parties hereto shall
treat as confidential all information pertaining to 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:
NCM Capital Management Group, Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
(b) If to the Adviser:
Nationwide Advisory Services, Inc.
Three ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇.
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
(c) If to the Trust:
Nationwide Separate Account Trust
Three ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇.
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
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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. NATIONWIDE SEPARATE ACCOUNT TRUST AND ITS TRUSTEES. The terms
"Nationwide Separate Account Trust" and the "Trustees of Nationwide Separate
Account Trust" refer respectively to the Trust created and the Trustees, as
trustees but not individually or personally, acting from time to time under a
Declaration of Trust dated as of June 30, 1981, as has been or may be amended
from time to time, and to which reference is hereby made and a copy of which is
on file at the office of the Secretary of State of The Commonwealth of
Massachusetts and elsewhere as required by law, and to any and all amendments
thereto so filed or hereafter filed. The obligations of the Trust entered into
in the name or 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, or
representatives of the Trust personally, but bind only the assets of the Trust.
All persons dealing with any series of Shares of the Trust must look solely to
the assets of the Trust belonging to such series for the enforcement of any
claims against the Trust.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement on
the day and year first written above.
TRUST
NATIONWIDE SEPARATE ACCOUNT TRUST
By:
-----------------------------------
Name:
Title:
ADVISER
NATIONWIDE ADVISORY SERVICES, INC.
By:
-----------------------------------
Name:
Title:
SUBADVISER
NCM CAPITAL MANAGEMENT GROUP, INC.
By:
-----------------------------------
Name:
Title:
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AMENDMENT TO SUBADVISORY AGREEMENT
EFFECTIVE AS OF September 1, 1999
This AMENDMENT is made part of SUBADVISORY AGREEMENT (the "Agreement") dated as
of the 14th day of June, 1999, among Nationwide Separate Account Trust, a
Massachusetts business trust (the "Trust"), Nationwide Advisory Services, Inc.,
an Ohio corporation (the "Adviser") and NCM Capital Management Group, Inc., a
North Carolina corporation (the "Subadviser") and is consented to by Villanova
Mutual Fund Capital Trust, a Delaware business trust ("Villanova MF").
WHEREAS, the Adviser wishes to transfer its mutual fund investment advisory
business to Villanova MF and is asking the Trust and the Subadviser to agree to
amend the Agreement so that Adviser's rights and responsibilities are
transferred to Villanova MF (the "Transfer");
WHEREAS, the Trust is registered with the Securities and Exchange Commission as
an investment company under the Investment Company Act of 1940 (the "1940 Act");
WHEREAS, Villanova MF is wholly owned by Villanova Capital, Inc., a Delaware
corporation, under the majority ownership of Nationwide Financial Services,
Inc., a Delaware corporation which through its wholly owned subsidiary,
Nationwide Life Insurance Corporation, wholly owns the Adviser, and thus
Villanova MF and the Adviser are under common control;
WHEREAS, all of the persons who will serve as the directors of Villanova
Capital, Inc. immediately after the Transfer are persons who have served as
directors of the Adviser prior to the Transfer;
WHEREAS, substantially all of the persons who will serve as officers of
Villanova MF immediately after the Transfer are persons who have served as
officers of the Adviser prior to the Transfer;
WHEREAS, the personnel who perform the services required of the Adviser under
the Agreement will continue to perform the same services after the Transfer;
WHEREAS, with respect to the services provided under the Agreement, the business
and operations of Villanova MF after the Transfer will be substantially the same
as the business and operations of the Adviser prior to the Transfer;
WHEREAS, the Transfer will not result in any reduction in the nature or quality
of the services which have been provided under the Agreement by the Adviser;
WHEREAS, the Transfer in and of itself will not result in a change in the fees
or reimbursements required to be paid under the Agreement;
WHEREAS, the Transfer will not affect the business or operations of the
Subadviser, or the nature or quality of the services provided under the
Agreement by the Subadviser;
WHEREAS, in view of the foregoing, the Transfer should not constitute an
assignment of the Agreement within the meaning of the 1940 Act; and
WHEREAS, the Trust's Board of Trustees has approved this amendment to the
Agreement pursuant to Section 14 of the Agreement;
NOW, THEREFORE, in consideration of the mutual premises and covenants set forth
herein, the parties hereby agree as follows:
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1. Effective September 1, 1999 (the "Effective Date"), the Adviser will
transfer to Villanova MF all of its rights and responsibilities under the
Agreement, including but not limited to, such rights and responsibilities
relating to the supervision of the Subadviser's activities with respect to
the Trust's portfolios and to the obtaining of information from, and
provision of information to, the Subadviser.
2. On the Effective Date, Villanova MF will assume such rights and
responsibilities of the Adviser, subject to the terms of the Agreement.
3. On the Effective Date, Adviser shall be relieved of all of its rights and
responsibilities under the Agreement.
4. All other provisions of the Agreement shall remain in full force and
effect.
5. The Trust represents and warrants that it possesses the requisite power and
authority to enter into and perform its obligations under this amendment.
6. The Adviser represents and warrants that it possesses the requisite power
and authority to enter into and perform its obligations under this
amendment.
7. The Subadviser represents and warrants that it possesses the requisite
power and authority to enter into and perform its obligations under this
amendment.
8. Villanova MF represents and warrants that it possesses the requisite power
and authority to enter into and perform its obligations under this
amendment, and that it is registered with the U.S. Securities and Exchange
Commission as an investment adviser pursuant to the Investment Advisers Act
of 1940.
9. The Adviser and Villanova MF together represent and warrant that the
transfer of the Agreement will not constitute an assignment of the
Agreement within the meaning of the 1940 Act.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to the
Agreement to be duly executed as of the day and year first written above.
NATIONWIDE ADVISORY SERVICES, INC. NCM CAPITAL MANAGEMENT GROUP, INC.
By: By:
------------------------------- ----------------------------------
Title: Title:
---------------------------- -------------------------------
Date: Date:
----------------------------- --------------------------------
Agreed and Consented to by:
NATIONWIDE SEPARATE ACCOUNT TRUST VILLANOVA MUTUAL FUND CAPITAL TRUST
By: By:
------------------------------- ----------------------------------
Title: Title:
---------------------------- -------------------------------
Date: Date:
----------------------------- --------------------------------
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