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Exhibit 23(d)(5)(g)(1)
AMENDED AND RESTATED SUBADVISORY AGREEMENT
THIS AGREEMENT, amended effective as of October 1, 2003 to the original
agreement effective the 1st day of May, 2000 among GARTMORE VARIABLE INSURANCE
TRUST (formerly Nationwide Separate Account Trust), a Massachusetts business
trust (the "Trust"), GARTMORE MUTUAL FUND CAPITAL TRUST (formerly Villanova
Mutual Fund Capital Trust) (the "Adviser"), a Delaware business trust registered
under the Investment Advisers Act of 1940 (the "Advisers Act"), and X.X. Xxxxxx
Investment Management Inc., a Delaware corporation (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, as amended (the "1940 Act");
WHEREAS, the Adviser has, pursuant to an Advisory Agreement with the Trust
dated as of October 31, 1997 (the "Advisory Agreement") as subsequently amended
March 13, 2003, 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 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 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. The Adviser agrees to provide the Subadviser with such
assistance as may be reasonably requested by the Subadviser in connection
with its activities under this Agreement, including, without limitation,
information concerning a Fund, its funds available, or to become available,
for investment and generally as to the conditions of the Fund's or the
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, 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 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 the copies of any financial statements
or reports made by a Fund to its shareholders, and any further materials or
information which the Subadviser may reasonably request to enable it to
perform its functions under this Agreement.
The Adviser will provide the Subadviser with reasonable advance notice of
any change in a Fund's investment objectives, policies and restrictions as
stated in the Prospectus, and the Subadviser shall, in the performance of its
duties and obligations under this Agreement, manage the Subadviser Assets
consistent with such changes, provided 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 in writing 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
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, the Trust or a Fund 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.
The Subadviser will establish a written procedure for proxy voting in
compliance with current applicable rules and regulations, including but not
limited to Rule 30b1-4 under the 1940 Act. The Subadviser will provide the
Adviser or its designee, a copy of such procedure and establish a process for
the timely distribution of the Subadviser's voting record with respect to the
Fund's securities and other information necessary for the Fund to complete
information required by Form N-1A under the 1940 Act and the Securities Act of
1933, as amended (the "Securities Act"), Form N-PX under the 1940 Act, and Form
N-CSR under the Xxxxxxxx-Xxxxx Act of 2002, respectively.
(d) Agent. Subject to any other written instructions of the Adviser or the
Trust, the Subadviser is hereby appointed the Adviser's and the Trust's
agent and attorney-in-fact for the limited purposes of executing account
documentation, agreements, contracts and other documents as the Subadviser
shall be requested by brokers, dealers, counterparties and other persons in
connection with its management of the Subadviser Assets. The Subadviser
agrees to provide the Adviser and the Trust with copies of any such
agreements executed on behalf of the Adviser or the Trust.
(e) Brokerage. The Subadviser is authorized, subject to the supervision of the
Adviser and the 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 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 a Fund the most favorable
price and execution available, except to the extent it may be permitted to
pay higher brokerage commissions for brokerage and research services, as
provided below. In using its reasonable efforts to obtain for a Fund the
most favorable price and execution available, the Subadviser, bearing in
mind the best interests of a 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 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 a 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 or any affiliated person of the Subadviser may purchase
securities or other instruments from or sell securities or other
instruments to the Fund if such transaction is permissible under applicable
laws and regulations, including, without limitation, the 1940 Act and the
Advisers Act and the rules and regulations promulgated thereunder.
The Subadviser, 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 its Code of Ethics (which shall comply in all material respects with Rule
17j-1), as the same may be amended from time to time. On at least an annual
basis, the Subadviser will comply with the reporting requirements of Rule 17j-1,
which may include either (i) certifying to the Adviser that the Subadviser and
its Access Persons have complied with the Subadviser's Code of Ethics with
respect to the Subadviser Assets or (ii) identifying any violations which have
occurred with respect to the Subadviser Assets. The Subadviser will have also
submit its Code of Ethics for its initial approval by the Board of Trustees no
later than the date of execution of this agreement and subsequently within six
months of any material change of thereto.
(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. The Fund's 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 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 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.
(j) Historical Performance Information. To the extent agreed upon by the
parties, the Subadviser will provide the Trust with historical performance
information on similarly managed investment companies or for other accounts
to be included in the Prospectus or for any other uses permitted by
applicable law.
3. Independent Contractor. In the performance of its duties hereunder, the
Subadviser is and shall be an independent contractor and unless otherwise
expressly provided herein or otherwise authorized in writing, shall have no
authority to act for or represent 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 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 a 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 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 a Fund 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 each Fund's shares as described in that
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 is registered as a Commodity Trading Advisor under the
Commodity Exchange Act (the "CEA") with the Commodity Futures Trading
Commission (the "CFTC");
(c) The Subadviser is a corporation 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 on the part of its Board of 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 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. The Subadviser will promptly provide the Adviser
and the Trust with a complete copy of all subsequent amendments to its Form
ADV.
7. Representations and Warranties of Adviser. The Adviser represents and
warrants to the Subadviser as follows:
(a) The Adviser is registered as an investment adviser under the Advisers Act;
(b) The Adviser has filed a notice of exemption pursuant to Rule 4.14 under the
CEA with the CFTC and the National Futures Association or is not required
to file such exemption;
(c) The Adviser is a business trust duly organized and validly existing under
the laws of the State of Delaware with the power to own and possess its
assets and carry on its business as it is now being conducted;
(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 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;
(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.
(b) Indemnification. The Subadviser shall indemnify the Adviser, the Trust and
each Fund, and their respective Affiliates and Controlling Persons for any
liability and expenses, including reasonable attorneys' fees, which the
Adviser, the Trust and a 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 each 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
accounts, except that the Adviser, the Trust and each Fund and their
respective Affiliates and Controlling Persons shall not be indemnified for
a loss or expense resulting from their negligence or willful misconduct 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, howsoever arising from, or in connection with, this Agreement
or the performance by the Subadviser of its duties hereunder; provided, however,
that the Subadviser shall not be indemnified for any liability or expenses which
may be sustained 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.
11. Duration and Termination.
(a) Duration. Unless sooner terminated, this Agreement shall continue until May
1, 2002 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 with respect to each such Fund, 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 0000 Xxx) 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
0000 Xxx) 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 in references concerning the
identity of and services provided by the Subadviser to a Fund, which references
shall not differ in substance from those included in the Prospectus and this
Agreement, in any advertising or promotional materials without the prior
approval of Subadviser, which approval shall not be unreasonably withheld or
delayed. The Adviser hereby agrees to make all reasonable efforts to cause the
Fund and any Affiliate thereof to satisfy the foregoing obligation.
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 0000 Xxx) 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:
X.X. Xxxxxx Investment Management Inc.
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxx Xxxxxx
Facsimile: (000) 000-0000
(b) If to the Adviser:
Gartmore Mutual Fund Capital Trust
0000 Xxxxx Xxxx
Xxxxxxxxxxxx, XX 00000
Attention: Legal Department
Facsimile: (000) 000-0000
(c) If to the Trust:
Gartmore Variable Insurance Trust
Gartmore Mutual Fund Capital Trust
0000 Xxxxx Xxxx
Xxxxxxxxxxxx, XX 00000
Attention: Legal Department
Facsimile: (000) 000-0000
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. Gartmore Variable Insurance Trust(formerly Nationwide Separate
Account Trust)and its Trustees. The terms "Gartmore Variable Insurance Trust"
and the "Trustees of Gartmore Variable Insurance Trust" refer respectively to
the Trust created and the Trustees, as trustees but not individually or
personally, acting from time to time under a Declaration of Trust dated as of
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 Gartmore Variable Insurance Trust's Trustees, representatives,
or agents are not made individually, but only in their capacities with respect
to Gartmore Variable Insurance 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.
22. IMRO Regulation. Under the United Kingdom Financial Services
Act of 1986, the Subadviser is a member of the Investment Management Regulatory
Organisation Limited ("IMRO") and as such is regulated by IMRO in the conduct of
its investment business in the United Kingdom. To the extent that the
Subadviser's United Kingdom office provides services under this Agreement those
services are provided on the basis that both the Trust and the Adviser are
non-private customers as that term is defined in IMRO's rules.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the
day and year first written above.
TRUST
GARTMORE VARIABLE INSURANCE TRUST
(formerly Nationwide Separate Account
Trust)
By: XXXXX XXXXXXXXX
Name: Xxxxx Xxxxxxxxx
Title: Assistant Secretary
ADVISER
GARTMORE MUTUAL FUND CAPITAL TRUST
(formerly Villanova Mutual Fund Capital
Trust)
By: XXXXXX X. XXXXXXX
Name: Xxxxxx X. Xxxxxxx
Title: Senior Vice President - CAO
SUBADVISER
X. X. XXXXXX INVESTMENT
MANAGEMENT INC.
By: XXXXXXX X. XX
Name: Xxxxxxx X. Xx
Title: Vice President
EXHIBIT A
SUBADVISORY AGREEMENT
BETWEEN GARTMORE VARIABLE INSURANCE TRUST
(FORMERLY NATIONWIDE SEPARATE ACCOUNT TRUST),
GARTMORE MUTUAL FUND CAPITAL TRYUST (FORMERLY VILLANOVA MUTUAL FUND CAPITAL
TRUST) AND
X.X. XXXXXX INVESTMENT MANAGEMENT, INC.
EFFECTIVE OCTOBER 1, 2003
Funds of the Trust. . . . . . . . . Subadvisory Fees Effective Date
--------------------------------------------------------------------------------
X.X. Xxxxxx GVIT Balanced Fund. . . 0.35% on Subadviser Assets May 1, 2000
(formerly Nationwide Balanced Fund) up to $100 million
0.30% for Subadviser Assets
of $100 million and more
GVIT Small Cap Value Fund . . . . . 0.50% on Subadviser Assets October 1, 2003
up to $200 million
0.45% for Subadviser Assets
of $200 million and more
EXHIBIT B
SUBADVISORY AGREEMENT
AMONG GARTMORE VARIABLE INSURANCE TRUST,
GARTMORE MUTUAL FUND CAPITAL TRUST
AND X.X. XXXXXX INVESTMENT MANAGEMENT, INC.
Effective October 1, 2003
In connection with securities transactions for a Fund, the Subadviser that is
(or whose affiliated person is) entering into the transaction, and any other
investment manager that is advising an affiliate of the Fund (or portion of the
Fund) (collectively, the "Managers" for the purposes of this Exhibit) entering
into the transaction are prohibited from consulting with each other concerning
transactions for the Fund in securities or other assets and, if both Managers
are responsible for providing investment advice to the Fund, the Manager's
responsibility in providing advice is expressly limited to a discrete portion of
the Fund's portfolio that it manages.
This prohibition does not apply to communications by the Adviser in connection
with the Adviser's (i) overall supervisory responsibility for the general
management and investment of the Fund's assets; (ii) determination of the
allocation of assets among the Manager(s), if any; and (iii) investment
discretion with respect to the investment of Fund assets not otherwise assigned
to a Manager.
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