UNDERWRITING AGREEMENT
BETWEEN
GARTMORE VARIABLE INSURANCE TRUST
AND
GARTMORE DISTRIBUTION SERVICES, INC.
AGREEMENT, made as of this 2nd day of May, 2005, by and between
Gartmore Variable Insurance Trust (formerly Nationwide Separate Account Trust),
a Delaware statutory trust (the "Trust"), and Gartmore Distribution Services,
Inc., a Delaware corporation, (the "Underwriter").
W I T N E S S E T H:
WHEREAS, the Underwriter is an affiliate of Nationwide Securities, Inc.
(formerly Nationwide Advisory Services, Inc.), which was the previous principal
underwriter of the Trust; and
WHEREAS, the Trust is engaged in business as an open-end management
investment company, as defined in the Investment Company Act of 1940, as amended
(the "1940 Act"), and is so registered with the U.S. Securities and Exchange
Commission (the "SEC") under the provisions of that Act; and
WHEREAS, it is mutually desired that the Underwriter undertake as agent
of the Trust, the sale and distribution of shares of each of the investment
portfolios of the Trust (the "Shares") which are listed on Schedule A to this
Agreement (each a "Fund");
NOW, THEREFORE, the parties do mutually agree and promise as follows:
1. Appointment as Underwriter. The Trust hereby appoints the
Underwriter their agent for the sale of the Shares covered by the registration
statement for the Trust. As used in this Agreement, the "registration statement"
shall refer to the Trust's current registration statement on Form N-1A and shall
include the prospectus (Part A), Statement of Additional Information (Part B)
and Part C, and together the current prospectus and Statement of Additional
Information shall be referred to as the "Prospectus." The Trust understands that
Underwriter is now and may in the future be the distributor of the shares of
several investment companies or series (together, "Companies") including
Companies having investment objectives similar to those of the Trust. The Trust
agrees that Distributor's duties to such Companies shall not be deemed in
conflict with its duties to the Trust under this paragraph.
2. Duties of Underwriter. (a) The Underwriter hereby accepts such
appointment as distributor for the sale of the Shares and agrees that it will
use its best efforts to solicit orders for the sale of the Shares and will
undertake such advertising and promotion as it believes reasonable in connection
with such solicitation. The Underwriter shall, at its own expense, finance
appropriate activities which are primarily intended to result in the sale of the
Shares, including, but not limited to, advertising, compensation of
underwriters, dealers and sales personnel, the printing and mailing of
prospectuses to other than then current shareholders of the Trust
("Shareholders"), and the printing and mailing of sales literature.
1
(b) In its capacity as Underwriter, Underwriter agrees to act in
conformity with the Prospectus and the Trust's Agreement and Declaration of
Trust ("Declaration of Trust") and Bylaws, as amended or restated from time to
time, and with instructions received from the Trustees of the Trust and shall
conform to and comply with all applicable laws, rules and regulations,
including, without limitation, the 1940 Act, all rules and regulations
promulgated by the SEC thereunder and all rules and regulations adopted by any
securities association registered under the Securities Exchange Act of 1934, as
amended.
(c) The Underwriter may, and when requested by the Trustees or
their representatives shall, suspend its efforts to effectuate sales of Shares
on behalf of the Trust at any time when in the opinion of the Underwriter or of
the Trustees no sales should be made because of market or other economic
considerations or abnormal circumstances of any kind. The Trust and its Trustees
may withdraw the offering of the Shares (i) at any time with the consent of the
Underwriter, or (ii) without such consent when so required by the provisions of
any statute or of any order, rule or regulation of any governmental body having
jurisdiction. It is mutually understood and agreed that the Underwriter does not
undertake to sell all or any specific portion of the Shares.
(d) The Underwriter agrees on behalf of itself and its directors,
officers and employees to treat confidentially and as proprietary information of
the Trust all records and other information relative to the Trust and its prior,
present or potential Shareholders, and not to use such records and information
for any purpose other than performance of its responsibilities and duties
hereunder, except when requested by the Trust or when requested to divulge such
information by duly constituted authorities, after prior notification to and
approval in writing by the Trust. Such approval shall not be unreasonably
withheld and may not be withheld where the Underwriter may be exposed to civil
or criminal contempt proceedings for failure to comply.
3. Sale and Payment of Shares. (a) The Underwriter shall have the right
to purchase Shares of the Funds at the net asset value in effect at the time
that orders for such Shares are received by the Trust or its authorized agent
and to sell such Shares at the applicable public offering price through dealers
or other persons. The public offering price for the Shares of each Fund shall
equal to the sum of (a) the net asset value per Share next computed for a Fund
by the Trust and (b) any applicable sales charge, all as set forth in the
current Prospectus for the Fund. The net asset value of the Shares shall be
determined in accordance with the provisions of the Trust's Declaration of Trust
and the Prospectus. The Trust shall allow the Underwriter as compensation for
its services the particular sales charge applicable to the Shares sold. The
Underwriter may fix the portion of the distribution charge to be allowed to
dealers and others; provided that such portion is consistent with disclosure in
the Prospectus.
(b) The Underwriter agrees that it will deliver or cause to be
delivered to the Trust or to its authorized agent, as the Trustees may direct,
an amount equal to the net asset value of Shares for which purchase orders have
been placed with and accepted by the Underwriter and shall forward to the Trust
or its authorized agent, as the Trustees may direct, all orders for the purchase
of Shares with reasonable promptness after the receipt and acceptance thereof by
the Underwriter; provided, however, that the Underwriter shall have the right to
accept or reject all orders for the purchase of Shares and will return promptly
any rejected order together with the consideration which accompanied it.
2
4. Issuance of Shares. The Trust reserves the right to issue, transfer
or sell Shares, which are otherwise subject to a sales charge, at net asset
value (a) in connection with the merger or consolidation of the Trust or the
Fund(s) with any other investment company or the acquisition by the Trust or the
Fund(s) of all or substantially all of the assets or of the outstanding Shares
of any other investment company; (b) in connection with a pro rata distribution
directly to the holders of Shares in the nature of a stock dividend or split;
(c) upon the exercise of subscription rights granted to the holders of Shares on
a pro rata basis; (d) in connection with the issuance of Shares pursuant to any
exchange and reinvestment privileges described in the Prospectus of a Fund; (e)
in a sale to the Trustees, employees, officers and directors of or salespersons
employed by the Underwriter and to officers, directors and employees of any
investment adviser of the Trust; and (f) otherwise in accordance with the
Prospectus of a Fund.
5. The Trust agrees as follows:
(1) to use its best efforts to maintain its registration
as an open-end management investment company under
the 1940 Act, and to comply with all of the
provisions of that Act and of the rules and
regulations thereunder;
(2) to register its Shares under the Securities Act of
1933, as amended (the "Securities Act"), and to use
its best efforts to maintain such registration;
(3) to prepare and file such amendments to the
registration statements and Prospectus and other
statements or reports as may be necessary to comply
with the Securities Act, the 1940 Act, and the rules
and regulations of the SEC;
(4) to furnish the Underwriter with a sufficient number
of Prospectuses to meet the Underwriter's
requirements for use in connection with sales of
Shares, and that the Underwriter will not be required
to use any Prospectuses of the Trust which shall not
be in form and content satisfactory to counsel for
the Underwriter; and
(5) at the request of the Underwriter, to take such steps
as may be necessary and feasible to qualify Shares
for sale in each state, territory or dependency of
the United States of America, in the District of
Columbia and in foreign countries, in accordance with
the laws thereof, and to renew or extend any such
qualification; provided, however, that the Trust
shall not be required to qualify Shares or to
maintain the qualification of Shares in any state,
territory, dependency, district or country where the
Trustees or management of the Trust shall deem such
qualification disadvantageous to the Trust.
6. The Underwriter agrees as follows:
(1) that the Underwriter and its officers or directors
will purchase and keep Shares only for investment
purposes;
(2) that it will not purchase Shares from the
Shareholders except as agent for the Trust;
(3) that upon the request of the Trust or its
representative it will furnish to the Trust or such
representative any information in its possession
which is pertinent to the preparation of any
registration statement of the Trust, Prospectus or
amendment thereto, or any report required by law or
regulation; and
3
(4) that neither the Underwriter nor any other person
authorized by it to solicit purchases of Shares shall
give any information or make any representations,
other than those contained in the registration
statement of the Trust or Prospectus or in any
supplemental sales literature authorized by the Trust
for use in connection with the sale of Shares.
7. Fees and Expenses. The Trust may pay a distribution fee to the
Underwriter determined in accordance with any applicable Distribution Plan
adopted by the Trustees and approved by the Shareholders, if required, pursuant
to Rule 12b-1 under the 1940 Act. The Underwriter will be deemed to have
performed all services required to be performed in order to be entitled to
receive its distribution fee with respect to Shares of each Fund upon the
settlement of each sale of Shares taken into account in determining such
distribution fees.
The Underwriter shall pay expenses for (i) printing and
distributing any Prospectus and preparing, printing and distributing any other
literature used by the Underwriter in connection with the offering of the Shares
for sale to the public (except such expenses as may be incurred by the Trust in
connection with the preparation, printing and distribution of any Prospectus,
report or other communication to Shareholders, to the extent that such expenses
are necessarily incurred to effect compliance by the Trust with any Federal or
state law or to enable such distribution to Shareholders), and (ii) expenses of
advertising in connection with such offering. The Trust will pay or cause to be
paid (i) all fees and expenses for the issue and delivery of Shares, and (ii)
all auditing expenses of the Trust.
8. Repurchase of Shares. The Trustees hereby appoint the
Underwriter its agent to repurchase Shares, upon the written request of the
Shareholders or otherwise as provided in the Prospectus, accompanied by the
certificate or certificates representing such Shares (if certificates for such
Shares have been issued by the Trust) properly endorsed for transfer, at the net
asset value in effect at the time when the sale is made.
9. Indemnification. (a) The Trust agrees to indemnify, defend and
hold the Underwriter, its directors, officers and employees, and any person who
controls the Underwriter within the meaning of Section 15 of the Securities Act
("Underwriter Affiliates") free and harmless from and against any and all
claims, demands, liabilities and expenses (including the cost of investigating
or defending such claims, demands or liabilities and any counsel fees incurred
in connection therewith) which the Underwriter and the Underwriter Affiliates
may incur under the Securities Act or under common law or otherwise, arising out
of or based upon any untrue statement, or alleged untrue statement, of a
material fact contained in any registration statement or any Prospectus or
arising out of or based upon any omission, or alleged omission, to state a
material fact required to be stated in either any registration statement or any
Prospectus or necessary to make the statements in either thereof not misleading;
provided, however, that the Trust's agreement to indemnify the Underwriter and
the Underwriter Affiliates shall not be deemed to cover any claims, demands,
liabilities or expenses arising out of any information or representations which
4
were furnished in writing to the Trust by the Underwriter, or arising out of or
based upon any omission or alleged omission to state a material fact in
connection with the giving of such information required to be stated in such
answers or necessary to make the answers not misleading; and further provided
that the Trust's agreement to indemnify Underwriter and the Underwriter
Affiliates shall not be deemed to cover any liability to the Trust or its
Shareholders to which the Underwriter would otherwise be subject by reason of
willful misfeasance, bad faith or gross negligence in the performance of its
duties, or by reason of the Underwriters reckless disregard of its obligations
and duties under this Agreement.
(b) The Underwriter agrees to indemnify, defend and hold the
Trust, its several officers and Trustees and any person who controls the Trust
within the meaning of Section 15 of the Securities Act ("Trust Affiliates") free
and harmless from and against any and all claims, demands, liabilities and
expenses (including the costs of investigating or defending such claims, demands
or liabilities and any counsel fees incurred in connection therewith) which the
Trust and the Trust Affiliates may incur under the Securities Act or under
common law or otherwise, but only to the extent that such liability or expense
incurred by the Trust or the Trust Affiliates resulting from such claims or
demands, shall arise out of or be based upon any untrue, or alleged untrue,
statement of a material fact contained in information furnished in writing by
the Underwriter to the Trust and used in the answers to any of the items of the
registration statement or in the Prospectus, or shall arise out of or be based
upon any omission, or alleged omission, to state a material fact in connection
with such information furnished in writing by the Underwriter to the Trust
required to be stated in such answers or necessary to make such information not
misleading.
10. Term, Duration and Termination. The term of this Agreement
shall begin as of the date first written above (or, if a particular Fund is not
in existence on that date, the date an amendment to Schedule A to this Agreement
adding the new Fund is executed) and, unless sooner terminated as provided
herein, shall remain in effect for a period of two (2) years from that date.
Thereafter, if not terminated, this Agreement shall continue in effect from year
to year thereafter provided such continuance shall be approved at least annually
by (a) a majority of the Trustees or by the affirmative vote or written approval
of the holders of a majority of the outstanding voting securities of the Trust
and (b) a majority of the Trustees who are not parties to this Agreement or
interested persons of the Underwriter, the term "interested person" having the
meaning defined in Section 2(a)(19) of the 1940 Act. This Agreement is
terminable without penalty, on not less than sixty days prior written notice, by
the Trust's Board of Trustees, by vote of a majority of the outstanding voting
securities of the Trust or by the Underwriter. This Agreement will also
terminate automatically in the event of its assignment (as such term is defined
in the 1940 Act).
11. Amendment. This Agreement may not be amended or changed in any
manner except by a written agreement approved in the manner required by the 1940
Act and executed by both the Trust and the Underwriter.
12. Jurisdiction. This Agreement shall be governed by and in
accordance with the substantive laws of the State of Delaware without reference
to choice of law principles thereof and in accordance with the 1940 Act. In case
of any conflict, the 1940 Act shall control.
13. Gartmore Variable Insurance 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
5
trustees but not individually or personally, acting from time to time under a
Declaration of Trust dated as of September 30, 2004, as has been or may be
amended from time to time, and to which reference is hereby made.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the day and year first above written.
GARTMORE VARIABLE INSURANCE TRUST
By:
--------------------------------------------
Name: Xxxxxx X. Xxxxxxx
------------------------------------------
Title: Treasurer and Chief Financial Officer
-----------------------------------------
GARTMORE DISTRIBUTION SERVICES, INC.
By:
--------------------------------------------
Name: Xxxxxxx X. Xxxxxxx
------------------------------------------
Title: Vice President
------------------------------------------
6
Schedule A
Underwriting Agreement
between Gartmore Variable Insurance Trust and
Gartmore Distribution Services, Inc.
(Effective May 2, 2005)
Name of Fund
------------
Gartmore GVIT Nationwide Fund (formerly Gartmore GVIT Total Return Fund)
Gartmore GVIT Growth Fund (formerly Capital Appreciation Fund)
Gartmore GVIT Government Bond Fund (formerly Government Bond Fund)
Gartmore GVIT Money Market Fund (formerly Money Market Fund)
Gartmore GVIT Money Market Fund II (formerly Money Market Fund II)
GVIT Small Company Fund (formerly Nationwide Small Company Fund)
X.X. Xxxxxx GVIT Balanced Fund (formerly X.X. Xxxxxx NSAT Balanced Fund)
Xxx Xxxxxx GVIT Xxxxxxxx Value Fund (formerly Federated NSAT Equity Income Fund
and Federated GVIT Equity Income Fund)
Gartmore GVIT Worldwide Leaders Fund (formerly Nationwide Global 50 Fund)
Federated GVIT High Income Bond Fund (formerly Federated NSAT High Income Fund)
Xxx Xxxxxx GVIT Multi Sector Bond Fund (formerly MAS NSAT Multi Sector Bond Fund
and MAS GVIT Multi Sector Bond Fund)
GVIT Small Cap Value Fund (formerly Nationwide Small Cap Value Fund)
Dreyfus GVIT Mid Cap Index Fund (formerly Dreyfus NSAT Mid Cap Index Fund)
GVIT Small Cap Growth Fund (formerly Nationwide Small Cap Growth Fund)
Gartmore GVIT Mid Cap Growth Fund (formerly Strong NSAT Mid Cap Growth Fund and
Strong GVIT Mid Cap Growth Fund)
Gartmore GVIT Global Technology and Communications Fund (formerly Gartmore GVIT
Global Technology and Communications Fund)
Gartmore GVIT Global Health Sciences Fund (formerly Gartmore NSAT Global Health
Sciences Fund)
Gartmore GVIT Emerging Markets Fund (formerly Gartmore NSAT Emerging Markets
Fund)
Gartmore GVIT International Growth Fund (formerly Gartmore NSAT International
Growth Fund)
Gartmore GVIT European Leaders Fund Gartmore GVIT Global Small Companies Fund
(formerly Gartmore GVIT Global Small Companies Fund)
Gartmore GVIT OTC Fund (formerly Gartmore NSAT OTC Fund)
Gartmore GVIT Asia Pacific Leaders Fund Gartmore GVIT U.S. Growth Leaders Fund
(formerly Gartmore GVIT U.S. Leaders Fund)
Gartmore GVIT Global Financial Services Fund
Gartmore GVIT Global Utilities Fund
Gartmore GVIT Investor Destinations Aggressive Fund (formerly NSAT Investor
Destinations Aggressive Fund)
Gartmore GVIT Investor Destinations Moderately Aggressive Fund (formerly
NSAT Investor Destinations Moderately Aggressive Fund)
Gartmore GVIT Investor Destinations Moderate Fund (formerly NSAT Investor
Destinations Moderate Fund)
Schedule A
Underwriting Agreement
between Gartmore Variable Insurance Trust and
Gartmore Distribution Services, Inc.
(Effective May 2, 2005)
Page 2
Name of Fund
Gartmore GVIT Investor Destinations Moderately Conservative Fund (formerly NSAT
Investor Destinations Moderately Conservative Fund)
Gartmore GVIT Investor Destinations Conservative Fund (formerly NSAT Investor
Destinations Conservative Fund)
Gartmore GVIT Nationwide Leaders Fund (formerly Gartmore GVIT U.S. Leaders Fund)
Dreyfus GVIT International Value Fund
GVIT Equity 500 Index Fund
Gartmore GVIT Developing Markets Fund
Gartmore GVIT Nationwide Principal Protected Fund
