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Exhibit 23 (e)(2)
UNDERWRITING AGREEMENT
BETWEEN
GARTMORE MUTUAL FUNDS
AND
GARTMORE DISTRIBUTION SERVICES, INC.
AGREEMENT, made as of this 1st day of October, 2002, by and between
Gartmore Mutual Funds (formerly Nationwide Mutual Funds), an Ohio business 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 (the "1940
Act"), and is so registered with the 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 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 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 current Shareholders, and the printing and mailing of
sales literature.
(b) In its capacity as Underwriter, Underwriter agrees to act in
conformity with the Prospectus and the Trust's Declaration of
Trust and Bylaws 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.
(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.
(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 sole 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.
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 a
diversified 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, 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 of 1933, 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 they
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, Prospectus or amendment thereto, or any
report required by law or regulation; and
(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 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 pursuant to Rule 12b-1
under the 1940 Act.
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,
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
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 Shares and (b) a majority of the
Trustees who are not 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 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 Ohio 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 Mutual Funds and its Trustees. The terms "Gartmore Mutual
Funds" and the "Trustees of Gartmore Mutual Funds" 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 October 30,
1997, 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 Ohio 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 Mutual Fund's Trustees,
representatives, or agents are not made individually, but only in their
capacities with respect to the Gartmore Mutual Funds. 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 person 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.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the day and year first above written.
GARTMORE MUTUAL FUNDS
By: /s/ Xxxxxx X. Xxxxxxx
Name: Xxxxxx Xxxxxxx
Title: Treasurer
GARTMORE DISTRIBUTION SERVICES, INC.
By: /s/ Xxxxx Xxxxxxxx
Name: Xxxxx Xxxxxxxx
Title: EVP, Product, Marketing & Sales
Schedule A
Underwriting Agreement
between Gartmore Mutual Funds and
Gartmore Distribution Services, Inc.
(Effective October 1, 2002)
Name of Fund
Gartmore Total Return Fund (formerly Nationwide Fund)
Gartmore Growth Fund (formerly Nationwide Growth Fund)
Gartmore Millennium Growth Fund (formerly Nationwide New Economy Fund and
Nationwide Mid Cap Growth Fund)
Gartmore Bond Fund (formerly Nationwide Bond Fund)
Gartmore Tax-Free Income Fund (formerly Nationwide Tax-Free Income Fund)
Gartmore Government Bond Fund (formerly Nationwide Intermediate U.S. Government
Bond Fund and Nationwide Government Bond Fund)
Gartmore Money Market Fund (formerly Nationwide Money Market Fund)
Gartmore Large Cap Value Fund (formerly Prestige Large Cap Value Fund and
Nationwide Large Cap Value Fund)
Nationwide Large Cap Growth Fund (formerly Prestige Large Cap Growth Fund)
Nationwide Small Cap Fund (formerly Prestige Small Cap Fund)
Gartmore Xxxxxx Capital Accumulation Fund (formerly Xxxxxx Capital Accumulation
Fund and Nationwide Xxxxxx Capital Accumulation Fund)
Gartmore Xxxxxx Enhanced Income Fund (formerly Xxxxxx Enhanced Income Fund and
Nationwide Xxxxxx Enhanced Income Fund)
Gartmore U.S. Growth Leaders Fund (formerly Nationwide Focus Fund and Gartmore
Growth 20 Fund)
Gartmore Value Opportunities Fund (formerly Nationwide Value Opportunities Fund)
Gartmore High Yield Bond Fund (formerly Nationwide High Yield Bond Fund)
Nationwide S&P 500 Index Fund
Nationwide Small Cap Index Fund
Nationwide Mid Cap Market Index Fund
Nationwide International Index Fund
Nationwide Bond Index Fund
Gartmore Investor Destinations Aggressive Fund (formerly Investor Destinations
Aggressive Fund and Nationwide Investor Destinations Aggressive Fund)
Gartmore Investor Destinations Moderately Aggressive Fund (formerly Investor
Destinations Moderately Aggressive Fund and Nationwide Investor Destinations
Moderately Aggressive Fund)
Gartmore Investor Destinations Moderate Fund (formerly Investor Destinations
Moderate Fund and Nationwide Investor Destinations Moderate Fund)
Gartmore Investor Destinations Moderately Conservative Fund (formerly Investor
Destinations Moderately Conservative Fund and Nationwide Investor Destinations
Moderately Conservative Fund)
Gartmore Investor Destinations Conservative Fund (formerly Investor Destinations
Conservative Fund and Nationwide Investor Destinations Conservative Fund)
Schedule A
Underwriting Agreement
between Gartmore Mutual Funds and
Gartmore Distribution Services, Inc.
(Effective October 1, 2002)
Name of Fund
NorthPointe Small Cap Value Fund
Nationwide Growth Focus Fund
Gartmore Global Technology and Communications Fund (formerly Nationwide Global
Technology and Communications Fund)
Gartmore Global Health Sciences Fund (formerly Nationwide Global Life Sciences
Fund)
Gartmore Emerging Markets Fund
Gartmore International Growth Fund
Gartmore Worldwide Leaders Fund (formerly Gartmore Global Leaders Fund)
Gartmore European Leaders Fund (formerly Gartmore European Growth Fund)
Gartmore Global Small Companies Fund
Gartmore OTC Fund
Gartmore International Small Cap Growth Fund
Gartmore Asia Pacific Leaders Fund
Gartmore Global Financial Services Fund
Gartmore Global Utilities Fund
Gartmore Nationwide Leaders Fund (formerly Gartmore U.S. Leaders Fund)
Gartmore Micro Cap Equity Fund
Gartmore Mid Cap Growth Fund
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