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EXHIBIT (e)(2)
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UNDERWRITING AGREEMENT
BETWEEN
GARTMORE VARIABLE INSURANCE TRUST
AND
GARTMORE DISTRIBUTIONSERVICES, INC.
AGREEMENT, made as of this 1st day of October, 2002, by and between
Gartmore Variable Insurance Trust (formerly Nationwide Separate Account Trust),
a Massachusetts 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 known as 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
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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
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(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.
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(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 Commonwealth of Massachusetts 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
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
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 ofGartmore
Variable InsuranceTrust's Trustees, representatives, or agents are not made
individually, but only in their capacities with respect toGartmore 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 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 VARIABLE INSURANCE TRUST
By: /s/ Xxxxxxxxx X. Xxxxx
Name: Xxxxxxxxx X. Xxxxx
Title: Assistant Secretary
GARTMORE DISTRIBUTION SERVICES, INC.
By: /s/ Xxxxxx X. Xxxxxxx
Name: Xxxxxx X. Xxxxxxx
Title: Senior Vice President
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Schedule A
UNDERWRITING AGREEMENT
BETWEEN GARTMORE VARIABLE INSURANCE TRUST AND
GARTMORE DISTRIBUTION SERVICES, INC.
(Effective October 1, 2002)
NAME OF FUND
Gartmore GVIT Total Return Fund (formerly Total Return Fund)
Gartmore GVIT Growth Fund (formerly Capital Appreciation Fund)
Gartmore GVIT Government Bond (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)
Xxxxxxxx GVIT 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)
MAS GVIT Multi Sector Bond Fund (formerly MAS NSAT 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)
Nationwide GVIT Strategic Value Fund (formerly Nationwide Strategic Value Fund)
Strong GVIT Mid Cap Growth Fund (formerly Strong NSAT Mid Cap Growth Fund)
Xxxxxx GVIT Growth Focus Fund (formerly Xxxxxx NSAT Growth Focus 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 Worldwide Leaders Fund (formerly Gartmore GVIT Global Leaders
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)
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)
GARTMORE VARIABLE INSURANCE TRUST
By: /s/ Xxxxxxxxx X. Xxxxx
Name: Xxxxxxxxx X. Xxxxx
Title: Assistant Secretary
GARTMORE DISTRIBUTION SERVICES, INC.
By: /s/ Xxxxxx X. Xxxxxxx
Name: Xxxxxx X. Xxxxxxx
Title: Senior Vice President
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