6
Exhibit 23(e)
UNDERWRITING AGREEMENT
BETWEEN
GARTMORE MUTUAL FUNDS II, INC.
(FORMERLY GAMNA SERIES FUNDS, INC.)
AND
GARTMORE DISTRIBUTION SERVICES, INC.
AGREEMENT, made as of this 18th day of August, 2003, by and between
Gartmore Mutual Funds II, Inc. (formerly GAMNA Series Funds, Inc.), a Maryland
corporation (the "Company"), and Gartmore Distribution Services, Inc., a
Delaware corporation (the "Underwriter").
W I T N E S S E T H:
WHEREAS, the Company is engaged in business as an open-end 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 the 1940 Act; and
WHEREAS, it is mutually desired that the Underwriter undertake as agent of
the Company, the sale and distribution of Shares of the investment portfolio of
the Company which is listed on Schedule A to this Agreement (the "Fund").
NOW, THEREFORE, the parties do mutually agree and promise as follows:
1. Appointment as Underwriter. The Company hereby appoints the Underwriter
their agent for the sale of the Shares covered by the registration statement for
the Company. As used in this Agreement, the "registration statement" shall
refer to the Company'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 Company 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 Company. The
Company agrees that Distributor's duties to such Companies shall not be deemed
in conflict with its duties to the Company 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, the Underwriter agrees to act in
conformity with the Prospectus and the Company's Articles of Incorporation and
Bylaws and with instructions received from the Board of Directors of the Company
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 Board of Directors or
their representatives shall, suspend its efforts to effectuate sales of Shares
on behalf of the Company at any time when in the opinion of the Underwriter or
of the Board of Directors no sales should be made because of market or other
economic considerations or abnormal circumstances of any kind. The Company and
its Board of Directors 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
Company all records and other information relative to the Company 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 Company or when requested to divulge
such information by duly constituted authorities, after prior notification to
and approval in writing by the Company. 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 Company 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 the Fund shall be
equal to the sum of (a) the net asset value per Share next computed for the Fund
by the Company 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 Company's Articles of
Incorporation and the Prospectus. The Company 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, to the extent that any changes in the
distribution charge will be reflected in an amended prospectus.
(b) The Underwriter agrees that it will deliver or cause to be delivered
to the Company or to its authorized agent, as the Board of Directors 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
Company or its authorized agent, as the Board of Directors 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 Company 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 Company or the
Fund with any other investment company or the acquisition by the Company or the
Fund 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 the Fund;
(e) in a sale to the directors, employees, officers and directors of or
salespersons employed by the Underwriter and to officers, directors and
employees of any investment adviser of the Company; and (f) otherwise in
accordance with the Prospectus of the Fund.
5. The Company 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 the 1940 Act and of the rules and regulations
thereunder;
(2) to register its Shares under the Securities Act of 1933, as amended (the
"1933 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 1933 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 Company
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 Company 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 Company.
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 Company;
(3) that upon the request of the Company or its representative it will
furnish to the Company 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 Company for use in connection with the sale of
shares.
7. Fees and Expenses. The Company may pay a distribution fee to the
Underwriter determined in accordance with any applicable Distribution Plan
adopted by the Directors and approved by the shareholders pursuant to Rule 12b-1
under the 1940 Act.
The Underwriter shall pay reasonable 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 Company
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 Company with any federal or
state law or to enable such distribution to Shareholders), and (ii) advertising
or any other literature in connection with such offering. The Company 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 Company.
8. Repurchase of Shares. The Board of Directors 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 Company)
properly endorsed for transfer, at the net asset value in effect at the time
when the sale is made.
9. Indemnification. (a) The Company 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 1933 Act
("Underwriter Affiliates") free and harmless from and against any loss,
liability, claim, damages or expense (including the reasonable cost of
investigating or defending any alleged loss, liability, claim, damages or
expense and reasonable counsel fees incurred in connection therewith) arising by
reason of any person acquiring any shares, which the Underwriter and the
Underwriter Affiliates may incur under the 1933 Act or any other statute or
common law, arising out of or based upon any untrue statement of a material fact
or omission to state a material fact required to be stated in any registration
statement or prospectus or necessary in order to make the statements therein not
misleading or such a registration statement or prospectus that contains any
untrue statement of a material fact or omits to state any material fact
necessary in order to make the statements therein, , in light of the
circumstances under which they were made, not misleading. Provided, however, the
Company does not agree to indemnify the Underwriter and the Underwriter
Affiliates or hold them harmless to the extent that the statement or omission
was made in reliance upon, and in conformity with, information furnished to the
Company in writing by or on behalf of the Underwriter; and further provided that
the Company's agreement to indemnify Underwriter and the Underwriter Affiliates
shall not be deemed to cover any liability to the Company 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 Company, its
several officers and Board of Directors and any person who controls the Company
within the meaning of Section 15 of the 1933 Act ("Company Affiliates") against
any loss, liability, damages, claim or expense (including the reasonable cost of
investigating or defending any alleged loss, liability, damages, claim or
expense and reasonable counsel fees incurred in connection therewith) which the
Company and the Company Affiliates may incur under the 1933 Act or any other
statute or common law, but only to the extent that such liability or expense
incurred by the Company or the Company 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 Company 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
Company 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 Board of Directors or by the affirmative vote or written
approval of the holders of a majority of the outstanding Shares and (b) a
majority of the Board of Directors 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 (60) days prior written notice, by the Company's Board of
Directors, by vote of a majority of the outstanding voting securities of the
Company 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 Company and the Underwriter.
12. Jurisdiction. This Agreement and the rights and duties of the parties
hereunder shall be governed by, and construed in accordance with, the law of the
State of New York and in accordance with the 1940 Act. In case of any conflict,
the 1940 Act shall control.
13. Gartmore Mutual Funds II, Inc. (formerly GAMNA Series Funds, Inc.) and
its Directors. The terms "Gartmore Mutual Funds II, Inc." and the "Directors of
Gartmore Mutual Funds II, Inc." refer respectively to the Company created and
the Board of Directors, as directors but not individually or personally, acting
from time to time under the Articles of Incorporation dated as of March 12,
1999, 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 Maryland and elsewhere as required by law, and to any and all
amendments thereto so filed or hereafter filed. The obligations of the Company
entered into in the name or on behalf thereof by any of Gartmore Mutual Funds
II, Inc.'s Board of Directors, representatives, or agents are not made
individually, but only in their capacities with respect to the Gartmore Mutual
Funds II, Inc. Such obligations are not binding upon any of the Board of
Directors, shareholders, or representatives of the Company personally, but bind
only the assets of the Company. All person dealing with any series of Shares of
the Company must look solely to the assets of the Company belonging to such
series for the enforcement of any claims against the Company.
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 II, INC.
(formerly GAMNA Series Funds, Inc.)
By:_________________________________
Name:_______________________________
Title:______________________________
GARTMORE DISTRIBUTION SERVICES, INC.
By:_________________________________
Name:_______________________________
Title:______________________________
[Please attach a Form of dealer agreement for Board
to approve (a "related agreement" under Rule 12b-1)]
SCHEDULE A
Underwriting Agreement
between Gartmore Mutual Funds II, Inc.
(formerly GAMNA Series Funds, Inc.)
and
Gartmore Distribution Services, Inc.
(Effective August 18, 2003)
--------------------------------------------------------------------------------
NAME OF FUND
Gartmore Focus Fund (formerly GAMNA Focus Fund)