Exhibit No. Ex-99.e
UNDERWRITING AGREEMENT
BETWEEN
NATIONWIDE VARIABLE INSURANCE TRUST
AND
NATIONWIDE FUND DISTRIBUTORS, LLC
AGREEMENT, made as of this 1st day of May, 2007, by and between
Nationwide Variable Insurance Trust (formerly, Gartmore Variable Insurance
Trust), a Delaware statutory trust (the "Trust"), and Nationwide Fund
Distributors, LLC (formerly, Gartmore Distribution Services, Inc.), a Delaware
limited liability company, (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 its 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 Underwriter'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, brokers and sales personnel, the printing and
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mailing of prospectuses to other than then current shareholders of the Trust
("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 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, brokers 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,
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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.
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;
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(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
(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
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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 voting securities of the Trust
and (b) a majority of the Trustees who are not parties to this Agreement or
interested persons of any such party, 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.
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13. NATIONWIDE VARIABLE INSURANCE TRUST AND ITS TRUSTEES. The
terms "Nationwide Variable Insurance Trust" and the "Trustees of Nationwide
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 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.
NATIONWIDE VARIABLE INSURANCE TRUST
By:
Name:
Title:
NATIONWIDE FUND DISTRIBUTORS, LLC
By:
Name:
Title:
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Schedule A
Underwriting Agreement
between Nationwide Variable Insurance Trust and
Nationwide Fund Distributors, LLC
Effective May 1, 2007*
NAME OF FUND
------------
NVIT Nationwide Fund
Nationwide NVIT Growth Fund
Nationwide NVIT Government Bond Fund
Nationwide NVIT Money Market Fund
Nationwide NVIT Money Market Fund II
Nationwide Multi-Manager NVIT Small Company Fund
▇.▇. ▇▇▇▇▇▇ NVIT Balanced Fund
▇▇▇ ▇▇▇▇▇▇ NVIT ▇▇▇▇▇▇▇▇ Value Fund
Gartmore NVIT Worldwide Leaders Fund
Federated NVIT High Income Bond Fund
▇▇▇ ▇▇▇▇▇▇ NVIT Multi Sector Bond Fund
Nationwide Multi-Manager NVIT Small Cap Value Fund
NVIT Mid Cap Index Fund
Nationwide Multi-Manager NVIT Small Cap Growth Fund
Nationwide NVIT Mid Cap Growth Fund
Nationwide NVIT Global Technology and Communications Fund
Nationwide NVIT Global Health Sciences Fund
Gartmore NVIT Emerging Markets Fund
Gartmore NVIT International Growth Fund
Nationwide NVIT U.S. Growth Leaders Fund
Nationwide NVIT Global Financial Services Fund
Gartmore NVIT Global Utilities Fund
Nationwide NVIT Investor Destinations Aggressive Fund
Nationwide NVIT Investor Destinations Moderately Aggressive Fund
Nationwide NVIT Investor Destinations Moderate Fund
Nationwide NVIT Investor Destinations Moderately Conservative Fund
Nationwide NVIT Investor Destinations Conservative Fund
NVIT Nationwide Leaders Fund
NVIT International Value Fund
NVIT S&P 500 Index Fund
Gartmore NVIT Developing Markets Fund
American Funds NVIT Growth Fund
American Funds NVIT Global Growth Fund
American Funds NVIT Asset Allocation Fund
American Funds NVIT Bond Fund
American Funds NVIT Growth-Income Fund
NVIT Bond Index Fund
NVIT International Index Fund
NVIT Small Cap Index Fund
NVIT Enhanced Income Fund
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* As most recently approved at the January 11, 2007 Board Meeting.
Effective May 1, 2007:
NATIONWIDE VARIABLE INSURANCE TRUST
By: __________________________________
Name:
Title
NATIONWIDE FUND DISTRIBUTORS, LLC
By: __________________________________
Name:
Title