PARTICIPATION AGREEMENT AMONG PIONEER VARIABLE CONTRACTS TRUST, NATIONWIDE FINANCIAL SERVICES, INC. PIONEER INVESTMENT MANAGEMENT, INC. AND PIONEER FUNDS DISTRIBUTOR, INC.
AMONG
PIONEER
VARIABLE CONTRACTS TRUST,
NATIONWIDE
FINANCIAL SERVICES, INC.
PIONEER
INVESTMENT MANAGEMENT, INC.
AND
PIONEER
FUNDS DISTRIBUTOR, INC.
THIS
AGREEMENT, made and entered into on September 27, 2002, is by and among PIONEER
VARIABLE CONTRACTS TRUST, a Delaware business trust (the "Trust"), NATIONWIDE
FINANCIAL SERVICES, INC., a Delaware corporation (the "Company") on behalf
of
the affiliated companies and each segregated asset account set forth in Schedule
A hereto, as may be amended from time to time (the "Accounts"), PIONEER
INVESTMENT MANAGEMENT, INC., a Delaware corporation ("PIM") and PIONEER FUNDS
DISTRIBUTOR, INC. ("PFD"), a corporation organized under the laws of The
Commonwealth of Massachusetts.
WHEREAS,
the Trust is registered as an open-end management investment company under
the
Investment Company Act of 1940, as amended (the "1940 Act"), and its shares
are
registered or will be registered under the Securities Act of 1933, as amended
(the "1933 Act");
WHEREAS,
shares of beneficial interest of the Trust are divided into several series
and
classes of shares, each series being designated a "Portfolio" and representing
an interest in a particular managed pool of securities and other
assets;
WHEREAS,
the Trust is available to act as the investment vehicle for separate accounts
established for variable life insurance policies and/or variable annuity
contracts to be offered by insurance companies, including the Company, which
have entered into participation agreements with the Trust (the "Participating
Insurance Companies");
WHEREAS,
the Trust has obtained an order from the Securities and Exchange Commission
(the
"SEC"), dated July 9, 1997 (File No. 812-10494) (the "Mixed and Shared Funding
Exemptive Order") granting Participating Insurance Companies and variable
annuity and variable life insurance separate accounts exemptions from the
provisions of Sections 9(a), 13(a), 15(a) and 15(b) of the 1940 Act and Rules
6e-2(b)(15) and 6e-3(T)(b)(15) thereunder, to the extent necessary to permit
shares of the Trust to be sold to and held by variable annuity and variable
life
insurance companies that may or may not be affiliated with one another and
qualified pension and retirement plans ("Qualified Plans");
WHEREAS,
PIM is duly registered as an investment adviser under the Investment Advisers
Act of 1940, as amended, and any applicable state securities law, and is the
Trust's investment adviser;
WHEREAS,
the Company will issue certain variable annuity and/or variable life insurance
contracts (individually, the "Contract" or, collectively, the "Contracts")
which, if required by applicable law, will be registered under the 1933
Act;
WHEREAS,
the Accounts are duly organized, validly existing segregated asset accounts,
established by resolution of the Board of Directors of the Company, to set
aside
and invest assets attributable to the aforesaid variable annuity and/or variable
life insurance contracts that are allocated to the Accounts (the Contracts
and
the Accounts covered by this Agreement, and each corresponding Portfolio covered
by this Agreement in which the Accounts may invest, is specified in Schedule
A
attached hereto as may be modified from time to time);
WHEREAS,
the Company has registered or will register the Accounts as unit investment
trusts under the 1940 Act (unless exempt therefrom);
WHEREAS,
the Portfolios offered by the Trust to the Company and the Accounts are set
forth on Schedule A attached hereto;
WHEREAS,
PFD is registered as a broker-dealer with the Securities and Exchange Commission
(the "SEC") under the Securities Exchange Act of 1934, as amended (hereinafter
the "1934 Act"), and is a member in good standing of the National Association
of
Securities Dealers, Inc. (the "NASD" and is authorized to sell shares of the
Portfolios to unit investment trusts such as the Accounts;
WHEREAS,
NATIONWIDE INVESTMENT SERVICES CORPORATION ("Policy Underwriter"), the
underwriter for the variable annuity and the variable life policies, is
registered as a broker-dealer with the SEC under the 1934 Act and is a member
in
good standing of the NASD; and
WHEREAS,
to the extent permitted by applicable insurance laws and regulations, the
Company intends to purchase shares in one or more of the Portfolios specified
in
Schedule A attached hereto (the "Shares") on behalf of the Accounts to fund
the
Contracts, and PFD intends to sell such Shares to the Accounts at net asset
value;
NOW,
THEREFORE, in consideration of their mutual promises, the Trust, PIM, PFD and
the Company agree as follows:
ARTICLE
I. SALE OF TRUST SHARES
1.1. PFD
and the Company agree to provide pricing information, execute orders and wire
payments for purchases and redemptions of Fund shares as set forth in this
Article I until such time as theymutually agree to utilize the National
Securities Clearing Corporation ("NSCC"). Upon such mutual agreement,
PFD and the Company agree to provide pricing information, execute orders and
wire payments for purchases and redemptions of Fund shares through NSCC and
its
subsidiary systems as set forth in Exhibit I.
1.2. PFD
agrees to sell to the Company those Shares which the Accounts order in
accordance with the terms of this Agreement (based on orders placed by Contract
owners or participants on that Business Day, as defined below) and which are
available for purchase by such Accounts. Each such order will be
executed on a daily basis at the net asset value next computed after receipt
by
the Trust or its designee of the order for the Shares. For purposes
of this Section 1.2, the Company shall be the designee of the Trust for receipt
of such orders from Contract owners or participants and receipt by such designee
shall constitute receipt by the Trust; provided that the Trust or its designee
receives written (or facsimile) notice of such orders by the time the Trust
ordinarily calculates its net asset value as described from time to time in
the
Trust's prospectus (which as of the date of this Agreement is 4:00 p.m. New
York
time on such Business Day). "Business Day" shall mean any day on
which the New York Stock Exchange, Inc. (the "NYSE") is open for trading and
on
which the Trust calculates its net asset value pursuant to the rules of the
SEC.
1.3. PFD
agrees to make the Shares available for purchase at the applicable net asset
value per share by the Company and the Accounts on those days on which the
Trust
calculates its net asset value in accordance with the rules of the
SEC. Notwithstanding the foregoing, the Board of Trustees of the
Trust (the "Board") may refuse to sell any Shares to the Company and the
Accounts, or suspend or terminate the offering of the Shares to the Company
and
the Accounts if such action is required by law or by regulatory authorities
having jurisdiction over PIM, PFD or the Trust or is, in the sole discretion
of
the Board acting in good faith and in light of its fiduciary duties under
federal and any applicable state laws, in the best interest of the Shareholders
of such Portfolio.
1.4. The
Trust and PFD will sell Trust shares only to Participating Insurance Companies
and Qualified Plans which have agreed to participate in the Trust to fund their
Separate Accounts and/or Qualified Plans all in accordance with the requirement
of Section 817(h) of the Internal Revenue Code, as amended (the "Code") and
the
Treasury regulations thereunder. The Company will not resell the
Shares except to the Trust or its agents.
1.5.
The Trust agrees, upon the Company's request, to redeem for cash, any full
or
fractional Shares held by the Accounts (based on orders placed by Contract
owners on that Business Day). Each such redemption request shall be
executed on a daily basis at the net asset value next computer after receipt
by
the Trust or its designee of the request of redemption. For purposes
of this Section 1.5, the Company shall be the designee of the Trust for receipt
of requests for redemption from Contract owners or participants and receipt
by
such designee shall constitute receipt by the Trust; provided that the Trust
or
its designee receives written (or facsimile) notice of such request for
redemption by the time the Trust ordinarily calculates its net asset value
as
described from time to time in the Trust's prospectus (which as of the date
of
this Agreement is 4:00 p.m. New York time on such Business Day).
1.6. Each
purchase, redemption and exchange order placed by the Company shall be placed
separately for each Portfolio and shall not be netted with respect to any
Portfolio. However, with respect to payment of the purchase price by
the Company and of redemption proceeds by the Trust, the Company and the Trust
shall net purchase and redemption orders with respect to each Portfolio and
shall transmit one net payment for all of the Portfolios in accordance with
Section 1.7 hereof.
1.7. In
the event of net purchases, the Company shall pay for the Shares by 11:00 a.m.
New York time on the next Business Day after an order to purchase the Shares
is
made in accordance with the provisions of Section 1.2 hereof. Company
shall transmit all such payments in federal funds by wire. If payment
in federal funds for any purchase is not received or is received by the Trust
after 11:00 a.m. on such Business Day, the Company shall promptly, upon the
Trust's request, reimburse the Trust for any charges, costs, fees, interest
or
other expenses incurred by the Trust in connection with any advances to, or
borrowings or overdrafts by, the Trust, or any similar expenses (including
the
cost of and any loss incurred by the Trust in unwinding any purchase of
securities by the Trust) incurred by the Trust as a result of portfolio
transactions effected by the Trust based upon such purchase
request. In the event of net redemptions, the Trust ordinarily shall
pay and transmit the proceeds of redemptions of Shares by 11:00 a.m. New York
time on the next pay and transmit the proceeds of redemptions of Shares by
11:00
a.m. New York time on the next Business Day after a redemption order is received
from the Company in accordance with Section 1.5 hereof, although the Trust
reserves the right to postpone the date of payment or satisfaction upon
redemption consistent with Section 22(e) of the 1940 Act and any rules
promulgated thereunder. Payments for net redemptions shall be in
federal funds transmitted by wire.
1.8. Issuance
and transfer of the Shares will be by book entry only. Stock
certificates will not be issued to the Company or the Accounts. The
Shares ordered from the Trust will be recorded in an appropriate title for
the
Accounts or the appropriate subaccounts of the Accounts.
1.9. The
Trust shall furnish notice (by wire or telephone, followed by written
confirmation) no later than 7:00 p.m. New York time on the ex-dividend date
to
the Company of any dividends or capital gain distributions payable on the
Shares. The Company hereby elects to receive all such dividends and
distributions as are payable in cash or Shares on a Portfolio's Shares in
additional Shares of that Portfolio. The Trust shall notify the
Company by the end of the next following Business Day of the number of Shares
so
issued as payment of such dividends and distributions.
1.10. The
Trust or its custodian shall make the net asset value per share for each
Portfolio available to the Company on each Business Day as soon as reasonably
practical after the net asset value per share is calculated and shall use its
best efforts to make such net asset value per share available by 6:00 p.m.
New
York time. In the event of an error in the computation of a
Portfolio's net asset value per share ("NAV") or any dividend or capital gain
distribution (each, a "pricing error"), PIM or the Trust shall notify the
Company as soon as possible after the discovery of the error. Such
notification may be verbal, but shall be confirmed promptly in writing in
accordance with Article XII of this Agreement. A pricing error shall
be corrected in accordance with the Trust's internal policies and
procedures. If an adjustment is necessary to correct a material error
that occurred through no fault of the Company and such adjustment has caused
Contract owners to receive less than the number of Shares or redemption proceeds
to which they are entitled, the number of Shares of the applicable Account
will
be adjusted and the amount of any underpayments will be paid by the Trust or
PIM
to the Company for crediting of such amounts to the Contract owners'
accounts. Upon notification by PIM of any overpayment due to a
material error, the Company shall promptly remit to the Trust or PIM, as
appropriate, any overpayment that has not been paid to Contract owner; however,
PIM acknowledges that the Company does not intend to seek additional payments
from any Contract owner who, because of a pricing error, may have underpaid
for
units of interest credited to his/her account. The costs of
correcting such adjustments shall be borne by the Trust or PIM unless the
Company is at fault in which case such costs shall be borne by the
Company.
ARTICLE
II. CERTAIN REPRESENTATIONS, WARRANTIES AND
COVENANTS
2.1. The
Company represents and warrants that the Contracts are or will be registered
under the 1933 Act or are exempt from or not subject to registration thereunder,
and that the Contracts will be issued, sold, and distributed in compliance
in
all material respects with all applicable state and federal laws, including
without limitation the 1933 Act, the Securities Exchange Act of 1934, as amended
(the "1934 Act"), and the 1940 Act. The Company further represents
and warrants that it is a duly organized holding company in good standing under
applicable law for (i) an insurance company subsidiary duly organized and in
good standing under applicable law; (ii) the insurance company subsidiary has
legally and validly established each Account as a segregated asset account
under
applicable law; (iii) the insurance company subsidiary has registered or, prior
to any issuance or sale of the Contracts, will register the Accounts as unit
investment trust in accordance with the provisions of the 1940 Act (unless
exempt therefrom) to serve as segregated investment accounts for the Contracts,
and (iv) the insurance company subsidiary will maintain such registration for
so
long as any Contracts are outstanding. The Company shall ensure that
the insurance company subsidiary amend the registration statements under the
1933 Act for the Contracts and the registration statements under the 1940 Act
for the Accounts from time to time as required in order to effect the continuous
offering of the Contracts or as may otherwise be required by applicable
law. The Company shall ensure that the insurance company subsidiary
register and qualify the Contracts for sales in accordance with the securities
laws of the various states only if and to the extent deemed necessary by the
Company. At the time the Company is required to deliver the Trust's
prospectus or statement of additional information to a purchaser of Shares
in
accordance with the requirements of federal or state securities laws, the
Company shall ensure that the insurance company subsidiary distribute to such
Contract purchasers the then current Trust prospectus, as
supplemented.
2.2. The
Company represents and warrants that the Contracts are currently and at the
time
of issuance will be treated as life insurance, endowment or annuity contracts
under applicable provisions of the Code, that it will maintain such treatment
and that it will notify the Trust or PIM immediately upon having a reasonable
basis for believing that the Contracts have ceased to be so treated or that
they
might not be so treated in the future.
2.3. The
Company represents and warrants that Policy Underwriter, the underwriter for
the
individual variable annuity contracts and the variable life policies, is a
member in good standing of the NASD and is a registered broker-dealer with
the
SEC. The Company represents and warrants that the Company and Policy
Underwriter will sell and distribute such contracts and policies in accordance
in all material respects with all applicable state and federal securities laws,
including without limitation the 1933 Act, the 1934 Act, and the 1940 Act and
state insurance law suitability requirements.
2.4. The
Trust represents and warrants that the Shares sold pursuant to this Agreement
shall be registered under the 1933 Act, duly authorized for issuance in
compliance with the laws of Delaware and that the Trust is and shall remain
registered under the 1940 Act. The Trust shall amend the registration
statement for its Shares under the 1933 Act and the 1940 Act from time to time
as required in order to affect the continuous offering of its
Shares. The Trust shall register and qualify the Shares for sale in
accordance with the laws of the various states only if and to the extent deemed
necessary by the Trust.
2.5. The
Trust represents that it is lawfully organized and validly existing under the
laws of the State of Delaware. The Trust further represents that it
has adopted a plan pursuant to Rule 12b-1 under the 1940 Act and imposes an
asset-based charge to finance its distribution expenses with respect to the
Class II shares of certain of the Trust's Portfolios as permitted by applicable
law and regulation.
2.6. PFD
represents and warrants that it is a member in good standing of the NASD and
is
registered as a broker-dealer with the SEC. PFD represents that it
will sell and distribute the Shares in accordance in all material respects
with
all applicable state and federal laws, including without limitation the 1933
Act, the 1934 Act, and the 0000 Xxx.
2.7. PIM
represents and warrants that it is and shall remain duly registered as an
investment adviser under the Investment Advisers Act of 1940, as
amended.
2.8. No
less frequently than annually, the Company shall submit to the Board such
reports, material or data as the Board may reasonably request so that it may
carry out fully the obligations imposed upon it by the conditions in the Mixed
and Shared Funding Exemptive Order pursuant to which the SEC has granted
exemptive relief to permit mixed and shared funding.
2.9. The
Trust and PIM represent and warrant that all of their respective officers,
employees, investment advisers, and other individuals or entities dealing with
money and/or securities of the Trust are, and shall continue to be at all times,
covered by one or more blanket fidelity bonds or similar coverage for the
benefit of the Trust in an amount not less than the minimal coverage required
by
Rule 17g-1 under the 1940 Act or related provisions as may be promulgated from
time to time. The aforesaid bonds shall include coverage for larceny
and embezzlement and shall be issued by a reputable bonding
company. The Company represents and warrants that all of its
respective officers, employees, and other individuals or entities employed
or
controlled by the Company dealing with the money and/or securities of the Trust
are, and shall continue to be at all times, covered by a blanket fidelity bond
or similar coverage in an deemed appropriate by the Company. The
aforesaid bond shall include coverage for larceny and embezzlement and shall
be
issued by a reputable bonding company. The Company agrees that any
amounts received under such bond relating to a claim arising under this
Agreement will be held by the Company for the benefit of the
Trust. The Company agrees to make all reasonable efforts to maintain
such bond and agrees to notify the Trust and PIM in writing in the event such
coverage terminates.
2.10. The
Company represents and warrants, for purposes other than diversification under
Section 817 of the Code, that the Contracts are currently at the time of
issuance and, assuming the Trust meets the requirements of Article VI, will
be
treated as annuity contracts under applicable provisions of the Code, and that
it will make every effort to maintain such treatment and that it will notify
the
Trust, PFD and PIM immediately upon having a reasonable basis for believing
that
the Contracts have ceased to be so treated or that they might not be so treated
in the future. In addition, the Company represents and warrants that
each Account is a "segregated asset account" and that interests in the Account
are offered exclusively through the purchase of or transfer into a "variable
contract" within the meaning of such terms under Section 817 of the Code and
the
regulations thereunder. The Company will use every effort to continue
to meet such definitional requirements, and it will notify the Trust, PFD and
PIM immediately upon having a reasonable basis for believing that such
requirements have ceased to be met or that they might not be met in the
future. The Company represents and warrants that it will not purchase
Trust shares with assets derived from tax-qualified retirement plans except,
indirectly, through Contracts purchased in connection with such
plan.
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ARTICLE
III. PROSPECTUS AND PROXY STATEMENTS;
VOTING
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3.1. At
least annually, the Trust or its designee shall provide the Company, free of
charge, with as many copies of the current prospectus (describing only the
Portfolios listed in Schedule A hereto) for the Shares as the Company may
reasonably request for distribution to existing Contract owners whose Contracts
are funded by such Shares. The Trust or its designee shall provide
the Company, at PFD's expense, with as many copies of the current prospectus
for
the Shares as the Company may reasonably request for distribution to prospective
purchasers of Contracts. If requested by the Company in lieu thereof,
the Trust or its designee shall provide such documentation (including a "camera
ready" copy of the new prospectus as set in type or, at the request of the
Company, as a diskette in the form sent to the financial printer) and other
assistance as is reasonably necessary in order for the parties hereto once
each
year (or more frequently if the prospectus for the Shares is supplemented or
amended) to have the prospectus for the Contracts and the prospectus for the
Shares printed together in one document; the expenses of such printing to be
apportioned between (a) the Company and (b) the Trust or its designee in
proportion to the number of pages of the Contract and Shares' prospectuses,
taking account of other relevant factors affecting the expense of printing,
such
as covers, columns, graphs and charts; the Trust or its designee to bear the
cost of printing the Trust's prospectus portion of such document for
distribution to owners of existing Contracts funded by the Shares and the
Company to bear the expenses of printing the portion of such document relating
to the Accounts; provided, however, that the Company shall bear all printing
expenses of such combined document where used for distribution to prospective
purchasers or to owners of existing Contracts not funded by the
Shares. In the event that the Company requests that the Trust or its
designee provides the Trust's prospectus in a "camera
ready," diskette format or other mutually agreed upon format, the
Trust shall be responsible for providing the prospectus in the format in which
it or PIM is accustomed to formatting prospectuses and shall bear the expense
of
providing the prospectus in such format (e.g., typesetting expenses), and the
Company shall bear the expense of adjusting or changing the format to conform
with any of its prospectuses, subject to PIM's approval which shall not be
unreasonably withheld. Notwithstanding the foregoing, the Trust shall
also provide the Company, at PFD's expense, no less frequently than annually,
copies of the Portfolios prospectuses in PDF format for the use on the Company's
and/or affiliated producer's websites. However, if any time PFD deems
the usage by the Company of such materials to be excessive, it may, prior to
the
delivery of any quantity of materials in excess of what is deemed reasonable,
request that the Company demonstrate the reasonableness of such
usage. If PFD believes the reasonableness of such usage has not been
adequately demonstrated, it may request that the Company pay the cost of
printing and delivery of any excess copies of such materials. Unless
the Company agrees to make such payments, PFD may refuse to supply additional
materials and this section shall not be interpreted as requiring delivery by
PFD
of any copies in excess of the number of copies required by law.
3.2. The
prospectus for the Shares shall state that the statement of additional
information for the Shares is available from the Trust or its
designee. The Trust or its designee, at its expense, shall print and
provide such statement of additional information to the Company (or a master
or
such statement suitable for duplication by the Company) for distribution to
any
owner of a Contract funded by the Shares. The Trust shall also
provide such statement of additional information to the Company in a mutually
agreed upon electronic format. The Trust or its designee, at the
Company's expense, shall print and provide such statement to the Company (or
a
master of such statement suitable for duplication by the Company) for
distribution to a prospective purchaser who requests such statement or to an
owner of a Contract not funded by the Shares.
3.3 The
Trust or its designee shall provide the Company free of charge, if and to the
extent applicable to the Shares, copies of the Trust's proxy materials, reports
to Shareholders and other communications to Shareholders in such quantity as
the
Company shall reasonably require for distribution to Contract
owners. The cost of distributing such documents shall be borne the
Trust or its designee.
3.4. The
Trust or PIM will provide the Company with as much notice as is reasonably
practicable of any proxy solicitation for any Portfolio, and of any material
change in the Trust's registration statement, particularly any change resulting
in change to the registration statement or prospectus or statement of additional
information for any Account. The Trust and PIM will cooperate with
the Company so as to enable the Company to solicit proxies from Contract owners
or to make changes to its prospectus, statement of additional information or
registration statement, in an orderly manner. The Trust and PIM will
make reasonable efforts to attempt to have changes affecting Contract
prospectuses become effective simultaneously with the annual updates for such
prospectuses.
3.5. The
Trust hereby notifies the Company that it may be appropriate to include in
the
prospectus pursuant to which a Contract is offered disclosure regarding the
potential risks of mixed and shared funding.
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3.6.
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If
and to the extent required by law, the Company
shall:
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(a)
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solicit
voting instructions from Contract
owners;
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(b)
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vote
the Shares in accordance with instructions received from Contract
owners;
and
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(c)
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vote
the Shares for which no instructions have been received in the same
proportion as the Shares of such Portfolio for which instructions
have
been received from Contract owners;
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so
long
as and to the extent that the SEC continues to interpret the 1940 Act to require
pass through voting privileges for variable contract owners. The
Company will in no way recommend action in connection with or oppose or
interfere with the solicitation of proxies for the Shares held for such Contract
owners. The Company reserves the right to vote shares held in any
segregated asset account in its own right, to the extent permitted by
law. Participating Insurance Companies shall be responsible for
assuring that each of their separate accounts holding Shares calculates voting
privileges in the manner required by the Mixed and Shared Funding Exemptive
Order. The Trust and PIM will notify the Company of any changes of
interpretations or amendments to the Mixed and Shared Funding Exemptive
Order.
ARTICLE
IV. SALES MATERIAL AND INFORMATION
4.1. The
Company shall furnish, or shall cause to be furnished, to PFD or its designee,
each piece of sales literature or other promotional material in which the Trust,
PIM, any other investment adviser to the Trust, or any affiliate of PIM are
named, at least five (5) Business Days prior to its use. No such
material shall be used if PFD or its designee reasonably objects to such use
within five (5) Business Days after receipt of such material. PFD or
its designee shall notify the Company within five (5) Business Days of receipt
of its approval or disapproval of such materials.
4.2. The
Company shall not make any representation on behalf of the Trust, PIM, any
other
investment adviser to the Trust or any affiliate of PIM and shall not give
any
information on behalf of the Trust, PIM, any other investment adviser to the
Trust, or any affiliate of PIM or concerning the Trust or any other such entity
in connection with the sale of the Contracts other than the information
contained in the registration statement, prospectus or statement of additional
information for the Shares, as such registration statement, prospectus and
statement of additional information may be amended or supplemented from time
to
time, or in reports or proxy statements for the Trust, or in sales literature
or
other promotional material approved by the Trust, PIM, PFD or their respective
designees, except with the permission of the Trust, PIM or their respective
designees. The Trust, PIM, PFD or their respective designees each
agrees to respond to any request for approval on a prompt and timely
basis. The Company shall adopt and implement procedures reasonably
designed to ensure that information concerning the Trust, PIM, or PFD or any
of
their affiliates which is intended for use only by brokers or agents selling
the
Contracts (i.e., information that is not intended for distribution to Contract
owners or prospective Contract owners) is so used, and neither the Trust, PIM,
PFD nor any of their affiliates shall be liable for any losses, damages or
expenses relating to the improper use of such broker only
materials.
4.3. PFD
shall furnish, or shall cause to be furnished, to the Company or its designee,
each piece of sales literature or other promotional material in which the
Company and/or the Accounts is named, at least five (5) Business Days prior
to
its use. No such material shall be used if the Company or its
designee reasonably objects to such use within five (5) Business Days after
receipt of such material. The Company shall notify PFD within five
(5) Business Days of receipt of its approval or disapproval of such
materials.
4.4. The
Trust, PIM and PFD shall not give any information or make any representations
on
behalf of the Company or concerning the Company, the Accounts, or the Contracts
in connection with the sale of the Contracts other than the information or
representations contained in a registration statement, prospectus, or statement
of additional information may be amended or supplemented from time to time,
or
in reports for the Accounts or in sales literature or other promotional material
approved by the Company or its designee, except with the permission of the
Company. The Company or its designee agrees to respond to any request
for approval on a prompt and timely bases. The parties hereto agree
that this Section 4.4. is neither intended to designate nor otherwise imply
that
PIM is an underwriter or distributor of the Contracts.
4.5. The
Company and the Trust shall provide, or shall cause to be provided, to the
other
at least one complete copy of all registration statements, prospectuses,
statements of additional information, reports, proxy statements, sales
literature and other promotional materials, and all amendments to any of the
above, that relate to the Contracts, or to the Trust or its Shares, within
a
reasonable time after the filing of such document with the SEC or other
regulatory authorities.
4.6. For
purpose of this Article IV and Article VIII, the phrase "sales literature or
other promotional material" includes but is not limited to advertisements (such
as material published, or designed for use in, a newspaper, magazine, or other
periodical, radio, television, telephone, electronic messages or tape recording,
videotape display, signs or billboards, motion pictures, or other public media,
including, for example, on-line networks such as the Internet or other
electronic media), and sales literature (such as brochures, electronic messages,
circulars, reprints, or excerpts or any other advertisement, sales literature,
or published articles), distributed or made generally available to customers
or
the public, educational or training materials or communications distributed
or
made generally available to some or all agents or employees, and shareholder
reports, proxy materials (including solicitations for voting instructions)
and
any other material constituting sales literature or advertising under NASDR
Conduct Rules, the 1933 Act or the 1940 Act. However, such phrase
"sales literature or other promotional material" shall not include any material
that simply lists the names of Portfolios of the Trust in a list of investment
options.
4.7. At
the request of any party to this Agreement, each other party will make available
to the other party's independent auditors and/or representative of the
appropriate regulatory agencies, all records, date, access to operating
procedures that may be reasonably requesting in connection with compliance
and
regulatory requirements related to the Agreement or any party's obligations
under this Agreement.
4.8. Subject
to the terms of Sections 4.1 and 4.2 of this Agreement, the Trust (and its
Portfolios), PIM and PFD hereby each consents in connection with the marketing
of the Contracts to the Company's use of their names or other identifying marks,
including PIONEER INVESTMENTS® and Pioneer's
sail
logo, in connection with the marketing of the Contracts. The Trust,
PIM or PFD or their affiliates may withdraw this authorization as to any
particular use of any such name or identifying xxxx at any time: (i) upon a
reasonable determination that such use would have a material adverse effect
on
its reputation or marketing efforts or its affiliates or (ii) if any of the
Portfolios of the Trust cease to be available through the
Company. Except as set forth in the previous sentence, the Company
will not cause or permit, without prior written permission, the use, description
or reference to a Pioneer party's name, or to the relationship contemplated
in
this Agreement, in any advertisement, or promotional materials published,
distributed, or made available, or any activity conducted through, the Internet
or any other electronic medium.
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ARTICLE
V. FEES AND EXPENSES
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5.1. Neither
the Trust, PIM nor PFD shall pay any fee or other compensation to the Company
under this Agreement, other than pursuant to Schedule B attached hereto, and
the
Company shall pay no fee or other compensation to the Trust, PIM or PFD under
this Agreement. Notwithstanding the foregoing, the parties hereto
will bear certain expenses under the provisions of this Agreement and shall
reimburse other parties for expenses initially paid by one party but allocated
to another party. In addition, nothing herein shall prevent the
parties hereto from otherwise agreeing to perform, and arranging for appropriate
compensation for, other services relating to the Trust and/or to the Accounts
pursuant to this Agreement.
5.2. The
Trust or its designee shall bear the expenses for the cost of registration
and
qualification of the Shares under all applicable federal and state laws,
including preparation and filing of the Trust's registration statement, and
payment of filing fees and registration fees; preparation and filing of the
Trust's proxy materials and reports to Shareholders; setting in type and
printing its prospectus and statement of additional information (to the extent
provided by and as determined in accordance with Article III above); setting
in
type and printing the proxy materials and reports to Shareholders (to the extent
provided by and as determined in accordance with Article III above); the
preparation of all statements and notices required of the Trust by any federal
or state law with respect to its Shares; all taxes on the issuance or transfer
of the Shares; and the costs of distributing the Trust's prospectuses, reports
to Shareholders and proxy materials to owners of Contracts and participants
funded by the Shares and any expenses permitted to be paid or assumed by the
Trust pursuant to a plan, if any, under Rule 12b-1 under the 1940
Act. The Trust shall not bear any expenses of marketing the
Contracts.
5.3. The
Company shall bear the expenses of distributing the Shares' prospectus or
prospectuses in connection with new sales of the Contracts and of distributing
the Trust's Shareholder reports to Contract owners. The Company shall
bear all expenses associated with the registration, qualification, and filing
of
the Contracts under applicable federal securities and state insurance laws;
the
cost of preparing, printing and distributing the Contract prospectus and
statement of additional information; and the cost of preparing, printing and
distributing annual individual account statements for Contract owners as
required by state insurance laws.
5.4. The
Company agrees to provide certain administrative services, specified in Schedule
B attached hereto, in connection with the arrangements contemplated by this
Agreement. The parties intend that the services referred to in the
Section 5.4 be recordkeeping, shareholder communication, and other transaction
facilitation and processing, and related administrative serves and are not
the
services of an underwriter or principal underwriter of the Trust and the Company
is not an underwriter for Shares within the meaning of the 1933
Act.
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ARTICLE
VI. DIVERSIFICATION AND RELATED
LIMITATIONS
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6.1. The
Trust and PIM represent and warrant that each Portfolio of the Trust in which
an
Account invests will meet the diversification requirements of Section 817(h)(1)
of the Code and Treas. Reg. 1.817-5, relating to the diversification
requirements for variable annuity, endowment, or life insurance contracts,
as
they may amended from time to time (and any revenue rulings, revenue procedures,
notices, and other published announcements of the Internal Revenue Service
interpreting these sections), as if those requirements applied directly to
each
such Portfolio.
6.2. Trust
and PIM represent that each Portfolio will elect to be qualified as a Regulated
Investment Company under Subchapter M of the Code and that they will maintain
such qualification (under Subchapter M or any successor or similar
provision).
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6.3.
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No
Shares of the Trust will be sold directly to the general
public.
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ARTICLE
VII. POTENTIAL MATERIAL
CONFLICTS
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7.1. The
Trust agrees that the Board, constituted with a majority of disinterested
trustees, will monitor each Portfolio of the Trust for the existence of any
material irreconcilable conflict between the interests of the variable annuity
contract owners and the variable life insurance policy owners of the Company
and/or affiliated companies ("contract owners") investing in the
Trust. A material irreconcilable conflict may arise for a variety of
reasons, including: (a) an action by any state insurance regulatory
authority; (b) a change in applicable federal or state insurance, tax or
securities laws or regulations, or a public ruling, private letter ruling,
no-action or interpretive letter, or any similar action by insurance, tax,
or
securities regulatory authorities; (c) an administrative or judicial decision
in
any relevant proceeding; (d) the manner in which the investments of any
Portfolio are being managed; (e) a difference in voting instructions given
by
variable annuity contract and variable life insurance contract owners or by
contract owners of different Participating Insurance Companies; or (f) a
decision by a Participating Insurance Company to disregard the voting
instructions of contract owners. The Board shall have the sole
authority to determine if a material irreconcilable conflict exists, and such
determination shall be binding on the Company only if approved in the form
of a
resolution by a majority of the Board, or a majority of the disinterested
trustees of the Board. The Board will give prompt notice of any such
determination to the Company.
7.2. The
Company agrees that it will be responsible for assisting the Board in carrying
out its responsibilities under the conditions set forth in the Trust's exemptive
application pursuant to which the SEC has granted the Mixed and Shared Funding
Exemptive Order by providing the Board, as it may reasonably request, with
all
information necessary for the Board to consider any issues raised and agrees
that it will be responsible for promptly reporting any potential or existing
conflicts of which it is aware to the Board including, but not limited to,
an
obligation by the Company to inform the Board whenever contract owner voting
instructions are disregarded. The Company also agrees that, if a
material irreconcilable conflict arises, it will at its own cost remedy such
conflict up to and including (a) withdrawing the assets allocable to some or
all
of the Accounts from the Trust or any Portfolio and reinvesting such assets
in a
different investment medium, including (but not limited to) another Portfolio
of
the Trust to the extent permissible, or submitting to a vote of all affected
contract owners whether to withdraw assets from the Trust or any Portfolio
and
reinvesting such assets in a different investment medium and, as appropriate,
segregating the assets attributable to any appropriate group of contract owners
(e.g., annuity contract owners, life insurance owners or variable contract
owners of one or more Participating Insurance Companies) that votes in favor
of
such segregation or offering to any of the affected contract owners the option
of segregating the assets attributable to their contracts or policies, and
(b)
establishing a new registered management investment company and segregating
the
assets underlying the Contracts, unless a majority of Contract owners materially
adversely affected by the conflict have voted to decline the offer to establish
a new registered management investment company.
7.3. A
majority of the disinterested trustees of the Board shall determine whether
any
proposed action by the Company adequately remedies any material irreconcilable
conflict. In the event that the Board determines that any proposed
action does not adequately remedy any material irreconcilable conflict, the
Company will withdraw from investment in the Trust each of the Accounts
designated by the disinterested trustees and terminate this Agreement as soon
as
is reasonably practicable, but no later than twelve (12) months after the Board
informs the Company in writing of the foregoing determination; provided,
however, that such withdrawal and termination shall be limited to the extent
required to remedy any such material irreconcilable conflict as determined
by a
majority of the disinterested trustees of the Board.
7.4. If
a material irreconcilable conflict arises because of a decision by the Company
to disregard Contract owner voting instructions and that decision represents
a
minority position or would preclude a majority vote, the Company may be
required, at the Trust's election, to withdraw the Account's investment in
the
Trust and terminate this Agreement; provided, however, that such withdrawal
and
termination shall be limited to the extent required by the foregoing material
irreconcilable conflict as determined by a majority of the Trust's independent
trustees. Any such withdrawal and termination must take place as soon
as is reasonably practicable, but no later than twelve (12) months after the
Trust gives written notice that this provision is being implemented, and until
the end of that six-month period PFD and the Trust shall continue to accept
and
implement orders by the Company for the purchase and redemption of shares of
the
Trust.
7.5. If
material irreconcilable conflict arises because of particular state insurance
regulator's decision applicable to the Company conflicts with the majority
of
other state regulators, then the Company will withdraw the Account's investment
in the Trust and terminate this Agreement as soon as is reasonably practicable,
but no later than twelve (12) months after the Trust's Board informs the Company
in writing that it has determined that such decision has created a material
irreconcilable conflict; provided, however, that such withdrawal and termination
shall be limited to the extent required by the foregoing material irreconcilable
conflict as determined by a majority of the disinterested members of the Trust's
Board. Until the effected date of the termination of this Agreement,
the Trust and PFD shall continue to accept and implement orders by the Company
for the purchase and redemption of shares of the Trust.
7.6. For
purposes of Sections 7.3 through 7.6 of this Agreement, a majority of the
disinterested members of the Board shall determine whether any proposed action
adequately remedies any material irreconcilable conflict, but in no event will
the Trust be required to establish a new funding medium for the
Contracts. The Company shall not be required by Section 7.2 to
establish a new funding medium for the contracts if any offer to do so has
been
declined by vote of a majority of Contract owners affected by the material
irreconcilable conflict. In the event that the Board determines that
any proposed action does not adequately remedy any material irreconcilable
conflict, then the Company will withdraw the Account's investment in the Trust
and terminate this Agreement as soon as is reasonably practicable after the
Board informs the Company in writing of the foregoing determination; provided,
however, that such withdrawal and termination shall be limited to the extent
required by any such material irreconcilable conflict as determined by a
majority of the independent trustees.
7.7. If
and to the extent that Rule 6e-2 and Rule 6e-3(T) are amended, or Rule 6e-3
is
adopted, to provide exemptive relief from any provision of the 1940 Act or
the
rules promulgated thereunder with respect to mixed or shared funding (as defined
in the Mixed and Shared Funding Exemptive Order) on terms and conditions
materially different from those contained in the Mixed and Share Funding
Exemptive Order, then (a) the Trust and/or the Participating Insurance
Companies, as appropriate, shall take such steps as may be necessary to comply
with Rule 6e-2 and 6e-3(T), as amended, and Rule 6e-3, as adopted, to the extent
such rules are applicable; and (b) Sections 3.5, 3.6, 7.1, 7.2, 7.3 and 7.7
of
this Agreement shall continue in effect only to the extent that terms and
conditions substantially identical to such Sections are contained in such
Rule(s) as so amended or adopted.
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ARTICLE
VIII. INDEMNIFICATION
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8.1.
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Indemnification
by the Company
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The
Company agrees to indemnify and
hold harmless the Trust, PIM, PFD, and any affiliates of PIM, and each of their
respective directors, trustees, officers and each person, if any, who controls
the Trust or PIM within the meaning of Section 15 of the 1933 Act, and any
directors, officers, agents or employees of the foregoing (each an "Indemnified
Party," or collectively, the "Indemnified Parties" for purposes of this Section
8.1) against any and all losses, claims, damages, liabilities (including amounts
paid in settlement with the written consent of the Company) or expenses
(including reasonable counsel fees) to which any Indemnified Party may become
subject under any statute, regulation, at common law or otherwise, insofar
as
such losses, claims, damages, liabilities or expenses (or actions in respect
thereof) or settlements:
(a) arise
out of or are based upon any untrue statement or alleged untrue statement of
any
material fact contained in the registration statement, prospectus or statement
of additional information for the Contracts or contained in the Contracts or
sales literature or other promotional material for the Contracts (or any
amendment or supplement to any of the foregoing), or arise out of or are based
upon the omission or the alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements herein not
misleading, provided that this Agreement to indemnify shall not apply as to
any
Indemnified Party if such statement or omission or such alleged statement or
omission was made in reasonable reliance upon and in conformity with information
furnished to the Company or its designee by or on behalf of the Trust, PIM
or
PFD for use in the registration statement, prospectus or statement of
additional information for the Contracts or in the Contracts or sales literature
or other promotional material (or any amendment or supplement) or otherwise
for
use in connection with the sale of the Contracts or Shares; or
(b) arise
out of or as a result of statement or representations by or on behalf of the
Company (other than statements or representations contained in the Trust's
registration statement, prospectus, statement of additional information or
in
the sales literature or other promotional material of the Trust, or any
amendment or supplement to the foregoing, not supplied by the Company or persons
under its control and on which the Company has reasonably relied) or wrongful
conduct of the Company or persons under its control, with respect to the sale
or
distribution of the Contracts or Shares; or
(c) arise
out of any untrue statement or alleged untrue statement of a material fact
contained in the registration statement, prospectus, statement of additional
information, or sales literature or other promotional literature of the Trust,
or any amendment thereof or supplement thereto, or the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statement or statements therein not misleading, if such
statement or omission was made in reliance upon information furnished to the
Trust by or on behalf of the Company; or
(d) arise
out of or result from any material breach of any representation and/or warranty
made by the Company in this Agreement or arise out of or result from any other
material breach of this Agreement by the Company; or
(e) arise
as a result of any failure by the Company to perform any of its obligations
under this Agreement; as limited by and in accordance with the provisions of
this Article VIII.
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8.2
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Indemnification
by PIM and PFD
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PIM
and PFD agree to indemnify and hold
harmless the Company and Policy Underwriter and each of their trustees and
officers and each person, if any, who controls the Company or Policy Underwriter
within the meaning of Section 15 of the 1933 Act, and any directors, officers,
agents or employees of the foregoing (each an "Indemnified Party," or
collectively, the "Indemnified Parties" for purposes of this Section 8.2)
against any and all losses, claims, damages, liabilities (including amounts
paid
in settlement with the written consent of the Trust) or expenses (including
reasonable counsel fees) to which an Indemnified Party may become subject under
any statute, at common law or otherwise, insofar as such losses, claims,
damages, liabilities or expenses (or actions in respect thereof) or settlements
are related to the sale or acquisition of the Shares or the Contracts
and:
(a) arise
out of or are based upon any untrue statement or alleged untrue statement of
any
material fact contained in the registration statement, prospectus, statement
of
additional information or sales literature or other promotional material of
the
Trust (or any amendment or supplement to any of the foregoing), or arise out
of
or are based upon the omission or the alleged omission to state therein a
material fact required to be stated therein or necessary to make the statement
therein not misleading, provided that this agreement to indemnify shall not
apply as to any Indemnified Party if such statement or omission or such alleged
statement or omission was made in reasonable reliance upon and in conformity
with information furnished to the Trust, PIM, PFD or their respective designees
by or on behalf of the Company for use in the registration statement, prospectus
or statement of additional information for the Trust or in sales literature
or
other promotional material for the Trust (or any amendment or supplement) or
otherwise for use in connection with the sale of the Contracts or Shares;
or
(b) arise
out of or as a result of statements or representations (other than statements
or
representations contained in the Contract's registration statement, prospectus,
statement of additional information or in sales literature or other promotional
material for the Contracts not supplied by the Trust, PIM, PFD or any of their
respective designees or persons under their respective control and on which
any
such entity has reasonably relied) or wrongful conduct of the Trust, PIM, PFD
or
persons under their control, with respect to the sale or distribution of the
Contracts or Shares; or
(c) arise
out of any untrue statement or alleged untrue statement of a material fact
contained in the registration statement, prospectus, statement of additional
information, or sales literature or other promotional literature of the Accounts
or relating to the Contracts, or any amendment thereof or supplement thereto,
or
the omission or alleged omission to state therein a material fact required
to be
stated therein or necessary to make the statement or statements therein not
misleading, if such statement or omission was made in reliance upon information
furnished to the Company by or on behalf of the Trust, PIM, or PFD;
or
(d) arise
out of or result from any material breach of any representation and/or warranty
made by PIM and PFD in this Agreement (including a failure, whether
unintentional or in good faith or otherwise, to comply with the diversification
requirements specified in Article VI of this Agreement) or arise out of or
result from any other material breach of this Agreement by PIM and PFD;
or
(e) arise
out of or result from the materially incorrect or untimely calculation or
reporting of the daily net asset value per share or dividend or capital gain
distribution rate; or
(f) arise
as a result of any failure by PIM or PFD to perform any of their respective
obligations under this Agreement;as limited by and in accordance with the
provisions of this Article VIII.
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8.3.
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Indemnification
by the Trust
|
The
Trust agrees to indemnify and hold
harmless the Company and Policy Underwriter and each of their trustees and
officers and each person, if any, who controls the Company or Policy Underwriter
within the meaning of Section 15 of the 1933 Act, and any directors, officers,
agents or employees of the foregoing (each an "Indemnified Party," or
collectively, the "indemnified Parties" for purposes of this Section 8.3)
against any and all losses, claims, damages, liabilities (including amounts
paid
in settlement with the written consent of the Trust) or expenses (including
reasonable counsel fees) to which any Indemnified Party may become subject
under
any statute, at common law or otherwise, insofar as such losses, claims,
damages, liabilities or expenses (or actions in respect thereof) or settlements
are related to the sale or acquisition of the Shares or the Contracts
and:
(a) arise
out of or are based upon any untrue statement or alleged untrue statement of
any
material fact contained in the registration statement, prospectus or statement
of additional information of the Trust (or any amendment or supplement to any
of
the foregoing), or arise out of or are based upon the omission or the alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statement therein not misleading, provided that this
agreement to indemnify shall not apply as to any Indemnified Party if such
statement or omission or such alleged statement or omission was made in
reasonable reliance upon and in conformity with information furnished to the
Trust or its respective designees by or on behalf of the Company for use in
the
registration statement, prospectus or statement of additional information for
the Trust (or any amendment or supplement) or otherwise for use in connection
with the sale of the Contracts or Shares; or
(b) arise
out of or result from any material breach of any representation and/or warranty
made by the Trust in this Agreement (including a failure, whether unintentional
or in good faith or otherwise, to comply with the diversification requirements
specified in Article VI of this Agreement); or
(c) arise
as a result of any material breach by the Trust of any of its obligations under
this Agreement; as limited by and in accordance with the provisions of this
Article VIII.
8.4. In
no event shall the Trust, PIM or PFD be liable under the indemnification
provisions contained in this Agreement to the Company or its affiliates or
to
any Contract owner, with respect to any losses, claims, damages, liabilities
or
expenses that arise out of or result from (i) a breach of any representation,
warranty, and/or covenant made by the Company hereunder; (ii) the failure by
the
Company or its affiliates to maintain its segregated asset accounts (which
invest in any Portfolio) as legally and validly established segregated asset
accounts under applicable state law and as a duly registered unit investment
trusts under the provisions of the 1940 Act (unless exempt therefrom); or (iii)
the failure by the Company or its affiliates to maintain its variable annuity
and/or variable life insurance contracts (with respect to which any Portfolio
serves an underlying funding vehicle) as life insurance, endowment or annuity
contracts under applicable provisions of the Code.
8.5. Neither
the Company, the Trust, PIM nor PFD shall be liable under the indemnification
provisions contained in this Agreement with respect to any losses, claims,
damages, liabilities or expenses to which an Indemnified Party would otherwise
be subject by reason of such Indemnified Party's willful misfeasance, willful
misconduct, or gross negligence in the performance of such Indemnified Party's
duties or by reason of such Indemnified Party's reckless disregard of
obligations and duties under this Agreement.
8.6. Promptly
after receipt by an Indemnified Party under this Section 8.6. of notice of
commencement of any action, such Indemnified Party will, if a claim in respect
thereof is to be made against the indemnifying party under this section, notify
the indemnifying party of the commencement thereof; but the omission so to
notify the indemnifying party will not relieve it from any liability which
it
may have to any Indemnified Party otherwise than under this
section. In case any such action is brought against any Indemnified
Party, and it notified the indemnifying party of the commencement thereof,
the
indemnifying party will be entitled to participate therein and, to the extent
that it may wish, assume the defense thereof, with counsel satisfactory to
such
Indemnified Party. After notice from the indemnifying party of its
intention to assume the defense of an action, the Indemnified Party shall bear
the expenses of any additional counsel obtained by it, and the indemnifying
party shall not be liable to such Indemnified Party under this section for
any
legal or other expenses subsequently incurred by such Indemnified Party in
connection with the defense thereof other than reasonable costs of
investigation.
8.7. A
successor by law of the parties to this Agreement shall be entitled to the
benefits of the indemnification contained in this Article VIII. The
indemnification provisions contained in this Article VIII shall survive any
termination of this Agreement.
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ARTICLE
IX. APPLICABLE
LAW
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9.1. This
Agreement shall be construed and the provisions hereof interpreted under and
in
accordance with the laws of The Commonwealth of Massachusetts.
9.2. This
Agreement shall be subject to the provisions of the 1933, 1934 and 1940 Acts,
and the rules and regulations and rulings thereunder, including such exemption
from those statutes, rules and regulations as the SEC may grant (including,
but
not limited to, the Mixed and Shared Funding Exemptive Order) and the terms
hereof shall be interpreted and construed in accordance therewith.
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ARTICLE
X. NOTICE OF FORMAL PROCEEDINGS OR
LITIGATION
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The
Trust, PIM, PFD and the Company
agree that each such party shall notify the other parties to this Agreement
within a reasonable time, in writing, of the institution of any formal
proceedings brought against such party or its designees by the NASD, the SEC,
or
any insurance department or any other regulatory body regarding such party's
duties under this Agreement or related to the sale of the Contracts, the
operation of the Accounts, or the purchase of the Shares. Each of the
parties further agrees to notify the other parties within a reasonable time
of
the commencement of any litigation or proceeding against it or any of its
respective officers, directors, trustees, employees or 1933 Act control persons
in connection with this Agreement, the issuance or sale of the Contracts, the
operation of the Accounts, or the sale or acquisition of Shares. The
indemnification provisions contained in this Article X shall survive any
termination of this Agreement.
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ARTICLE
XI. TERMINATION
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11.1
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This
Agreement shall terminate with respect to one, some or all of the
Accounts
or Portfolios:
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(a) at
the option of any party upon six (6) months' advance written notice delivered
to
the other parties; provided, however, that such notice shall not be given
earlier than six (6) months following the date of this Agreement; provided,
further, that if later than six (6) months, upon receipt of any required
exemptive relief or orders from the SEC; or
(b) at
the option of the Company to the extent that the Shares of Portfolios are not
reasonably available to meet the requirements of the Contracts or are not
"appropriate funding vehicles" for the Contracts, as reasonably determined
by
the Company. Without limiting the generality of the foregoing, the
Shares of a Portfolio would not be "appropriate funding vehicles" if, for
example, such Shares did not meet the diversification or other requirements
referred to in Article VI hereof; or if the Company would be permitted to
disregard Contract owner voting instructions pursuant to Rule 6e-2 or 6e-3(T)
under the 1940 Act. Reasonably prompt notice of the election to
terminate for such cause and an explanation of such cause shall be furnished
to
the Trust by the Company; or
(c) at
the option of the Trust, PIM or PFD upon institution of formal proceedings
against the Company by the NASD, the SEC, or any insurance department or any
other regulatory body regarding the Company's duties under this Agreement or
related to the sale of the Contracts, the operation of the Accounts, or the
purchase of the Shares; provided that the party terminating this Agreement
under
this provision shall give notice of such termination to the other parties to
this Agreement; or
(d) at
the option of the Company upon institution of formal proceedings against the
Trust, PIM or PFD by the NASD, the SEC, or any state securities or insurance
department or any other regulatory body regarding the duties of the Trust,
PIM
or PFD under this Agreement or related to the sale of the Shares; provided
that
the party terminating this Agreement under this provision shall give notice
of
such termination to the other parties to this Agreement; or
(e) at
the option of the Company, the Trust, PIM or PFD upon receipt of any necessary
regulatory approvals and/or the vote of the Contract owners having an interest
in the Accounts (or any subaccounts) to substitute the shares of another
investment company for the corresponding Portfolio Shares in accordance with
the
terms of the Contracts for which those Portfolio Shares had been selected to
serve as the underlying investment media. The Company will give
thirty (30) days' prior written notice to the Trust of the Date of any proposed
vote or other action taken to replace the Shares; or
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(f)
|
at
the option of the Trust, PIM or PFD by written notice to the Company,
if
any one or all of the Trust, PIM or PFD respectively, shall determine,
in
their sole judgment exercised in good faith, that the Company has
suffered
a material adverse change in its business, operations, financial
condition, or prospects since the date of this Agreement or is the
subject
of material adverse publicity; or
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(g)
|
at
the option of the Company by written notice to the Trust, PIM or
PFD, if
the Company shall determine, in its sole judgment exercised in good
faith,
that the Trust, PIM or PFD has suffered a material adverse change
in this
business, operations, financial condition or prospects since the
date of
this Agreement or is the subject of material adverse publicity;
or
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(h)
|
at
the option of any party to this Agreement, upon another affiliated
or
unaffiliated party's material breach of any provision of or representation
contained in this Agreement.
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11.2.
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The
notice shall specify the Portfolio or Portfolios, Contracts and,
if
applicable, the Accounts as to which the Agreement is to be
terminated.
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11.3
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It
is understood and agreed that the right of any party hereto to terminate
this Agreement pursuant to Section 11.1(a) may be exercised for cause
or
for no cause.
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11.4.
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Except
as necessary to implement Contract owner initiated transactions,
or as
required by state insurance laws or regulations, the Company shall
not
redeem the Shares attributable to the Contracts (as opposed to the
Shares
attributable to the Company's assets held in the Accounts), and the
Company shall not prevent Contract owners from allocating payments
to a
Portfolio that was otherwise available under the Contracts, until
thirty
(30) days after the Company shall have notified the Trust of its
intention
to do so.
|
|
11.5.
|
Notwithstanding
any termination of this Agreement, the Trust and PFD shall, at the
option
of the Company, continue for a period not exceeding six (6) months
to make
available additional shares of the Portfolios pursuant to the terms
and
conditions of this Agreement, for all Contracts in effect on the
effective
date of termination of this Agreement (the "Existing Contracts"),
except
as otherwise provided under Article VII of this Agreement; provided,
however, that in the event of a termination pursuant to Section 11.1.
(c),
(f) or (h), the Trust, PIM and PFD shall at their option have the
right to
terminate immediately all sales of Shares to the Company, subject
to
compliance with federal securities laws. Specifically, without
limitation, the owners of the Existing Contracts shall be permitted
to
transfer or reallocate investment under the Contracts, redeem investments
in any Portfolio and/or invest in the Trust upon the making of additional
purchase payments under the Existing
Contracts.
|
|
11.6.
|
Notwithstanding
any termination of this Agreement, each party's obligations under
Article
VIII to indemnify the other parties shall survive and not be affected
by
any termination of this Agreement. In addition, with respect to
Existing Contracts, all provisions of this Agreement shall also survive
and not be affected by any termination of this
Agreement
|
|
|
ARTICLE
XII. NOTICES
|
Any
notice shall be sufficiently given
when sent by registered or certified mail, overnight courier or facsimile to
the
other party at the address of such party set forth below or at such other
address as such party may from time to time specify in writing to the other
party
If
to the Trust:
Pioneer
Variable Contracts
Trust
x/x
Xxxx xxx Xxxx
00
Xxxxx Xxxxxx
Xxxxxx,
Xxxxxxxxxxxxx 00000
Attn: Xxxxxx
X. Xxxxx,
Secretary
If
to the Company:
Nationwide
Financial Services,
Inc.
Xxx
Xxxxxxxxxx Xxxxx,
0-00-00
Xxxxxxxx,
Xxxx 00000-0000
Attn: Xxxxxxx
X. Xxxxxx,
Vice President
With
a copy to:
Xxxxx
Xxxxxxxxxx
Securities
Counsel
Xxx
Xxxxxxxxxx Xxxxx,
0-00-X0
Xxxxxxxx,
Xxxx 00000-0000
If
to PIM:
Pioneer
Investment Management,
Inc.
00
Xxxxx Xxxxxx
Xxxxxx,
Xxxxxxxxxxxxx 00000
Attn: Xxxxxxx
X. Xxxxxxxx,
General Counsel
If
to PFD:
Pioneer
Funds Distributor,
Inc.
00
Xxxxx Xxxxxx
Xxxxxx,
Xxxxxxxxxxxxx 00000
Attn: Xxxxxxx
X. Xxxxxx,
Senior Vice President
ARTICLE
XIII. MISCELLANEOUS
13.1. Subject
to the requirements of legal process and regulatory authority, each party hereto
shall treatas confidential all information reasonably identified as confidential
in writing by any party hereto and, except as permitted by this Agreement or
as
otherwise required by applicable law or regulation, shall not disclose,
disseminate or utilize such other confidential information without the express
written consent of the affected party until such time as it may come into the
public domain. Notwithstanding anything to the contrary in this
Agreement, in addition to and not in lieu of other provisions in this
Agreement:
(a) "Confidential
Information" includes without limitation all information regarding thecustomers
of the Company, the Trust, PIM, PFD or any of their subsidiaries, affiliates
or
licensees; or the accounts, account numbers, names, addresses, social security
numbers or any other personal identifier of such customers; or any information
derived therefrom.
(b) Neither
the Company, the Trust, PIM or PFD may disclose Confidential Information for
any
purpose other than to carry out the purpose for which Confidential Information
was provided to the Company, the Trust, PIM or PFD as set forth in this
Agreement; and the Company, the Trust, PIM and PFD agree to cause their
employees, agents and representatives, or any other party to whom the Company,
the Trust, PIM or PFD may provide access to or disclose Confidential Information
to limit the use and disclosure of Confidential Information to that
purpose.
(c) The
Company, the Trust, PIM and PFD agree to implement appropriate measures designed
to ensure the security and confidentiality of Confidential Information, to
protect such information against any anticipated threats or hazards to the
security and integrity of such information, and to protect against unauthorized
access to, or use of, Confidential Information that could result in substantial
harm or inconvenience to any of the customers of the Company or any of its
subsidiaries, affiliates or licensees; the Company, the Trust, PIM
and PFD further agree to cause all their respective agents,representatives
or
subcontractors, or any other party to whom they provide access to or disclose
Confidential Information, to implement appropriate measures to meet the
objectives set forth in this Section 13.1.
|
13.2.
|
The
Company hereby acknowledges that as applicable or required: (i)
it has adopted an anti-money laundering program that complies with
the
requirements of applicable anti-money laundering laws, including
the USA
Patriot Act, the Bank Secrecy Act and applicable regulations thereunder;
(ii) it regularly searches its databases for shareholder/customer
names
and countries appearing on U.S. governmental agencies' lists of prohibited
persons (i.e., lists maintained by OFAC); and (iii) it monitors its
compliance with such program. The Company agrees to notify PIM
of any: (i) material changes to its policies and procedures;
(ii) identified instances of non-compliance that involve an account
related to the Funds or PIM (a "Pioneer Related Account"), either
through
a shareholder or transaction(s); and (iii) other anti-money laundering
issues that may arise with respect to a Pioneer Related
Account. The Company agrees to notify PIM with such periodic
certifications of compliance as PIM may reasonably
request.
|
|
13.3.
|
The
captions in this Agreement are included for convenience of reference
only
and in no way define or delineate any of the provisions hereof or
otherwise affect their construction or
effect.
|
|
13.4.
|
This
Agreement may be executed simultaneously in one or more counterparts,
each
of which taken together shall constitute one and the same
instrument.
|
|
13.5.
|
If
any provision of this Agreement shall be held or made invalid by
a court
decision, statute, rule or otherwise, the remainder of the Agreement
shall
not be affected thereby.
|
|
13.6.
|
The
Schedules attached hereto, as modified from time to time, is incorporated
herein by reference and are part of this
Agreement.
|
|
13.7.
|
Each
party hereto shall cooperate with each other party in connection
with
inquiries by appropriate governmental authorities (including without
limitation the SEC, the NASD, and state insurance regulators) and
shall
permit such authorities reasonable access to its books and records
in
connection with any investigation or inquiry relating to this Agreement
or
the transactions contemplated
hereby.
|
|
13.8.
|
The
rights, remedies and obligations contained in this Agreement are
cumulative and are in addition to any and all rights, remedies and
obligations, at law or in equity, which the parties hereto are entitled
to
under state and federal laws.
|
|
13.9.
|
A
copy of the Trust's Certificate of Trust is on file with the Secretary
of
State of Delaware. The Company acknowledges that the
obligations of or arising out of this instrument are not binding
upon any
of the Trust's trustees, officers, employees, agents or shareholders
individually, but are binding solely upon the assets and property
of the
rust in accordance with its proportionate interest
hereunder. The Company further acknowledges that the assets and
liabilities of each Portfolio are separate and distinct and that
the
obligations of or arising out of this instrument are binding solely
upon
the assets or property of the Portfolio on whose behalf the Trust
has
executed this instrument. The Company also agrees that the
obligations of each Portfolio hereunder shall be several and not
joint, in
accordance with its proportionate interest hereunder, and the Company
agrees not to proceed against any Portfolio for the obligations of
another
Portfolio.
|
|
13.10.
|
Any
controversy or claim arising out of or relating to this Agreement,
or
breach thereof, shall be settled by arbitration in a forum jointly
selected by the relevant parties (but if applicable law requires
some
other forum, then, such other forum), which shall be binding, in
accordance with the Commercial Arbitration Rules of the American
Arbitration Association, and judgment upon the award rendered by
the
arbitrators may be entered in any court having jurisdiction
thereof.
|
|
13.11.
|
Neither
this Agreement nor any of the rights and obligations hereunder may
be
assigned by any party without the prior written consent of all parties
hereto.
|
|
13.12.
|
The
Trust, PIM and PFD agree that the obligations assumed by the Company
shall
be limited in any case to the company and its assets and neither
the
Trust, PIM nor PFD shall seek satisfaction of any such obligation
from the
shareholders of the Company, the directors, officers, employees or
agents
of the Company, or any of them.
|
13.13. No
provision of the Agreement may be deemed or construed to modify or supersede
any
contractual rights, duties, or indemnifications, as between PIM and the Trust
and PFD and the Trust.
|
13.14.
|
This
Agreement, including any Schedules or Exhibits hereto, may be amended
only
by a written instrument executed by each party
hereto.
|
|
|
IN
WITNESS WHEREOF, each of the parties hereto has caused this Agreement
to
be executed in its name and on its behalf by its duly authorized
representative and its seal to be hereunder affixed hereto as of
the date
specified above.
|
|
PIONEER
VARIABLE CONTRACTS TRUST,
|
PIONEER
INVESTMENT MANAGEMENT,
|
|
on
behalf of the Portfolios
|
INC.
|
|
By
its authorized officer and not individually,
|
By
its authorized officer,
|
|
|
By:____________________________________
|
|
|
Xxxxxx
X. Xxxxxx
|
|
By: ________________________________
|
President
and Chief Executive Officer
|
|
|
Xxxxxx
X.
Barri________________________
|
|
|
Secretary
|
|
Date: ___[10-29-02]____________________
|
Date: ___[10-28-02]______________________
|
|
NATIONWIDE
FINANCIAL SERVICES, INC.
|
PIONEER
FUNDS DISTRIBUTOR, INC.
|
|
By
its authorized officer,
|
By
its authorized officer,
|
|
By: _________________________________
|
By: ___________________________________
|
|
|
Xxxxxxx
X. Xxxxxx
|
|
|
Vice
President
|
Name: __Daniel
T.
Geraci__________________
Date: _[10-15-02]______________________
|
|
Title: President___________________________
|
|
|
Date: ____[10-28-02]______________________
|
|
|
SCHEDULE
A
|
|
|
ACCOUNTS,
CONTRACTS AND PORTFOLIOS
|
|
|
SUBJECT
TO THE PARTICIPATION
AGREEMENT
|
|
|
As
of September 27, 2002
|
|
Name
of Separate Account
|
Affiliated
Companies
|
Portfolios
Class
I and II Shares
|
|
Nationwide
Variable Account
Nationwide
Variable Account-II
Nationwide
Variable Account-3
Nationwide
Variable Account-4
Nationwide
Variable Account-5
Nationwide
Variable Account-6
Nationwide
Variable Account-7
Nationwide
Variable Account-8
Nationwide
Variable Account-9
Nationwide
Variable Account-10
Nationwide
Variable Account-11
Nationwide
Variable Account-12
Nationwide
Variable Account-13
Multi-Flex
Variable Account
Nationwide
VA Separate Account-A
Nationwide
VA Separate Account-B
Nationwide
VA Separate Account-C
Nationwide
VA Separate Account-D
Nationwide
VLI Separate Account
Nationwide
VLI Separate Account-2
Nationwide
VLI Separate Account-3
Nationwide
VLI Separate Account-4
Nationwide
VLI Separate Account-5
Nationwide
VLI Separate Account-6
Nationwide
VL Separate Account
Nationwide
VL Separate Account-A
Nationwide
VL Separate Account-B
Nationwide
VL Separate Account-C
Nationwide
VL Separate Account-D
Nationwide
DC Variable Account
Nationwide
DC Variable Account-II
NACo
Variable Account
Nationwide
Governmental Plans
Variable
Account
Nationwide
Governmental Plans
Variable
Account-II
Nationwide
Qualified Plans Variable
Account
Nationwide
Private Placement
Variable
Account
Ohio
DC Variable Account
|
Registered
Broker Dealers
Nationwide
Advisory Services, Inc.
Nationwide
Investment Services Corporation
Affiliates
and Subsidiaries
Nationwide
Life Insurance Company
Nationwide
Life and Annuity Insurance Company
Nationwide
Trust Company, FSB
Nationwide
Retirement Solutions, Inc.
National
Deferred Compensation, Inc.
|
Pioneer
America Income VCT Portfolio
Pioneer
Balanced VCT Portfolio
Pioneer
Emerging Markets VCT Portfolio
Pioneer
Equity Income VCT Portfolio
Pioneer
Europe VCT Portfolio
Pioneer
Fund VCT Portfolio
Pioneer
Growth Sales VCT Portfolio
Pioneer
High Yield VCT Portfolio
Pioneer
International Value VCT Portfolio
Pioneer
Mid Cap Value VCT Portfolio
Pioneer
Real Estate Shares VCT Portfolio
Pioneer
Science & Technology VCT Portfolio
Pioneer
Small Cap Value VCT Portfolio
Pioneer
Small Company VCT Portfolio
Pioneer
Strategic Income VCT Portfolio
|
Schedule
B
1. Administrative
Services
Administrative
services to Contract owners and participants shall be the responsibility of
the
Company and shall not be the responsibility of the Trust or PFD. The
Company will provide properly registered and licensed personnel, as necessary,
and any systems needed for all Contract owners servicing and support - for
both
fund and annuity life insurance information and questions,
including
|
§
|
Communicative
all purchase, withdrawal, and exchange orders it receives from its
customers to PFD;
|
|
§
|
Respond
to Contract owner and participant
inquiries;
|
|
§
|
Delivery
of both Trust and Contract prospectuses as required under applicable
law;
|
|
§
|
Entry
of initial and subsequent orders;
|
|
§
|
Transfer
of cash to Portfolios;
|
|
§
|
Entry
of transfers between Portfolios;
|
|
§
|
Portfolio
balance and allocation inquiries;
and
|
|
§
|
Mail
Trust proxies.
|
|
2.
|
Administrative
Service Fees
|
For
the
administrative services set forth above, PIM or any of its affiliates shall
pay
a servicing fee based on the annual rate of [X.XX%] of the average aggregate
net
daily assets invested in the Class I Shares of the Portfolios and [X.XX%] of
the
average aggregate net daily assets invested in the Class II Shares of the
Portfoilos through the Accounts at the end of each calendar
quarter. Such payments will be made to the Company within thirty (30)
days after the end of each calendar quarter. Such fees shall be paid
quarterly in arrears. Each payment will be accompanied by a statement
showing the calculation of the fee payable to the Company for the quarter and
such other supporting data as may be reasonably requested by the
Company. The Company will calculate the asset balance on each day on
which the fee is to be paid pursuant to this Agreement with respect to each
Portfolio for the purpose of reconciling its calculation of average aggregate
net daily assets with PIM's calculation. Annually (as of December 31)
or upon reasonable request of PIM, Company will provide PIM a statement showing
the number of subaccounts in each Class of Shares of each Portfolio as of the
most recent calendar quarter end.
3. 12b-1
Distribution Related Fees (Class II Shares Only)
In
accordance with the Portfolios' plans pursuant to Rule 12b-1 under the
Investment Company Act of 1940, PFD will make payments to the Company at an
annual rate of [X.XX%] of the average daily net assets invested in the Class
II
shares of the Portfolios through the Accounts in each calendar
quarter. PFD will make such payments to the company within thirty
(30) days after the end of each calendar quarter. Each payment will
be accompanied by a statement showing the calculation of the fee payable to
the
Company for the quarter and such other supporting data as may be reasonably
requested by the Company. The Rule 12b-1 distribution related fees
will be paid to the Company for as long as the Accounts own any Shares of a
Portfolio and (i) distribution services are being provided pursuant to this
Agreement and (ii) a Rule 12b-1 plan is in effect with respect to such
Portfolio.Exhibit I
To
Procedures
for Pricing and Order/Settlement Through National Securities Clearing
Corporation's Mutual Fund Profile System and Mutual Fund Settlement, Entry
and
Registration Verification System
1. As
provided in Section 1.1 of the Participation Agreement, the parties hereby
agree
to provide pricinginformation, execute orders and wire payments for purchases
and redemptions of Fund shares throughNational Securities Clearing Corporation
("NSCC") and its subsidiary systems as follows:
(a) Distributor
or the Funds will furnish to Company or its affiliate through NSCC's Mutual
Fund
Profile System ("MFPS") (1) the most current net asset value information for
each Fund, (2) a schedule of anticipated dividend and distribution payment
dates
for each Fund, which is subject to change without prior notice, ordinary income
and capital gain dividend rates on the Fund's ex-date, and (3) in the case
of
fixed income funds that declare daily dividends, the daily accrual or the
interest rate factor. All such information shall be furnished to
Company or its affiliate by 6:30 p.m. Eastern Time on each business day that
the
Fund is open for business (each a "Business Day") or at such other time as
that
information becomes available. Changes in pricing information will be
communicated to both NSCC and Company.
(b) Upon
receipt of Fund purchase, exchange and redemption instructions for acceptance
as
of the time at which a Fund's net asset value is calculated as specified in
such
Fund's prospectus ("Close of Trading") on each Business Day ("Instructions"),
and upon its determination that there are good funds with respect to
Instructions involving the purchase of Shares, Company or its affiliate will
calculate the net purchase or redemption order for each Fund. Orders
for net purchases or net redemptions derived from Instructions received by
Company or its affiliate prior to the Close of Trading on any given Business
Day
will be sent to the Defined Contribution Interface of NSCC's Mutual Fund
Settlement, Entry and Registration Verification System ("Fund/SERV") by 5:00
a.m. Eastern Time on the next Business Day. Subject to Company's or
its affiliate's compliance with the foregoing, Company or its affiliate will
be
considered the agent of the Distributor and the Funds, and the Business Day
on
which Instructions are received by Company or its affiliate in proper form
prior
to the Close of Trading will be the date as of which shares of the Funds are
deemed purchased, exchanged or redeemed pursuant to such Instructions.
Instructions received in proper form by Company or its affiliate after the
Close
of Trading on any given Business Day will be treated as if received on the
next
following Business Day. Dividends and capital gains distributions
will be automatically reinvested at net asset value in accordance with the
Fund's then current prospectuses.
(c) Company
or its affiliate will wire payment for net purchase orders by the Fund's NSCC
Firm Number, in immediately available funds, to an NSCC settling bank account
designated by Company or its affiliate no later than 5:00 p.m. Eastern Time
on
the same Business Day such purchase orders are communicated to
NSCC. For purchases of shares of daily dividend accrual funds, those
shares will not begin to accrue dividends until the day the payment for those
shares is received.
(d) NSCC
will wire payment for net redemption orders by Fund, in immediately available
funds, to an NSCC settling bank account designated by Company or its affiliate,
by 5:00 p.m. Eastern Time on the Business Day such redemption orders are
communicated to NSCC, except as provided in a Fund's prospectus and statement
of
additional information.
(e) With
respect to (c) or (d) above, if Distributor does not send a confirmation of
Company's or its affiliate's purchase or redemption order to NSCC by the
applicable deadline to be included in that Business Day's payment cycle, payment
for such purchases or redemptions will be made the following Business
Day.
(f) If
on any day Company or its affiliate, or Distributor is unable to meet the NSCC
deadline for the transmission of purchase or redemption orders, it may at its
option transmit such orders and make such payments for purchases and redemptions
directly to Distributor or Company or its affiliate, as applicable, as is
otherwise provided in the Agreement.
(g) These
procedures are subject to any additional terms in each Fund's prospectus and
the
requirements of applicable law. The Funds reserve the right, at their
discretion and without notice, to suspend the sale of shares or withdraw the
sale of shares of any Fund.
2. Company
or its affiliate, Distributor and clearing agents (if applicable) are each
required to haveentered into membership agreements with NSCC and met all
requirements to participate in the MFPS and Fund/SERV systems before these
procedures may be utilized. Each party will be bound by the terms of
their membership agreement with NSCC and will perform any and all duties,
functions, procedures and responsibilities assigned to it and as otherwise
established by NSCC applicable to the MFPS and Fund/SERV system and the
Networking Matrix Level utilized.
3. Except
as modified hereby, all other terms and conditions of the Agreement shall remain
in full force and effect. Unless otherwise indicated herein, the
terms defined in the Agreement shall have the same meaning as in this
Exhibit.
AMENDMENT
No. 1 to SCHEDULE A
This
Amendment No 1. to Schedule A corresponds to the Participation Agreement
dated
September
27, 2002 and is effective December [22], 2003
ACCOUNTS,
CONTRACT AND PORTFOLIOS
Separate
Accounts
All
existing and future Separate Accounts including but not limited to the
following:
Nationwide
Variable
Account Nationwide
VLI Separate Account-4
Nationwide
Variable
Account-II Nationwide
VLI Separate Account-5
Nationwide
Variable
Account-3 Nationwide
VLI Separate Account-6
Nationwide
Variable
Account-4 Nationwide
VL Separate Account
Nationwide
Variable
Account-5 Nationwide
VLI Separate Account-A
Nationwide
Variable
Account-6 Nationwide
VLI Separate Account-B
Nationwide
Variable
Account-7 Nationwide
VLI Separate Account-C
Nationwide
Variable
Account-8 Nationwide
VLI Separate Account-D
Nationwide
Variable
Account-9 Nationwide
DC Variable Account
Nationwide
Variable
Account-10 Nationwide
DC variable Account-II
Nationwide
Variable
Account-11 NACo
Variable Account
Nationwide
Variable
Account-12 Nationwide
Governmental Plans Variable
Nationwide
Variable
Account-13 Account
Nationwide
Variable
Account-14 Nationwide
Governmental Plans Variable
Multi-Flex
Variable
Account Account-II
Nationwide
VA Separate
Account-A Nationwide
Qualified Plans Variable
Nationwide
VA Separate
Account-B Account
Nationwide
VA Separate
Account-C Nationwide
Private Placement Variable
Nationwide
VA Separate
Account-D Account
Nationwide
VLI Separate
Account Ohio
DC Variable Account
Nationwide
VLI Separate Account-2
Nationwide
VLI Separate Account-3
Registered
Broker Dealers
Nationwide
Advisory Services, Inc.
Nationwide
Investment Services Corporation
Affiliates
and Subsidiaries
Nationwide
Life Insurance Company
Nationwide
Life and Annuity Insurance Company
Nationwide
Trust Company, FSB
Nationwide
Retirement Solutions, Inc.
National
Deferred Compensation, Inc.
Portfolios
Class I and II Shares
Pioneer
America Income VCT Portfolio
Pioneer
Balanced VCT Portfolio
Pioneer
Emerging Markets VCT Portfolio
Pioneer
Equity Income VCT Portfolio
Pioneer
Fund VCT Portfolio
Pioneer
Growth Shares VCT Portfolio
Pioneer
High VCT Portfolio
Pioneer
International Value VCT Portfolio
Pioneer
Mid Cap Value VCT Portfolio
Pioneer
Real Estate Shares VCT Portfolio
Pioneer
Small Cap Value VCT Portfolio
Pioneer
Company VCT Portfolio
Pioneer
Strategic Income VCT Portfolio
IN
WITNESS WHEREOF, each of the parties hereto has caused this Amendment No.1
to
Schedule
to be executed in its name and on its behalf by its duly authorized
representative and its seal to be hereunder affixed hereto as of the date
specified above.
PIONEER
VARIABLE
CONTRACTS PIONEER
INVESTMENT
TRUST, MANAGEMENT,
INC.
On
behalf of the
portfolios By
its authorized officer,
By
its
authorized officer and not individually,
By:__________________________________ By:______________________________
Name:__[Xxxxxxx
Bovrassa]______________ Name:___[Xxxxxxx
Xxxxxxxx]_________
|
Title:___[Secretary]_____________________
|
Title:___[Senior
VP]________________
|
|
Date:___[12/9/03]______________________
|
Date:____[12/9/03]__________________
|
|
NATIONWIDE
FINANCIAL SERVICES,
|
PIONEER
FUNDS DISTRIBUTOR, INC.
|
|
|
INC.
|
|
By
its authorized officer,
|
By
its authorized officer,
|
|
By:_________________________________
|
By:________________________________
|
|
|
Xxxxxxx
X. Xxxxxx
|
|
Vice
President
|
Name:____[Xxxxxx
Xxxxxxxx]___________
|
|
|
Date:_____[12-22-03]__________________
|
|
|
Title:__[Executive
Vice President]_______
|
|
|
Date:
____ [12/11/03]__________________
|
AMENDMENT
NO. 2 TO PARTICIPATION AGREEMENT
This
Amendment Number 2 to the Participation Agreement, dated September 21, 2000
(the
“Participation Agreement”) is effective as of the 13th day of
December
2004, by and among Pioneer Variable Contracts Trust (the “Trust”), Nationwide
Financial Services, Inc. (the “Company”), Pioneer Funds Distributor, Inc.
(“PFD”), and Pioneer Investment Management, Inc. (“PIM”). PFD and PIM
are members of the UniCredito Italiano banking group, register of banking
groups.
WHEREAS,
the Trust, the Company, PFD and PIM are each parties to the Participation
Agreement; and
WHEREAS,
the parties now desire to modify the Participation Agreement to include the
new
Schedule A and Schedule B attached hereto.
NOW
THEREFORE, in consideration of the promises and the mutual covenants
expressed herein, the parties agree as follows:
Schedule
A and Schedule B of the Participation Agreement are hereby deleted in their
entirety and replaced with the Schedule A and Schedule B attached hereto with
effect from December 13, 2004.
The
Participation Agreement, as supplemented by this Second Amendment is hereby
ratified and confirmed.
IN
WITNESS WHEREOF, each of the parties hereto has caused this Amendment No. 2
to
the Participation Agreement to be executed in its name and on its behalf by
its
duly authorized representative as of the date specified above.
PIONEER
VARIABLE CONTRACTS
TRUST, PIONEER
INVESTMENT MANAGEMENT, INC.
On
behalf of the
Portfolios By
its authorized officer,
By
its
authorized officer and not individually,
By: _______________________________ By: ___________________________________
Name: [Xxxxx
Xxxxxx]_________________ Name: ___[Xxxx
Xxxxxxx]________________
Title: Assistant
Secretary______________ Title: Treasurer__________________________
Date: _[4/4/05]______________________ Date:__[4/4/2005]________________________
NATIONWIDE
FINANCIAL
SERVICES, PIONEER
FUNDS DISTRIBUTOR, INC.
INC.
By
its
authorized
officer, By
its authorized officer,
By: ______________________________ By: _______________________________
Name: [Xxxxx
X.
Xxxxxx]_____________ Name: _____________________________
Title: Officer_______________________ Title: E.V.P.
Distribution_______________
Date: ___12/29/04]__________________ Date: ___[4/6/05]_____________________
SCHEDULE
A
ACCOUNTS,
CONTRACTS AND PORTFOLIOS
Separate
Accounts
All
existing and future Separate Accounts including but not limited to the
following:
Nationwide
Variable
Account Nationwide
VLI Separate Account-4
Nationwide
Variable
Account-II Nationwide
VLI Separate Account-5
Nationwide
Variable
Account-3 Nationwide
VLI Separate Account-6
Nationwide
Variable
Account-4 Nationwide
VL Separate Account
Nationwide
Variable
Account-5 Nationwide
VL Separate Account-A
Nationwide
Variable
Account-6 Nationwide
VL Separate Account-B
Nationwide
Variable
Account-7 Nationwide
VL Separate Account-C
Nationwide
Variable
Account-8 Nationwide
VL Separate Account-D
Nationwide
Variable
Account-9 Nationwide
DC Variable Account
Nationwide
Variable
Account-10 Nationwide
DC Variable Account-II
Nationwide
Variable
Account-11 NACo
Variable Account
Nationwide
Variable
Account-12 Nationwide
Government Plans Variable Account
Nationwide
Variable
Account-13 Nationwide
Governmental Plans Variable Account-II
Nationwide
Variable
Account-14 Nationwide
Qualified Plans Variable Account
Multi-Flex
Variable
Account Nationwide
Private Placement Variable Account
Nationwide
VA Separate
Account-A Nationwide
VA Separate Account-D
Nationwide
VA Separate
Account-B Ohio
DC Variable Account
Nationwide
VA Separate
Account-C Schwab
Custom Solutions Variable Annuity
Nationwide
VLI Separate Account
Nationwide
VLI Separate Account-2
Nationwide
VLI Separate Account-3
Registered
Broker Dealers
Nationwide
Advisory Services, Inc.
Nationwide
Investment Services Corporation
Affiliates
and Subsidiaries
Nationwide
Life Insurance Company
Nationwide
Life and Annuity Insurance Company
Nationwide
Trust Company, FSB
Nationwide
Retirement Solutions, Inc.
National
Deferred Compensation, Inc.
Portfolios
Class I and II Shares
Pioneer
America Income Trust VCT Portfolio
Pioneer
Balanced VCT Portfolio
Pioneer
Emerging Markets VCT Portfolio
Pioneer
Equity Income VCT Portfolio
Pioneer
Europe VCT Portfolio
Pioneer
Fund VCT Portfolio
Pioneer
Growth Shares VCT Portfolio
Pioneer
High Yield VCT Portfolio
Pioneer
International Value VCT Portfolio
Pioneer
Mid Cap Value VCT Portfolio
Pioneer
Real Estate Shares VCT Portfolio
Pioneer
Small Cap Value VCT Portfolio
Pioneer
Small Cap Value II VCT Portfolio
Pioneer
Small Company VCT Portfolio
Pioneer
Strategic Income VCT Portfolio
SCHEDULE
B
1. Administrative
Service
Administrative
services to Contract owners and participants shall be the responsibility of
the
Company and shall not be the responsibility of the Trust or PFD. The
Company will provide properly registered and licensed personnel, as necessary,
and any systems needed for all Contract owners servicing and support - for
both
fund and annuity and life insurance information and questions,
including:
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§
|
Communicate
all purchase, withdrawal, and exchange orders it receives from its
customers to PFD;
|
|
§
|
Respond
to Contract owner and participant
inquires;
|
|
§
|
Delivery
of both Trust and Contract prospectuses as required under applicable
law;
|
|
§
|
Entry
of initial and subsequent orders;
|
|
§
|
Transfer
of cash to Portfolios;
|
|
§
|
Entry
of transfers between Portfolios;
|
|
§
|
Portfolio
balance and allocation inquires;
and
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|
§
|
Mail
Trust proxies.
|
2. Administrative
Service Fees
For
the
administrative services set forth above, PIM or any of its affiliates shall
pay
a servicing fee based on the annual rate of [X.XX%] of the average aggregate
net
daily assets invested in the Class I Shares of the Portfolios and [X.XX%] of
the
average aggregate net daily assets invested in the Class II Shares of the
Portfolios through the Accounts at the end of each calendar
quarter. PIM or any of its affiliates shall pay an additional
servicing fee of [X.XX%] per annum of the aggregate net daily assets invested
in
Class I shares of the Portfolios invested through Schwab Custom Solutions
Variable Annuity. Such payments will be made to the Company within
thirty (30) days after the end of each calendar quarter. Such fees
shall be paid quarterly in arrears. Each payment will be accompanied
by a statement showing the calculation of the fee payable to the Company for
the
quarter and such other supporting data as may be reasonably requested by the
Company. The Company will calculate the asset balance on each day on
which the fee is to be paid pursuant to this Agreement with respect to each
Portfolio for the purpose of reconciling its calculation of average aggregate
net daily assets with PIM's calculation. Annually (as of December 31)
or upon reasonable request of PIM, Company will provide PIM a statement showing
the number of subaccounts in each Class of Shares of each Portfolio as of the
most recent calendar quarter end.
3. 12b-1
Distribution Related Fees (Class II Shares Only)
In
accordance with the Portfolios' plans pursuant to Rule 12b-1 under the
Investment Company Act of 1940, PFD will make payments to the Company at an
annual rate of [X.XX%] of the average daily net assets invested in the Class
II
shares of the Portfolios through the Accounts in each calendar
quarter. PFD will make such payments to the Company within thirty
(30) days after the end of each calendar quarter. Each payment will
be accompanied by a statement showing the calculation of the fee payable to
the
Company for the quarter and such other supporting data as may be reasonably
requested by the Company. The Rule 12b-1 distribution related fees
will be paid to the Company for as long as the Accounts own any Shares of a
Portfolio and (i) distribution services are being provided pursuant to this
Agreement and (ii) a Rule 12b-1 plan is in effect with respect to such
Portfolio.
