PARTICIPATION AGREEMENT Among PUTNAM VARIABLE TRUST PUTNAM RETAIL MANAGEMENT, L.P. and NATIONWIDE FINANCIAL SERVICES, INC.
Among
XXXXXX
VARIABLE TRUST
XXXXXX
RETAIL MANAGEMENT, L.P.
and
NATIONWIDE
FINANCIAL SERVICES, INC.
THIS
AGREEMENT, made and entered into
as of this 1st
day of February, 2002, among Nationwide Financial Services, Inc., (the
“Company”), a Delaware corporation, on its own behalf and on behalf of each
separate account of the insurance company subsidiaries of the Company
(“Insurance Subsidiaries”) and on behalf of the affiliated broker-dealers and
subsidiaries set forth on Schedule A hereto, as such Schedule may be amended
from time to time (each such account hereinafter referred to as the “Account”),
PUTNAM VARIABLE TRUST (the “Trust”), a Massachusetts business trust, and XXXXXX
RETAIL MANAGEMENT, L.P. (the “Underwriter”), a Massachusetts limited
partnership.
WHEREAS,
the Trust is an open-end
diversified management investment company and is available to act as the
investment vehicle for separate accounts established for variable life insurance
policies and variable annuity contracts (collectively, the “Variable Insurance
Products”) to be offered by insurance companies which have entered into
Participation Agreements with the Trust and the Underwriter (the Participating
Insurance Companies”); and
WHEREAS,
the beneficial interest in the
Trust is divided into several series of shares, each designated a “Fund” and
representing the interest in a particular managed portfolio of securities and
other assets; and
WHEREAS,
the Trust has obtained an
order from the Securities and Exchange Commission, dated December 29, 1993
(File
No. 812-8612), granting the variable annuity and variable life insurance
separate accounts participating in the Trust exemptions from the provisions
of
sections 9(a), 13(a), 15(a) and 15(b) of the Investment Company Act of 1940,
as
amended (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 and held by
variable annuity and variable life insurance separate accounts of the
Participating Insurance Companies (the “Shared Funding Exemptive Order”);
and
WHEREAS,
the Trust is registered as an
open-end management investment company under the 1940 Act and the sale of its
shares is registered under the Securities Act of 1933, as amended (the “1933
Act”); and
WHEREAS,
the Insurance Subsidiaries
have registered or will register certain variable life and/or variable annuity
contracts under the 1933 Act and any applicable state securities and insurance
law or will offer such contracts in compliance with exemptions from such
registration; and
WHEREAS,
each Account is a duly
organized, validly existing separate account, established by resolution of
the
Board of Directors of the appropriate Insurance Subsidiary, to set aside and
invest assets attributable to one or more variable insurance contracts (the
“Contracts”); and
WHEREAS,
the Insurance Subsidiaries
have registered or will register the Account as a unit investment trust under
the 1940 Act or will operate the Account in accordance with an exemption;
and
WHEREAS,
the Underwriter is registered
as a broker dealer with the Securities and Exchange Commission under the
Securities Exchange Act of 1934, as amended (the “1934 Act”) and is a member in
good standing of the National Association of Securities Dealers, Inc. (the
“NASD”); and
WHEREAS,
to the extent permitted by
applicable insurance laws and regulations, the Company intends to cause the
purchase of shares in certain Funds (“Authorized Funds”) on behalf of each
Account to fund certain of the Contracts and the Underwriter is authorized
to
sell such shares to unit investment trusts such as each Account at net asset
value;
NOW,
THEREFORE, in consideration of the
promises herein, the Company, the Trust and the Underwriter agree as
follows:
ARTICLE
1. Sale of Trust Shares
1.1 The
Underwriter agrees, subject to the Trust’s rights under Section 1.2 and
otherwise under this Agreement, to sell to the Insurance Subsidiaries those
Trust shares representing interests in Authorized Funds which each Account
orders, executing such orders 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
of the Trust. For purposes of this Section 1.1, the Company shall be
the designee of the Trust for receipt of such orders from each Account and
receipt by such designee shall constitute receipt by the Trust; provided that
the Trust receives notice of such order by 9:30 a.m. Eastern Time on the next
following Business Day. “Business Day” shall mean any day on which
the New York Stock Exchange is open for trading and on which the Trust
calculates its net asset value pursuant to the rules of the Securities and
Exchange Commission. The initial Authorized Funds are set forth in
Schedule B, as such schedule is amended from time to time.
1.2 The
Trust agrees to make its shares available indefinitely for purchase and
redemption at the applicable net asset value per share by the Insurance
Subsidiaries and their Accounts on those days on which the Trust calculates
its
net asset value pursuant to rules of the
Securities
and Exchange Commission and the Trust shall use reasonable efforts to calculate
such net asset value on each day on which the New York Stock Exchange is open
for trading. Notwithstanding the foregoing, the Trustees of the Trust
(the “Trustees”) may refuse to sell shares of any Fund to the Company or any
other person, or suspend or terminate the offering of shares of any Fund if
such
action is required by law or by regulatory authorities having jurisdiction
over
the Trust or if the Trustees determine, in the exercise of their fiduciary
responsibilities, that to do so would be in the best interests of
shareholders.
1.3 The
Trust and the Underwriter agree that shares of the Trust will be sold only
to
Participating Insurance Companies and their separate accounts. No
shares of any Fund will be sold to the general public.
1.4 The
Trust shall redeem its shares in accordance with the terms of its then current
prospectus. For purposes of this Section 1.4, the Company shall be
the designee of the Trust for receipt of requests for redemption from each
Account and receipt by such designee shall constitute receipt by the Trust;
provided that the Trust receives notice of such request for redemption by 9:30
a.m., Eastern time, on the next following Business Day.
1.5 The
Insurance Subsidiaries shall purchase and redeem the shares of Authorized Funds
offered by the then current prospectus of the Trust in accordance with the
provisions of such prospectus.
1.6 The
Insurance Subsidiaries shall pay for Trust shares on the next Business Day
after
an order to purchase Trust shares is made in accordance with the provisions
of
Section 1.1 hereof. The Trust shall pay the Insurance Subsidiaries
the redemption price of shares redeemed on the Business Day after a redemption
order is made in accordance with Section 1.4 hereof. Payment shall be
in federal funds transmitted by wire.
1.7 Issuance
and transfer of the Trust’s shares will be by book entry only. Share
certificates will not be issued to the Company or any Account. Shares
ordered from the Trust will be recorded as instructed by the Company to the
Underwriter in appropriate title for each Account or the appropriate sub-account
of each Account.
1.8 The
Underwriter shall furnish prompt notice (by wire or telephone, followed by
written confirmation) to the Company of the declaration of any income, dividends
or capital gain distributions payable on the Trust’s shares. The
Company hereby elects to receive all such income dividends and capital gain
distributions as are payable on the Fund shares in additional shares of that
Fund. The Company reserves the right to revoke this election and to
receive all such income dividends and capital gain distributions in
cash. The Underwriter shall notify the Company of the number of
shares so issued as payment of such dividends and distributions.
1.9 The
Underwriter shall make the net asset value per share for each Fund available
to
the Company on a daily basis as soon as reasonably practical after the Trust
calculates its net asset value per share and each of the Trust and the
Underwriter shall use its best efforts to make such net asset value per share
available by 7:00 p.m. Eastern time.
1.10 Within
10 Business Days after the end of each calendar month, the Underwriter shall
provide the Company, or its designee, a monthly statement of account, which
shall confirm all transactions made during that particular month.
ARTICLE
II. Representations and Warranties
2.1 The
Company represents and warrants that
(a) at
all times during the term of this Agreement the Contracts are or will be
registered under the 1933 Act or will be offered and sold in compliance with
exemptions from such registration; the Contracts will be issued and sole in
compliance in all material respects with all applicable laws and the sale of
the
Contracts shall comply in all material respects with states insurance
suitability requirements. The Company further represents and warrants
that each Insurance Subsidiary is an insurance company duly organized and in
good standing under applicable law and that such Insurance Subsidiary has
legally and validly established each Account prior to any issuance or sale
thereof as a separate account under applicable law and has registered or, prior
to any issuance or sale of the Contracts, will register each Account as a unit
investment trust in accordance with the provisions of the 1940 Act to serve
as a
segregated investment account for the Contracts or operates such Account in
compliance with an exemption from such registration; and
(b) the
Contracts are currently treated as endowment, annuity or life insurance
contracts, under applicable provisions of the Internal Revenue Code of 1986,
as
amended (the “Code”), and that it will make every effort to maintain such
treatment and that it will notify the Trust and the Underwriter 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.
(c) The
Company acknowledges that the services provided for under this Agreement by
the
Underwriter and the Trust are not exclusive and that the same skill will be
used
in performing services to other companies in similar contexts. The
Company represents that it will use its best efforts to give equal emphasis
and
promotion to the Trust as is given to companies in similar
contexts.
2.2 The
Trust represents and warrants that
(a) at
all times during the term of this Agreement Trust shares sold pursuant to this
Agreement shall be registered under the 1933 Act, duly authorized for issuance
and sold by the Trust to the Insurance Subsidiaries in compliance with all
applicable laws, subject to the terms of Section 2.4 below, and 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 effect 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
advisable by the Trust or the Underwriter in connection with their sale by
the
Trust to the Company and only as required by Section 2.4;
(b) it
is currently qualified as a Regulated Investment Company under Subchapter M
of
the Code, and that it will use its best efforts to maintain such qualification
(under Subchapter M or any successor provision) and that it will notify the
Company immediately upon having a reasonable basis for believing that it has
ceased to so qualify or that it might not so qualify in the future;
and
(c) it
is lawfully organized and validly existing under the laws of the Commonwealth
of
Massachusetts and that it does and will comply in all material respects with
the
1940 Act.
(d) The
Trust acknowledges that the services provided for under this Agreement by the
Company are not exclusive and that the same skill will be used in performing
services to other companies in similar contexts.
2.3 The
Underwriter represents and warrants that
(a) it
is a member in good standing of the NASD and is registered as a broker-dealer
with the SEC. The Underwriter further represents that it will sell
and distribute the Trust shares in accordance with all applicable securities
laws applicable to it, including without limitation the 1933 Act, the 1934
Act,
and the 0000 Xxx.
(b) Underwriter
acknowledges that the services provided for under this Agreement by the Company
are not exclusive and that the same skill will be used in performing services
to
other companies in similar contexts.
2.4 Notwithstanding
any other provision of this Agreement, the Trust shall be responsible for the
registration and qualifications of its shares and of the Trust itself under
the
laws of any jurisdiction only in connection with the sales of shares directly
to
the Company through the Underwriter.
2.5 The
Trust makes no representation as to whether any aspect of its operations
(including, but not limited to, fees and expenses and investment policies)
complies with the insurance laws or regulations of the various
states.
ARTICLE
III. Prospectuses and Proxy Statements:
Voting
3.1 The
Trust shall provide such documentation (including a camera-ready copy of its
prospectus) and other assistance as reasonably necessary in order for the
Company once each year (or more frequently if the prospectus for the Trust
is
amended) to have the prospectus for the Contracts and the Trust’s prospectus
printed together in one or more documents (such printing to be at the Company’s
expense).
3.2 The
Trust’s Prospectus shall state that the Statement of Additional Information for
the Trust is available from the Underwriter or its designee (or in the Trust’s
discretion, the Prospectus shall state that such Statement is available from
the
Trust), and the Underwriter (or the Trust), at its expense, shall print and
provide such Statement free of charge to the Company and to any owner of a
Contract or prospective owner who requests such Statement.
3.3 The
Trust, at its expense, shall provide the Company with copies of its reports
to
shareholders, proxy material and other communications to shareholders in such
quantity as the Company shall reasonably require for distribution to the
Contract owners, such distribution to be at the expense of the
Company.
3.4 Each
Insurance Subsidiary shall vote all Trust shares as required by law and the
Shared Funding Exemptive Order. Each Insurance Subsidiary reserves
the right to vote Trust shares held in any separate account in its own right,
to
the extent permitted by law and the Shared Funding Exemptive
Order. The Company shall be responsible for assuring that each
Account participating in the Trust calculates voting privileges in a manner
consistent with all legal requirements and the Shared Funding Exemptive
Order.
3.5 The
Trust will comply will all applicable provisions of the 1940 Act requiring
voting by shareholders, and in particular the Trust will either provide for
annual meetings or comply with Section 16(c) of the 1940 Act (although the
Trust
is not one of the trusts described in Section 16(c) of that Act) as well as
with
Sections 16(a) and, if and when applicable, 16(b). Further, the Trust
will act in accordance with the Securities and Exchange Commission’s
interpretation of the requirements of Section 16(a) with respect to periodic
elections of trustees and with whatever rules the Commission may promulgate
with
respect thereto.
ARTICLE
IV. Sales Material and Information
4.1 Without
limiting the scope or effect of Section 4.2 hereof, the Company shall furnish,
or shall cause to be furnished, to the Underwriter each piece of sales
literature or other promotional material (as defined hereafter) in which the
Trust, its investment adviser or the Underwriter is named at least 15 days
prior
to its use. No such material shall be used if the Underwriter objects
to such use within five Business Days after receipt of such
material.
4.2 The
Company shall not give any information or make any representations or statements
on behalf of the Trust or concerning the Trust in connection with the sale
of
the Contracts other than the information or representations contained in the
registration statement or prospectus for the Trust shares, as such registration
statement and prospectus may be amended or supplemented from time to time,
or in
annual or semi-annual reports or proxy statements for the Trust, or in sales
literature or other promotional material approved by the Trust or its designee
or by the Underwriter, except with the written permission of the Trust or the
Underwriter or the designee of either or as is required by law.
4.3 The
Underwriter or its designee shall furnish, or shall cause to be furnished,
to
the Company or its designee, each piece of sales literature or other promotional
material prepared by the Underwriter in which the Company and/or its separate
account(s) is named at least 15 days prior to its use. No such
material shall be used if the Company or its designee objects to such use within
five Business Days after receipt of such material.
4.4 Neither
the Trust nor the Underwriter shall give any information or make any
representations on behalf of the Company or concerning the Company, each
Account, or the Contracts other than the information or representations
contained in a registration statement or prospectus for the Contracts, as such
registration statement and prospectus may be amended or supplemented form time
to time, or in published reports for each Account which are in the public domain
or approved by the Company for distribution to Contract owners, or in sales
literature or other promotional material approved by the Company or its
designee, except with the written permission of the Company or as is required
by
law.
4.5 For
purposes of this Article IV, the phrase “sales literature or other promotional
material” includes, but is not limited to, advertisements (such as material
published, or signed for use in, a newspaper, magazine, or other periodical,
radio, television, telephone or tape recording, videotape display, signs or
billboards, motion pictures, or other public media), sales literature (i.e.
any
written communication distributed or made generally available to customers
or
the public, including brochures, circulars, research reports, market letters,
form letters, seminar texts, reprints or excerpts of any other advertisement,
sales literature, or published article), educational or training materials
or
other communications distributed or made generally available to some or all
registered representatives.
ARTICLE
V. Fees and Expenses
5.1 Except
as provided in Article VI, the Trust and Underwriter shall pay no fee or other
compensation to the Company under this agreement.
5.2 All
expenses incident to performance by the Trust under this Agreement shall be
paid
by the Trust. The Trust shall bear the expenses for the cost of
registration and qualification of the Trust’s shares, preparation and filing of
the Trust’s prospectus and registration statement, proxy materials and reports,
setting the prospectus and shareholders reports in type, setting in type and
printing the proxy materials, and the preparation of all statements and notices
required by any federal or state law, in each case as may reasonably be
necessary for the performance by it of its obligations under this
Agreement.
5.3 The
Company shall bear the expense of (a) printing and distributing the Trust’s
prospectus in connection with sales of the Contracts and (b) distributing the
reports to Trust’s Shareholders and (c) of distributing the Trust’s proxy
materials to owners of the Contracts.
ARTICLE
VI. Service Fees
6.1 So
long as the Company complies with its obligations in this Article VI, the
Underwriter shall pay such Company a service fee (the “Service Fee”) on shares
of the Funds held in the Accounts at the annual rates specified in Schedule
B
(excluding any accounts for the Company’s own corporate retirement plans),
subject to Section 6.2 hereof.
6.2 The
Service Fees will be paid to the Company, or its designee, by electronic funds
transfer as soon as practicable, but no later than 30 days after the end of
the
period in which they were earned. The Service Fees will be paid on a
quarterly basis. The Service Fee payment will be accompanied or
preceded by a statement showing the calculation of the amounts being paid by
Underwriter for the relevant period and such other supporting data as may be
reasonably requested by the Company.
6.3 The
Service Fee shall be calculated as an annualized percentage of the average
aggregate amount invested in the Funds for the applicable period. The
average aggregate amount shall be computed in accordance with the prospectus
and
governing instruments of the Trust.
6.4 The
parties agree that a Service Fee will be paid to the Company or its designee
according to this Agreement with respect to each Fund as long as shares of
such
Fund are held by the Company or an affiliate/subsidiary of the Company on behalf
of the beneficial owner of contracts issued by the Company
affiliate/subsidiary. This provision will survive the termination of
this Agreement.
6.5 The
Company and Underwriter agree that the Service Fees described in this Agreement
are for administrative and distribution services of the Funds only, and do
not
constitute payment in any manner for investment advisory services for the Fund
or for costs of administrative and distribution services on behalf of the
Contracts.
6.6 The
Company understands and agrees that all Service Fee payments are subject to
the
limitations contained in each Fund’s Distribution Plan, which may be varied or
discontinued at any time and hereby waives the right to receive such service
fee
payments with respect to the Fund if the Fund ceases to pay 12b-1 fees to the
Underwriter.
6.7 (a) The
Company’s failure to provide the services described in Section 6.4 or otherwise
comply with the terms of this Agreement will render it ineligible to receive
Service Fees; and
(b) The
Underwriter may, without the consent of the Company, amend this Article VI
to
change the terms of the Service Fee payments that are paid pursuant to the
Funds’ 12b-1 plan with prior written notice to the Company so long as such
amendment applies to all insurance companies receiving Service Fees and is
not
diverted at the Insurance Subsidiaries.
6.8 The
Company will provide the following services to the Contract Owners purchasing
Fund Shares:
(i) Maintaining
regular contact with Contract owners and assisting in answering inquiries
concerning the Funds;
(ii) Assisting
in printing and distributing shareholder reports, prospectuses and other sale
and service literature provided by the Underwriter;
(iii) Assisting
the Underwriter and its affiliates in the establishment and maintenance of
shareholder accounts and records;
(iv) Assisting
Contract owners in effecting administrative changes, such as exchanging shares
in or out of the Funds;
(v) Assisting
in processing purchasing purchase and redemption transactions; and
(vi) Providing
any other information or services as the Contract owners or the Underwriter
may
reasonably request.
The
Company will support the
Underwriters’ marketing efforts by granting reasonable requests for visits to
the Company’s offices by representatives of the Underwriter.
6.9 The
Company’s compliance with the service requirement set forth in this Agreement
will be evaluated from time to time by monitoring redemption levels of Fund
shares held in any Account and by such other methods as the Underwriter deems
appropriate.
6.10 The
provisions of this Article VI shall remain in effect for not more than
one year from the date hereof and thereafter for successive annual
periods only so long as such continuance is specifically approved at least
annually by the Trustees in conformity with Rule 12b-1. This
Agreement shall automatically terminate in the event of its assignment (as
defined by the 1940 Act). In addition, the payment of Service Fees
attributable to the Fund’s 12b-1 plan may be terminated at any time, without the
payment of any penalty, with respect to any Fund or the Trust as a whole by
any
part upon written notice delivered or mailed by registered mail, postage
prepaid, to the other party, or, as provided in Rule 12b-1 under the 1940 Act
by
the Trustees or by the vote of the holders of the outstanding voting securities
of any Fund.
6.11 The
Underwriter shall provide the Trustees of each of the Funds, and such Trustees
shall review at least quarterly, a written report of the amounts paid to the
Company under this Article VI and the purposes for which such expenditures
were
made.
ARTICLE
VII. Diversification
7.1 The
Trust shall use its best efforts to cause each Authorized Fund to maintain
a
diversified pool of investments that would, if such Fund were a segregated
asset
account, satisfy the diversification provisions of Section 817(h) of the
Code.
ARTICLE
VIII. Potential Conflicts
8.1 The
Trustees will monitor the Trust for the existence of any material irreconcilable
conflict between the interests of the contract owners of all separate accounts
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 law or regulations, or a public ruling, private letter
ruling, no-action or interpretative 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 Fund are being managed; (e) a difference in voting instructions given by
variable annuity contract and variable life insurance contract owners; or (f)
a
decision by an insurer to disregard the voting instructions of contract
owners. The Trust shall promptly inform the Company if the Trustees
determine that a material irreconcilable conflict exists and the implications
thereof.
8.2 The
Company will report any potential or existing conflicts of which it is aware
to
the Trustees. The Company will assist the Trustees in carrying out
their responsibilities under the Shared Funding Exemptive Order, by providing
the Trustees with all information reasonably necessary for the Trustees to
consider any issues raised. This includes, but is not limited to, an
obligation by the Company to inform the Trustees whenever Contract owner voting
instructions are disregarded.
8.3 If
it is determined by a majority of the Trustees, or a majority of the
disinterested Trustees, that a material irreconcilable conflict exists, the
Company shall to the extent reasonably practicable (as determined by a majority
of the disinterested Trustees), take, at the Company’s expense, whatever steps
are necessary to remedy or eliminate the material irreconcilable conflict,
up to
and including: (1) withdrawing the assets allocable to some or all of the
separate accounts from the Trust or any Fund and reinvesting such assets in a
different investment medium, including (but not limited to) another Fund of
the
Trust, or submitting the question whether such segregation should be implemented
to a vote of all affected contract owners and, as appropriate, segregating
the
assets of any appropriate group (i.e., annuity contract owners, life insurance
contract owners, or variable contract owners of one or more Participating
Insurance Companies) that votes in favor of such segregation, or offering to
the
affected contract owners the option of making such a change; and (2)
establishing a new registered investment company.
8.4 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 affected Account’s
investments in one or more portfolios of the Trust and terminate this Agreement
with respect to such Account; provided, however, that such withdrawal and
termination shall be limited to the extent required by the foregoing material
irreconcilable conflicts as determined by a majority of the disinterested
Trustees. No charge or penalty shall be imposed as a result of such
withdrawal. Any such withdrawal and termination must take place
within six (6) months after the Trust gives written notice that this provision
is being implemented, and until the end of that six month period the Underwriter
and Trust shall, to the extent permitted by law and any exemptive relief
previously granted to the Trust, continue to accept and implement orders by
the
Company for the purchase (or redemption) of shares of the Trust.
8.5 If
a material irreconcilable conflict arises because of a particular state
insurance regulator’s decision applicable to the Company to disregard Contract
owner voting instructions and that decision represents a minority position
that
would preclude a majority vote, then the Company may be required, at the Trust’s
direction, to withdraw the affected Account’s investment in one or more
Authorized Funds of the Trust; 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
Trustees. Any such withdrawal and termination must take place with
six (6) months after the Trust give written notice that this provision is being
implemented, unless a shorter period is required by law, and until the end
of
the foregoing six month period (or such shorter period if required by
law), the Underwriter and Trust shall, to the extent permitted by law and any
exemptive relief previously granted to the Trust, continue to accept and
implement orders by the Company for the purchase (and redemption) of shares
of
the Trust. No charge or penalty will be imposed as a result of such
withdrawal.
8.6 For
purposes of Sections 8.3 through 8.6 of this Agreement, a majority of the
disinterested Trustees shall determine whether any proposed action adequately
remedies any material irreconcilable conflict. Neither the Trust nor
the Underwriter shall be required to establish a new funding medium for the
Contracts, nor shall the Company be required to do so, if an offer to do so
has
been declined by vote of a majority of Contract owners materially adversely
affected by the material irreconcilable conflict. In the event that
the Trustees determine that any proposed action does not adequately remedy
any
material irreconcilable conflict, then the Company will withdraw the Account’s
investment in one or more Authorized Funds of the Trust and terminate this
Agreement within six (6) months (or such shorter period as may be required
by
law or any exemptive relief previously granted to the Trust) after the Trustees
inform 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
disinterested Trustees. No charge or penalty will be imposed as a
result of such withdrawal.
8.7 The
responsibility to take remedial action in the event of the Trustees’
determination of a material irreconcilable conflict and to bear the cost of
such
remedial action shall be the obligation of the Company, and the obligation
of
the Company set forth in this Article VII shall be carried out with a view
only
to the interests of Contract owners.
8.8 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 Shared Funding Exemptive Order) on terms and conditions materially
different from those contained in the Shared 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 Rules 6e-2 and 6e-3(T),
as
amended, and Rule 6e-3, as adopted, to the extent such rules are applicable
and
(b) Sections 3.4, 3.5, 8.1, 8.2, 8..3, 8.4 and 8.5 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.
8.9 The
Company has reviewed the Shared Funding Exemption Order and hereby assumes
all
obligations referred to therein which are required, including, without
limitation, the obligation to provide reports, material or data as the Trustees
may request as conditions to such Order, to be assumed or undertaken by the
Company.
ARTICLE
IX. Indemnification
9.1 Indemnification
by the Company
9.1 (a). The
Company shall indemnify and hold harmless the Trust and the Underwriter and
each
of the Trustees, directors of the Underwriter, officers, employees or agents
of
the Trust or the Underwriter and each person, if any, who controls the Trust
or
the Underwriter within the meaning of Section 15 of the 1933 Act (collectively,
the “Indemnified Parties” for purposes of this Section 9.1) against any and all
losses, claims, damages, liabilities (including amounts paid in settlement
with
the written consent of the Company which consent may not be unreasonably
withheld) or litigation (including reasonable legal and other expenses), to
which the Indemnified Parties 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 are related to the
sale or acquisition of the Trust’s shares or the Contracts or the performance by
the parties of their obligations hereunder and:
(i) arise
out of or are based upon any untrue statements or alleged untrue statements
of
any material fact contained in a Registration Statement, Prospectus, Statement
of Additional Information or private offering memorandum for the Contracts
or
contained in the Contracts or sales literature for the Contracts (or any
amendment or supplement to any of the foregoing), or arise out of or 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 therein not misleading,
provided that this agreement to indemnify shall not apply as to any Indemnified
Party is such statement or omission or such alleged statement or omission was
made in reliance upon and in conformity with information furnished to the
Company by or on behalf of the Trust for use in the Registration Statement,
Prospectus, Statement of Additional Information or private offering memorandum
for the Contracts or in the Contracts or sales literature (or any amendment
or
supplement) or otherwise for use in connection with the sale of the Contracts
or
Trust shares; or
(ii) arise
out of or as a result of written statements or representations (other than
statements of representations contained in the Trust’s Registration Statement or
Prospectus, or in sales literature for Trust shares not supplied by the Company,
or persons under its control) or wrongful conduct of the Company or persons
under its control, with respect to the sales or distribution of the Contracts
or
Trust shares; or
(iii) arise
out of any untrue statement or alleged untrue statement of a materialfact
contained in a Registration Statement, Prospectus, or sales 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 statements therein not misleading if such a statement
or
omission was made in reliance upon information furnished to the Trust or the
Underwriter by or on behalf of the Company; or
(iv) arise
out of or result from any breach of any representation and/or warranty made
by
the Company in this Agreement or arise out of or result from any other breach
of
this Agreement by the Company, as limited by and in accordance with the
provisions of Sections 9.1(b) and 9.1(c) hereof.
9.1 (b) The
Company shall not be liable under this indemnification provision with respect
to
any losses, claims, damages, liabilities or litigation incurred or assessed
against an Indemnified Party to the extent such may arise from such Indemnified
Party’s willful misfeasance, bad faith, or gross negligence in the performance
of such Indemnified Party’s duties or by reason of such Indemnified Party’s
reckless disregard of obligations or duties under this Agreement or to the
Trust, whichever is applicable.
9.1 (c) The Company
shall not be liable under this indemnification provision with respect to any
claims made against an Indemnified Party unless such Indemnified Party
shall have notified the Company in writing within a reasonable time
after the summons or other first legal process giving information of the nature
of the claim shall have been served upon such Indemnified Party (or after such
Indemnified Party shall have received notice of such service on any designated
agent), on the basis of which the Indemnified Party should reasonably know
of
the availability of indemnity hereunder in respect of such claim but failure
to
notify the Company of any such claim shall not relieve the Company from any
liability which it may have to the Indemnified Party against whom such action
is
brought otherwise than on account of this Indemnification
provision. In case any such action is brought against the Indemnified
Parties, the Company shall be entitled to participate, at its own expense,
in
the defense of such action. The Company also shall be entitled to
assume the defense thereof, with counsel satisfactory to the Indemnified Party
named in the action. After notice from the Company to such
Indemnified Party of the Company’s election to assume the defense thereof the
Indemnified Party shall bear the fees and expenses of any additional counsel
retained by it, and the Company will not be liable to such Indemnified Party
under this Agreement for any legal or other expenses subsequently incurred
by
such Indemnified Party independently in connection with the defense thereof
other than reasonable costs of investigation.
9.1 (d) The
Underwriter shall promptly notify the Company of the commencement of any
litigation or proceedings against the Trust or the Underwriter in connection
with the issuance or sale of the Trust Shares or the Contracts or operation
of
the Trust.
9.1 (e) The
provisions of this Section 9.1 shall survive any termination of this
Agreement.
9.2 Indemnification
by the Underwriter
9.2 (a) The
Underwriter shall indemnify and hold harmless the Company and each person,
if
any, who controls the Company within the meaning of Section 15 of the 1933
Act
and any director, officer, employee or agent of the foregoing (collectively,
the
“Indemnified Parties” for purposes of this Section 9.2) against any and all
losses, claims, damages, liabilities (including amounts paid in settlement
with
the written consent of the Underwriter which consent may not be unreasonably
withheld) or litigation (including reasonable legal and other expenses), to
which the Indemnified Parties 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 are related to the
sale or acquisition of the Trust’s shares or the Contracts or the performance by
the parties of their obligations hereunder and:
(i) arise
out of or are based upon any untrue statements or alleged untrue statements
of
any material fact contained in the sales literature of the Trust prepared by
or
approved by the Trust or Underwriter (or any amendment or supplement to any
of
the foregoing), or arise out of or 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 therein not misleading, provided that this
agreement to indemnify shall not apply as to any Indemnified Party is such
statement or omission or such alleged statement or omission was made in reliance
upon and in conformity with information furnished to the or Trust by or on
behalf of the Company for use sales literature (or any amendment or supplement)
or otherwise for use in connection with the sale of the Contracts or Trust
shares; or
(ii) arise
out of or as a result of written statements or representations (other than
statements of representations contained in the Registration Statement,
Prospectus, statement of Additional Information, private offering memorandum
or
sales literature for the Contracts not supplied by the Underwriter (or persons
under its control) or wrongful conduct of the Underwriter or persons under
its
control, with respect to the sale or distribution of the Contracts or Trust
shares; or
(iii) arise
out of any untrue statement or alleged untrue statement of a material fact
contained in a Registration Statement, Prospectus, Statement of Additional
Information, private offering memorandum or sales literature of 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
a
statement or omission was made in reliance upon information furnished to the
Company by or on behalf of the Underwriter; or
(iv) arise
out of or result from any breach of any representation and/or warranty made
by
the Underwriter in this Agreement or arise out of or result from any other
breach of this Agreement by the Underwriter, as limited by and in accordance
with the provisions of Sections 9.2(b) and 9.2(c) hereof.
9.2 (b) The
Underwriter shall not be liable under this indemnification provision with
respect to any losses, claims, damages, liabilities or litigation incurred
or
assessed against an Indemnified Party to the extent such may arise from such
Indemnified Party’s willful misfeasance, bad faith, or gross negligence in the
performance of such Indemnified Party’s duties or by reason of such Indemnified
Party’s reckless disregard of obligations or duties under this Agreement or to
each Company or the Account, whichever is applicable.
9.2 (c) The Underwriter
shall not be liable under this indemnification provision with respect to any
claims made against an Indemnified Party unless such Indemnified Party
shall have notified the Underwriter in writing within a reasonable
time after the summons or other first legal process giving information of the
nature of the claim shall have been served upon such Indemnified Party (or
after
such Indemnified Party shall have received notice of such service on any
designated agent), on the basis of which the Indemnified Party should reasonably
know of the availability of indemnity hereunder in respect of such claim but
failure to notify the Underwriter of any such claim shall not relieve the
Underwriter from any liability which it may have to the Indemnified Party
against whom such action is brought otherwise than on account of this
Indemnification provision. In case any such action is brought against
the Indemnified Parties, the Underwriter shall be entitled to participate,
at
its own expense, in the defense thereof. The Underwriter also shall
be entitled to assume the defense thereof, with counsel satisfactory to the
Indemnified Party named in the action. After notice from the
Underwriter to such Indemnified Party of the Underwriter’s election to assume
the defense thereof the Indemnified Party shall bear the fees and expenses
of
any additional counsel retained by it, and the Underwriter will not be liable
to
such Indemnified Party under this Agreement for any legal or other expenses
subsequently incurred by such Indemnified Party independently in connection
with
the defense thereof other than reasonable costs of investigation.
9.2 (d) The
Company shall promptly notify the Underwriter or the Trust of the commencement
of any litigation or proceedings against it or any of its officers or directors,
in connection with the issuance or sale of the Contracts or operation of the
Account.
9.2 (e) The
provisions of this Section 9.2 shall survive any termination of this
Agreement.
9.2 Indemnification
by the Trust
9.2 (a) The
Trust shall indemnify and hold harmless the Company and each person, if any,
who
controls the Company within the meaning of Section 15 of the 1933 Act and any
director, officer, employee or agent of the foregoing (collectively, the
“Indemnified Parties” for purposes of this Section 9.3) against any and all
losses, claims, damages, liabilities (including amounts paid in settlement
with
the written consent of the Trust which consent may not be unreasonably withheld)
or litigation (including reasonable legal and other expenses), to which the
Indemnified Parties 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 are related to the
operations of the Trust’s and/or the performance by the parties of their
obligations hereunder:
(i) arise
out of or are based upon any untrue statements or alleged untrue statements
of
any material fact contained in a Registration Statement, Prospectus and
Statement of Additional Information of the Trust (or any amendment or supplement
to any of the foregoing), or arise out of or 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 therein not misleading, provided that this
agreement to indemnify shall not apply as to any Indemnified Party is such
statement or omission or such alleged statement or omission was made in reliance
upon and in conformity with information furnished to the Underwriter or Trust
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
Trust shares; or
(ii) arise
out of or result from any material of any representation and/or warranty made
by
the Trust in this Agreement or arise out of or result from any other material
breach of this Agreement by the Trust, as limited by and in accordance with
the
provisions of Sections 9.3(b) and 9.3(c) hereof.
9.3 (b) The
Trust shall not be liable under this indemnification provision with respect
to
any losses, claims, damages, liabilities or litigation incurred or assessed
against an Indemnified Party as such may arise from such Indemnified Party’s
willful misfeasance, bad faith, or gross negligence or by reason of such
Indemnified Party’s reckless disregard of obligations or duties under this
Agreement or to the Company , the Trust, or the Underwriter or each Account,
whichever is applicable.
9.3 (c) The Trust
shall not be liable under this indemnification provision with respect to any
claims made against an Indemnified Party unless such Indemnified Party
shall have notified the Trust in writing within a reasonable time
after the summons or other first legal process giving information of the nature
of the claim shall have been served upon such Indemnified Party (or after such
Indemnified Party shall have received notice of such service on any designated
agent), on the basis of which the Indemnified Party should reasonably know
of
the availability of indemnity hereunder in respect of such claim but failure
to
notify the Trust of any such claim shall not relieve the Trust from any
liability which it may have to the Indemnified Party against whom such action
is
brought otherwise than on account of this indemnification
provision. In case any such action is brought against the Indemnified
Parties, the Trust will be entitled to participate, at its own expense, in
the
defense thereof. The Trust also shall be entitled to assume the
defense thereof, with counsel reasonably satisfactory to the Indemnified Party
named in the action. After notice from the Trust to such Indemnified
Party of the Trust’s election to assume the defense thereof, the Indemnified
Party shall bear the fees and expenses of any additional counsel retained by
it,
and the Trust will not be liable to such Indemnified Party under this Agreement
for any legal or other expenses subsequently incurred by such Indemnified Party
independently in connection with the defense thereof other than reasonable
costs
of investigation.
9.2 (d) The
Company agrees to notify the Trust of the commencement of any litigation or
proceedings against it or any of its officers or directors, in connection with
the Agreement, the issuance or sale of the Contracts or the sale of acquisition
of shares of the Trust.
9.2 e) The
provisions of this Section 9.3 shall survive any termination of this
Agreement.
ARTICLE
X. Applicable Law
10.1 This
Agreement shall be construed and the provisions hereof interpreted under and
in
accordance with the laws of the Commonwealth of Massachusetts.
10.2 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 exemptions
from those statutes, rules and regulations as the Securities and Exchange
Commission may grant (including, but not limited to, the Shared Funding
Exemptive Order) and the terms hereof shall be interpreted and construed in
accordance therewith.
ARTICLE
XI. Termination
11.1 This
Agreement shall terminate:
(a) at
the option of any party upon 90 days advance written notice to the other
parties; or
(b) at
the option of the Trust or the Underwriter in the event that formal
administrative proceedings are instituted against the Company by the NASD,
the
Securities and Exchange Commission, the Insurance Commissioner of the State
in
which an Insurance Subsidiary is organized or any other regulatory body
regarding the Company’s duties under this Agreement or related to the sales of
the Contracts, with respect to the operation of any Account, or the purchase
of
the Trust shares, provided, however, that the Trust or the Underwriter
determines in its sole judgment exercised in good faith, that any such
administrative proceedings will have a material adverse effect upon the ability
of the Company to perform its obligations under this Agreement; or
(c) at
the option of the Company in the event that formal administrative proceedings
are instituted against the Trust or Underwriter by the NASD, the Securities
and
Exchange Commission, or any state securities or insurance department or any
other regulatory body in respect of the sale of shares of the Trust to the
Company, provided, however, that the Company determines in its sole judgment
exercised in good faith, that any such administrative proceedings will have
a
material adverse effect upon the ability of the Trust or Underwriter to perform
its obligations under this Agreement; or
(d) with
respect to any Account, upon substitution of the shares of another investment
company for the corresponding Fund shares of the Trust in accordance with the
terms of the Contracts for which those Fund shares had been selected to serve
as
the underlying investment media. The Company will give reasonable
prior written notice to the Trust of the date of any such
substitution. Unless the substitution is required due to a decision
of the Trust to liquidate a Fund (a “liquidation”) or otherwise make such Fund
unavailable to existing contractholders (other than as a result of a merger
of a
Fund into another Fund in circumstances under which contractholders may continue
to invest in the merged fund (a “Qualifying Merger”)), the Company will be
responsible for any and all expenses incurred as a result of removing such
Fund
as an available investment option under the Contracts. In the event
of a Liquidation or other decision by the Trust to make such Fund unavailable
to
existing contractholders (other than as a result of a Qualifying Merger), the
Underwriter shall bear the expenses of drafting, filing and execution of a
substitution application under Section 26 of the 1940 Act; or
(e) with
respect to any Authorized Fund, upon 90 days advance written notice from the
Underwriter to the Company, upon a decision by the Underwriter to cease offering
shares of the Fund for sale.
11.2 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 any reason or for
no
reason.
11.3 No
termination of this Agreement shall be effective unless and until the party
terminating this Agreement gives prior written notice to all other parties
to
this Agreement of its intent to terminate, which notice shall set forth the
basis for such termination. Such prior written notice shall be given
in advance of the effective date of termination as required by this Article
XI.
11.4 Notwithstanding
any termination of this Agreement, subject to Section 1.2 of this Agreement,
the
Trust and the Underwriter shall, at the option of the Company, continue to
make
available additional shares of the Trust pursuant to the terms and conditions
of
this Agreement, for all Contracts in effect on the effective date of termination
of this Agreement (hereinafter referred to as “Existing
Contracts”). Specifically, without limitation, subject to Section 1.2
of this Agreement, the owners of the Existing Contracts shall be permitted
to
reallocate investments in the Trust, redeem investments in the Trust and/or
invest in the Trust upon the making of additional purchase payments under the
Existing Contracts. The parties agree that this Section 11.4 shall
apply to any termination under Article VIII and the effect of such Article
VIII
termination shall be governed by Article VIII of this Agreement.
11.5 The
Company shall not redeem Trust shares attributable to the Contracts (as opposed
to Trust shares attributable to an Insurance Subsidiary’s assets held in an
Account) except (i) as necessary to implement Contract owner initiated
transactions, or (ii) as required by state and/or federal laws or regulations
or
judicial or other legal precedent of general application (hereinafter referred
to as a “Legally Required Redemption”). Upon request, the Company
will promptly furnish to the Trust and the Underwriter an opinion of counsel
for
the Company, reasonably satisfactory to the Trust, to the effect that any
redemption pursuant to clause (ii) above is a Legally Required
Redemption. Furthermore, except in cases where permitted under the
terms of the Contracts, subject to Section 1.2 of this Agreement, the Company
shall not prevent Contract owners from allocating payments to an Authorized
Fund
that was otherwise available under the Contracts without first giving the Trust
or the Underwriter 90 days notice of its intention to do.
ARTICLE
XII. Notices
Any
notice shall be sufficiently given
when sent by registered or certified mail 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 part.
If
to the
Trust:
Xxx
Xxxx
Xxxxxx Xxxxxx
Xxxxxx,
XX 00000
Attention: Xxxx
X. Xxxxxx
If
to the
Underwriter:
Xxx
Xxxx
Xxxxxx Xxxxxx
Xxxxxx,
XX 00000
Attention: General
Counsel
If
to the
Company:
Nationwide
Financial Services, Inc.
Xxx
Xxxxxxxxxx Xxxxx, 0-00-X0
Xxxxxxxx,
XX 00000
Attention: Securities
Officer
ARTICLE
XIII. Customer Privacy
13.1 The
Trust and Underwriter acknowledge that each has read, and will conform to,
the
Company’s Privacy policy which is explained in Nationwide’s Privacy Statement,
herein attached as Schedule C, which may be updated from time to
time. Failure to conform to the Company’s Privacy Statement is a
breach of this Agreement.
13.2 The
Trust and Underwriter agree to comply with all laws, rules, regulations, and
ordinances relating to privacy, confidentiality, security, data security, and
the handling of customer information which may from time to time be
established.
13.3 The
Trust and Underwriter agree not to disclose or use any consumer nonpublic
personal information (including nonpublic personal financial information and
nonpublic personal health information), which may be supplied by the Company
to
the Trust and/or Underwriter in performance under this agreement other than
to:
a) carry
out the purpose for which the information was provided; and
b) to
use or disclose the information as otherwise permitted or required by
law.
13.4 The
Company agrees to comply with all laws, rules, regulations, and ordinances
relating to privacy, confidentiality, security, data security, and the handling
of customer information which may from time to time be established.
13.5 The
Company agree not to disclose or use any consumer nonpublic personal information
(including nonpublic personal financial information and nonpublic personal
health information), which may be supplied by the Trust and/or Underwriter
to
the Company in performance under this agreement other than to:
a) carry
out the purpose for which the information was provided; and
b) to
use or disclose the information as otherwise permitted or required by
law.
13.6 The
Customer Privacy provisions of this Agreement extend to any other agreements
between the Company (including any affiliates and subsidiaries) and the Trust
and the Underwriter (including any affiliates and subsidiaries). This
provision will survive and continue in full force and effect after the
termination of this agreement.
ARTICLE
XIV. Miscellaneous
14.1 A
copy of the Agreement and Declaration of Trust of the Trust is on file with
the
Secretary of State of the Commonwealth of Massachusetts, and notice is hereby
given that this instrument is executed on behalf of the Trustees of the Trust
as
Trustees and not individually and that the obligations of or arising out of
this
instrument, including without limitation Article VII, are not binding upon
any
of the Trustees or shareholders individually but biding only upon the assets
and
property of the Trust.
14.2 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.
14.3 This
Agreement may be executed simultaneously in two or more counterparts, each
of
which taken together shall constitute one and the same instrument.
14.4 If
any provision of this Agreement shall be held or made invalid by a court
decision, statute, rule or otherwise, the remainder of this Agreement shall
not
be affected thereby.
14.5 Each
party hereto shall cooperate with each other party and all appropriate
governmental authorities (including without limitation the Securities and
Exchange Commission, 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.
14.6 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.
14.7 Notwithstanding
any other provision of this Agreement, the obligations of the Trust and the
Underwriter are several and, without limiting in any way the generality of
the
foregoing, neither such party shall have any liability for any action or failure
to act by the other party, or any person acting on such other party’s
behalf.
IN
WITNESS WHEREOF, each of the parties
hereto has caused this Agreement to be executed in its name and so on its behalf
by its duly authorized representative and its seal to be hereunder affixed
hereto as of the date specified below.
NATIONWIDE
FINANCIAL SERVICES,
INC.
By
its authorized
officer,
__________________________________________
Name:
Title: Vice
President
XXXXXX
VARIABLE TRUST
By
its authorized
officer,
__________________________________________
Name:
Title: Vice
President
XXXXXX
RETAIL MANAGEMENT,
L.P.
by
its authorized
officer,
__________________________________________
Name:
Title: Senior
Vice
President
SCHEDULE
A
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.
Separate
Accounts
Nationwide
Variable Account
Nationwide
Variable Account -II
Nationwide
Variable Account-3
Nationwide
Variable Account-4
Nationwide
Variable Account-5
Nationwide
Variable Account-6
Nationwide
Fidelity Advisor VA
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
VA 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
SCHEDULE
B
Authorized
Funds
Xxxxxx
VT
Voyager II Fund
Xxxxxx
VT
Voyager Fund
Xxxxxx
VT
Vista Fund
Xxxxxx
VT
Utilities Growth & Income Fund
Xxxxxx
VT
Technology Fund
Xxxxxx
VT
Small Cap Value Fund
Xxxxxx
VT
Research Fund
Xxxxxx
VT
OTC & Emerging Growth Fund
Xxxxxx
VT
New Value Fund
Xxxxxx
VT
New Opportunities Fund
Xxxxxx
VT
Money Market Fund
Xxxxxx
VT
Investors Fund
Xxxxxx
VT
International New Opportunities Fund
Xxxxxx
VT
International Growth & Income Fund
Xxxxxx
VT
International Growth Fund
Xxxxxx
VT
Income Fund
Xxxxxx
VT
High Yield Fund
Xxxxxx
VT
Health Sciences Fund
Xxxxxx
VT
Growth Opportunities Fund
Xxxxxx
VT
Growth & Income Fund
Xxxxxx
VT
Global Growth Fund
Xxxxxx
VT
Global Asset Allocation Fund
Xxxxxx
VT
The Xxxxxx Xxxxxx Fund of Boston
Xxxxxx
VT
Diversified Income Fund
Xxxxxx
VT
Capital Appreciation Fund
Xxxxxx
VT
Asia Pacific Growth Fund
Xxxxxx
VT
American Government Income Fund
Service
Fees
[X.XX%]
per annum (XX basis points) of the average daily net assets of each Fund for
which the Company performed administrative services during the
period.
