Exhibit (h)(13)
AMENDED AND RESTATED FUND PARTICIPATION AGREEMENT DATED AS OF SEPTEMBER 1, 2002
AMONG NATIONWIDE LIFE INSURANCE COMPANY, NATIONWIDE LIFE AND ANNUITY INSURANCE
COMPANY, ONE GROUP INVESTMENT TRUST, AND ONE GROUP ADMINISTRATIVE SERVICES, INC.
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AMENDED AND RESTATED
FUND PARTICIPATION AGREEMENT
This Amended and Restated Fund Participation Agreement (the "Agreement"), dated
as of the 1st day of September, 2002, is made by and among Nationwide Life
Insurance Company, Nationwide Life and Annuity Insurance Company (collectively
referred to herein as "Nationwide"), One Group(R) Investment Trust (the
"Trust"), and the Trust's administrator, One Group Administrative Services, Inc.
(the "Administrator"), each of which hereby agrees that shares of the series
listed in Appendix A hereto (the "Funds") shall be made available to serve as
underlying investment media for variable annuity and variable life contracts to
be offered by Nationwide (the "Contracts") and to certain other separate
accounts funding variable annuity and variable life contracts issued by other
life insurance companies ("Insurance Companies"), and, if subsequently
determined by the Trust, to qualified pension and retirement plans, subject to
the following conditions:
1. Nationwide represents that it has established the separate accounts
listed in Appendix B hereto (the "Variable Accounts") under Ohio law,
and has registered the Variable Accounts as unit investment trusts
under the Investment Company Act of 1940 ("1940 Act") to serve as
investment vehicles for the Contracts and that it will maintain such
registration of the Variable Accounts as unit investment trust in
accordance with and to the extent required by the provisions of the
1940 Act and the regulations thereunder. The Contracts provide for the
allocation of net amounts received by Nationwide to separate series of
the Variable Accounts for investment in shares of the Funds. Selection
of a particular series is made by the Contract owner who may change
such selection from time to time in accordance with the terms of the
applicable Contract.
2. Nationwide represents and warrants that the interests in the Contracts
are or will be registered unless exempt and that it will maintain such
registration under the Securities Act of 1933 (the "1933 Act").
Nationwide agrees to make every reasonable effort to market its
Contracts. In marketing its Contracts, Nationwide will comply with all
applicable state or Federal laws. Nationwide shall amend the
registration statements of its Contracts under the 1933 Act and the
separate accounts under the 1940 Act from time to time as required in
order to effect the continuous offering of its Contracts.
3. The Trust or its designee will provide closing net asset value,
dividend and capital gain information by 6:30 p.m. Eastern Time each
business day to Nationwide. "Business day" shall mean any day on which
the New York Stock Exchange is open for trading and on which the Trust
calculates net asset value for each Fund as set forth in the Trust's
prospectus and Statement of Additional Information. Nationwide will use
this data to calculate unit values, which will in turn be used to
process that same business day's Variable Account unit value. The
Variable Account processing will be done the same evening, and orders
for purchases or redemptions will be placed by Nationwide no later than
9:30 a.m. Eastern Time the morning of the following business day
("Trade Date plus 1"). Orders will be sent directly to the Trust or its
designated Transfer Agent as defined
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by the Securities Exchange Act of 1934 ("Transfer Agent"). Payment for
purchases will be wired to a custodial account designated by the Trust
or the Administrator no later than 2:00 p.m. Eastern Time on Trade Date
plus 1 and payment for redemptions will be wired to an account
designated by Nationwide no later than 2:00 p.m. Eastern Time on Trade
Date plus 1. Provided Nationwide places the orders within the time
periods specified above, the Trust or its designated Transfer Agent
will execute the orders at the net asset value as determined as of the
close of trading on the prior day. Dividends and capital gains
distributions shall be reinvested in additional shares at the ex-date
net asset value. Notwithstanding the above, the Trust or its designee
shall not be held responsible for providing Nationwide with net asset
value, dividend and capital gain information when the New York Stock
Exchange is closed, when an emergency exists making the valuation of
net assets not reasonably practicable, or during any period when the
Securities and Exchange Commission ("SEC") has by order permitted the
suspension of pricing shares for the protection of shareholders. In
addition, if the payment of redemption proceeds on Trade Date plus 1
would require a Fund to dispose of Fund securities or otherwise incur
substantial additional costs, and if the Fund has determined to settle
redemption transactions for all shareholders on a delayed basis,
proceeds shall be wired to Nationwide within seven (7) days and the
Fund shall notify in writing the person designated by Nationwide as the
recipient for such notice of such delay by 3:00 p.m. Eastern Time on
Trade Date plus 1.
4. All expenses incident to the performance by the Trust under this
Agreement shall be the responsibility of the Trust, but in no event
shall such expenses be the responsibility of Nationwide or the Variable
Accounts. The Trust shall pay the cost of registration of Fund shares
with the SEC. The Trust shall pay for and distribute to Nationwide,
proxy materials, periodic Trust reports to shareholders and other
material the Trust may require to be sent to existing Contract owners.
The Trust will pay the mailing expenses of Nationwide for distributing
such proxy material, reports and other material to the existing
Contract owners, who are the beneficial shareholders of the Trust. The
Trust shall pay the cost of qualifying Fund shares in states where
required.
For prospectuses provided by Nationwide to its existing owners of
Contracts in order to update disclosure as required by the 1933 Act
and/or the 1940 Act, the Trust shall bear the cost of typesetting to
provide the Trust's prospectus to Nationwide. In the event that the
Variable Accounts prospectuses and the Trust prospectus are printed
together in one document, the Trust's share of the printing cost for
such disclosure document will be equal to the total cost of printing
the disclosure documents multiplied by the ratio of the total number of
pages in the Trust's prospectus to the total number of pages in the
disclosure document, with Nationwide paying the rest. The Trust will
provide Nationwide with a copy of the Statement of Additional
Information suitable for duplication. Notwithstanding anything to the
contrary, the Trust shall not pay any costs of typesetting, printing,
and distributing the Trust's prospectuses, proxy materials, periodic
Trust reports to shareholders, and other material to prospective
Contract owners; it being understood that Nationwide shall be
responsible for such costs.
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5. Nationwide and its agents shall make no representations concerning the
Trust except those contained in the then-current prospectus and
Statement of Additional Information of the Trust and in current printed
sales literature of the Trust.
6. Administrative services to Contract owners shall be the responsibility
of Nationwide and shall not be the responsibility of the Trust or the
Administrator. The Trust and the Administrator recognize that separate
accounts of which Nationwide is the depositor will be the sole
shareholder of Trust shares issued pursuant to the Contracts.
7. (a) The Trust represents that it believes in good faith, that the Funds
will at all times qualify as regulated investment companies under
Subchapter M of the Internal Revenue Code of 1986, as amended (the
"Code") and that it will make every effort to maintain such
qualification of the Funds and that it will notify Nationwide
immediately upon having a reasonable basis for believing that a Fund
has ceased to so qualify or that it might not so qualify in the future.
(b) Nationwide represents that it believes, in good faith, that the
Contracts will at all times be treated as annuity contracts or as
variable life insurance policies under applicable provisions of the
Code, and that it will make every effort to maintain such treatment and
that it will notify the Trust 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 Trust represents that it believes, in good faith, that the
Funds will at all times comply with the diversification requirements
set forth in Section 817(h) of the Code and Section 1.817-5(b) of the
regulations under the Code, and that it will make every effort to
maintain the Funds' compliance with such diversification requirements,
and that it will notify Nationwide immediately upon having a reasonable
basis for believing that a Fund has ceased to so qualify or that a Fund
might not so qualify in the future.
(d) Nationwide represents that it believes, in good faith, that each
Variable Account is a "segregated asset account" and that interests in
each Variable Account are offered exclusively through the purchase of a
"variable contract" within the meaning of such terms under Section
1.817-5(f)(2) of the regulations under the Code, and that it will make
every effort to continue to meet such definitional requirements, and
that it will notify the Trust 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.
(e) Nationwide represents and warrants that it is an insurance company
duly organized and in good standing under applicable law.
(f) Nationwide represents and warrants that all of its directors,
officers, employees, investment advisers, and other entities dealing
with the money or securities of the Trust are and shall continue to be
at all times covered by a blanket fidelity bond or similar coverage for
the benefit of the Trust, in an amount not less than five million
dollars
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($5,000,000). Such bond shall include coverage for larceny and
embezzlement and shall be issued by a reputable bonding company.
Nationwide agrees to make all reasonable efforts to see that this bond
or another bond containing these provisions is always in effect and
agrees to notify the Trust immediately upon having a reasonable basis
for believing that Nationwide no longer has the coverage required by
this paragraph.
8. The Administrator or its designee will make available electronically,
in a format reasonably acceptable to Nationwide, to Nationwide within
five (5) business days after the end of each month a monthly statement
of account confirming all transactions made during that month in the
Variable Accounts.
9. The Trust agrees that to the extent the Trust decides in the future to
finance distribution expenses pursuant to Rule l2b-1 of the 1940 Act,
the Trust will undertake to have the board of trustees (the "Board"), a
majority of whom are not interested persons of the Trust, formulate and
approve any plan under Rule 12b-1 to finance distribution expenses.
10. The Trust and Administrator agree to provide Nationwide no later than
March 1 of each year with the investment advisory and other expenses of
the Trust incurred during the Trust's most recently completed fiscal
year as of December 31st, to permit Nationwide to fulfill its
prospectus disclosure obligations under the SEC's variable annuity fee
table requirements. Nationwide shall provide the Trust and the
Administrator with drafts of those portions of its Separate Account
Prospectuses and statements of additional information that reference
the Trust, the Administrator, or Banc One Investment Advisors
Corporation (the "Advisor") at least 10 business days prior to filing
with the SEC. No such material shall be used if the Trust, the
Administrator or their designee reasonably objects to such use within
ten Business Days after receipt of such material.
11. (a) The Trust has obtained an order from the SEC granting the Trust
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 separate accounts of both affiliated and
unaffiliated insurance companies (the "Shared Funding Exemptive
Order"). As required by the Shared Funding Exemptive Order, the Board
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. An irreconcilable material conflict
may arise for a variety of reasons, including: (1) an action by any
state insurance regulatory authority; (2) a change in applicable
federal or state insurance, tax, or securities laws 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; (3) an administrative or judicial decision in
any relevant proceeding; (4) the manner in which the investments of any
Fund are being managed; (5) a difference in voting instructions given
by variable annuity contract owners and variable life insurance
contract owners; or (6) a decision by an Insurance Company (including
Nationwide) to disregard the voting instructions of
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contract owners. The Board shall promptly inform Nationwide if it
determines that an irreconcilable material conflict exists and the
implications thereof.
(b) Nationwide will report in writing any potential or existing
material irreconcilable conflict of which it is aware to the
Administrator. Upon receipt of such report, the Administrator shall
report the potential or existing material irreconcilable conflict to
the Board. The Administrator shall also report to the Board on a
quarterly basis whether Nationwide has reported any potential or
existing material irreconcilable conflicts during the previous calendar
quarter. Nationwide will assist the Board in carrying out its
responsibilities under the Shared Funding Exemptive Order, by providing
the Board with all information reasonably necessary for the Board to
consider any issues raised. This includes, but is not limited to, an
obligation by Nationwide to inform the Board whenever Contract owner
voting instructions are disregarded.
(c) If it is determined by a majority of the Board, or a majority of
its disinterested trustees, that a material irreconcilable conflict
exists, Nationwide and other Insurance Companies shall, at their
expense and to the extent reasonably practicable (as determined by a
majority of the disinterested trustees), take whatever steps are
necessary to remedy or eliminate the irreconcilable material conflict,
up to and including: (1) withdrawing the assets allocable to some or
all of the separate accounts from the Trust or any Portfolio 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 policy owners, or variable contract owners of one or more
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 management investment
company or managed separate account. No charge or penalty will be
imposed as a result of such withdrawal. Nationwide agrees that it bears
the responsibility to take remedial action in the event of a Board
determination of an irreconcilable material conflict and the cost of
such remedial action, and these responsibilities will be carried out
with a view only to the interests of Contract owners.
(d) If a material irreconcilable conflict arises because of a decision
by Nationwide to disregard Contract owner voting instructions and that
decision represents a minority position or would preclude a majority
vote, Nationwide may be required, at the Trust's election, to withdraw
the affected Account's investment in the Trust and terminate this
Agreement with respect to such Account (at Nationwide's expense);
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 Board. No charge or penalty will be imposed as a result of such
withdrawal. Nationwide agrees that it bears the responsibility to take
remedial action in the event of a Board determination of an
irreconcilable material conflict and the cost of such remedial action,
and these responsibilities will be carried out with a view only to the
interests of Contract owners.
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(e) For purposes of Sections 11(c) through 11(d) of this Agreement, a
majority of the disinterested members of the Board shall determine
whether any proposed action adequately remedies any irreconcilable
material conflict, but in no event will the Trust be required to
establish a new funding medium for the Contracts. Nationwide shall not
be required by Section 11(c) through 11(d) to establish a new funding
medium for the Contracts if an offer to do so has been declined by vote
of a majority of Contract owners materially adversely affected by the
irreconcilable material conflict.
(f) 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 the Trust,
Nationwide, and/or the 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.
(g) Nationwide and the Administrator shall at least annually submit to
the Board such reports, materials or data as the Board may reasonably
request so that the Board may fully carry out the obligations imposed
upon them by the provisions hereof and in the Shared Funding Exemptive
Order, and said reports, materials and data shall be submitted more
frequently if deemed appropriate by the Board. Without limiting the
generality of the foregoing or Nationwide's obligations under Section
11(b), Nationwide shall provide to the Administrator a written report
to the Board no later than January 15th of each year indicating whether
any material irreconcilable conflicts have arisen during the prior
fiscal year of the Trust. All reports received by the Board of
potential or existing conflicts, and all Board action with regard to
determining the existence of a conflict, notifying Insurance Companies
of a conflict, and determining whether any proposed action adequately
remedies a conflict, shall be properly recorded in the minutes of the
Board or other appropriate records, and such minutes or other records
shall be made available to the SEC upon request.
12. This Agreement shall terminate as to the sale and issuance of new
Contracts:
(a) at the option of any party hereto upon ninety days (90) advance
written notice to the others; or
(b) at the option of the Trust, if it determines that liquidation of
the Trust is in the best interests of the Trust and its
beneficial shareholders. Reasonable advance notice of election to
liquidate shall be furnished by the Trust to permit the
substitution of Fund shares with the shares of another investment
company, pursuant to SEC regulation; or
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(c) at the option of Nationwide if Trust shares are not available for
any reason to meet the requirements of Contracts as determined by
Nationwide. Reasonable advance notice of election to terminate
shall be furnished by Nationwide, said termination to be
effective ten (10) days after receipt of notice unless the Trust
makes available sufficient number of shares to reasonably meet
the requirements of the Variable Accounts within said ten (10)
day period; or
(d) at the option of any party hereto upon institution of formal
proceedings against any other party hereto by the National
Association of Securities Dealers ("NASD"), the SEC or any other
regulatory body; or
(e) upon a decision by Nationwide, in accordance with regulations of
the SEC, to substitute such Trust shares with the shares of
another investment company for Contracts for which the Trust
shares have been selected to serve as the underlying investment
medium. Nationwide will give sixty (60) days written notice to
the Trust and the Administrator of any proposed vote to
substitute Trust shares; or
(f) upon assignment of this Agreement by any party unless made with
the written consent of each other party; or
(g) in the event Trust shares are not registered, issued or sold in
conformance with Federal law or such law precludes the use of
Trust shares as an underlying investment medium of Contracts
issued or to be issued by Nationwide. Prompt notice shall be
given by either party to the other in the event the conditions of
this provision occur; or
(h) at the option of the Trust, if the Trust shall determine in its
sole judgment exercised in good faith, that Nationwide and/or
their affiliated companies 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, provided that the Trust will give Nationwide
sixty (60) days' advance written notice of such determination of
its intent to terminate this Agreement, and provided further that
after consideration of the actions taken by Nationwide and any
other changes in circumstances since the giving of such notice,
the determination of the Trust shall continue to apply on the
60th day since giving of such notice, then such 60th day shall be
the effective date of termination; or
(i) termination by any party upon the other party's breach of any
representation in Article 7 or any material provision of this
Agreement, which breach has not been cured to the satisfaction of
the terminating party within ten (10) days after written notice
of such breach is delivered to the breaching party with a copy to
the other parties.
13. Termination as the result of any cause listed in the preceding
paragraph, except for paragraph 12(b), shall not affect the Trust's
obligation to furnish Trust shares for
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Contracts then in force for which the shares of the Trust serve or may
serve as an underlying medium, unless such further sale of Trust shares
is proscribed by law or the SEC or other regulatory body. The parties
agree that this Section 13 shall not apply to any terminations under
Section 11 and the effect of Section 11 terminations shall be governed
by Section 11 of this Agreement.
14. Nationwide shall not redeem Trust shares attributable to the Contracts
except (i) as necessary to implement Contract owner initiated or
approved transactions, or (ii) as required by state and/or federal laws
or regulations or judicial or other legal precedent of general
application (a "Legally Required Redemption") or (iii) as permitted by
an order of the SEC pursuant to Section 26(b) of the 1940 Act. Upon
request, Nationwide will promptly furnish to the Trust and the
Administrator the opinion of counsel for Nationwide (which counsel
shall be reasonably satisfactory to the Trust and the Administrator) 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 or as otherwise determined
in accordance with Section 11, Nationwide shall not prevent Contract
owners from allocating payments to a Fund that was otherwise available
under the Contracts without first giving the Trust and the
Administrator 30 days notice of its intention to do so.
15. The Trust or Administrator may request or Nationwide may initiate the
filing of a substitution application pursuant to Section 26(b) of the
1940 Act or successor statute of similar import to substitute the
shares of a Fund held by a Nationwide separate account for another
investment media ("Substitution Application"). The costs associated
with a Substitution Application, other than those initiated in
connection with irreconcilable conflicts as described in Section 11
above, shall be allocated as follows:
(a) In the event the Trust or Administrator requests Nationwide
to submit a Substitution Application, the Trust or
Administrator shall reimburse Nationwide for all reasonable
costs incurred by Nationwide with respect to such
Substitution Application. The Trust or Administrator shall be
obligated to reimburse Nationwide under this Section 15
irrespective of whether the Substitution Application
requested by the Trust or Administrator is effectuated.
(b) In the event Nationwide initiates a Substitution Application
and the Fund being removed is offered by separate accounts of
companies other than Nationwide, Nationwide shall bear all
costs associated with the Substitution Application
irrespective of whether the Substitution Application is
effectuated.
16. Each notice required by this Agreement shall be given by wire and
confirmed in writing to:
Nationwide Life Insurance Company
Nationwide Life and Annuity Insurance Company
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Xxx Xxxxxxxxxx Xxxxx 00-00-X0
Xxxxxxxx, Xxxx 00000
Attn: Xxxxxxx Xxxxxx, Director Securities Registration
With a copy to:
Nationwide Life Insurance Company
Nationwide Life and Annuity Insurance Company
Xxx Xxxxxxxxxx Xxxxx
Xxxxxxxx, XX 00000
Attn: Vice President, Investment Management Relationships
Trust:
One Group Investment Trust
0000 Xxxxxxx Xxxxxxx, Xxxxx 0-X/X/X, XX0-0000
Xxxxxxxx, Xxxx 00000
Attn: Xxxx X. Xxxxxx, President
Administrator:
One Group Administrative Services, Inc.
0000 Xxxxxxx Xxxxxxx, Xxxxx 0-X/X/X, XX0-0000
Xxxxxxxx, Xxxx 00000
Attention: President
17. Advertising and sales literature with respect to the Trust prepared by
Nationwide or its agents for use in marketing its Contracts will be
submitted to the Trust for review at least ten (10) business days
before Nationwide submits such material to the SEC or NASD for review.
18. 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, Nationwide will distribute all proxy material
furnished by the Trust and will vote Trust shares in accordance with
instructions received from the Contract owners of such Trust shares.
Nationwide shall vote the Trust shares for which no instructions have
been received in the same proportion as Trust shares for which said
instructions have been received from Contract owners. Nationwide and
its agents will in no way recommend action in connection with or oppose
or interfere with the solicitation of proxies for the Trust shares held
for such Contract owners.
19. (a) Nationwide agrees to indemnify and hold harmless the Trust, the
Administrator and the Advisor and each of their directors, officers,
employees, agents and each person, if any, who controls the Trust, the
Administrator or the Advisor within the meaning of the 1933 Act against
any losses, claims, damages or liabilities to which the Trust,
Administrator or the Advisor or any such director, officer, employee,
agent or controlling person may become subject, under the 1933 Act or
1940 Act or otherwise, insofar as such
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losses, claims, damages or liabilities (or actions in respect thereof)
arise out of or are based upon:
(i) any untrue statement or alleged untrue statement of any
material fact contained in information furnished by
Nationwide for use in the Registration Statement,
prospectus or sales literature of the Trust or in the
Registration Statement, prospectus or sales literature
for the Variable Account;
(ii) the omission, or the alleged omission to state, in the
Registration Statements or prospectuses of the Variable
Accounts a material fact required to be stated therein or
necessary to make the statements therein not misleading;
(iii) conduct, statements or representations of Nationwide or
its agents, with respect to the sale and distribution of
Contracts for which Trust shares are an underlying
investment; or
(iv) the failure of Nationwide to provide the services and
furnish the materials under the terms of this Agreement;
provided however, that Nationwide shall not be liable in any such
case to the extent any such statement, omission or representation
or such alleged statement, alleged omission or alleged
representation was made in reliance upon and in conformity with
information furnished to Nationwide by or on behalf of the Trust,
the Administrator, or the Advisor.
Nationwide will reimburse any legal or other expenses reasonably
incurred by the Trust, the Administrator or the Advisor or any
such director, officer, employee, agent or controlling person in
connection with investigating or defending any such loss, claim,
damage, liability or action, provided, however, that Nationwide
shall have prior approval of the use of counsel and the
expenditure of fees.
This indemnity agreement will be in addition to any liability
which Nationwide may otherwise have.
(b) The Trust agrees to indemnify and hold harmless Nationwide and
each of its directors, officers, employees, agents and each
person, if any, who controls Nationwide within the meaning of the
Act against any losses, claims, damages or liabilities to which
Nationwide or any such director, officer, employee, agent or
controlling person may become subject, under the Act or
otherwise, insofar as such losses, claims, damages or liabilities
(or actions in respect thereof) arise out of or are based upon:
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(i) any untrue statement or alleged untrue statement of any
material fact contained in the Registration Statement,
prospectus or sales literature of the Trust;
(ii) the omission or the alleged omission to state in the
Registration Statement, prospectus or sales literature of
the Trust a material fact required to be stated therein
or necessary to make the statements therein not
misleading;
(iii) the Trust's failure to keep the Trust fully diversified
and qualified as a regulated investment company as
required by the applicable provisions of the Code, the
1940 Act, and the applicable regulations promulgated
thereunder;
(iv) the Trust's or the Administrator's (1) incorrect
calculation of the daily net asset value, dividend rate
or capital gain distribution rate; (2) incorrect
reporting of the daily net asset value, dividend rate or
capital gain distribution rate; or (3) untimely reporting
of the net asset value, dividend rate or capital gain
distribution rate; or
(v) the failure of the Trust or the Administrator to provide
the services and furnish the materials under the terms of
this Agreement;
provided however, that the Trust will not be liable in any such
case to the extent that any such loss, claim, damage or liability
arises out of or is based upon an untrue statement or omission or
alleged omission made in such Registration Statement, prospectus
or sales literature in conformity with written information
furnished to the Trust by Nationwide specifically for use
therein.
The Trust will reimburse any legal or other expenses reasonably
incurred by Nationwide or any such director, officer, employee,
agent or controlling person in connection with investigating or
defending any such loss, claim, damage, liability or action. This
indemnity agreement will be in addition to any liability which
the Trust may otherwise have.
(c) Each party shall promptly notify the other in writing of any
situation which presents or appears to involve a claim which may
be subject of indemnification hereunder and the indemnifying
party shall have the option to defend against any such claim. In
the event the indemnifying party so elects, it will notify the
indemnified party and shall assume the defense of such claim, and
the indemnified party shall cooperate fully with the indemnifying
party, at the indemnifying party's expense, in the defense of
such claim. Notwithstanding the foregoing, the indemnified party
shall be entitled to participate in the defense of such claim at
its own expense through counsel of its own choosing. Neither
party shall confess any claim nor make any compromise in any
action or proceeding which may result in a finding of wrongdoing
by the other party without the other party's prior written
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consent. Any notice given by the indemnifying party to an
indemnified party or participation in or control of the
litigation of any such claim by the indemnifying party shall in
no event be deemed to be an admission by the indemnifying party
of culpability, and the indemnifying party shall be free to
contest liability with respect to the claim among parties.
(d) It is understood and expressly agreed that the obligation and
liabilities of the Trust hereunder shall not be binding upon any
of the Trustees, shareholders, nominees, officers, agents or
employees of the Trust personally, but shall bind only the assets
and property of the Trust, as provided in the Declaration of
Trust of the Trust. The execution and delivery of this Agreement
have been authorized by the Trust's Board and signed by an
authorized officer of the Trust, acting as such, and neither such
authorization by such Board nor such execution and delivery by
such officer shall be deemed to have been made by any of them
individually or to impose any liability on any of them
personally, but shall bind only the assets and property of the
Trust as provided in its Declaration of Trust.
20. Nationwide will comply with all applicable laws and regulations aimed
at preventing, detecting, and reporting money laundering and suspicious
transactions. Without limiting the generality of the foregoing,
Nationwide will take all necessary and appropriate steps, consistent
with applicable regulations and generally accepted industry practices,
to: (i) obtain, verify, and retain information with regard to Contract
owner identification and source of Contract owner funds, and (ii)
maintain records of all Contract owner transactions. Nationwide will
(but only to the extent consistent with applicable law) take all steps
necessary and appropriate to provide the Trust with any requested
information about Contract owners and accounts in the event that the
Trust shall request such information due to an inquiry or investigation
by any law enforcement, regulatory, or administrative authority. To the
extent permitted by applicable law and regulations, Nationwide will
notify the Trust of any concerns that Nationwide may have in connection
with any Contract owner in the context of relevant anti-money
laundering laws or regulations.
21. The forbearance or neglect of any party to insist upon strict
compliance by any other party, with any of the provisions of this
Agreement, whether continuing or not, or to declare a forfeiture of
termination against the other parties, shall not be construed as a
waiver of any of the rights or privileges of any party hereunder. No
waiver of any right or privilege of any party arising from any default
or failure of performance by any party shall affect the rights or
privileges of the other parties in the event of a further default or
failure of performance.
22. The obligations of One Group(R) Investment Trust entered into in the
name or on behalf thereof by any of the Trustees, representatives or
agents are made not individually, but in such capacities, and are not
binding upon any of the Trustees, Shareholders or representatives of
the Trust personally, but bind only the assets of the Trust, and all
13
persons dealing with any series of Shares of the Trust must look solely
to the assets of the Trust belonging to such series for the enforcement
of any claims against the Trust.
23. This Agreement shall be construed and the provisions hereof interpreted
under and in accordance with the laws of Massachusetts. This Agreement
shall be subject to the provisions of the federal securities statutes,
rules and regulations, including such exemptions from those statutes,
rules and regulations as the SEC may grant and the terms hereof shall
be interpreted and construed in accordance therewith. In case of any
conflict of law, the Investment Company Act of 1940 shall control.
24. This agreement supercedes any and all prior fund participation
agreements made by and between the parties.
NATIONWIDE LIFE INSURANCE COMPANY
By: /s/
------------------------------------------------------
Title: Vice President -- Investment Management Relationships
--------------------------------------------------------
NATIONWIDE LIFE AND ANNUITY INSURANCE COMPANY
By: /s/
------------------------------------------------------
Title: Vice President -- Investment Management Relationships
--------------------------------------------------------
ONE GROUP(R) INVESTMENT TRUST
By: /s/Xxxx X. Xxxxxx
-----------------------------------------------------
Title: President
--------------------------------------------------
ONE GROUP ADMINISTRATIVE SERVICES, INC.
By: /s/Xxxxxx X. Xxxxx
-----------------------------------------------------
Title: COO
--------------------------------------------------
14
APPENDIX A
Funds of the Trust
One Group Investment Trust Government Bond Portfolio
One Group Investment Trust Balanced Portfolio
One Group Investment Trust Mid Cap Growth Portfolio
One Group Investment Trust Large Cap Growth Portfolio
One Group Investment Trust Equity Index Portfolio
One Group Investment Trust Bond Portfolio
One Group Investment Trust Diversified Equity Portfolio
One Group Investment Trust Diversified Mid Cap Portfolio
One Group Investment Trust Mid Cap Value Portfolio
NATIONWIDE LIFE INSURANCE
COMPANY
By: /s/
-----------------------------------------
Title: VP--Investment Management Relationships
------------------------------------------
NATIONWIDE LIFE AND
ANNUITY INSURANCE COMPANY
By: /s/
------------------------------------------
Title: VP - Investment Management Relationships
-------------------------------------------
ONE GROUP(R) INVESTMENT TRUST
By: /s/Xxxx X. Xxxxxx
------------------------------------------
Title: President
---------------------------------------
ONE GROUP ADMINISTRATIVE SERVICES, INC.
By: /s/Xxxxxx X. Xxxxx
------------------------
Title: COO
-------------------------------------
Dated: September 1, 2002
15
APPENDIX B
Separate Accounts
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 LIFE INSURANCE
COMPANY
By: /s/
-------------------------------------------------
Title: VP--Investment Management Relationships
-----------------------------------------------------
NATIONWIDE LIFE AND
ANNUITY INSURANCE COMPANY
By: /s/
-------------------------------------------------
Title: VP - Investment Management Relationships
-----------------------------------------------------
ONE GROUP(R) INVESTMENT TRUST
By: /s/Xxxx X. Xxxxxx
-------------------------------------------------
Title: President
---------------------------------------------
ONE GROUP ADMINISTRATIVE SERVICES, INC.
By: /s/Xxxxxx X. Xxxxx
-------------------------------------------------
Title: COO
---------------------------------------------
Dated: September 1, 2002
16
