Fund Participation Agreement
This
Fund
Participation Agreement (“Agreement”), dated as of the __ day of ______, 2000 is
made by and between Nationwide Life Insurance Company and/or Nationwide Life
and
Annuity Insurance Company (separately or collectively “Nationwide”) on behalf of
the Nationwide separate accounts identified on Exhibit A which is attached
hereto and may be amended from time to time (“Variable Accounts”), and ________
and ________, which serve respectively as adviser and distributor to the
________mutual funds (the “Funds”) listed on Exhibit A. The Funds, ________ and
________ are collectively referred to throughout this Agreement as
“_______”
WHEREAS,
the Contracts allow for the allocation of net amounts received by Nationwide
to
separate sub-accounts of the Variable Accounts for investment in shares of
the
Funds and other similar funds; and
WHEREAS,
selection of a particular sub-account (corresponding to a particular Fund)
is
made by the Contract owner; or, in the case of certain group Contracts, by
participants in various types of retirement plans which have purchased such
group Contracts, and such Contract owners and/or participants may reallocate
their investment options among the sub-accounts of the Variable Accounts
in
accordance with the terms of the Variable Accounts in accordance with the
terms
of the Contracts; and
WHEREAS,
Nationwide and ________ mutually desire the inclusion of the Funds as underlying
investment media for variable life insurance policies and/or variable annuity
contracts (collectively, the “Contracts”) issued by Nationwide;
NOW
THEREFORE, Nationwide and _________, in consideration of the promises and
undertakings described herein, agree as follows:
| 1. |
Nationwide
represents and warrants that the Variable Accounts have been established
and are in good standing under Ohio Law; and the Variable Accounts
have
been registered as unit investment trusts under the Investment Company
Act
of 1940 (the “1940 Act”) or are exempt from registration pursuant to
section 3(c)(11) of the 1940 Act;
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| 2. |
Each
party recognizes that the services provided for under this Agreement
are
not exclusive and that the same skill will be used in performing
services
in similar contexts. Nationwide will use its best efforts to give
equal
emphasis and promotion to shares of the Funds as is given to other
underlying investments of the Variable Accounts.
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| 3. |
Subject
to the terms and conditions of this Agreement, Nationwide shall be
appointed to, and agrees, to act as a limited agent of ______, for
the
sole purpose of receiving instructions for the purchase and redemption
of
Fund shares (from Contract owners or participants making investment
allocation decisions under the Contracts) prior to the close of regular
trading each Business Day. “Business Day” shall mean any day on which the
New York Stock Exchange is open for trading and on which the Funds
calculate their net asset value as set forth in the Funds’ most recent
Prospectuses and Statements of Additional Information. Except as
particularly stated in this paragraph, Nationwide shall have no authority
to act on behalf of _________ or to incur any cost or liability on
its
behalf.
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___________
will use its reasonable best efforts to provide closing net asset value,
change
in net asset value, dividend or daily accrual rate information and capital
gain
information by 6:00 p.m. Eastern Time each Business Day to Nationwide.
Nationwide shall use this data to calculate unit values. Unit values shall
be
used to process that same Business Day’s Variable Account transactions. Orders
for purchases or redemptions shall be placed with _________ or its specified
agent no later than 10:00 a.m. of the following Business Day. Orders for
shares
of Funds shall be accepted and executed at the time they are received by
________ and at the net asset value price determined as of the close of trading
on the previous Business Day. ________ will not accept any order made on
a
conditional basis or subject to any delay or contingency. Nationwide shall
only
place purchase orders for shares of Funds on behalf of its customers whose
addresses recorded
on
Nationwide’s books are in a state or other jurisdiction in which the Funds are
registered or qualified for sale, or are exempt from registration or
qualification as confirmed in writing by ________.
Payment
for net purchases shall be wired to a custodial account designated by _____
and
payment for net redemptions will be wired to an account designated by
Nationwide. Dividends and capital gain distributions shall be reinvested
in
additional Fund shares at net asset value. Notwithstanding the above, ________
shall not be held responsible for providing Nationwide with ex-date net asset
value, change in net asset value, dividend or 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.
Nationwide
agrees to provide ________, upon request, written reports indicating the
number
of shareholders that hold interests in the Funds and such other information
(including books and records) that ________ may reasonably request or as
may be
necessary or advisable to enable it to comply with any law, regulation or
order.
| 4. |
All
expenses incident to the performance by ________ under this Agreement
shall be paid by _______. _______ shall promptly provide Nationwide,
or
cause Nationwide to be provided with, a reasonable quantity of the
Funds’
Prospectuses, Statements of Additional Information and any supplements.
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| 5. |
Nationwide
and its agents shall make no representations concerning the Funds
or Fund
shares except those contained in the Funds’ then current Prospectuses,
Statements of Additional Information or other documents produced
by
____________(or an entity on its behalf) which contain information
about
the Funds. Nationwide agrees to allow a reasonable period of time
for
________ to review any advertising and sales literature drafted by
Nationwide (or agents on its behalf) with respect to the Funds prior
to
submitting such material to any regulator.
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| 6. |
The
Distributor 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 shall be allocated as
follows:
|
| (a) |
In
the event the Distributor requests Nationwide to submit a Substitution
Application, the Distributor shall reimburse Nationwide for all reasonable
costs incurred by Nationwide with respect to such Substitution
Application. The Distributor shall be obligated to reimburse Nationwide
under this Section _____ irrespective of whether the Substitution
Application requested by the Distributor is
effectuated.
|
| (b) |
In
the event Nationwide initiates a Substitution Application and the
Fund
being substituted is offered by separate accounts of companies other
than
Nationwide, Nationwide shall be bear all costs associated with the
Substitution Application irrespective of whether the Substitution
Application is effectuated.
|
| (c) |
In
the event Nationwide initiates a Substitution Application and the
Fund is
available exclusively through a Nationwide or a Nationwide affiliate’s
separate account, [the parties shall allocate the costs incurred
in the
transfer equally between Nationwide and the Distributor] OR [the
parties
shall make an equitable allocation of the costs between Nationwide
and the
Distributor].
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| 7. |
_________
represents that the Funds are currently qualified as regulated investment
companies under Subchapter M of the Internal Revenue Code of 1986
(the
“Code”), as amended, and that the Funds shall make every effort to
maintain such qualification. ______ shall promptly notify Nationwide
upon
having a reasonable basis for believing that the Funds have ceased
to so
qualify, or that they may not qualify as such in the
future.
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_________
represents that the Funds currently comply with the diversification requirements
pursuant to Section 817(h) of the Code and Section 1.817-5(b) of the Federal
Tax
Regulations and that the Funds will make every effort to maintain the Funds’
compliance with such diversification requirements, unless the Funds are
otherwise exempt from section 817(h) and/or except as otherwise disclosed
in
each Fund’s prospectus. ______ will notify Nationwide promptly upon having a
reasonable basis for believing that the Funds have ceased to so qualify,
or that
the Funds might not so qualify in the future. Unless otherwise exempt, _______
shall provide to Nationwide a statement indicating compliance with Section
817(h) and a schedule of investment holdings, to be received by Nationwide
no
later than twenty-five (25) days following the end of each calendar
quarter.
Nationwide
represents that the Contracts are currently treated as annuity contracts
or life
insurance policies, whichever is appropriate under applicable provisions
of the
Code, and that it shall make every effort to maintain such treatment. Nationwide
will promptly notify _______ upon having a reasonable basis for believing
that
the Contracts have ceased to be treated as annuity contracts or life insurance
polices, or that the Contracts may not be so treated in the future.
Unless
a
Fund is exempt from the requirements of section 817(h), Nationwide represents
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 pursuant to section
1.817-5(f)(2) of the Federal Tax Regulations, that it shall make every effort
to
continue to meet such definitional requirements, and that it shall notify
_______ immediately upon having a reasonable basis for believing that such
requirements have ceased to be met or that they may not be met in the future.
| 8. |
Within
five (5) Business Days after the end of each calendar month, _______
shall
provide Nationwide a monthly statement of account, which shall confirm
all
transactions made during that particular month in the Variable
Accounts.
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| 9. |
Each
party agrees to inform the other of the existence of, or any potential
for, any material conflicts of interest between the parties and any
possible implications of the same.
|
It
is
agreed that if it is determined by a majority of the members of the Boards
of
Directors of the Funds, or a majority of the Funds’ disinterested Directors,
that a material conflict exists caused by Nationwide, Nationwide shall, at
its
own expense, take whatever steps are necessary to remedy or eliminate such
material conflict.
It
is
agreed that if it is determined by Nationwide that a material conflict exists
caused by ________, _________ shall, at its own expense, take whatever steps
are
necessary to remedy or eliminate such material conflict.
| 10. |
This
Agreement shall terminate as to the sale and issuance of new
Contracts:
|
| (a) |
at
the option of Nationwide or ________ upon at least 60 days advance
written
notice to the other;
|
| (b) |
at
any time, upon _______’s election, if the Funds determine that liquidation
of the Funds is in the best interest of the Funds and their beneficial
owners. Reasonable advance notice of election to liquidate shall
be
furnished by ___________ to permit the substitution of Fund shares
with
the shares of another investment company pursuant to SEC
regulation;
|
| (c) |
if
the Contracts are not treated as annuity contracts or life insurance
policies by the applicable regulators or under applicable rules or
regulations;
|
| (d) |
if
the Variable Accounts are not deemed “segregated asset accounts” by the
applicable regulators or under applicable rules or
regulations;
|
| (e) |
at
the option of Nationwide, if Fund shares are not available for any
reason
to meet the requirements of Contracts as determined by Nationwide.
Reasonable advance notice of election to terminate (and time to cure)
shall be furnished by Nationwide;
|
| (f) |
at
the option of Nationwide or _______, upon institution of relevant
formal
proceedings against the broker-dealer(s) marketing the Contracts,
the
Variable Accounts, Nationwide or the Funds by the NASD, IRS, the
Department of Labor, the SEC, state insurance departments or any
other
regulatory body;
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| (g) |
upon
a decision by Nationwide, in accordance with regulations of the SEC,
to
substitute such Fund shares with the shares of another investment
company
for Contracts for which the Fund shares have been selected to serve
as the
underlying investment medium. Nationwide shall give at least 60 days
written notice to the Funds and _______ of any proposal to substitute
Fund
shares;
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| (h) |
upon
assignment of this Agreement unless such assignment is made with
the
written consent of each other party; and
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| (i) |
in
the event Fund shares are not registered, issued or sold pursuant
to
Federal law, or such law precludes the use of Fund shares as an underlying
investment medium of Contracts issued or to be issued by Nationwide.
Prompt written notice shall be given by either party to the other
in the
event the conditions of this provision
occur.
|
| 11. |
Each
notice required by this Agreement shall be given orally and confirmed
in
writing to:
|
Nationwide
Life Insurance Company
Nationwide
Life and Annuity Insurance Company
Xxx
Xxxxxxxxxx Xxxxx 0-00-X0
Xxxxxxxx,
Xxxx 00000
Attention:
Senior Vice President - Life Company Operations
With
a
copy to:
Nationwide
Life Insurance Company
Nationwide
Life and Annuity Insurance Company
Xxx
Xxxxxxxxxx Xxxxx 0-00-X0
Xxxxxxxx,
Xxxx 00000
Attention:
Director - Securities
_________:
Any
party
may change its address by notifying the other party(ies) in
writing.
| 12. |
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 shall distribute all proxy material furnished by ________
(provided that such material is received by Nationwide at least 10
business days prior to the date scheduled for mailing to Contract
owners)
and shall vote Fund shares in accordance with instructions received
from
the Contract owners who have such interests in such Fund shares.
Nationwide shall vote the Fund shares for which no instructions have
been
received in the same proportion as Fund shares for which said instructions
have been received from Contract owners, provided that such proportional
voting is not prohibited by the Contract owner’s related plan or trust
document. Nationwide and its agents will in no way recommend action
in
connection with or oppose or interfere with the solicitation of proxies
for the Fund shares held for the benefit of such Contract
owners.
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| 13. |
| (a) |
Nationwide
agrees to reimburse and/or indemnify and hold harmless _______ and
each of
its directors, officers, employees, agents and each person, if any,
who
controls ________ within the meaning of the Securities Act of 1933
(the
“1933 Act”) (collectively, “Affiliated Party”) against any losses, claims,
damages or liabilities (“Losses”) to which ________ or any such Affiliated
Party may become subject, under the 1933 Act or otherwise, insofar
as such
Losses (or actions in respect thereof) arise out of or are based
upon, but
not limited to:
|
| i. |
any
untrue statement or alleged untrue statement of any material fact
contained in information furnished by
Nationwide;
|
| 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;
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| iii. |
conduct,
statements or representations of Nationwide or its agents, with respect
to
the sale and distribution of Contracts for which Fund shares are
an
underlying investment;
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| iv. |
the
failure of Nationwide to provide the services and furnish the materials
under the terms of this Agreement;
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| v. |
a
breach of this Agreement or of any of the representations contained
herein; or
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| vi. |
any
failure to register the Contracts or the Variable Accounts under
federal
or state securities laws, state insurance laws or to otherwise comply
with
such laws, rules, regulations or orders.
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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 written information furnished to Nationwide by or on behalf of _______
specifically for use therein.
Nationwide
shall reimburse any legal or other expenses reasonably incurred by _______
or
any Affiliated Party in connection with investigating or defending any such
Losses, provided, however, that Nationwide shall have prior approval of the
use
of said counsel or the expenditure of said fees.
This
indemnity agreement shall be in addition to any liability which Nationwide
may
otherwise have.
| (b) |
_________
agrees to indemnify and hold harmless Nationwide and each of its
directors, officers, employees, agents and each person, (collectively,
“Nationwide Affiliated Party”), who controls Nationwide within the meaning
of the 1933 Act against any Losses to which Nationwide or any such
Nationwide Affiliated Party may become subject, under the 1933 Act
or
otherwise, insofar as such Losses (or actions in respect thereof)
arise
out of or are based upon; but not limited
to:
|
| i. |
any
untrue statement or alleged untrue statement of any material fact
contained in any information furnished by _________, including but
not
limited to, the Registration Statements, Prospectuses or sales literature
of the Funds;
|
| ii. |
the
omission or the alleged omission to state in the Registration Statements
or Prospectuses of the Funds a material fact required to be stated
therein
or necessary to make the statements therein not misleading;
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| iii. |
__________’s
failure to keep the Funds fully diversified and qualified as regulated
investment companies as required by the applicable provisions of
the Code,
the 1940 Act, and the applicable regulations promulgated
thereunder;
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| iv. |
the
failure of _________ to provide the services and furnish the materials
under the terms of this Agreement;
|
| v. |
a
breach of this Agreement or of any of the representations contained
herein; or
|
| vi. |
any
failure to register the Funds under federal or state securities laws
or to
otherwise comply with such laws, rules, regulations or
orders.
|
Provided
however, that _________ shall 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 act
or omission of Nationwide or untrue statement or omission or alleged omission
made in conformity with written information furnished to __________ by
Nationwide specifically for use therein.
________
shall reimburse any reasonable legal or other expenses reasonably incurred
by
Nationwide or any Nationwide Affiliated Party in connection with investigating
or defending any such Losses, provided, however, that _________ shall have
prior
approval of the use of said counsel or the expenditure of said
fees.
This
indemnity agreement will be in addition to any liability which ________ may
otherwise have.
| (c) |
Each
party shall promptly notify the other party(ies) in writing of any
situation which presents or appears to involve a claim which may
be the
subject of indemnification under this Agreement and the indemnifying
party
shall have the option to defend against any such claim. In the event
the
indemnifying party so elects, it shall 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 admit to wrong-doing 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 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
among the parties with respect to the
claim.
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| 14. |
The
forbearance or neglect of any party to insist upon strict compliance
by
another 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.
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| 15. |
This
Agreement shall be construed and the provisions hereof interpreted
under
and in accordance with the laws of Ohio, without respect to its choice
of
law provisions and in accordance with the 1940 Act. In the case of
any
conflict, the 1940 act shall control.
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| 16. |
Each
party hereby represents and warrants to the other that the persons
executing this Agreement on its behalf are duly authorized and empowered
to execute and deliver the Agreement and that the Agreement constitutes
its legal, valid and binding obligation, enforceable against it in
accordance with its terms. Except as particularly set forth herein,
neither party assumes any responsibility hereunder, and will not
be liable
to the other for any damage, loss of data, delay or any other loss
whatsoever caused by events beyond its reasonable
control.
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| 17. |
Nationwide
acknowledges that the identity of ________’s (and its affiliates’ and/or
subsidiaries’) customers and all information maintained about those
customers constitute the valuable property of ________. Nationwide
agrees
that, should it come into contact or possession of any such information
(including, but not limited to, lists or compilations of the identity
of
such customers), Nationwide shall hold such information or property
in
confidence and shall not use, disclose or distribute any such information
or property except with _______’s prior written consent or as required by
law or judicial process.
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________
acknowledges that the identity of Nationwide’s (and its affiliates’ and/or
subsidiaries’) customers and all information maintained about those customers
constitute the valuable property of Nationwide. _______ agrees that, should
it
come into contact or possession of any such information (including, but not
limited to, lists or compilations of the identity of such customers), _________
shall hold such information or property in confidence and shall not use,
disclose or distribute any such information or property except with Nationwide’s
prior written consent or as required by law or judicial process.
This
section shall survive the expiration or termination of this
Agreement.
| 18. |
Nothing
in this Agreement shall be deemed to create a partnership or joint
venture
by and among the parties hereto.
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| 19. |
This
Agreement supersedes any and all prior Fund Participation Agreements
made
by and between the parties.
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| 20. |
Except
to amend Exhibit A, or as otherwise provided in this Agreement, this
Agreement may not be amended or modified except by a written amendment
executed by each of the parties.
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| 21. |
This
Agreement may be executed by facsimile signature and it may be executed
in
one or more counterparts, each of which shall be deemed an original,
but
all of which together shall constitute one and the same
instrument.
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NATIONWIDE
LIFE INSURANCE COMPANY AND NATIONWIDE LIFE AND ANNUITY INSURANCE
COMPANY
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By:
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Title:
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By:
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Title:
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EXHIBIT
A
This
Exhibit corresponds to the Fund Participation Agreement dated
____1998.
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Variable
Accounts of Nationwide
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Corresponding
Nationwide Contracts
|
Corresponding
Funds
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