PARTICIPATION AGREEMENT Among VANGUARD VARIABLE INSURANCE FUND and THE VANGUARD GROUP, INC. and VANGUARD MARKETING CORPORATION and NATIONWIDE LIFE INSURANCE COMPANY
Among
VANGUARD
VARIABLE INSURANCE FUND
and
THE
VANGUARD GROUP, INC.
and
VANGUARD
MARKETING CORPORATION
and
NATIONWIDE
LIFE INSURANCE COMPANY
THIS
AGREEMENT, made
and entered into as of the 28th day of February, 2008, by and among VANGUARD
VARIABLE INSURANCE FUND (hereinafter the “Fund”), a Delaware business trust, THE
VANGUARD GROUP, INC. (hereinafter the “Sponsor”), a Pennsylvania corporation,
VANGUARD MARKETING CORPORATION (hereinafter the “Distributor”), a Delaware
corporation, and NATIONWIDE LIFE INSURANCE COMPANY (hereinafter the “Company”),
an Ohio corporation, on its own behalf and on behalf of each segregated asset
account of the Company named in Schedule A hereto as may be amended from time
to
time (each such account hereinafter referred to as the “Account”).
WHEREAS,
the Fund was
organized to act as the investment vehicle for variable life insurance policies
and variable annuity contracts to be offered by separate accounts of insurance
companies which have entered into participation agreements with the Fund and
the
Sponsor (hereinafter “Participating Insurance Companies”); and
WHEREAS,
the
beneficial interest in the Fund is divided into several series of shares, each
designated a “Portfolio,” and representing the interest in a particular managed
portfolio of securities and other assets; and
WHEREAS,
the Fund is
registered as an open-end management investment company under the Investment
Company Act of 1940, as amended (the “1940 Act”) and its shares are registered
under the Securities Act of 1933, as amended (the “1933 Act”); and
WHEREAS,
the assets of
each Portfolio of the Fund are managed by several entities (the “Advisers”),
each of which is duly registered as an investment adviser under the federal
Investment Advisers Act of 1940 and any applicable state securities laws;
and
WHEREAS,
the Company
has established or will establish one or more Accounts to fund certain variable
life insurance policies that will offer the Portfolios of the Fund as underlying
investment options
(the
“Variable Insurance Products”), which Accounts and Variable Insurance Products
are registered under the 1940 Act and the 1933 Act, respectively;
and
WHEREAS,
each Account
is a duly organized, validly existing segregated asset account, established
by
resolution of the Board of Directors of the Company to set aside and invest
assets attributable to the Variable Insurance Products; and
WHEREAS,
the
Distributor is a wholly-owned subsidiary of the Sponsor, is registered as a
broker dealer with the Securities and Exchange Commission (“SEC”) under the
Securities Exchange Act of 1934, as amended (the “1934 Act”) and is a member in
good standing of the Financial Industry Regulatory Authority, Inc. (“FINRA”);
and
WHEREAS,
to the extent
permitted by applicable insurance laws and regulations, the Company intends
to
purchase shares of the Portfolios on behalf of each Account to fund the Variable
Insurance Products and the Sponsor is authorized to sell such shares to the
Accounts at net asset value; and
WHEREAS,
the Sponsor
and Nationwide Financial Services, Inc., the parent company of the Company,
have
entered into a Defined Contribution Clearance & Settlement Agreement dated
as of _________, 2008, as amended or modified from time to time (the “DCC&S
Agreement”) which sets forth, among other things, the operational provisions
governing the purchase and redemption of shares of the Fund by the Accounts
and
related matters;
NOW,
THEREFORE, in
consideration of their mutual promises, the Company, the Fund, the Sponsor
and
the Distributor agree as follows:
ARTICLE
I. Sale of Fund Shares
1.1 The
Sponsor and the Distributor agree to sell to the Company those shares of the
Portfolios of the Fund listed on Schedule B which each Account orders, in
accordance with Sections 4(b)(iv), (v), (vi) and (vii) and 6(c) of the DCC&S
Agreement and the Operating and Contingency Procedures/Defined Contribution
Clearance & Settlement attached to the DCC&S Agreement, as they may be
modified from time to time in accordance with Section 16(b) of the DCC&S
Agreement (the “DCC&S Operating/Contingency Procedures”).
1.2 The
Fund, subject to the provisions of Article XI of this Agreement, agrees to
make
its shares available indefinitely for purchase at the applicable net asset
value
per share by the Company and its Accounts on those days on which the Fund
calculates its net asset value pursuant to the rules of the SEC and the Fund
shall use its best efforts to calculate such net asset value on each day which
the NYSE is open for trading. Notwithstanding the foregoing, the
Board of Trustees of the Fund (hereinafter the “Board”) may refuse to sell
shares of any Portfolio to any person including, but not limited to, the
Company, or suspend or terminate the offering of shares of any Portfolio if
such
action is required by law or by regulatory authorities having jurisdiction
or
is, in the sole discretion of the Board, acting in good faith and in light
of
their fiduciary duties under federal and any applicable state laws, necessary
in
the best interests of the shareholders of such Portfolio. Further, it
is acknowledged and agreed that the availability of shares of the Fund shall
be
subject to the Fund’s then current prospectus and statement of additional
information, federal and state securities laws and applicable rules and
regulations of the Securities and Exchange Commission and the National
Association of Securities Dealers, Inc.
1.3 The
Fund and the Sponsor agree that shares of the Fund will be sold only to
Participating Insurance Companies and their separate accounts. No shares of
any
Portfolio will be sold to the general public.
1.4 The
Fund and the Sponsor will not sell Fund shares to any Participating Insurance
Company or its separate account unless an agreement containing a provision
substantially the same as Section 2.4 of Article II of this Agreement is in
effect to govern such sales.
1.5 The
Fund
agrees to redeem for cash, on the Company’s request, any full or fractional
shares of the Fund held by an Account, in accordance with the DCC&S
Operating/Contingency Procedures. The Fund reserves the right to
suspend redemption privileges or pay redemptions in kind, as disclosed in the
Fund’s prospectus or statement of additional information. The Fund
agrees to treat the Company like any other shareholder in similar circumstances
in making these determinations. With respect to payment of the
purchase price by the Company and of redemption proceeds by the Fund, Sections
7(b) and (c) of the DCC&S Agreement and the DCC&S Operating/Contingency
Procedures shall apply.
1.6 The
Company agrees to purchase and redeem the shares of each Portfolio offered
by
the then current prospectus of the Fund and in accordance with the provisions
of
such prospectus and the accompanying statement of additional
information.
1.7 Issuance
and transfer of a Fund’s shares will be by book entry only. Stock certificates
will not be issued to the Company or any Account. Shares ordered from
the Fund will be recorded in an appropriate title for each Account or the
appropriate subaccount of each Account. The Fund shall furnish to the
Company the CUSIP number assigned to each Portfolio of the Fund identified
in
Schedule B hereto.
1.8 The
Company hereby elects to receive all income, dividends and capital gain
distributions as are payable on the Portfolio shares in additional shares of
that Portfolio. The Company reserves the right to revoke this election and
to
receive all such income dividends and capital gain distributions in
cash. The Fund shall notify the Company of the number of shares so
issued as payment of dividends and distributions.
1.9 The
Fund
shall make the daily net asset value for each Portfolio available on a per
share
basis to the Company pursuant to Section 5(d) of the DCC&S
Agreement. In the event of an error in the computation of the Fund’s
net asset value per share, Section 7(d) of the DCC&S Agreement shall
apply.
1.10 Extraordinary
Events. The Company is not authorized to accept as the Fund’s
designee any individual purchase or redemption of shares in an amount which
equals or exceeds the “Large Transaction Amount” for a Portfolio (as specified
in Schedule C) where such order is the result of an “Extraordinary Event” of
which the Company is aware, unless the Company has notified the Sponsor of
such
order as soon as practicable following the Company becoming aware of the
Extraordinary Event and, with respect to purchases or redemptions of which
the
Company is aware, in no event later than one hour prior to close of the New
York
Stock Exchange (generally, 4:00 p.m. Eastern Time) on the trade
date. For these purposes, an “Extraordinary Event” shall mean an
event outside normal operations such as an entire Account moving into or out
of
a Portfolio or an asset transfer arising from a merger, acquisition or
divestiture. In addition, in accordance with the prospectus of the
Fund, the Sponsor
reserves
the right to refuse any purchase order, or to delay delivery of redemption
proceeds or redeem in-kind for any redemption order, which the Sponsor, in
its
sole discretion, deems disruptive or detrimental to the shareholders of the
applicable Portfolio. In connection with any redemption order that
equals or exceeds the applicable Large Transaction Amount and results from
an
Extraordinary Event, the Sponsor reserves the right to delay delivery of
redemption proceeds for up to seven days, to the extent permitted by applicable
law or regulation, or to effect the redemption through an in-kind distribution
of securities. The Sponsor reserves the right to amend or revise
Schedule C at any time and will provide at least 30 days’ advance notice of such
revision to the Company.
1.11 The
parties acknowledge that the Company’s ability to comply with modifications or
amendments to the DCC&S Agreement, including, without limitation, the
DCC&S Operating/Contingency Procedures, may be limited by certain
contractual obligations contained in the Variable Insurance Products, certain
rights contained in the Variable Insurance Product prospectuses, and/or
applicable state insurance laws and regulations. If pursuant to any
such limitation, the Company reasonably believes that it is required to delay
its compliance with a modification or amendment to the DCC&S Agreement, the
Company will notify the Sponsor within three days and will work cooperatively
with the Sponsor to comply with any such modifications or amendments as soon
as
reasonably practicable and to determine whether other actions may be taken
by
the Company in order to comply with such modifications or
amendments.
ARTICLE
II. Representations and Warranties
2.1 The
Company represents and warrants that it is an insurance company duly organized
and in good standing under applicable law; that it has legally and validly
established each Account prior to any issuance or sale thereof as a segregated
asset account under Section 3907.15 of the Ohio Insurance Code; that it has
and
will maintain the capacity to issue all Variable Insurance Products that may
be
sold; and that it is properly licensed, qualified and in good standing to offer
and sell the Variable Insurance Products under applicable state law in
jurisdictions where the Variable Insurance Products will be offered and/or
sold.
2.2 The
Company represents and warrants that the Variable Insurance Products are
registered under the 0000 Xxx.
2.3 The
Company represents and warrants that it has registered each Account as a unit
investment trust in accordance with the provisions of the 1940 Act to serve
as
segregated investment accounts for the Variable Insurance Products.
2.4 The
Fund
represents and warrants that Fund shares sold pursuant to this Agreement shall
be registered under the 1933 Act, duly authorized for issuance and sold in
compliance with the laws of the State of Ohio and all applicable federal and
state securities laws and that the Fund is and shall remain registered under
the
0000 Xxx. The Fund 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 Fund will register and qualify its
shares for sale in all states and will promptly notify the Company if shares
are
not qualified in a particular state.
2.5 The
Fund
represents that it is qualified as a Regulated Investment Company under
Subchapter M of the Internal Revenue Code of 1986, as amended (the “Code”), and
that it will make every effort to maintain qualification (under Subchapter
M or
any successor or similar provision) and (ii) it will notify the Company
immediately upon having a reasonable basis for believing that it ceased to
so
qualify or that it might not so qualify in the future. The Fund acknowledges
that any failure to qualify as a Regulated Investment Company will eliminate
the
ability of the subaccounts to avail themselves of the “look through” provisions
of Section 817(h) of the Code, and that as a result the Variable Insurance
Products will almost certainly fail to qualify as endowment or life insurance
contracts under Section 817(h) of the Code.
2.6 The
Company represents that the Variable Insurance Products will be treated as
endowment or life insurance contracts under applicable provisions of the Code
and that it will make every effort to maintain such treatment and that it will
notify the Fund and the Sponsor immediately upon having a reasonable basis
for
believing that the Variable Insurance Products have ceased to be so treated
or
that they might not be so treated in the future.
2.7 The
Fund
currently does not intend to make any payments to finance distribution expenses
pursuant to Rule 12b-1 under the 1940 Act or otherwise.
2.8 The
Fund
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 except that the Fund
represents that the Fund’s investment policies, fees and expenses are and shall
at all times remain in compliance with the laws of the State of Ohio and the
Fund and the Sponsor represent that their respective operations are and shall
at
all times remain in material compliance with the laws of the State of Ohio
to
the extent required to perform this Agreement.
2.9 The
Distributor represents and warrants that it is a member in good standing of
FINRA and is registered as a broker-dealer with the SEC. The Distributor further
represents that it will sell and distribute the Fund shares in accordance with
the laws of the State of Ohio and all applicable state and federal securities
laws, including without limitation the 1933 Act, the 1934 Act, and the 0000
Xxx.
2.10 The
Fund
represents that it is lawfully organized and validly existing under the laws
of
the State of Delaware and that it does and will comply in all material respects
with the 1940 Act and any applicable regulations thereunder.
2.11 The
Sponsor represents and warrants that the Advisers to the Fund are, and the
Sponsor shall use its best effort to cause the Advisers to remain, duly
registered in all material respects under all applicable federal and state
securities laws and to perform their obligations for the Fund in compliance
in
all material respects with the laws of the State of Ohio and any applicable
state and federal securities laws.
2.12 The
Fund
and Sponsor represent and warrant that all of their trustees, directors,
officers, employees, investment advisers, and other individuals/entities dealing
with the money and/or securities of the Fund are and shall continue to be at
all
times covered by a blanket fidelity bond or similar coverage for the benefit
of
the Fund in an amount not less than the minimum coverage required currently
by
Rule 17g-1 under the 1940 Act or other applicable laws or regulations as may
be
promulgated from time to
time.
The aforesaid bond shall include coverage for larceny and embezzlement and
shall
be issued by a reputable bonding company.
2.13 With
respect to the Variable Insurance Products, which are registered under the
1933
Act, the Company represents and warrants that:
(a) Nationwide
Investment Services Corporation is the principal underwriter for each such
Account and any subaccounts thereof and is a registered broker-dealer with
the
SEC under the 1934 Act;
(b) the
shares of the Portfolios of the Fund are and will continue to be the only
investments securities held by the corresponding subaccounts (the subaccounts
are divisions of the variable account to which the underlying Fund shares are
allocated and for which accumulation units are separately maintained);
and
(c) with
regard to each Portfolio, the Company, if permitted by law, on behalf of the
corresponding subaccount, will vote such shares held by it in the same
proportion as the vote of all other holders of such shares.
2.14 The
Fund
represents that it will comply with all provisions of the 1940 Act requiring
voting by shareholders, and in particular the Fund will either provide for
annual meetings or comply with Section 16(c) of the 1940 Act (although the
Fund
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 Fund
will act in accordance with the SEC’s interpretation of the requirements of
Section 16(a) with respect to periodic elections of trustees and with whatever
rules the SEC may promulgate with respect thereto.
ARTICLE
III. Offering Documents and Reports
3.1 The
Fund,
the Sponsor or their designee shall provide the Company (at the Sponsor’s
expense) with as many copies of the Fund’s current prospectus as the Company may
reasonably request. The Company shall provide a copy of the Fund’s prospectus
annually to each owner of a Variable Insurance Product.
3.2 The
Fund’s prospectus shall state that the statement of additional information for
the Fund is available from the Sponsor (or in the Fund’s discretion, the
prospectus shall state that the statement of additional information is available
from the Fund) and the Sponsor (or the Fund), at its expense, shall print and
provide such statement free of charge to the Company and to any owner of a
Variable Insurance Product or prospective owner who requests such
statement.
3.3 The
Fund,
at its own expense, shall provide the Company with copies of its reports to
shareholders, other communications to shareholders, and, if required by
applicable law, proxy material, in such quantity as the Company shall reasonably
require for distributing to Variable Insurance Product owners. The Fund shall
provide to the Company the prospectuses and annual reports referenced in this
Agreement within fifteen (15) days prior to the Company’s obligation to mail,
and the Company agrees to provide the Fund with advance notice of such date.
If
the documents are not delivered to the Company within ten (10) days of the
Company’s obligation to mail, the Fund shall reimburse the Company for any
extraordinary out-of-pocket costs (including, but not limited to, overtime
for
printing and mailing).
ARTICLE
IV. Sales Material and Information
4.1 The
Company shall furnish, or shall cause to be furnished, to the Fund or its
designee, each piece of sales literature or other promotional material in which
the Fund, its Advisers or the Sponsor is named, at least ten Business Days
prior
to its use. The Company may use such material (a) in fewer than ten
Business Days if it receives the written consent of the Fund or its designee
or
(b) after ten Business Days if the Fund or its designee does not reasonably
object to such use within ten Business Days after its receipt of such
material. No such material shall be used if the Fund or its designee
reasonably objects to such use within ten Business Days after receipt of such
material. Notwithstanding the foregoing, the Company may use, and the
Sponsor and the Fund authorize the Company to use, the names or other
identifying marks of, and certain information about, the Sponsor and the Fund,
without prior approval, as follows: in a listing by name of funds
generally available through the Variable Insurance Products; and in fund fact
sheets containing Fund-specific data furnished by the Sponsor or the Fund or
data obtained from publicly available databases maintained by reputable sources
such as Morningstar, Inc., provided such data is properly attributed to its
source by the Company.
4.2 The
Company shall not give any information or make any representations or statements
on behalf of the Fund or concerning the Fund in connection with the sale of
the
Variable Insurance Products other than the information or representations
contained in the registration statement or prospectus for the Fund shares,
as
such registration statement and prospectus may be amended or supplemented from
time to time, or in reports or proxy statements for the Fund, or in sales
literature or other promotional material approved by the Fund or its designee
or
by the Sponsor, except with the permission of the Fund or the Sponsor or the
designee of either.
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4.3
|
The
Fund, the Sponsor, the Distributor or their designee shall furnish,
or
shall cause
|
to
be
furnished, to the Company or its designee, each piece of sales literature or
other promotional material in which the Company or an Account is named at least
ten Business Days prior to its use. No such material shall be used if the
Company or its designee reasonably objects to such use within ten Business
Days
after receipt of such material.
4.4 The
Fund will provide to the Company at least one complete copy of all registration
statements, prospectuses, statements of additional information, reports, proxy
statements, and all amendments to any of the above, that relate to the Fund
or
its shares, prior to or contemporaneously with the filing of each document
with
the SEC or other regulatory authorities.
4.5 The
Company will provide to the Fund, upon request, at least one complete copy
of
all prospectuses, reports, solicitations for voting instructions, sales
literature and other promotional materials, and all amendments to any of the
above, that relate to the Variable Insurance Products or each Account, prior
to
or contemporaneously with the filing of such document with the SEC or other
regulatory authorities.
4.6 The
Company and the Fund shall also each promptly inform the other of the results
of
any examination by the SEC (or other regulatory authorities) that relates to
the
Variable Insurance Products, the Fund or its shares, and the party that was
the
subject of the examination shall provide the other party with a copy of relevant
portions of any “deficiency letter” or other correspondence or written report
regarding any such examination, unless prohibited by law.
4.7 The
Fund
and the Sponsor will provide the Company with as much notice as is reasonably
practicable of any proxy solicitation for any Portfolio, and of any material
change in the Fund’s registration statement, particularly any change resulting
in a change to the prospectus for any Account. The Fund and the Sponsor will
cooperate with the Company so as to enable the Company to solicit voting
instructions from owners of Variable Insurance Products, to the extent a
solicitation is required by applicable law, or to make changes to its prospectus
in an orderly manner.
4.8 For
purposes of this Article IV, the phrase “sales literature and other promotional
material” includes, but is not limited to, sales literature (i.e., any written
communication distributed or made generally available to customers, including
brochures, circulars, research reports, market letters, form letters, seminar
texts, reprints or excerpts of any other advertisement, sales literature, or
published articles), educational or training materials or other communications
distributed or made generally available to some or all agents or employees,
and
prospectuses, shareholder reports, and proxy materials.
4.9 Certain
Transactions and Restrictions.
(a) The
Company agrees that it will provide, not later than ten Business Days after
receipt of a written request by the Sponsor on behalf of the Fund, the Taxpayer
Identification Number of any or all Variable Insurance Product owner(s) and
the
amount, date, and transaction type (purchase, redemption, transfer, or exchange)
of every purchase, redemption, transfer, or exchange transaction by such
Variable Insurance Product owner(s) in an Account investing in the Fund through
an account maintained by the Company during the specific period covered by
the
request. Notwithstanding the foregoing, if the Sponsor requests
information specified in this paragraph (a) that is older than 180 days, the
Company shall (i) use its best efforts to provide such information as soon
as
reasonably practicable, and (ii) within five Business Days after receipt of
such
a request, shall inform the Sponsor of the time required by the Company to
provide the requested information; provided, however, if the Sponsor is
requesting the information in response to a request by regulatory authority
or
requirement of applicable law or judicial process, the Company, if notified
by
the Sponsor of any required response times at the time of the request for
information, shall use its best efforts to provide such information within
the
required timeframes.
(b) The
Sponsor, on behalf of the Fund, agrees that the information provided pursuant
to
paragraph (a) above will not be used for marketing or any other purpose not
related to (i) limiting or reducing abusive trading in shares issued by the
Fund, (ii) collecting purchase or redemption fees (if any), or (iii) fulfilling
other regulatory or legal requirements, subject to the privacy provisions of
Title V of the Xxxxx-Xxxxx-Xxxxxx Act (Public Law 106-102) and comparable state
laws.
(c) The
Company agrees that it will execute written instructions from the Sponsor on
behalf of the Fund, including instructions to restrict or prohibit purchases
or
exchanges of Fund shares in specific accounts or by or on behalf of specific
Variable Insurance Product owners identified by the Fund as having engaged
in
transactions in Fund shares that violate policies established by the Fund for
the purpose of eliminating or reducing any dilution of the value of the
outstanding securities issued by the Fund. Any such instructions by
the Sponsor shall include the Taxpayer Identification Number or equivalent
identifying number of the Variable Insurance Product owner(s) to which the
instructions relate and the specific restriction(s) to be
executed. The Company agrees that it will execute any such
instructions as soon as reasonably practicable, but not later than fourteen
calendar days after receipt of the
instructions
by the Company. Upon request of the Company, the Sponsor agrees that
it will provide the Company reasonable assistance in providing the affected
Variable Insurance Product owner(s) information reasonably requested regarding
the restriction or prohibition.
(d) The
parties acknowledge that the Company’s ability to execute the Sponsor’s
instructions may be limited by certain contractual obligations contained in
the
Variable Insurance Products, certain rights contained in the Variable Insurance
Product prospectuses, and/or applicable state insurance laws and
regulations. If pursuant to any such limitation, the Company
reasonably believes that it is prevented from complying with a request from
the
Sponsor to restrict or prohibit trading, the Company will notify the Sponsor
within three Business Days of receiving such request and will work cooperatively
with the Sponsor to determine whether other actions may be taken by the Company
in order to protect Fund shareholders from dilution of the value of outstanding
securities issued by the Fund.
ARTICLE
V. Fees and Expenses
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5.1
|
The
Fund and Sponsor shall pay no fee or other compensation to the
Company
|
under
this Agreement. Nothing herein shall prevent the parties hereto from otherwise
agreeing to perform, and arranging for appropriate compensation for, other
services relating to the Fund and or to the Accounts.
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5.2
|
All
expenses incident to performance by the Fund under this Agreement
shall
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be
paid
by the Fund. The Fund shall see to it that all its shares are registered and
authorized for issuance in accordance with applicable federal law and, if and
to
the extent deemed advisable by the Fund, in accordance with applicable state
laws prior to their sale. The Fund shall bear the fees and expenses for the
cost
of registration and qualification of the Fund’s shares, preparation and filing
of the Fund’s prospectus and registration statement, proxy materials and
reports, setting the prospectus in type, setting in type and printing the proxy
materials and reports to shareholders (including the costs of printing a
prospectus that constitutes an annual report), the preparation of all statements
and notices required by any federal or state law, all taxes on the issuance
or
transfer of the Fund’s shares.
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5.3
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The
Fund shall bear the expenses of printing, and the Company shall bear
the
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expenses
of distributing, the Fund’s prospectus to owners of Variable Insurance Products
issued by the Company. The Company shall bear the expenses of distributing
the
Fund’s proxy materials (to the extent such proxy solicitation is required by
law) and reports to owners of Variable Insurance Products.
ARTICLE
VI. Diversification
6.1 The
Fund
will at all times invest money from the Variable Insurance Products in such
a
manner as to ensure that the Variable Insurance Products will be treated as
variable contracts under the Code and the regulations issued thereunder. Without
limiting the scope of the foregoing, the Fund and the Sponsor represent and
warrant that each Portfolio of the Fund will meet the diversification
requirements of Section 817(h) of the Code and Treasury Regulation 1.817-5,
relating to the diversification requirements for endowment or life insurance
contracts and any amendments or other modifications to such Section or
Regulations, as if those requirements applied directly to each such Portfolio.
In the event of a breach of this Article VI by the Fund, it will take all
reasonable steps (a) to notify Company of such breach and (b) to adequately
diversify, each Portfolio of the Fund so as to achieve compliance within the
grace period afforded by Regulation 817-5.
6.2 The
Fund
and the Sponsor represent that each Portfolio will elect to be qualified as
a
Regulated Investment Company under Subchapter M of the Code and they will
maintain such qualification (under Subchapter M or any successor or similar
provision).
ARTICLE
VII. Indemnification
7.1 Indemnification
by the Company
(a) The
Company agrees to indemnify and hold harmless the Fund and each trustee of
the
Board and officers and each person, if any, who controls the Fund within the
meaning of Section 15 of the 1933 Act, the Sponsor and the Distributor
(collectively, the “Indemnified Parties” for purposes of this Section 7.1)
against any and all losses, claims, damages, liabilities (including amounts
paid
in settlement with the written consent of the Company) or litigation (including
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 Fund’s shares
through the Variable Insurance Products and:
(i) arise
out
of or are based upon any untrue statements or alleged untrue statements of
any
material fact contained in the registration statement or prospectus for the
Variable Insurance Products or contained in the policy or sales literature
for
the Variable Insurance Products (or any amendment or supplement to any of the
foregoing), or arise out of or are based upon the omission or the alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, provided that this
agreement to indemnify shall not apply as to any Indemnified Party if such
statement or omission or such alleged statement or omission was made in reliance
upon and in conformity with information furnished to the Company by or on behalf
of the Fund for use in the registration statement or prospectus for the Variable
Insurance Products or in the policy or sales literature (or any amendment or
supplement thereto) or otherwise for use in connection with the sale of the
Variable Insurance Products or the Fund shares; or
(ii) arise
out
of or as a result of statements or representations (other than statements or
representations contained in the registration statement, prospectus or sales
literature of the Fund not supplied by the Company, or persons under its
control) or unlawful conduct of the Company or persons under its control, with
respect to the sale or distribution of the Variable Insurance Products or Fund
Shares; or
(iii) arise
out
of any untrue statement or alleged untrue statement of a material fact contained
in a registration statement, prospectus, or sales literature of the Fund or
any
amendment 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 Fund by or on behalf of the Company;
or
(iv) result
from any failure by the Company to provide the services and furnish the
materials under the terms of this Agreement; or
(v) arise
out
of or result from any material breach of any representation and/or warranty
made
by the Company in this Agreement or arise out of or result from any material
breach of this Agreement by the Company;
as
limited by and in accordance with the provisions of Section 7.1(b) and 7.1(c)
hereof.
(b) The
Company shall not be liable under this indemnification provision with respect
to
any losses, claims, damages, liabilities or litigation to which an Indemnified
Party would otherwise be subject by reason of 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 and duties under this Agreement or to the Fund,
whichever is applicable.
(c) The
Company shall not be liable under this indemnification provision with respect
to
any claim 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 a designated agent), 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 party named in the action. After notice from the Company
to
such a 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 party under this
agreement for any legal or other expenses subsequently incurred by such party
independently in connection with the defense thereof other than reasonable
costs
of investigation.
(d) The
Indemnified Parties will promptly notify the Company of the commencement of
any
litigation or proceedings against them in connection with the issuance or sale
of the Fund shares or the Variable Insurance Products or the operation of the
Fund.
7.2 Indemnification
by the Sponsor
(a)
The Sponsor agrees to indemnify and hold harmless the Company and each of its
directors and officers and each person, if any, who controls the Company within
the meaning of Section 15 of the 1933 Act (collectively, the “Indemnified
Parties” for purposes of this Section 7.2) against any and all losses, claims,
damages, liabilities (including amounts paid in settlement with the written
consent of the Sponsor) or litigation (including legal and other expenses)
to
which the Indemnified Parties may become subject under any statute, at common
law or otherwise, insofar as such losses, claims, damages, liabilities or
expenses (or actions in respect thereof) or settlements are related to the
sale
or acquisition of the Fund’s shares or the Variable Insurance Products
and:
(i) arise
out
of or are based upon any untrue statement or alleged untrue statement of any
material fact contained in the registration statement or prospectus or sales
literature of the Fund (or any amendment or supplement to any of the foregoing),
or arise out of or are based upon the
omission
or the alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, provided
that this agreement to indemnify shall not apply as to any Indemnified Party
if
such statement or omission or such alleged statement or omission was made
in
reliance upon and in conformity with information furnished to the Sponsor
or
Fund by or on behalf of the Company for use in the registration statement
or
prospectus for the Fund or in the policy or sales literature (or any amendment
or supplement) or otherwise for use in connection with the sale of the Variable
Insurance Products or Fund shares; or
(ii) arise
out
of or as a result of statements or representations (other than statements or
representations contained in the registration statement, prospectus
or policy or sales literature for the Variable Insurance Products not
supplied by the Sponsor or persons under its control) or unlawful conduct of
the
Fund, the Advisers or persons under their control, with respect to the sale
or
distribution of the Variable Insurance Products or Fund shares; or
(iii) arise
out
of any untrue statement or alleged untrue statement of a material fact contained
in a registration, prospectus, policy or sales literature covering the Variable
Insurance Products, or any amendment or supplement thereto, or the omission
or
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statement or statements therein not misleading, if
such
statement or omission was made in reliance upon information furnished to the
Company by or on behalf of the Fund; or
(iv) result
from any failure by the Sponsor or the Fund to provide the services and furnish
the materials under the terms of this Agreement (including a failure to comply
with the diversification requirements specified in Article VI of this
Agreement); or
(v) arise
out
of or result from any material breach of any representation and/or warranty
made
by the Sponsor or the Fund in this Agreement or arise out of or result from
any
other material breach of this Agreement by the Sponsor or the Fund;
as
limited by and in accordance with the provisions of Sections 7.2(b) and 7.2(c)
hereof.
(b) The
Sponsor shall not be liable under this indemnification provision with respect
to
any losses, claims, damages, liabilities or litigation to which an Indemnified
Party would otherwise be subject by reason of 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 and duties under this Agreement or to the Company
or
the Accounts, whichever is applicable.
(c) The
Sponsor shall not be liable under this indemnification provision with respect
to
any claim made against an Indemnified Party unless such Indemnified Party shall
have notified the Sponsor 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 any such service on any designated agent), but
failure to notify the Sponsor of any such claim shall not relieve the Sponsor
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 any case any such action is brought against the
Indemnified Parties, the Sponsor will be entitled to participate, at its own
expense, in the defense thereof. The Sponsor also shall
be
entitled to assume the defense thereof, with counsel satisfactory to the
party
named in the action. After notice from the Sponsor to such party of
the Sponsor’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 Sponsor will not be liable to such party under this Agreement for any
legal
or other expenses subsequently incurred by each party independently in
connection with the defense thereof other than reasonable costs of
investigation.
(d) The
Company agrees promptly to notify the Sponsor 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 Variable Insurance Products or
the
operation of each Account.
7.3 Indemnification
by the Fund
(a) The
Fund agrees to indemnify and hold harmless the Company, and each of its
directors and officers and each person, if any, who controls the Company within
the meaning of Section 15 of the 1933 Act (collectively, the “Indemnified
Parties” for purposes of this Section 7.3) against any and all losses, claims,
damages, liabilities (including amounts paid in settlement with the written
consent of the Fund) or litigation (including legal and other expenses) to
which
the Indemnified Parties may become subject under any statute, at common law
or
otherwise, insofar as such losses, claims damages, liabilities or expenses
(or
action in respect thereof) or settlements resulting from the gross negligence,
bad faith or willful misconduct of the Board or any member thereof, are related
to the operations of the Fund and:
(i) arise
as a result of any failure by the Fund to provide the services and furnish
the
materials under the terms of this Agreement (including a failure to comply
with
the diversification requirements specified in Article VI of this Agreement);
or
(ii) arise
out of or result from any material breach of any representation and/or warranty
made by the Fund in this Agreement or arise out of or result from any other
material breach of this Agreement by the Fund;
as
limited by and in accordance with the provisions of Sections 7.3(b) and 7.3(c)
hereof.
(b) The
Fund shall not be liable under this indemnification provision with respect
to
any losses, claims, damages, liabilities or litigation to which an Indemnified
Party would otherwise be subject by reason of 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 and duties under this Agreement or to the Company,
the
Fund, the Sponsor or each Account, whichever is applicable.
(c) The
Fund shall not be liable under this indemnification provision with respect
to
any claim made against an Indemnified Party unless such Indemnified Party shall
have notified the Fund 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), but failure
to notify the Fund of any such claim shall not relieve the Fund 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 Fund will be entitled
to
participate, at its own expense, in the defense thereof. The Fund
also shall be entitled to assume the defense thereof, with counsel satisfactory
to the party named in the action. After notice from the Fund to such
party or the Fund’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 Fund will not be liable to such party independently in connection
with
the defense thereof other than reasonable costs of
litigation.
(d) The
Company and the Sponsor agree promptly to notify the Fund of the commencement
of
any litigation or proceedings against it or any of its respective officers
or
directors in connection with this Agreement, the issuance or sale of the
Variable Insurance Products, with respect to the operation of an Account, or
the
sale or acquisition of shares of the Fund.
7.4 Indemnification
by the Distributor
(a) The
Distributor agrees to indemnify and hold harmless the Company and each of its
directors and officers and each person, if any, who controls the Company within
the meaning of Section 15 of the 1933 Act (collectively, the “Indemnified
Parties” for purposes of this Section 7.4) against any and all losses, claims,
damages, liabilities (including amounts paid in settlement with the written
consent of the Sponsor) or litigation (including legal and other expenses)
to
which the Indemnified Parties may become subject under any statute, at common
law or otherwise, insofar as such losses, claims, damages, liabilities or
expenses (or actions in respect thereof) or settlements are related to the
sale
or acquisition of the Fund’s shares or the Variable Insurance Products
and:
(i) arise
out of or are based upon any untrue statement or alleged untrue statement of
any
material fact contained in the registration statement or prospectus or sales
literature of the Fund (or any amendment or supplement to any of the foregoing),
or arise out of or are based upon the omission or the alleged omission to state
therein a material fact required to be stated therein or necessary to make
the
statements therein not misleading, provided that this agreement to indemnify
hall not apply as to any Indemnified Party if such statement or omission or
such
alleged statement or omission was made in reliance upon and in conformity with
information furnished to the Distributor or Fund by or on behalf of the Company
for use in the registration statement or prospectus for the Fund or in sales
literature (or any amendment or supplement) or otherwise for use in connection
with the sale of the Variable Insurance Products or Fund shares; or
(ii) arise
out of or as a result of statements or representations (other than statements
or
representations contained in the registration statement, prospectus, policy
or
sales literature for the Variable Insurance Products not supplied by the
Distributor or persons under its control) or unlawful conduct of the Fund,
the
Advisers or persons under their control, with respect to the sale or
distribution of the Variable Insurance Products or Fund shares; or
(iii) arise
out of any untrue statement or alleged untrue statement of a material fact
contained in a registration statement, prospectus, policy or sales literature
covering the Variable Insurance Products, or any amendment or supplement
thereto, or the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statement or statements
therein not misleading, if such statement or omission was made in reliance
upon
information furnished to the Company by or on behalf of the Fund;
or
(iv) result
from any failure by the Distributor or the Fund to provide the services and
furnish the materials under the terms of this Agreement; or
(v) arise
out of or result from any material breach of any representation and/or warranty
made by the Distributor or the Fund in this Agreement or arise out of or result
from any other material breach of this Agreement by the Distributor of the
Fund;
as
limited by and in accordance with the provisions of Sections 7.4(b) and 7.4(c)
hereof.
(b) The
Distributor shall not be liable under this indemnification provision with
respect to any losses, claims, damages, liabilities or litigation to which
an
Indemnified Party would otherwise be subject by reason of 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 and duties under this Agreement or to the
Company or the Accounts, whichever is applicable.
(c) The
Distributor shall not be liable under this indemnification provision with
respect to any claim made against an Indemnified Party unless such Indemnified
Party shall have notified the Distributor 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 any such service on any
designated agent), but failure to notify the Distributor of any such claim
shall
not relieve the Distributor 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 any case any such action is
brought against the Indemnified Parties, the Distributor will be entitled to
participate, at its own expense, in the defense thereof. The Sponsor
also shall be entitled to assume the defense thereof, with counsel satisfactory
to the party named in the action. After notice from the Distributor
to such party of the Distributor’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 Distributor will not be liable to such party under
this
Agreement for any legal or other expenses subsequently incurred by each party
independently in connection with the defense thereof other than reasonable
costs
of investigation.
(d) The
Company agrees promptly to notify the Distributor 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 Variable Insurance Products or
the
operation of each account.
ARTICLE
VIII. Proprietary Information and Privacy
8.1 Each
party hereto acknowledges that Confidential Information (as defined below)
provided or disclosed by one party (the “disclosing party”) to another party
(the “receiving party”) pursuant to this Agreement constitutes the valuable
property of the disclosing party.
(a) The
receiving party agrees that, should it come into possession of or have Access
(as defined below) to any Confidential Information of the disclosing party,
pursuant to this Agreement or any other agreement related to services under
this
Agreement, the receiving party shall use its best efforts to hold such
Confidential Information in confidence and refrain from using, disclosing,
or
distributing any of such Confidential Information except (i) as required or
necessary to carry out the obligations imposed
by
this
Agreement, (ii) with the disclosing party’s prior written consent, or (iii) as
required by law or judicial process; provided, that before disclosing
any Confidential Information under a court order or operation of law, the
receiving party shall provide the disclosing party reasonable notice (if
permitted by law) and the opportunity to object to or limit such
disclosure.
(b) The
receiving party agrees not to disclose the Confidential Information of the
disclosing party to any third party, except for the receiving party’s (i)
officers, employees and directors who have a business need to know such
information, and (ii) consultants, agents or independent contractors who have
a
business need to know such information and have entered into binding obligations
of confidentiality substantially similar to, and no less restrictive than,
the
obligations set forth in this Article VIII.
(c) Notwithstanding
the foregoing, this Article shall not prohibit the receiving party from
utilizing the disclosing party’s Confidential Information for any purpose
whatsoever, if and to the extent such Confidential Information: (i) is or
becomes a matter of public knowledge through no fault of the receiving party;
or
(ii) was in the receiving party’s possession or known by it prior to receipt
from the disclosing party; or (iii) was rightfully disclosed to the receiving
party by another person without restriction; or (iv) is independently developed
by the receiving party without access to the disclosing party’s Confidential
Information.
(d) Each
party agrees to comply, at a minimum, with all applicable privacy laws,
including those promulgated pursuant to Title V of the Xxxxx-Xxxxx-Xxxxxx Act
of
1999. Each party agrees to maintain physical, electronic and
procedural safeguards reasonably designed to protect the security,
confidentiality, and integrity of, and to prevent unauthorized access to or
use
of, Customer Information (as defined below). Each party acknowledges
that any breach of the foregoing agreements as to another party would result
in
immediate and irreparable harm to such other party for which there would be
no
adequate remedy at law and agrees that in the event of such a breach, such
other
party will be entitled to equitable relief by way of temporary and permanent
injunctions, as well as such other relief as any court of competent jurisdiction
shall deem appropriate.
(e) The
Sponsor and the Fund acknowledge that any Company Customer Information that
they
receive or to which they have Access must be properly disposed of so that it
is
rendered unreadable or indecipherable, such as by burning, shredding,
pulverizing or erasure.
(f) The
Sponsor has established and maintains procedures for the notification of
affected persons in the event of a breach of security involving confidential
information owned, licensed or maintained by the Sponsor and relating to such
persons. The Sponsor agrees to notify the Company promptly following
the discovery or notification of any breach of security involving Customer
Information or other confidential information provided to the Sponsor or the
Fund by the Company pursuant to this Agreement in accordance with its
notification procedures as in effect from time to time.
8.2 For
purposes of this Article VIII:
(a) “Access”
means, but shall not be limited to, the ability to view, receive, process or
handle data or the media on which such data resides.
(b) “Confidential
Information” means material or information proprietary to the disclosing party
or designated as Confidential Information by the disclosing party and not
generally known by third parties. Confidential Information includes,
but is not limited to, the following types of information and other information
of a similar nature (whether or not reduced to writing): discoveries;
ideas; concepts; all computer programs and procedures developed by the
disclosing party or the disclosing party’s affiliates or agents in connection
with the disclosing party’s performance of its duties under this Agreement;
marketing techniques and materials; marketing and development plans and
procedures; Customer Information, employee names, addresses, telephone numbers,
and other information related to employees; price lists; pricing policies and
financial information. Confidential Information also includes any
information described above which the receiving party obtains from a third
party
or is jointly developed by the parties and which either party treats as
proprietary or designates as Confidential Information.
(c) “Customer
Information” means the identities of the other party’s customers (including,
with respect to the Company, for purposes of this Article, the names, addresses,
telephone numbers, taxpayer identification numbers, and other personally
identifiable information relating to Variable Insurance Product
owners).
ARTICLE
IX. Anti-Money Laundering Policies
To
the
extent applicable, the Sponsor, the Fund, the Distributor and the Company each
agree to comply with all anti-money laundering statutes, rules, regulations
and
guidance of government and/or self-regulatory organizations.
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 State of Ohio.
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 SEC may grant, and the terms
hereof shall be interpreted and construed in accordance therewith.
ARTICLE
XI. Termination
11.1 This
Agreement shall continue in full force and effect until the first to occur
of:
(a) termination
by any party for any reason by sixty (60) days’ advance written notice delivered
to the other parties; or
(b) termination
by the Company by written notice to the Fund and the Sponsor with respect to
any
Portfolio based upon the Company’s determination that shares of such Portfolio
are not reasonably available to meet the requirements of the Variable Insurance
Products; or
(c) termination
by the Company by written notice to the Fund and the Sponsor with respect to
any
Portfolio in the event any of the Portfolio’s shares are not registered, issued
or sold in
accordance
with applicable state and/or federal law or such law precludes the use of such
shares as the underlying investment media of the Variable Insurance Products
issued or to be issued by the Company; or
(d) termination
by the Company by written notice to the Fund and the Sponsor with respect to
any
Portfolio in the event that such Portfolio ceases to qualify as a Regulated
Investment Company under Subchapter M of the Code or under any successor or
similar provision, or if the Company reasonably believes that the Fund may
fail
to so qualify (in the event of such termination, the Company shall withdraw
all
assets allocable to the separate accounts from the Portfolio and shall reinvest
such assets in a different investment medium, including, but not limited to,
another Portfolio of the Fund); or
(e) termination
by the Company by written notice to the Fund and the Sponsor with respect to
any
Portfolio in the event that such Portfolio fails to meet the diversification
requirements as specified in Article VI hereof (in the event of such
termination, the Company shall withdraw all assets allocable to the separate
accounts from the Portfolio and shall reinvest such assets in a different
investment medium, including, but not limited to, another Portfolio of the
Fund); or
(f) termination
by the Fund, Sponsor, or Distributor by written notice to the Company, if any
of
the Fund, Sponsor, or Distributor shall determine, in its sole judgment
exercised in good faith, that the Company and/or its affiliated companies has
suffered a material adverse change in its business, operations, or financial
condition since the date of this Agreement or is the subject of material adverse
publicity; or
(g) termination
by the Company by written notice to the Fund and the Sponsor, if the Company
shall determine, in its sole judgment exercised in good faith, that either
the
Fund, the Sponsor, or the Distributor has suffered a material adverse change
in
its business, operations or financial condition since the date of this Agreement
or is the subject of material adverse publicity.
11.2 Notwithstanding
any termination of this Agreement, the Fund and the Sponsor shall, at the option
of the Company, continue to make available shares of the Fund pursuant to the
terms and conditions of this Agreement, for all Variable Insurance Products
in
effect on the effective date of termination of this Agreement (hereinafter
referred to as “Existing Contracts”). Specifically, without
limitation, the owners of the Existing Contracts shall be permitted to
reallocate investments in the Fund, redeem investments in the Fund and/or invest
in the Fund upon the making of additional purchase payments under the Existing
Contracts.
11.3 The
Company shall not redeem Fund shares attributable to the Variable Insurance
Products (as opposed to Fund shares attributable to the Company’s assets held in
its general account) except (a) as necessary to implement Variable Insurance
Products owner initiated or approved transactions, or (b) 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
Fund and the Sponsor the opinion of counsel for the Company (which counsel
shall
be reasonably satisfactory to the Fund and the Sponsor) to the effect that
any
redemption pursuant to clause (b) above is a Legally Required
Redemption. Furthermore, except in cases where permitted under the
terms of the policies, the Company shall not prevent owners of Variable
Insurance
Products from allocating payments to a Portfolio that was otherwise available
under the policies without first giving the Fund or the Sponsor 90 days’ notice
of its intention to do so.
ARTICLE
XII. Notices
Any
notice shall be sufficiently given when sent by registered or certified mail,
overnight courier or facsimile to the other party at the address of such party
set forth below or at such other address as such party may from time to time
specify in writing to the other party.
If
to the
Fund: Vanguard
Variable Insurance Fund
X.X.
Xxx 0000
Xxxxxx
Xxxxx,
XX 00000
Attn: Xxxxx
Xxxx
If
to the
Sponsor: The
Vanguard Group, Inc.
X.X.
Xxx 0000
Xxxxxx
Xxxxx,
XX 00000
Attn: Xxxxx
Xxxx
If
to the
Distributor: Vanguard
Marketing Corporation
X.X.
Xxx 0000
Xxxxxx
Xxxxx,
XX 00000
Attn: Xxxxx
Xxxx
If
to the
Company: Nationwide
Life Insurance Company
Xxx
Xxxxxxxxxx Xxxxx
0-00-00
Xxxxxxxx,
XX 00000
Attn: Product
Officer –
Investment and Advisory Services
ARTICLE
XIII. Miscellaneous
13.1 It
is understood and stipulated that neither the shareholders of any Portfolio
nor
the officers or trustees of the Fund shall be personally liable
hereunder.
13.2 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.
13.3 This
Agreement may be executed simultaneously in two or more counterparts, each
of
which taken together shall constitute one and the same instrument.
13.4 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.
13.5 Each
party hereto shall cooperate with each party and all appropriate governmental
authorities (including without limitation the SEC, FINRA and state insurance
regulators) and shall permit such authorities reasonable access to its books
and
records in connection with any investigation or inquiry relating to this
Agreement or the transactions contemplated hereby.
13.6 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.
13.7 This
Agreement or any of the rights and obligations hereunder may not be assigned
by
any party without the prior written consent of all parties hereto.
13.8 The
Company shall furnish, or cause to be furnished, to the Fund or its designee
copies of the following reports:
(a) the
Company’s Annual Financial Statement on Statutory Basis as soon as practical and
in any event within 90 days after the end of each fiscal year; and
(b) any
registration statement, prospectus or other materials distributed in connection
with the sale of the Variable Insurance Products to the extent such registration
statement, prospectus or other materials reference the Fund.
13.9 This
Agreement, including any Schedule hereto, may be amended or modified only by
written instrument, executed by duly authorized officers of the
parties.
IN
WITNESS WHEREOF,
each of the parties hereto has caused this Agreement to be executed
in
its name and on its behalf by its duly authorized representative as of the
date
specified above.
VANGUARD
VARIABLE INSURANCE FUND
By:
____________________________________
Name:
_________________________________
Title:
__________________________________
THE
VANGUARD GROUP, INC.
By:
____________________________________
Name:
_________________________________
Title:
__________________________________
VANGUARD
MARKETING CORPORATION
By:
____________________________________
Name:
_________________________________
Title:
__________________________________
NATIONWIDE
LIFE INSURANCE COMPANY
By:
____________________________________
Name:
_________________________________
Title:
__________________________________
SCHEDULE
A
SEPARATE
ACCOUNTS AND ASSOCIATED CONTRACTS
Name
of Separate
Account Contracts
Funded by Separate Account
Nationwide
VLI Sep Acct –
4 BOA
CVUL Future
SCHEDULE
B
PORTFOLIOS
The
following Portfolios of the
Vanguard Variable Insurance Funds shall be made available as investments
underlying the Variable Insurance Products:
Money
Market Portfolio
Total
Bond Market Index
Portfolio
High-Yield
Bond Portfolio
Short-Term
Investment-Grade
Portfolio
Balanced
Portfolio
Diversified
Value
Portfolio
Equity
Income Portfolio
Equity
Index Portfolio
Growth
Portfolio
Mid-Cap
Index Portfolio
REIT
Index Portfolio
Small
Company Growth
Portfolio
International
Portfolio
Total
Stock Market Index
Portfolio
Capital
Growth
Portfolio
SCHEDULE
C
LARGE
TRANSACTION AMOUNTS
Portfolio Large
Transaction Amount
Money
Market Portfolio
Total
Bond Market Index Portfolio
High-Yield
Bond Portfolio
Short-Term
Investment-Grade Portfolio
Balanced
Portfolio
Diversified
Value Portfolio
Equity
Income Portfolio
Equity
Index Portfolio
Growth
Portfolio
Mid-Cap
Index Portfolio
REIT
Index Portfolio
Small
Company Growth Portfolio
International
Portfolio
Total
Stock Market Index Portfolio
Capital
Growth Portfolio
