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Exhibit 23(h)(2)
Amended and Restated Fund Participation Agreement dated as of February 17, 1999
by and among Nationwide Life and Annuity Insurance Company, One Group
Investment Trust, and Nationwide Advisory Services, Inc.
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AMENDED AND RESTATED
FUND PARTICIPATION AGREEMENT
This Amended and Restated Fund Participation Agreement (the "Agreement"), dated
as of the 29th day of July, 1994, and amended and restated as of the 21st day of
May, 1996, the 18th day of February, 1998, the 20th day of May, 1998, the 19th
day of November, 1998, and the 17th day of February, 1999, is made by and among
Nationwide Life and Annuity Insurance Company ("Nationwide"), One Group(R)
Investment Trust (the "Trust"), and the Trust's administrator, Nationwide
Advisory Services, Inc. (the "Administrator"), each of which hereby agrees that
shares of the series listed in Appendix A hereto (the "Funds") shall be made
available to serve as underlying investment media for variable annuity and
variable life contracts to be offered by Nationwide and to certain other
separate accounts funding variable annuity and variable life contracts issued by
other life insurance companies, and qualified pension and retirement plans,
subject to the following conditions:
1. Nationwide represents that it has established the Nationwide VA
Separate Account-C (the "Variable Account"), a separate account under
Ohio law, and has registered it as a unit investment trust under the
Investment Company Act of 1940 ("1940 Act") to serve as an investment
vehicle for the Contracts. The Contracts provide for the allocation of
net amounts received by Nationwide to separate series of the Variable
Account for investment in the shares of the Funds. Selection of a
particular series is made by the Contract owner who may change such
selection from time to time in accordance with the terms of the
applicable Contract.
2. Nationwide agrees to make every reasonable effort to market its
Contracts. In marketing its Contracts, Nationwide will comply with all
applicable state or Federal laws.
3. The Administrator or its designee will provide closing net asset value,
dividend and capital gain information at the close of trading each
business day to Nationwide. "Business day" shall mean any day on which
the New York Stock Exchange is open for trading and on which the Trust
calculates net asset value for each Fund as set forth in the Trust's
prospectus and Statement of Additional Information. Nationwide will use
this data to calculate unit values, which will in turn be used to
process that same business day's Variable Account unit value. The
Variable Account processing will be done the same evening, and orders
for purchases or redemptions will be placed the morning of the
following business day. Orders will be sent directly to the Trust or
its specified designee. Payment for purchases will be wired to a
custodial account designated by the Trust or the Administrator and
payment for redemptions will be wired to an account designated by
Nationwide so as to coincide with the order for Trust shares. The
Administrator or its designee will execute the orders at the net asset
value as determined as of the close of trading on the prior day.
Dividends and capital gains distributions shall be reinvested in
additional shares at the ex-date net asset value. Notwithstanding the
above, the Administrator or its designee shall not be held responsible
for providing Nationwide with net asset value, dividend and capital
gain information when the New York Stock
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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.
4. All expenses incident to the performance by the Trust under this
Agreement shall be the responsibility of the Trust or the
Administrator, as agreed to among themselves, but in no event shall
such expenses be the responsibility of Nationwide or the Variable
Account. The Trust shall pay the cost of registration of Fund shares
with the SEC. The Trust shall pay for and distribute to Nationwide,
proxy material, periodic Trust reports to shareholders and other
material the Trust may require to be sent to Contract owners. The Trust
will pay the mailing expenses of Nationwide for distributing such proxy
material, reports and other material to the Contract owners, who are
the beneficial shareholders of the Trust. The Trust shall pay the cost
of qualifying Fund shares in states where required. The Administrator
shall pay for and distribute to Nationwide, Trust prospectuses. In the
event that the Variable Account prospectus and the Trust prospectus are
printed together in one document form, the Trust's share of the
printing cost for such disclosure document will be equal to the total
cost of printing the disclosure documents multiplied by the ratio of
the total number of pages in the Trust's prospectus to the total number
of pages in the disclosure document, with Nationwide paying the rest.
The Administrator will provide Nationwide with a copy of the Statement
of Additional Information suitable for duplication.
5. Nationwide and its agents shall make no representations concerning the
Trust except those contained in the then-current prospectus and
Statement of Additional Information of the Trust and in current printed
sales literature of the Trust.
6. Administrative services to Contract owners shall be the responsibility
of Nationwide and shall not be the responsibility of the Trust or the
Administrator. The Trust and the Administrator recognize that
Nationwide will be the sole shareholder of Trust shares issued pursuant
to the Contracts.
7.1 The Trust represents that it believes, in good faith, that the Funds
will at all times qualify as regulated investment companies under
Subchapter M of the Internal Revenue Code of 1986, as amended (the
"Code") and that it will make every effort to maintain such
qualification of the Funds and that it will notify Nationwide
immediately upon having a reasonable basis for believing that a Fund
has ceased to so qualify or that it might not so qualify in the future.
7.2 Nationwide represents that it believes, in good faith, that the
Contracts will at all times be treated as annuity contracts under
applicable provisions of the Code, and that it will make every effort
to maintain such treatment and that it will notify the Trust
immediately upon having a reasonable basis for believing that the
Contracts have ceased to be so treated or that they might not be so
treated in the future.
7.3 The Trust represents that it believes, in good faith, that the Funds
will at all times comply
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with the diversification requirements set forth in Section 817(h) of
the Code and Section 1.817-5(b) of the regulations under the Code, and
that it will make every effort to maintain the Fund's compliance with
such diversification requirements, and that it will notify Nationwide
immediately upon having a reasonable basis for believing that a Fund
has ceased to so qualify or that a Fund might not so qualify in the
future.
7.4 Nationwide represents that it believes, in good faith, that the
Variable Account is a "segregated asset account" and that interests in
the Variable Account are offered exclusively through the purchase of a
"variable contract" within the meaning of such terms under Section
1.8170-5(f)(2) of the regulations under the Code, and that it will make
every effort to continue to meet such definitional requirements, and
that it will notify the Trust immediately upon having a reasonable
basis for believing that such requirements have ceased to be met or
that they might not be met in the future.
7.5 The Trust shall provide Nationwide within ten (10) business days after
the end of each calendar quarter a letter from the appropriate officer
of the Trust certifying to the continued accuracy of the
representations contained in Section 7.1 and Section 7.3 above, and
attaching a detailed listing of the individual securities and other
assets, if any, held by the Trust as of the end of such calendar
quarter.
8. The Administrator or its designee shall provide Nationwide within five
(5) business days after the end of each month a monthly statement of
account confirming all transactions made during that month in the
Variable Account.
9. The Trust agrees that to the extent the Trust decides in the future to
finance distribution expenses pursuant to Rule 12b-1 of the 1940 Act,
the Trust will undertake to have the board of trustees, a majority of
whom are not interested persons of the Trust, formulate and approve any
plan under Rule 12b-1 to finance distribution expenses.
10. The Trust and Administrator agree to provide Nationwide no later than
March 1 of each year with the investment advisory and other expenses of
the Trust incurred during the Trust's most recently completed fiscal
year as of March 1, to permit Nationwide to fulfill its prospectus
disclosure obligations under the SEC's variable annuity fee table
requirements.
11. This Agreement shall terminate as to the sale and issuance of new Contracts:
(a) at the option of any party hereto upon six (6) months advance
written notice to the others;
(b) at the option of the Trust, if they determine that liquidation
of the Trust is in the best interests of the Trust and its
beneficial shareholders. Reasonable advance notice of election
to liquidate shall be furnished by the Trust to permit the
substitution of Fund shares with the shares of another
investment company, pursuant to SEC regulation;
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(c) at the option of Nationwide if Trust shares are not available
for any reason to meet the requirements of Contracts as
determined by Nationwide. Reasonable advance notice of
election to terminate shall be furnished by Nationwide;
(d) at the option of any party hereto upon institution of formal
proceedings against any other party hereto by the National
Association of Securities Dealers ("NASD"), the SEC or any
other regulatory body;
(e) upon a decision by Nationwide, in accordance with regulations
of the SEC, to substitute such Trust shares with the shares of
another investment company for Contracts for which the Trust
shares have been selected to serve as the underlying
investment medium. Nationwide will give sixty (60) days
written notice to the Trust and the Administrator of any
proposed vote to substitute Trust shares;
(f) upon assignment of this Agreement by any party unless made
with the written consent of each other party;
(g) in the event Trust shares are not registered, issued or sold
in conformance with Federal law or such law precludes the use
of Trust shares as an underlying investment medium of
Contracts issued or to be issued by Nationwide. Prompt notice
shall be given by either party to the other in the event the
conditions of this provision occur.
12. Termination as the result of any cause listed in the preceding
paragraph, except for paragraph 11. (b) , shall not affect the Trust's
obligation to furnish Trust shares for Contracts then in force for
which the shares of the Trust serve or may serve as an underlying
medium, unless such further sale of Trust shares is proscribed by law
or the SEC or other regulatory body.
13. Each notice required by this Agreement shall be given by wire and
confirmed in writing to:
Nationwide Life and Annuity Insurance Company
Xxx Xxxxxxxxxx Xxxxx
Xxxxxxxx, Xxxx 00000
Attn: Xxxx Xxxxx, General Counsel
One Group(R) Investment Trust
Three Xxxxxxxxxx Xxxxx
Xxxxxxxx, Xxxx 00000
Attn: Xxxxx X. Xxxxx, President and Treasurer
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Administrator
Nationwide Advisory Services, Inc.
Three Xxxxxxxxxx Xxxxx
Xxxxxxxx, Xxxx 00000
Attn: Xxxxxxxxxxx X. Xxxx, Treasurer
14. Advertising and sales literature with respect to the Trust prepared by
Nationwide or its agents for use in marketing its Contracts will be
submitted to the Trust for review before Nationwide submits such
material to the SEC or NASD for review.
15. So long as and to the extent that the SEC continues to interpret the
1940 Act to require pass-through voting privileges for variable
contract owners, Nationwide will distribute all proxy material
furnished by the Trust and will vote Trust shares in accordance with
instructions received from the Contract owners of such Trust shares.
Nationwide shall vote the Trust shares for which no instructions have
been received in the same proportion as Trust shares for which said
instructions have been received from Contract owners. Nationwide and
its agents will in no way recommend action in connection with or oppose
or interfere with the solicitation of proxies for the Trust shares held
for such Contract owners.
16. (a) Nationwide agrees to indemnify and hold harmless the Trust,
the Administrator and the Trust's investment adviser (the
"Adviser") and each of their directors, officers, employees,
agents and each person, if any, who controls the Trust, the
Administrator or the Adviser within the meaning of the
Securities Act of 1933 (the "Act") against any losses, claims,
damages or liabilities to which the Trust, Administrator or
the Adviser or any such director, officer, employee, agent or
controlling person may become subject, under the Act or
otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or
are based upon:
(i) any untrue statement or alleged untrue statement of
any material fact contained in information furnished
by Nationwide for use in the Registration Statement
or prospectus of the Trust or in the Registration
Statement or prospectus for the Variable Account;
(ii) the omission or the alleged omission to state in the
Registration Statement or prospectus of the Variable
Account a material fact required to be stated therein
or necessary to make the statements therein not
misleading;
(iii) conduct, statements or representations of Nationwide
or its agents, with respect to the sale and
distribution of Contracts for which Trust shares are
an underlying investment; or
(iv) the failure of Nationwide to provide the services and
furnish the materials under the terms of this
Agreement;
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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 information furnished to Nationwide by or on
behalf of the Trust, the Administrator, or the Adviser.
Nationwide will reimburse any legal or other expenses
reasonably incurred by the Trust, the Administrator or the
Adviser or any such director, officer, employee, agent or
controlling person in connection with investigating or
defending any such loss, claim, damage, liability or action,
provided, however, that Nationwide shall have prior approval
of the use of counsel and the expenditure of fees.
This indemnity agreement will be in addition to any liability
which Nationwide may otherwise have.
(b) The Trust agrees to indemnify and hold harmless Nationwide and
each of its directors, officers, employees, agents and each
person, if any, who controls Nationwide within the meaning of
the Act against any losses, claims, damages or liabilities to
which Nationwide or any such director, officer, employee,
agent or controlling person may become subject, under the Act
or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or
are based upon:
(i) any untrue statement or alleged untrue statement of
any material fact contained in the Registration
Statement or prospectus or sales literature of the
Trust;
(ii) the omission or the alleged omission to state in the
Registration Statement or prospectus of the Trust a
material fact required to be stated therein or
necessary to make the statements therein not
misleading;
(iii) the Trust's failure to keep the Trust fully
diversified and qualified as a regulated investment
company as required by the applicable provisions of
the Code, the 1940 Act, and the applicable
regulations promulgated thereunder;
(iv) the Trust's or the Administrator's (1) incorrect
calculation of the daily net asset value, dividend
rate or capital gain distribution rate; (2) incorrect
reporting of the daily net asset value, dividend rate
or capital gain distribution rate; or (3) untimely
reporting of the net asset value, dividend rate or
capital gain distribution rate; or
(v) the failure of the Trust or the Administrator to
provide the services and furnish the materials under
the terms of this Agreement;
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provided however, that the Trust and the Administrator will
not be liable in any such case to the extent that any such
loss, claim, damage or liability arises out of or is based
upon an untrue statement or omission or alleged omission made
in such Registration Statement or prospectus in conformity
with written information furnished to the Trust by Nationwide
specifically for use therein.
The Trust and the Administrator will reimburse any legal or
other expenses reasonably incurred by Nationwide or any such
director, officer, employee, agent or controlling person in
connection with investigating or defending any such loss,
claim, damage, liability or action. This indemnity agreement
will be in addition to any liability which the Trust and the
Administrator may otherwise have.
(c) Each party shall promptly notify the other in writing of any
situation which presents or appears to involve a claim which
may be subject of indemnification hereunder and the
indemnifying party shall have the option to defend against any
such claim. In the event the indemnifying party so elects, it
will notify the indemnified party and shall assume the defense
of such claim, and the indemnified party shall cooperate fully
with the indemnifying party, at the indemnifying party's
expense, in the defense of such claim. Notwithstanding the
foregoing, the indemnified party shall be entitled to
participate in the defense of such claim at its own expense
through counsel of its own choosing. Neither party shall
confess any claim nor make any compromise in any action or
proceeding which may result in a finding of wrongdoing by the
other party without the other party's prior written consent.
Any notice given by the indemnifying party to an indemnified
party or participation in or control of the litigation of any
such claim by the indemnifying party shall in no event be
deemed to be an admission by the indemnifying party of
culpability, and the indemnifying party shall be free to
contest liability with respect to the claim among parties.
(d) It is understood and expressly agreed that the obligations and
liabilities of the Trust hereunder shall not be binding upon
any of the Trustees, shareholders, nominees, officers, agents
or employees of the Trust, personally, but shall bind only the
assets and property of the Trust, as provided in the
Declaration of Trust of the Trust. The execution and delivery
of this Agreement have been authorized by the Trustee's and
signed by an authorized officer of the Trust, acting as such,
and neither such authorization by such Trustee's nor such
execution and delivery by such officer shall be deemed to have
been made by any of them individually or to impose any
liability on any of them personally, but shall bind only the
assets and property of the Trust as provided in its
Declaration of Trust.
17. The forbearance or neglect of any party to insist upon strict
compliance by any other party, with any of the provisions of this
Agreement, whether continuing or not, or to declare a forfeiture of
termination against the other parties, shall not be construed as a
waiver of any of the rights or privileges of any party hereunder. No
waiver of any right or privilege of any party arising from any default
or failure of performance by any party shall affect the rights or
privileges of the other parties in the event of a further default or
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failure of performance.
18. The obligations of One Group(R) Investment Trust entered into in the
name or on behalf thereof by any of the Trustees, representatives or
agents are made not individually, but in such capacities, and are not
binding upon any of the Trustees, Shareholders or representatives of
the Trust personally, but bind only the assets of the Trust, and all
persons dealing with any series of Shares of the Trust must look solely
to the assets of the Trust belonging to such series for the enforcement
of any claims against the Trust.
19. This Agreement shall be construed and the provisions hereof interpreted
under and in accordance with the laws of Massachusetts. This Agreement
shall be subject to the provisions of the federal securities statutes,
rules and regulations, including such exemptions from those statutes,
rules and regulations as the SEC may grant and the terms hereof shall
be interpreted and construed in accordance therewith. In case of any
conflict of law, the Investment Company Act of 1940 shall control.
20. This agreement supercedes any and all prior fund participation
agreements made by and between the parties.
NATIONWIDE LIFE AND ANNUITY INSURANCE COMPANY
By: /s/ Xxxxxx Xxxx
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Title: Vice President
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ONE GROUP(R) INVESTMENT TRUST
By: /s/ Xxxxx X. Xxxxx, Xx.
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Title: President and Treasurer
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NATIONWIDE ADVISORY SERVICES, INC.
By: /s/ Xxxxxxxxxxx X. Xxxx
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Title: Treasurer
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APPENDIX A
FUNDS OF THE TRUST
One Group Investment Trust Government Bond Portfolio
One Group Investment Trust Balanced Portfolio
One Group Investment Trust Mid Cap Growth Portfolio
One Group Investment Trust Large Cap Growth Portfolio
One Group Investment Trust Equity Index Portfolio
One Group Investment Trust Bond Portfolio
One Group Investment Trust Diversified Equity Portfolio
One Group Investment Trust Diversified Mid Cap Portfolio
One Group Investment Trust Mid Cap Value Portfolio
NATIONWIDE LIFE AND ANNUITY INSURANCE COMPANY
By: /s/ Xxxxxx Xxxx
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Title: Vice President
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ONE GROUP(R) INVESTMENT TRUST
By: /s/ Xxxxx X. Xxxxx, Xx.
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Title: President and Treasurer
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NATIONWIDE ADVISORY SERVICES, INC.
By: /s/ Xxxxxxxxxxx X. Xxxx
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Title: Treasurer
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Dated: February 17, 1999
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