FUND AGREEMENT
This
Agreement dated as of the 1st day of August, 2001 is made by and among
Nationwide Financial Services, Inc. (“NFS”) (including any affiliates and/or
subsidiaries listed on Exhibit A, collectively “NFS Affiliate/Subsidiary”) and
INVESCO Funds Group, Inc. (adviser and transfer agent) and INVESCO Distributors,
Inc. (underwriter/distributor) (collectively, the “Fund Party"), to the mutual
funds (the “Funds”) listed on Exhibit B.
WHEREAS,
NFS Affiliate/Subsidiary provides administrative and/or recordkeeping services
to variable contracts, which may include, but are not limited to, variable
annuity contracts, variable life insurance policies and various retirements
plans which meet the definition of retirement plans under Sections 401, 403 and
457 of the Internal Revenue Code (the “Code”) (collectively, “Contracts”);
and
WHEREAS,
NFS Affiliate/Subsidiary may issue variable annuity contracts and variable life
insurance policies through separate accounts (“Variable Accounts”) as listed on
Exhibit A; and
WHEREAS,
the Contracts allow for the allocation of net amounts received by NFS to
sub-accounts which correspond to each Fund for investment in shares of the
Funds; and
WHEREAS,
selection of a particular sub-account is made by the contract owner or by
participants in various types of retirement plans and such contract owners
and/or participants may reallocate their investment options among the
sub-accounts in accordance with the terms of the Contracts; and
WHEREAS,
NFS and Fund Party mutually desire the inclusion of the Funds as investment
options for the Contracts; and
NOW
THEREFORE, NFS and Fund Party, in consideration of the promises and undertakings
described herein, agree that the Funds will be available in products and
services provided by NFS subject to the following:
REPRESENTATIONS AND
UNDERTAKINGS
REPRESENTATIONS BY
NFS
NFS or an
NFS Affiliate/Subsidiary agrees to perform certain administrative services
(“Services”) as listed on Exhibit C.
NFS
represents that the NFS Affiliates/Subsidiaries, including Variable Accounts,
have been established and are in good standing under the state law in which they
were organized. The Variable Accounts are registered under the
Investment Company Act of 1940, unless otherwise exempt therefrom.
NFS 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 Fund Party (or an entity
on its behalf) which contain information about the Funds. NFS agrees
to allow a reasonable period of time for Fund Party to review any advertising
and sales literature drafted by NFS (or agents on its behalf) with respect to
the Funds prior to use and prior to submitting such material to any
regulator.
NFS
acknowledges that the identity of Fund Party (and its affiliates’ and/or
subsidiaries’) customers and all information maintained about those customers
constitute the valuable property of Fund Party. NFS
1
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), NFS shall hold such information or property in confidence and shall
not use, disclose or distribute any such information or property except with
Fund Party’s prior written consent or as required by law or judicial
process. This paragraph shall survive the expiration or termination
of this Agreement.
NFS
acknowledges that the services provided for under this Agreement by Fund Party
are not exclusive and that the same skill will be used in performing services to
other companies in similar contexts.
NFS
represents that the Contracts marketed as annuity contracts and/or life
insurance policies are currently treated as annuity contracts and/or life
insurance policies under the appropriate provisions of the Code, and that it
shall make every effort to maintain such treatment. NFS will promptly
notify Fund Party upon having a reasonable basis for believing that the
Contracts have ceased to be treated as annuity contracts or life insurance
policies, or that the Contracts may not be so treated in the
future.
For
Contracts issued through the Variable Accounts, NFS 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, and that it shall make every effort to continue to
meet such definitional requirements. NFS shall promptly notify Fund
Party 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. Unless
otherwise exempt, Fund Party agrees to provide NFS with a certificate or
statement indicating compliance with Section 817(h) and a schedule of investment
holdings, to be received by NFS no later than 30 days following the end of the
calendar quarter.
REPRESENTATIONS BY FUND
PARTY
Fund
Party acknowledges that it receives substantial savings as a result of NFS
performing those Services listed on Exhibit C on behalf of the
Funds.
Fund
Party and its agents shall make no representations about NFS except those
contained in publicly available documents or other documents produced by NFS (or
an entity on its behalf). Fund Party agrees to allow a reasonable period of time
for NFS to review any advertising and sales literature drafted by Fund Party (or
agents on its behalf) with respect to NFS prior to use and prior to submitting
such material to any regulator.
Fund
Party acknowledges that the identity of NFS (and its affiliates’ and/or
subsidiaries’) customers and that all information maintained about those
customers constitute the valuable property of NFS. Fund Party 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),
Fund Party shall hold such information or property in confidence and shall not
use, disclose or distribute any such information or property except with NFS’
prior written consent or as required by law or judicial process. This
paragraph shall survive the expiration or termination of this
Agreement.
Fund
Party acknowledges that the services provided for under this Agreement by NFS or
an NFS Affiliate/Subsidiary are not exclusive and that the same skill will be
used in performing services to other companies in similar contexts. Fund Party
represents that it will use its best efforts to give equal emphasis and
promotion to NFS as is given to companies in similar contexts.
Fund
Party represents that the Funds are currently qualified as regulated investment
companies under Subchapter M of the Code, and that the Funds shall make every
effort to maintain such qualification.
2
Fund
Party shall promptly notify NFS 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.
Fund
Party represents that any insurance Funds utilized in the Contracts 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, if required, and
that such 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.
Fund Party will notify NFS 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.
CUSTOMER
PRIVACY
Fund
Party acknowledges that it has read, and will conform to, Nationwide's Privacy
policy which is explained in Nationwide's Privacy Statement, herein attached as
Exhibit E, which may be updated from time to time. Failure to conform
to Nationwide's Privacy Statement is a breach of this Agreement.
Fund
Party agrees to comply with all laws, rules, regulations, and ordinances
relating to privacy, confidentiality, security, data security, and the handling
of customer information which may from time to time be established.
Fund
Party agrees not to disclose or use any consumer nonpublic personal information
(including nonpublic personal financial information and nonpublic personal
health information), which may be supplied by Nationwide to Fund Party in
performance under this Agreement other than to:
a) carry
out the purpose for which the information was provided; and
b) to
use or disclose the information as otherwise permitted or required by
law.
NFS
agrees to comply with all laws, rules, regulations, and ordinances relating to
privacy, confidentiality, security, data security, and the handling of customer
information which may from time to time be established.
NFS
agrees not to disclose or use any consumer nonpublic personal information
(including nonpublic personal financial information and nonpublic personal
health information), which may be supplied by Fund Party to NFS in performance
under this Agreement other than to:
a) carry
out the purpose for which the information was provided; and
b) to
use or disclose the information as otherwise permitted or required by
law.
This
provision will survive and continue in full force and effect after the
termination of this Agreement.
TRADING
Subject
to the terms and conditions of this Agreement, NFS shall be appointed to, and
agrees to act, as a limited agent of Fund Party for the sole purpose of
receiving instructions from authorized parties as defined by the Contracts for
the purchase and redemption of Fund shares prior to the close of regular trading
each Business Day. A "Business Day” shall mean any day on which the
New York Stock Exchange is open for trading and on which the Fund calculates its
net asset value as set forth in the Fund’s most recent prospectus and Statement
of Additional Information. Except as particularly stated in this
paragraph, NFS shall have no authority to act on behalf of Fund Party or to
incur any cost or liability on its behalf.
3
Until
such time as Fund Party and NFS are able to utilize the National Securities
Clearing Corporation ("NSCC") Defined Contribution Clearing and
Settlement ("DCC&S") Fund/SERV system;
Fund
Party will use its best efforts to provide to NFS or its designated agent
closing net asset value, change in net asset value, dividend or daily accrual
rate information and capital gain information by 7:00 p.m. Eastern Time each
Business Day. NFS or its agent shall use this data to calculate unit
values. Unit values shall be used to process the same Business Day’s
contract transactions. Orders derived from, and in amounts equal to,
instructions received by NFS prior to the Close of Trading on the New York Stock
Exchange on any Business Day ("Day 1") shall be transmitted without modification
(except for netting or aggregating such orders) to Fund Party by 9:00 A.M.
Eastern Time on the next Business Day. Such trades will be effected
at the net assets value of each Fund's shares calculated as of the Close of
Trading on Day 1. Fund Party will not accept any order made on a conditional
basis or subject to any delay or contingency. NFS shall only place
purchase orders for shares of Funds on behalf of its customers whose addresses
recorded on NFS’ 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 Fund Party.
Until
such time as Fund Party and NFS are able to utilize the DCC&S Fund/SERV
system, each party shall, as soon as practicable after its receipt of an
instruction or confirmation transmitted, verify its receipt of such instruction
or confirmation, and in the absence of such verification such a party to whom an
instruction or confirmation is sent shall not be liable for any failure to act
in accordance with such instruction or confirmation, and the sending party may
not claim that such an instruction or confirmation was received by the
other. Each party shall notify the other of any errors, omissions or
interruptions in, or delay or unavailability as promptly as
possible.
|
a)
|
For
those purchase orders not transmitted via the DCC&S Fund/SERV system,
NFS shall initiate payment to Fund Party or its designated agent in
federal funds no later than 1:00 P.M. Eastern Time on the
Business Day following the day on which the instructions are treated as
having been received by Fund Party pursuant to this
Agreement.
|
|
b)
|
For
those redemption orders not transmitted via the DCC&S Fund/SERV
system, Fund Party or its designated agent shall initiate payment in
federal funds no later than 1:00 P.M. Eastern Time on the Business Day
following the day on which the instructions are treated as having been
received by Fund Party pursuant to this
Agreement.
|
At such
time as Fund Party and NFS are able to transmit information via the NSCC's
DCC&S Fund/SERV System:
|
a)
|
Orders
derived from, and in amounts equal to, instructions received by NFS prior
to the Close of Trading on Day 1 shall be transmitted without modification
(except for netting and aggregation of such orders) via the NSCC's
DCC&S Fund/SERV system to Fund Party no later than 5:00 A.M. Eastern
Time on the Next Business Day. Such trades will be effected at
the net asset value of each Fund's shares calculated as of the Close of
Trading on Day 1.
|
|
b)
|
Fund
Party and NFS shall mutually agree there may be instances when orders
shall be transmitted to Fund Party via facsimile no later than 9:00 A.M.
rather than through the DCC&S Fund/SERV system. In such
instances, such orders shall be transmitted to Fund Party via facsimile no
later than 9:00 A.M. Eastern Time on the next Business
Day.
|
|
c)
|
With
respect to purchase and redemption orders received by Fund Party on any
Business Day for any Fund, within the time limits set forth in this
Agreement, settlement shall occur consistent with the requirements of
DCC&S Fund/SERV system.
|
4
At such
time as Fund Party and NFS are able to transmit information via the DCC&S
Fund/SERV system; Fund Party or its designated agent shall send to NFS, via the
DCC&S Fund/SERV system, verification of net purchase or redemption orders or
notification of the rejection of such orders ("Confirmations ") on each Business
Day for which NFS has transmitted such orders. Such confirmations
shall include the total number of shares of each Fund held by NFS following such
net purchase or redemption. Fund Party, or its designated agent, shall submit in
a timely manner, such confirmations to the DCC&S Fund/SERV system in order
for NFS to receive such confirmations no later than 11:00 A.M. Eastern Time the
next Business Day. Fund Party or its designated agent will transmit to NFS via
DCC&S NETWORKING system those Networking activity files reflecting account
activity. In addition, within five (5) business days after the end of
each month, Fund Party or its affiliate will send NFS a statement of account
which shall confirm all transactions made during that particular month in the
account.
DOCUMENTS AND OTHER
MATERIALS
DOCUMENTS PROVIDED BY
NFS
NFS
agrees to provide Fund Party, upon written request, any reports indicating the
number of shareholders that hold interests in the Funds and such other
information (including books and records) that Fund Party may reasonably request
or as may be necessary or advisable to enable it to comply with any law,
regulation or order.
DOCUMENTS PROVIDED BY FUND
PARTY
Within
10 Business Days after the end of each calendar month, Fund Party
shall provide NFS, or its designee, a monthly statement of account, which shall
confirm all transactions made during that particular month.
Fund
Party shall promptly provide NFS, or cause NFS to be provided with, a reasonable
quantity of the Funds’ prospectuses, Statements of Additional Information and
any supplements thereto.
NOTICE
Each
notice required by this Agreement shall be given in writing to:
Nationwide
Financial Services, Inc.
Xxx
Xxxxxxxxxx Xxxxx 0-00-X0
Xxxxxxxx,
Xxxx 00000
Attention: Securities
Officer
Fax
Number: 000-000-0000
INVESCO
Funds Group, Inc. and
INVESCO
Distributors, Inc
0000 Xxxx
Xxxxx Xxx.
Xxxxxx,
XX 00000
Attention:
Xxxxxx X. Xxxxxx, Senior Vice President
Fax
Number: 000-000-0000
Any party
may change its address by notifying the other party(ies) in
writing.
5
VOTING
For
Variable Accounts that are registered under the 1940 Act and 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, NFS shall
distribute all proxy material furnished by Fund Party (provided that such
material is received by NFS or its designated agent 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 interests in such Fund shares. NFS 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 the contract owners,
provided that such proportional voting is not prohibited by a contract owner’s
plan or trust document, if applicable. NFS and its agents will in no
way recommend an action in connection with or oppose or interfere with the
solicitation of proxies in the Fund shares.
EXPENSES
All
expenses incident to the performance by NFS under this Agreement shall be paid
by NFS. Likewise, all expenses incident to the performance by Fund
Party under this Agreement shall be paid by Fund Party.
NFS shall
not bear any of the expenses for the cost of registration of the Funds’ shares,
preparation of the Funds’ prospectuses, proxy materials, and reports and the
preparation of other related statements and notices required by law except as
otherwise mutually agreed upon by the parties to the
Agreement. Notwithstanding the foregoing, NFS agrees to bear the
costs of postage in proxy mailings to contract owners.
Should
Fund Party determine that a Fund will no longer be available in an NFS contract,
Fund Party shall be responsible for any and all expenses incurred as a result of
removing such Fund as an available investment option under the
Contract.
Should
NFS desire to no longer have a Fund available in an NFS contract, NFS shall be
responsible for any and all expenses incurred as a result of removing such Fund
as an available investment option under the Contract.
Should a
removal of a fund as an available investment option be mutually desired by the
parties, the parties agree to equally share any expenses incurred as a result of
removing such Fund as an available investment option.
Both NFS
and Fund Party agree to provide reasonable advance notice of the election to
remove a fund as an available investment option in order to permit the parties
to file documentation as may be required under applicable law.
CONFLICTS
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 NFS, NFS shall at its own expense,
take whatever steps are necessary to remedy or eliminate such material
conflict.
6
It is
agreed that if it is determined by NFS that a material conflict exists caused by
Fund Party, Fund Party shall at its own expense, take whatever steps are
necessary to remedy or eliminate such material conflict.
INDEMNIFICATION
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
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 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.
INDEMNIFICATION BY
NFS
NFS
agrees to reimburse and/or indemnify and hold harmless Fund Party and each of
its directors, officers, employees, agents and each person, if any, who controls
Fund Party 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 Fund Party 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:
(1)
|
Any
untrue statement or alleged untrue statement of any material fact
contained in information furnished by
NFS;
|
(2)
|
The
omission or alleged omission to state in the Registration Statements,
Prospectuses, Informational Brochures or other similar
material, a material fact required to be stated therein or necessary to
make the statements therein not
misleading;
|
(3)
|
Conduct,
statements or representations of NFS or its agents, with respect to the
sale and distribution of Contracts for which Fund shares are an investment
option;
|
(4)
|
The
failure of NFS or an NFS Affiliate/Subsidiary to provide the services and
furnish the materials under the terms of this
Agreement;
|
(5)
|
A
breach of this Agreement or of any of the representations contained
herein; or
|
(6)
|
Any
failure to register Contracts or Variable Account that do not meet any
exemptions under federal or state securities laws, state insurance laws or
failure to otherwise comply with applicable laws, rules, regulations or
orders.
|
Provided
however, that NFS shall not be liable in any such case to the extent that 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 NFS by or on behalf of Fund Party
specifically for use therein.
NFS shall
reimburse any legal or other expenses reasonably incurred by Fund Party or any
Affiliated Party in connection with investigating or defending any such Losses,
provided however, that NFS shall have prior approval of the use of said counsel
or the expenditure of said fees.
7
This
indemnity agreement shall be in addition to any liability that NFS may otherwise
have.
INDEMNIFICATION BY Fund
Party
Fund
Party agrees to reimburse and/or indemnify and hold harmless NFS and/or NFS
Affiliate/Subsidiary and each of its directors, officers, employees, agents and
each person, if any, who controls NFS or NFS Affiliate/Subsidiary 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 NFS, NFS Affiliate/Subsidiary 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:
(1)
|
Any
untrue statement or alleged untrue statement of any material fact
contained in information furnished by Fund Party, including but not
limited to, the Registration statements, Prospectuses, or sales literature
of the Funds;
|
(2)
|
The
omission or alleged omission to state in the Registration Statements,
Prospectuses, Informational Brochures or other similar
material, a material fact required to be stated therein or necessary to
make the statements therein no
misleading;
|
(3)
|
Fund
Party’s failure to keep applicable Funds qualified as regulated investment
companies as required by the 1940 Act and applicable regulations
thereunder, and if applicable, fully diversified as is required by the
Code and applicable regulations
thereunder;
|
(4)
|
The
failure of Fund Party to provide the services and furnish the materials
under the terms of this Agreement;
|
(5)
|
A
breach of this Agreement or of any of the representations contained
herein; or
|
(6)
|
A
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 Fund Party shall not be liable in any such case to the extent that
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 Fund Party by or on behalf of NFS
specifically for use therein.
Fund
Party shall reimburse any legal or other expenses reasonably incurred by NFS or
any Affiliated Party in connection with investigating or defending any such
Losses, provided however, that Fund Party 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 Fund Party may
otherwise have.
SERVICE
FEES
In
consideration for the Services provided by NFS pursuant to this Agreement, Fund
Party will calculate and pay, or cause one of its affiliates to pay, and NFS or
an NFS Affiliate/Subsidiary that is registered as a broker/dealer, will be
entitled to receive from Fund Party a fee (“Service Fee”). Such fee
will be calculated at an annualized rate equal to the rates shown on Exhibit D
of the average daily net assets of each Fund for which NFS performed
administrative services during the period in which they were
earned.
The
Service Fees will be paid to NFS, or its designee, by check as soon as
practicable, but no later than 30 days after the end of the period in which they
were earned or upon receipt of the proper invoice as described in Schedule D for
the applicable share classes. The Service will be paid on either a
monthly or quarterly basis as described in Exhibit D by share
class. The Service Fee payment will be accompanied or preceded by a
statement showing the calculation of the amounts being paid by Fund Party for
the relevant period and such other supporting data as may be reasonably
requested by NFS.
8
The
Service Fee shall be paid either by:
(a)
|
Fund
Party or one of its affiliates from transfer agency fees or general
operating funds;
|
(b)
|
Fund
Party or one of its affiliates from funds received pursuant to a
shareholder service plan (“Rule 12b-1 Plan”);
or
|
(c)
|
Fund
Party or one of its affiliates from administrative service/support fees;
or
|
(d)
|
a
combination thereof.
|
The
Service Fee shall be calculated as described in Exhibit D by share
class.
The
parties agree that a Service Fee will be paid to NFS or its designee according
to this Agreement with respect to each Fund as long as shares of such Fund are
held by an NFS Affiliate/Subsidiary on behalf of the beneficial owners of
contracts issued by an NFS Affiliate/Subsidiary.
NFS and
Fund Party agree that the Service Fees described in this Agreement are for
administrative and distribution services of the Funds only, and do not
constitute payment in any manner for investment advisory services for the Fund
or for costs of administrative and distribution services on behalf of the
Contracts.
MAINTENANCE
FEES
Fund
Party recognizes that NFS incurs certain expenses relating to offering the Funds
listed in the Nationwide Trust Company Program. To offset these
expenses, Fund Party shall pay, or cause to be paid, an annual Maintenance Fee
of $XXXXX for each of the Funds listed in the Nationwide Trust Company Program
section on Exhibit D. Nationwide, or its designee, shall invoice Fund
Party in the fourth quarter of each calendar year for the Maintenance Fee due
for the upcoming calendar year. The Maintenance Fee shall be payable
on the first day of each calendar year.
COMPLIANCE WITH
AGREEMENT
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 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.
TERMINATION
This
Agreement shall terminate as to the availability of shares of the Funds for new
Contracts:
(1)
|
at
the option of NFS or Fund Party upon at least 90 days advance written
notice to the other;
|
(2)
|
at
any time upon Fund Party 's election, if the Funds determine that
liquidation of the Funds is in the best interest of the Funds or their
beneficial owners. Reasonable advance notice of election to
liquidate shall be provided to NFS in order to permit the substitution of
Fund shares, if necessary, with shares of another investment company
pursuant to the 1940 Act and other applicable securities
regulations;
|
(3)
|
if
the applicable annuity contracts and life insurance policies are not
treated as annuity contracts or life insurance policies by the applicable
regulators or under applicable rules and
regulations;
|
(4)
|
if
the Variable Accounts are not deemed “segregated asset accounts” by the
applicable regulators or under applicable rules and
regulations;
|
(5)
|
at
the option of NFS, if Fund shares are not available for any reason to meet
the requirements of Contracts as determined by NFS. Reasonable
advance notice of election to terminate (and time to cure) shall be
furnished by NFS;
|
9
(6)
|
at
the option of NFS or Fund Party, upon institution of relevant formal
proceedings against the broker-dealer(s) marketing the Contracts, the
Variable Accounts, NFS, an NFS Affiliate/Subsidiary or the Funds by the
NASD, the IRS, the Department of Labor, the SEC, state insurance
departments or any other regulatory
body;
|
(7)
|
upon
a decision by NFS, in accordance with the 1940 Act and applicable
regulations, 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. NFS
shall give at least 60 days written notice to Fund Party of any proposal
to substitute Fund shares;
|
(8)
|
upon
assignment of this Agreement unless such assignment is made with the
written consent of each party; and
|
(9)
|
in
the event Fund shares are not registered, issued or sold pursuant to
federal law and state securities laws, or such laws preclude the use of
Fund shares as an underlying investment medium of Contracts issued or to
be issued by an NFS Affiliate/Subsidiary. Prompt written notice
shall be given by either party to the other in the event the conditions of
this provision occur.
|
JURISDICTION
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.
PARTNERSHIPS/JOINT
VENTURES
Nothing
in this Agreement shall be deemed to create a partnership or joint venture by
and among the parties hereto.
AMENDMENTS TO THIS
AGREEMENT
This
Agreement cancels and replaces the following Agreements:
·
|
Fund
Participation Agreement dated February 8, 1999 among Nationwide Life
Insurance Company and/or Nationwide Life and Annuity Insurance Company,
INVESCO Funds Group, Inc. and INVESCO Distributors, Inc., including any
amendments thereto;
|
·
|
Service
Agreement dated February 8, 1999 between Nationwide Financial Services,
Inc. and INVESCO Funds Group, Inc., including any amendments
thereto;
|
·
|
Omnibus
Account Services Agreement dated February 7, 2000 among National Deferred
Compensation, INVESCO Funds Group, Inc. and INVESCO
Distributors;
|
·
|
Pricing
of Transactions in the INVESCO Funds Letter Agreement dated May 28, 1997
between National Deferred Compensation, Inc. and INVESCO Funds
Group;
|
·
|
Omnibus
Account Services Agreement dated April 14, 1999 among National Deferred
Compensation, Inc., Nationwide Investment Services Corporation, INVESCO
Funds Group, Inc. and INVESCO Distributors,
Inc.
|
Except
for Exhibits B and D, this Agreement may not be amended or modified except by a
written amendment executed by all parties to the Agreement.
EXECUTION
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 a legal, valid and
binding obligation, and is enforceable in accordance with its
terms. Except
10
as
particularly set forth herein, neither party assumes any responsibility
hereunder and will not be liable to the other for any damages, loss of data,
delay or any other loss whatsoever caused by events beyond its
control.
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.
NATIONWIDE FINANCIAL SERVICES,
INC.
/s/ Xxxxxxx X.
Xxxxxx
By: Xxxxxxx X.
Xxxxxx
Title: Vice
President
Investment
Management Relations
INVESCO
FUNDS GROUP, INC.
/s/ Xxxxxx X.
Xxxxxx
By: Xxxxxx
X. Xxxxxx,
Title: Senior
Vice President
INVESCO
DISTRIBUTORS, INC.
/s/ Xxxxxx X.
Xxxxxx
By: Xxxxxx
X. Xxxxxx,
Title: Senior
Vice President
11
EXHIBIT
A
This
Exhibit corresponds to the Fund Agreement dated August 1, 2001
Registered
Broker Dealers
Nationwide
Advisory Services, Inc.
Nationwide
Investment Services Corporation
Affiliates
and Subsidiaries
Nationwide
Life Insurance Company
Nationwide
Life and Annuity Insurance Company
Nationwide
Trust Company, FSB
Nationwide
Retirement Solutions, Inc.
National
Deferred Compensation, Inc.
Variable
Accounts
Nationwide
Variable Account
Nationwide
Variable Account-II
Nationwide
Variable Account-3
Nationwide
Variable Account-4
Nationwide
Variable Account-5
Nationwide
Variable Account-6
Nationwide
Fidelity Advisor VA
Nationwide
Variable Account-8
Nationwide
Variable Account-9
Nationwide
Variable Account-10
Nationwide
Variable Account-11
Nationwide
Variable Account-12
Nationwide
Variable Account-13
Multi-Flex
Variable Account
Nationwide
VA Separate Account-A
Nationwide
VA Separate Account-B
Nationwide
VA Separate Account-C
Nationwide
VA Separate Account-D
Nationwide
VLI Separate Account
Nationwide
VLI Separate Account-2
Nationwide
VLI Separate Account-3
Nationwide
VLI Separate Account-4
Nationwide
VLI Separate Account-5
Nationwide
VLI Separate Account-6
Nationwide
VL Separate Account
Nationwide
VL Separate Account-A
Nationwide
VL Separate Account-B
Nationwide
VL Separate Account-C
Nationwide
VL Separate Account-D
Nationwide
DC Variable Account
Nationwide
DC variable Account-II
NACo
Variable Account
Nationwide
Governmental Plans Variable Account
Nationwide
Governmental Plans Variable Account-II
Nationwide
Qualified Plans Variable Account
Nationwide
Private Placement Variable Account
Ohio DC
Variable Account
12
EXHIBIT
B
This
Exhibit corresponds to the Fund Agreement dated August 1, 2001
FUNDS
|
INVESCO
Advantage Fund – A & C Classes
|
INVESCO
Advantage Global Health Sciences Fund – A & C
Classes
|
INVESCO
Balanced Fund – C, Investor, & K Classes
|
INVESCO
Blue Chip Growth Fund – C, Investor, & K Classes
|
INVESCO
Cash Reserves Fund – A & C Classes
|
INVESCO
Dynamics Fund – C, Investor, & K Classes
|
INVESCO
Endeavor Fund – C, Investor, & K Classes
|
INVESCO
Energy Fund – C, Investor, & K Classes
|
INVESCO
Equity Income Fund – C, Investor, & K Classes
|
INVESCO
European Fund – C, Investor, & K Classes
|
INVESCO
Financial Services Fund – C, Investor, & K Classes
|
INVESCO
Global Growth Fund – A & C Classes
|
INVESCO
Gold Fund – C & Investor Classes
|
INVESCO
Growth & Income Fund – C, Investor, & K Classes
|
INVESCO
Health Sciences Fund – C, Investor, & K Classes
|
INVESCO
High Yield Fund – C, Investor, & K Classes
|
INVESCO
International Blue Chip Value Fund – C & Investor
Classes
|
INVESCO
Leisure Fund – C, Investor, & K Classesa
|
INVESCO
Mid-cap Growth Fund – A & C Classesb
|
INVESCO
Real Estate Opportunity Fund – C, & Investor
Classes
|
INVESCO
S&P 500 Index Fund – Investor Class
|
INVESCO
Select Income Fund – C, Investor, & K Classes
|
INVESCO
Small Company Growth Fund – Investor, & K Classesc
|
INVESCO
Tax-Free Bond Fund – C & Investor Classes
|
INVESCO
Technology Fund – C, Investor, & K Classes
|
INVESCO
Telecommunications Fund – C, Investor, & K Classes
|
INVESCO
Total Return Fund- C, Investor, & K Classesd
|
INVESCO
U.S. Government Securities Fund – C & Investor
Classes
|
INVESCO
Utilities Fund – C & Investor Classes
|
INVESCO
Value Equity Fund – C, Investor, & K Classese
|
INVESCO
VIF – Blue Chip Growth Fund
|
INVESCO
VIF – Dynamics Fund
|
INVESCO
VIF – Equity Income Fund
|
INVESCO
VIF – Financial Services Fund
|
INVESCO
VIF – Health Sciences Fund
|
INVESCO
VIF – High Yield Fund
|
INVESCO
VIF – Leisure Fundf
|
INVESCO
VIF – Real Estate Opportunity Fund
|
INVESCO
VIF – Small Company Growth Fund
|
INVESCO
VIF – Technology Fund
|
INVESCO
VIF – Telecommunications Fund
|
INVESCO
VIF – Total Return Fund
|
INVESCO
VIF – Utilities Fund
|
a INVESCO
Leisure Fund - Class K is currently not available, but has a scheduled effective
date of September 28, 2001 (subject to change).
13
b INVESCO
Mid-cap Growth Fund – Classes A, B, & C are currently not available, but has
a scheduled effective date of September 28, 2001 (subject to
change).
c INVESCO
Small Company Growth Fund - Class K is currently not available, but has a
scheduled effective date of September 7, 2001 (subject to change).
d INVESCO
Total Return Fund - Class K is currently not available, but has a scheduled
effective date of September 28, 2001 (subject to change).
e INVESCO
Value Equity Fund - Class K is currently not available, but has a scheduled
effective date of September 7, 2001 (subject to change).
f INVESCO
Leisure Fund – Variable Class is currently not available, but has a scheduled
effective date of October 19, 2001 (subject to change).
14
EXHIBIT
C
Services Provided by
NFS
Pursuant
to the Agreement, NFS shall perform all administrative and shareholder services
with respect to the Contracts and Plans, including but not limited to, the
following:
1.
|
Maintaining
separate records for each Contract owner and each Plan, which shall
reflect the Fund shares purchased and redeemed and Fund share balances of
such Contract owners and Plans. Nationwide will maintain
accounts with each Fund on behalf of Contract owners and Plans, and such
account shall be in the name of Nationwide (or its nominee) as the record
owner of shares owned by such Contract owners and
Plans.
|
2.
|
Disbursing
or crediting to Contract owners and Plans all proceeds of redemptions of
shares of the Funds and all dividends and other distributions not
reinvested in shares of the Funds.
|
3.
|
Preparing
and transmitting to Contract owners and Plans, as required by law,
periodic statements showing the total number of shares owned as of the
statement closing date, purchases and redemptions of Fund shares during
the period covered by the statement and the dividends and other
distributions paid during the statement period (whether paid in cash or
reinvested in Fund shares), and such other information as may be required,
from time to time, by Contract owners and
Plans.
|
4.
|
Supporting
and responding to service inquires from Contract owners and
Plans.
|
5.
|
Maintaining
and preserving all records required by law to be maintained and preserved
in connection with providing the Services for Contract owners and
Plans.
|
6.
|
Generating
written confirmations and quarterly statements to Contract owners and Plan
participants.
|
7.
|
Distributing
to Contract owners and Plans, to the extent required by applicable law,
Funds’ prospectuses, proxy materials, periodic fund reports to
shareholders and other materials that the Funds are required by law or
otherwise to provide to their shareholders or prospective
shareholders.
|
8.
|
Transmitting
purchase and redemption orders to the Funds on behalf of the Contract
owners and Plans.
|
15
EXHIBIT
D
This
Exhibit corresponds with the Agreement dated August 1, 2001.
FUND
|
CLASS
A‡1
|
CLASS
C*2
|
INVESTOR CLASS**3
|
CLASS
K***4
|
CLASS
VARIABLE****
|
CLASS
INSTITUTIONAL*****
|
INVESCO
Advantage Fund
|
||||||
INVESCO
Advantage Global Health Sciences Fund
|
||||||
INVESCO
Balanced Fund
|
||||||
INVESCO
Blue Chip Growth Fund
|
||||||
INVESCO
VIF – Blue Chip Growth Fund
|
||||||
INVESCO
Cash Reserves Fund
|
||||||
INVESCO
Dynamics Fund
|
||||||
INVESCO
VIF – Dynamics Fund
|
||||||
INVESCO
Endeavor Fund
|
||||||
INVESCO
Energy Fund
|
||||||
INVESCO
Equity Income Fund
|
||||||
INVESCO
VIF – Equity Income Fund
|
||||||
INVESCO
European Fund
|
||||||
INVESCO
Financial Services Fund
|
||||||
INVESCO
VIF – Financial Services Fund
|
||||||
INVESCO
Global Growth Fund
|
||||||
INVESCO
Gold Fund
|
||||||
INVESCO
Growth & Income Fund
|
||||||
INVESCO
Health Sciences Fund
|
||||||
INVESCO
VIF – Health Sciences Fund
|
||||||
INVESCO
High Yield Fund
|
||||||
INVESCO
VIF – High Yield Fund
|
||||||
INVESCO
International Blue Chip
Value
Fund
|
||||||
INVESCO
Leisure Funda
|
||||||
INVESCO
VIF – Leisure Fund
b
|
||||||
INVESCO
Mid-cap Growth Fundc
|
||||||
INVESCO
Real Estate Opportunity Fund
|
||||||
I
INVESCO
VIF – Real Estate Opportunity Fund
|
||||||
INVESCO
S&P 500 Index Fund
|
||||||
INVESCO
Select Income Fund
|
||||||
INVESCO
Small Company Growth Fundd
|
||||||
INVESCO
VIF - Small Company Growth Fund
|
||||||
INVESCO
Tax-Free Bond Fund
|
||||||
INVESCO
Technology Fund
|
16
INVESCO
VIF – Technology Fund
|
||||||
INVESCO
Telecommunications Fund
|
||||||
INVESCO
VIF – Telecommunications Fund
|
||||||
INVESCO
Total Return Funde
|
||||||
INVESCO
VIF – Total Return Fund
|
||||||
INVESCO
U.S. Government Securities Fund
|
||||||
INVESCO
Utilities Fund
|
||||||
INVESCO
VIF – Utilities Fund
|
||||||
INVESCO
Value Equity Fundf
|
‡ No
payment pursuant to this Exhibit is payable to NFS for the first 18 months with
respect to sales of $1 million or more, at no load, in cases where IDI has
advanced the service fee to the Dealer.
* Annual
rate of 1.00% of average of aggregate net asset value of outstanding Class C
shares of the INVESCO Funds held by shareholders receiving services described in
the Shareholder Service Agreement from an entity authorized to provide such
services, measured on each day during each calendar quarter, the applicable
portion of which is payable within 10 business days following the end of each
calendar quarter beginning after the initial 13 month period. Where
NFS waives the 1.00% up-front commission on Class C shares, 12b-1 payments
commence immediately. Of the 1.00% annual rate, 0.25% is paid as a
shareholder servicing fee and 0.75% is paid as an asset based sales charge, as
those terms are defined under the rules of the National Association of
Securities Dealers Regulation, Inc.
** For
the purpose of any activities primarily intended to result in the sale of
Investor Class shares, Fund Party shall pay an annual service fee of 0.40% of
the average daily market value of shares, to be paid monthly upon receipt of
invoice by the Fund Party from NFS. All fees shall be invoiced by NFS
in accordance with instructions as provided by Fund Party and must be received
by Fund Party in proper form within 30 days of each month following the month
for which the invoice is submitted. NFS shall also include with the
invoice a report showing the total number of active individual contract owners
and/or participants owning shares in each Fund through NFS’s omnibus
account(s). No fees shall be payable with respect to Fund shares held
by NFS in their brokerage accounts for which an invoice is not timely provided
in proper form to Fund Party or for which an invoice has not been
received.
*** For
the purpose of any activities primarily intended to result in the sale of Class
K shares, Fund Party shall pay NFS: (1) an annual service fee of
0.20% of average aggregate net asset values of outstanding Class K shares of
Funds held by contract owners/participants receiving services described in the
Agreement from an entity authorized to provide such services and (2) an annual
rate of 0.25% of average aggregate net asset values of outstanding Class K
shares of the Funds held by shareholders for such other services and activities
as may from time to time be agreed upon by the Fund Party and NFS, subject to
the applicable rules of the National Association of Securities Dealers, Inc.
(“NASD”). All fees described in this paragraph shall be measured on
each day during each calendar quarter, the applicable portion of which is
payable within 10 business days following the end of each calendar
quarter. In addition to the foregoing, Fund Party shall pay an
annualized service fee out of the transfer agency fees Fund Party received from
that Fund equal to 0.05% per contract owner/participant account that is open
during any monthly period. Such fee shall be billed by NFS monthly in
arrears on a prorated basis of 1/12 of the annualized fee for all such accounts
that are open during such month. All fees shall be invoiced by NFS in
accordance with instructions as provided by Fund Party and must be received by
Fund Party in proper form within 30 days of each
17
month
following the month for which the invoice is submitted. NFS shall
also include with the invoice a report showing the total number of active
individuals contract owners or participants owning shares in each Fund through
NFS’s plan account(s). No fees shall be payable with respect to Fund shares held
by NFS in their accounts for which an invoice is not timely provided in proper
form to Fund Party or for which an invoice has not been received.
****For
the purpose of any activities primarily to result in the sale of the Variable
Funds, Fund Party shall pay to NFS an Administrative Service/Support Fee equal
to a percentage of the average daily net assets of the Portfolios attributable
to contracts offered by NFS, at the annual rate of 0.40% on the aggregate net
asets placed by NFS in the Funds, measured on each day during each calendar
quarter, the applicable portion of which is payable within 20 business days
following the end of each calendar quarter.
*****For
the purpose of any activities primarily to result in the sale of the
Institutional Class Funds, Fund Party shall pay to NFS an annualized fee out of
the transfer agency fees Fund Agent receives from that Fund, or any other source
available to Fund Agent, equal to 0.10% per contract owner/participant account
that is open during any monthly period. Such fee shall be billed by
NFS monthly in arrears on a prorated basis of 1/12 of the annualized fee for all
such accounts that are open during such month. All fees shall be
invoiced by NFS in accordance with instructions as provided by Fund Party and
must be received by Fund Party in proper form within 30 days of each month
following the month for which the invoice is submitted. NFS shall
also include with the invoice a report showing the total number of active
individuals contract owners or participants owning shares in each Fund through
NFS’s plan account(s). No fees shall be payable with respect to Fund shares held
by NFS in their accounts for which an invoice is not timely provided in proper
form to Fund Party or for which an invoice has not been received. The
Fund’s minimum investment requirements are defined the Fund’s current
prospectus.
1 Such
Funds’ Class A shares together with any other mutual funds managed by INVESCO
Funds Group, Inc. and distributed by INVESCO Distributors, Inc. which may
hereafter offer Class A shares under a 12b-1 Plan of at least 25 basis
points.
2 Such
Funds’ Class C shares together with any other mutual funds managed by INVESCO
Funds Group, Inc. and distributed by INVESCO Distributors, Inc. which may
hereafter offer Class C shares under a 100 basis point 12b-1 Plan.
3 Such
Funds’ Investor Class shares together with any other mutual funds managed by
INVESCO Funds Group, Inc. and distributed by INVESCO Distributors, Inc. which
may hereafter offer Investor Class shares under a 25 basis point 12b-1
Plan.
4 Such
Funds’ Class K shares together with any other mutual funds managed by INVESCO
Funds Group, Inc. and distributed by INVESCO Distributors, Inc. which may
hereafter offer Investor Class shares under a 45 basis point 12b-1
Plan.
a INVESCO
Leisure Fund - Class K is currently not available, but has a scheduled effective
date of October 19, 2001 (subject to change).
b INVESCO
Leisure Fund – Variable Class is currently not available, but has a scheduled
effective date of October 19, 2001 (subject to change).
c INVESCO
Mid-cap Growth Fund – Classes A, B, & C are currently not available, but has
a scheduled effective date of September 28, 2001 (subject to
change).
d INVESCO
Small Company Growth Fund - Class K is currently not available, but has a
scheduled effective date of September 7, 2001 (subject to
change).
18
e INVESCO
Total Return Fund - Class K is currently not available, but has a scheduled
effective date of September 28, 2001 (subject to change).
f INVESCO
Value Equity Fund - Class K is currently not available, but has a scheduled
effective date of September 7, 2001 (subject to change).
19
EXHIBIT
E
Nationwide Financial Privacy Statement
Nationwide
values you as a customer and respects your right to privacy. We recognize that
you purchase our products and services because you trust that we will stand
behind our promises. In turn, we pledge our commitment to treating your
information responsibly. The Nationwide Financial companies listed below have
established the following policies to assure you that we are committed to
protecting your privacy.
How
do we protect the confidentiality and security of your information?
We
maintain physical, electronic and procedural safeguards to ensure your personal
information is treated responsibly and in accordance with our privacy policy. We
also restrict access to your personal information within our organization to
those employees who need to know that information to provide products or
services to you, or to conduct Nationwide business. Employees who have access to
customer information may use it only for legitimate business purposes.
Additionally, we safeguard customer information in accordance with applicable
data security regulations.
What
personal information do we collect about you?
We
collect personal information about you from the following sources:
·
|
Information
we receive from you on applications and other
forms;
|
·
|
Information
about your transactions with us, our affiliates, or others;
and
|
·
|
Depending
upon the product or services you are requesting, information we receive
from consumer reporting agencies, medical providers, or
others.
|
What
categories of information do we disclose and to whom?
We may
disclose the following information to entities that perform marketing and
administrative services on our behalf or as required or permitted by law for
legal, regulatory or other purposes:
·
|
Information
we receive from you on applications or other forms, such as your name,
address, beneficiaries, Social Security number, family member information,
assets, income, and property locations and
values.
|
·
|
Information
about your transactions with us, our affiliates, or others, such as your
account balance, policy coverage, payment history, the premium you pay,
the shares you purchase, preferences, claims information, and the method
of your purchase.
|
·
|
If
required for the products you select, information we receive from consumer
reporting agencies and other sources, such as your creditworthiness, motor
vehicle and driver data, medical and employment information, loss history
reports, and additional driver
data.
|
In
certain special situations, we may share some of your personal information with
non-affiliated third parties, including other financial institutions and service
providers that provide marketing support to them, to help them market products
and services other than those from Nationwide Financial and its affiliated
companies. Before sharing such information relating to you, we will give you a
supplemental notice and an opportunity to opt out of this information
sharing.
Is
your medical information confidential?
While we
sometimes must collect medical information to provide you a product or to pay a
claim, we do not use or share it, internally or externally, for any purpose
except the following:
·
|
underwriting
insurance;
|
·
|
administering
your policy, account, or claim;
|
·
|
as
required or permitted by law;
or
|
20
·
|
as
otherwise authorized by you.
|
Questions?
We value
our customers and want you to understand how we use the information we collect.
If you have any questions about our privacy policy, please contact us toll free
at
Individual
Annuities (Best of America®)
Life and
Health Operations
0-000-000-0000
Nationwide®
Retirement Solutions
1-877-677-3678
National
Deferred Compensation
0-000-000-0000
Pension
Operations
0-000-000-0000
·
|
You
may obtain a description of Nationwide Financial's procedures that allow
you to review your personal
information.
|
·
|
In
accordance with our procedures, we will provide you access to your
personal information that we control and can reasonably retrieve, upon
verification of your request.
|
·
|
You
may request that we correct your personal information in our files. Please
note that Nationwide Financial does not control information given to us by
third parties. So, you will need to contact the third party to correct any
information it gave us.
|
·
|
You
may request the name and address of the consumer reporting agency from
which we have obtained a report on you, if any. You may request that the
consumer reporting agency provide you with a copy of the report it
makes.
|
This
privacy statement describes our privacy practices for both current and former
customers. We will provide one copy of this notice to joint policy or contract
holders; please share this information with everyone covered by your policy or
contract. Upon your request, we will send additional copies of this
statement.
Thank you
for choosing Nationwide.
We look
forward to building a lifetime relationship with you.
21