AMENDED AND RESTATED SERVICE AGREEMENT
AMENDED
AND RESTATED
This
Agreement is entered into effective as of the 1st day of
April 2002
by and between FIDELITY INVESTMENTS INSTITUTIONAL OPERATIONS COMPANY, INC.
(“FIIOC”) and NATIONWIDE FINANCIAL SERVICES, INC.
(“Company”). The parties agree that this Agreement shall
amend and restate the prior Service Agreement between them, dated as of January
1, 1996, as amended, in its entirety.
WHEREAS,
FIIOC provides transfer agency and other services to
Fidelity’s Variable Insurance Products Fund, Variable Insurance Products Fund II
and Variable Insurance Products Fund III (collectively “Funds”);
and
WHEREAS,
the services provided by FIIOC on behalf of the Funds include responding to
inquiries about the Funds, including the provision of information about the
Funds’ Investment objectives, investment policies, portfolio holdings, etc.;
and
WHEREAS,
Company, Nationwide Life Insurance Company, and Nationwide Life and Annuity
Insurance Company (together “Affiliates”) hold shares of the Funds in order to
fund certain variable annuity contracts, group annuity contracts, and/or
variable life insurance policies, the beneficial interests in which are held
by
individuals, plan trustees, or others who look to Affiliates to provide
information about the Funds similar to the information provided by FIIOC;
and
WHEREAS,
Affiliates and one or more of the Funds have entered into one or more
Participation Agreements, under which Affiliates agree not to provide
information about the Funds except for information provided by the Funds or
their designees; and
WHEREAS,
FIIOC desires that Company shall cause Affiliates to be able to respond to
inquiries about the Funds from individual variable annuity owners, participants
in group annuity contracts issued by Affiliates and owners and participants
under variable life insurance policies issued by Affiliates, and prospective
customers for any of the above; and
WHEREAS,
FIIOC and Company recognize that Affiliates’ efforts in responding to customer
inquiries will reduce the burden that such inquiries would place on FIIOC should
such inquiries be direction to FIIOC.
NOW,
THEREFORE, the parties do agree as follows:
1. Information
to be Provided to Affiliates. FIIOC agrees to provide to
Affiliates, on periodic basis, directly or through a designee, information
about
the Funds’ investment objectives, investment policies, portfolio holdings,
performance, etc. The content and format of such information shall be
as FIIOC, in its sole discretion, shall choose. FIIOC may change the
format and/or content of such informational reports, and the frequency with
which such information is provided. For purposes of Section 4.2 of
each of Affiliates’ Participation Agreement(s) with the Funds, FIIOC represents
that it is the designee of the Funds, and Affiliates may therefore use the
information provided by FIIOC without seeking additional permission from the
Funds.
2. Use
of Information by
Affiliates. Affiliates may use the information provided by FIIOC
in communications to individuals, plan trustees, or others who have legal title
or beneficial interest in the annuity or life insurance products issued by
Affiliates, and to prospective purchasers of such products or beneficial
interests thereunder. If such information is contained as part of
larger pieces of sales literature, advertising, etc., such pieces shall be
furnished for review to the Funds in accordance with the terms of Affiliates’
Participation Agreements with the Funds. Nothing herein shall give
Affiliates the right to expand upon, reformat or otherwise alter the information
provided by FIIOC. Affiliates acknowledge that the information
provided them by FIIOC may need to be supplemented with additional qualifying
information, regulatory disclaimers, or other information before it may be
conveyed to persons outside Affiliates.
3. Compensation
to
Company. In recognition of the fact that Company will cause
Affiliates to respond to inquiries that otherwise would be handled by FIIOC,
FIIOC agrees to pay Company a quarterly fee computed as follows:
At
the close of each calendar quarter,
FIIOC will determine the Average Daily Assets held in the Funds by
Affiliates. Average Daily Assets shall be the sum of the daily assets
for each calendar day in the quarter divided by the number of calendar days
in
the quarter. The Average Daily Assets shall be multiplied by ____(__
basis points) and that sum shall be divided by four. The resulting
number shall be the quarterly fee for that quarter, which shall be paid to
Company within 45 days following the end of such calendar quarter.
Should
any Participation Agreement(s)
between an Affiliate and any Fund(s) be terminated effective before the last
day
of a quarter, Company shall be entitled to a fee for that portion of the quarter
during which the Participation Agreement was still in effect, unless such
termination is due to misconduct on the part of the Affiliate. For
such a stub quarter, Average Daily Assets shall be the sum of the daily assets
for each calendar day in the quarter through and including the date of
termination of the Participation Agreement(s), divided by the number of calendar
days in that quarter for which the Participation Agreement was in
effect. Such Average Daily Assets shall be multiplied by ____ (__
basis points) and that number shall be multiplied by the number of days in
such
quarter that the Participation Agreement was in effect, then divided by three
hundred sixty-five. The resulting number shall be the quarterly fee
for the stub quarter, which shall be paid to Company with 45 days following
the
end of such calendar quarter.
Notwithstanding
the foregoing,
compensation for each calendar quarter will not exceed _______ dollars
($________).
4. Termination. This
Agreement may be terminated by Company at any time upon written notice to
FIIOC. FIIOC may terminate this Agreement at any time upon thirty
(30) days’ written notice to Company. FIIOC may terminate this
Agreement immediately upon written notice to Company (1) if required by any
applicable law or regulation, (2) if so required by action of the Fund(s) Board
of Trustees, (3) if Company engages in any material breach of this Agreement
or
(4) if any Affiliate engages in any conduct which would constitute a material
breach of this Agreement were the Affiliate a party to the
Agreement. This Agreement shall terminate immediately and
automatically with respect to an Affiliate upon the termination of that
Affiliate’s Participation Agreement(s) with the Funds, and in such event no
notice need to be given hereunder.
5. Indemnification. Company
agrees to indemnify and hold harmless FIIOC for any misuse by Company, either
Affiliate, their agents and/or brokers, and any person controlling Company,
under common control with Company, or controlled by Company, of the information
provided by FIIOC under this Agreement.
6. Applicable
Law. This Agreement shall be construed and the provisions hereof
interpreted under and in accordance with the laws of the Commonwealth of
Massachusetts.
7. Assignment. This
Agreement may not be assigned unless agreed to by the parties in writing, except
that it shall be assigned automatically to any successor to FIIOC as the Funds’
transfer agent, and any such successor shall be bound by the terms of this
Agreement.
IN
WITNESS WHEREOF, the parties have
set their hands as of the date first written above.
FIDELITY
INVESTMENTS
INSTITUTIONAL NATIONWIDE
FINANCIAL SERVICES, INC.
OPERATIONS
COMPANY, INC.
By: ____________________________ By: _____________________________
Name: Xxxxxx
Xxxxxx Name: Xxxx
X. Xxxxx
Title: Senior
Vice
President Title: VP
– Financial Operations
FIRST
AMENDMENT TO
AMENDED
AND RESTATED SERVICE AGREEMENT
WHEREAS,
FIDELITY INVESTMENTS INSTITUTIONAL OPERATIONS COMPANY, INC. (“FIIOC”) and
NATIONWIDE FINANCIAL SERVICES, INC. (“Company”) entered into an Amended and
Restated Service Agreement effective as of April 1, 2002
(“Agreement”);
WHEREAS,
the parties desire that such
Agreement be amended to reflect organizational changes of the
Company.
NOW,
THEREFORE, the parties do agree
that effective January 1, 2003, the term “Affiliates” shall also include
Nationwide Life Insurance Company of America (f/k/a Provident Mutual Life
Insurance Company) and Nationwide Life and Annuity Company of America (f/k/a
Providentmutual Life and Annuity Company of America).
IN
WITNESS WHEREOF, each of the parties
hereto has caused this First Amendment to be executed in its name and on its
behalf by its duly authorized representative.
FIDELITY
INVESTMENTS INSTITUTIONAL OPERATIONS COMPANY, INC.
By: ___________________________
Name: Xxxxxx
Xxxxxx
Title: Senior
Vice President
NATIONWIDE
FINANCIAL SERVICES, INC.
By: ___________________________
Name: Xxxxxxx
X. Xxxxxx
Title: Vice
President
