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EXHIBIT 99.3(h)(6)
FUND AGREEMENT
This Agreement dated as of the _____ day of __________, 2001 is made by and
among Nationwide Financial Services, Inc. (including any affiliates and/or
subsidiaries listed on Exhibit A) and Financial Investors Variable Insurance
Trust ("FIVIT"), which serves as adviser and distributor to the mutual funds
(the "Funds") listed on Exhibit B.
WHEREAS, NFS or a subsidiary or affiliate thereof (collectively referred to as
"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 (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 FIVIT mutually desire the inclusion of the Funds as investment
options for the Contracts; and
NOW THEREFORE, NFS and FIVIT 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 FIVIT (or an
entity on its behalf) which contain information about the Funds. NFS agrees to
allow a reasonable period of time for FIVIT 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 FIVIT (and its affiliates' and/or
subsidiaries') customers and all information maintained about those customers
constitute the value property of FIVIT. NFS 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 FIVIT prior written consent or as
required by law or judicial process. This paragraph shall survive the expiration
or termination of this Agreement.
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NFS acknowledges that the services provided for under this Agreement by FIVIT
are not exclusive and that the same skill will be used in performing services to
other companies in similar contexts. NFS represents that it will use its best
efforts to give equal emphasis and promotion to shares of the Funds as is given
to other investment options that may be available in NFS contracts.
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
FIVIT upon having a reasonable basis for believing that the Contracts have
ceased to be treated as annuity contracts or life insurance policies, or tat 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 FIVIT 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.
REPRESENTATIONS BY FIVIT
FIVIT acknowledges that it receives substantial savings as a result of NFS
performing those Services listed on Exhibit C on behalf of the Funds.
FIVIT 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). FIVIT agrees to allow a reasonable period of time for
NFS to review any advertising and sales literature drafted by FIVIT (or agents
on its behalf) with respect to NFS prior to use and prior to submitting such
material to any regulator.
FIVIT acknowledges that the identity of NFS (and its affiliates' and/or
subsidiaries') customers and all information maintained about those customers
constitute the value property of NFS. FIVIT 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), FIVIT 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.
FIVIT 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. FIVIT
represents that it will use its best efforts to give equal emphasis and
promotion to NFS as is given to companies in similar contexts.
FIVIT 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. FIVIT 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.
FIVIT 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.
FIVIT 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.
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TRADING
Subject to the terms and conditions of this Agreement, NFS shall be appointed
to, and agrees to act, as a limited agent of FIVIT 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 FIVIT or to incur any cost or
liability on its behalf.
Until such time as FIVIT and NFS are able to utilize the National Securities
Clearing Corporation ("NSCC") Defined Contribution Clearing and Settlement
("DCC&S") Fund/SERV system; FIVIT 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 FIVIT 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.
FIVIT 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
FIVIT.
Until such time as FIVIT 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 FIVIT or its designated agent in
federal funds no later than 1:00 P.M. on the Business Day following the
day on which the instructions are treated as having been received by
FIVIT pursuant to this Agreement.
b) For those redemption orders not transmitted via the DCC&S Fund/SERV
system, FIVIT or its designated agent shall initiate payment in federal
funds no later than 1:00 P.M. on the Business Day following the day on
which the instructions are treated as having been received by FIVIT
pursuant to this Agreement.
At such time as FIVIT 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 FIVIT 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) FIVIT and NFS shall mutually agree there may be instances when orders
shall be transmitted to FIVIT via facsimile no later than 9:00 A.M.
rather than through the DCC&S Fund/SERV system.
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In such instances, such orders shall be transmitted to FIVIT via
facsimile no later than 9:00 A.M. Eastern Time on the next Business
Day.
c) Purchase and redemption orders received by FIVIT 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.
At such time as FIVIT and NFS are able to transmit information via the DCC&S
Fund/SERV system; FIVIT 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. FIVIT, 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.
FIVIT 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, FIVIT 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 FIVIT 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 FIVIT may reasonably request or
as may be necessary or advisable to enable it to comply with any law, regulation
or order.
DOCUMENTS PROVIDED BY FIVIT
Within 10 Business Days after the end of each calendar month, FIVIT shall
provide NFS, or its designee, a monthly statement of account, which shall
confirm all transactions made during that particular month.
FIVIT 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:
NFS Financial Services, Inc.
Xxx Xxxxxxxxxx Xxxxx 0-00-X0
Xxxxxxxx, Xxxx 00000
Attention: Securities Officer
Fax Number: 000-000-0000
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Attention: General Counsel
Fax Number:
Any party may change its address by notifying the other party(ies) in writing.
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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 FIVIT (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 FIVIT under
this Agreement shall be paid by FIVIT.
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.
Should a Fund with to no longer be available in an NFS contract, FIVIT 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 FIVIT 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.
It is agreed that if it is determined by NFS that a material conflict exists
caused by FIVIT, FIVIT 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,
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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 FIVIT and each of its
directors, officers, employees, agents and each person, if any, who controls
FIVIT 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 FIVIT 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 no 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 FIVIT
specifically for use therein.
NFS shall reimburse any legal or other expenses reasonably incurred by FIVIT 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.
This indemnity agreement shall be in addition to any liability which NFS may
otherwise have.
INDEMNIFICATION BY FIVIT
FIVIT 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 FIVIT including but not limited to,
the Registration statements, Prospectuses, or sales literature of the
Funds;
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(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) FIVIT'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 FIVIT 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 FIVIT 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 FIVIT by or on behalf of NFS
specifically for use therein.
FIVIT 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 FIVIT 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 FIVIT may
otherwise have.
SERVICE FEES
In consideration for the Services provided by NFS pursuant to this Agreement,
FIVIT 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 FIVIT 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 electronic funds
transfer as soon as practicable, but no later than 30 days after the end of the
period in which they were earned. If the Fund assets administered by NFS are
less than $1 billion as of December 31 of the prior calendar year, the Service
Fees will be paid on a quarterly basis. Once assets are greater than $1 billion,
the Service Fees will be paid on a monthly basis. The Service Fee payment will
be accompanied or preceded by a statement showing the calculation of the amounts
being paid by FIVIT for the relevant period and such other supporting data as
may be reasonably requested by NFS.
The Service Fee shall be paid either by:
(a) FIVIT or one of its affiliates from general operating funds;
(b) FIVIT or one of its affiliates from funds received pursuant to a
shareholder service plan ("Rule 12b-1 Plan") a copy of which is
attached as Exhibit E and incorporated herein by reference; or
(c) a combination thereof.
The Service Fee shall be calculated as an annualized percentage of the average
aggregate amount invested in the Funds for the applicable period. The average
aggregate amount shall be computed by totaling the aggregate investment on each
business day during the period and dividing by the total number of Business Days
during the period.
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. This provision will survive
the termination of this Agreement.
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NFS and FIVIT 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
FIVIT recognizes that NFS incurs certain expenses relating to offering the Funds
listed in the Nationwide Trust Company Program. To offset these expenses, FIVIT
shall pay, or cause to be paid, an annual Maintenance Fee of $2,500 for each of
the Funds listed in the Nationwide Trust Company Program section on Exhibit D.
Nationwide, or its designee, shall invoice FIVIT 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 FIVIT upon at least 90 days advance written notice
to the other;
(2) at any time upon FIVIT'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;
(6) at the option of NFS or FIVIT, 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 FIVIT 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 even 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.
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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 join
venture by and among the parties hereto.
AMENDMENTS TO THIS AGREEMENT
This Agreement supersedes any and all prior Agreements made by and between the
parties. This Agreement may not be amended or modified except by a written
amendment, which includes any amendments to the Exhibits, 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 ad deliver the Agreement and that the Agreement constitutes a legal,
valid and binding obligation, and enforceable in accordance with its terms.
Except as particularly set forth herein, neither party assumes any
responsibility hereunder and will not be liable to the other for any 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.
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By: Xxxxxxx X. Xxxxxx
Title: Vice President
Investment Management Relations
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By:
Title:
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EXHIBIT A
This Exhibit corresponds to the Fund Agreement dated __________, 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
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 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
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EXHIBIT B
This Exhibit corresponds to the Fund Agreement dated ________, 2001
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FUNDS
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Financial Investor Variable Insurance Trust - First Horizon Growth &
Income Portfolio
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Financial Investor Variable Insurance Trust - First Horizon Capital
Appreciation Portfolio
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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.
12
13
EXHIBIT D
TO FUND AGREEMENT
This Exhibit corresponds with the Agreement dated ________, 2001.
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BASIS POINTS PER ANNUM
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o ____________ - Class A (30 Bps) Funds available for NFS (including any
o ____________ - Class A (10 Bps) affiliates and/or subsidiaries)
o ____________ - Class A (20 Bps)
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o ____________ - Class A (50 Bps) Funds Participating in the Nationwide
Trust Company Program
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13
14
EXHIBIT E (12B-1 PLAN)
TO FUND AGREEMENT
This Exhibit corresponds with the Agreement dated_______, 2001.
14
