Exhibit No. EX-99.23(h)(8)
FUND PARTICIPATION AGREEMENT
This Agreement dated as of the 2nd day of May 2005 is made by and among
Nationwide Financial Services, Inc. (including any affiliates and/or
subsidiaries listed on Exhibit A), Gartmore Mutual Fund Capital Trust, which
serves as adviser, and Gartmore Distribution Services, Inc., which services as
distributor, to the Gartmore Variable Insurance Trust (the "Trust") with respect
to its series of shares of beneficial interest (each, a "Fund," and
collectively, the "Funds"). In this Agreement, Gartmore Mutual Fund Capital
Trust and Gartmore Distribution Services, Inc. are collectively referred to as
"Gartmore."
WHEREAS, Nationwide Financial Services, Inc. ("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
of 1986, as amended (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 Gartmore mutually desire the inclusion of the Funds as
investment options for the Contracts; and
NOW THEREFORE, NFS and Gartmore, 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 B.
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, as amended (the "1940 Act"), 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 Gartmore (or
an entity on its behalf) which contain information about the Funds. NFS agrees
to allow a reasonable period of time for Gartmore 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 Gartmore (and its affiliates' and/or
subsidiaries') customers and all information maintained about those customers
constitute the valuable property of Gartmore. 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 Gartmore 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 Gartmore
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
Gartmore 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 Gartmore 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 GARTMORE
---------------------------
Gartmore acknowledges that it receives substantial savings as a result of NFS
performing those Services listed on Exhibit B on behalf of the Funds.
Gartmore 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). Gartmore agrees to allow a reasonable period of time
for NFS to review any advertising and sales literature drafted by Gartmore (or
agents on its behalf) with respect to NFS prior to use and prior to submitting
such material to any regulator.
Gartmore 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. Gartmore 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), Gartmore
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.
Gartmore 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. Gartmore
represents that it will use its best efforts to give equal emphasis and
promotion to NFS as is given to companies in similar contexts.
Gartmore 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. Gartmore 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.
Gartmore 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.
Gartmore will notify NFS promptly upon having a reasonable basis for believing
that the Funds have ceased to so qualify, of that the Funds might not so qualify
in the future.
CUSTOMER PRIVACY
----------------
Gartmore acknowledges that it has read, and to the extent applicable agrees to
comply with the Nationwide's privacy policy that is explained in Nationwide's
Privacy Statement, herein attached as Exhibit F, which may be updated from time
to time.
Gartmore 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.
Gartmore 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 Gartmore 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.
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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 Gartmore 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 Gartmore 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 Gartmore or to incur any cost or
liability on its behalf.
Until such time as Gartmore and NFS are able to utilize the National Securities
Clearing Corporation ("NSCC") Defined Contribution Clearing and Settlement
("DCC&S") Fund/SERV system; Gartmore 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 Gartmore by 9:00 a.m. Eastern
Time on the next Business Day. Such trades will be affected at the net assets
value of each Fund's shares calculated as of the Close of Trading on Day 1.
Gartmore 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 confined in writing by
Gartmore.
Until such time as Gartmore 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.
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(a) For those purchase orders not transmitted via the DCC&S
Fund/SERV system, NFS shall initiate payment to Gartmore 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 Gartmore
pursuant to this Agreement.
(b) For those redemption orders not transmitted via the DCC&S
Fund/SERV system, Gartmore 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 Gartmore pursuant to
this Agreement.
At such time as Gartmore 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 NSCCs DCC&S Fund/SERV
system to Gartmore 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) Gartmore and NFS shall mutually agree there may be instances
when orders shall be transmitted to Gartmore 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
Gartmore 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
Gartmore 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 Gartmore and NFS are able to transmit information via the DCC&S
Fund/SERV system; Gartmore 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. Gartmore, 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. Gartmore 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, Gartmore
or its affiliate will send NFS a statement of account which shall confirm all
transactions made during that particular month in the account.
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DOCUMENTS AND OTHER MATERIALS
-----------------------------
DOCUMENTS PROVIDED BY NFS
-------------------------
NFS agrees to provide Gartmore and/or the Trust, 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 Gartmore may
reasonably request or as may be necessary or advisable to enable it to comply
with any law, regulation or order.
DOCUMENTS PROVIDED BY GARTMORE
------------------------------
Within 10 Business Days after the end of each calendar month, Gartmore shall
provide NFS, or its designee, a monthly statement of account, which shall
confirm all transactions made during that particular month.
Gartmore 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
Gartmore Mutual Fund Capital Trust
0000 Xxxxx Xxxx
Xxxxxxxxxxxx, XX 00000
Attention: Treasurer
Fax Number: (000) 000-0000
Any party may change its address by notifying the other party(ies) in writing.
VOTING
------
For Variable Accounts that are registered under the 1940 Act and so long as and
to the extent that the U.S. Securities and Exchange Commission ("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 Gartmore
(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
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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 Gartmore
under this Agreement shall be paid by Gartmore.
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 no longer be available in an NFS contract, Gartmore shall be
responsible for any and all expenses incurred as a result of removing such Fund
as an available investment option under the Contract.
For NFS' annual mailing to customers of product and Fund prospectuses, Gartmore
will pay the lesser of :
(a) The cost to print individual Fund prospectuses; or
(b) Gartmore's portion of printing costs if NFS does not use
individual prospectuses, but reprints Fund prospectuses in
another format.
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 Gartmore 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 Board
of Trustees of the Funds, or a majority of the Funds' Trustees who are not
"interested persons" (as defined in the 0000 Xxx) of any party to this Agreement
or with respect to the distribution plan adopted by the Trust under Rule 12b-1
under the 1940 Act ("Rule 12b-1"), 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.
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It is agreed that if it is determined by NFS that a material conflict exists
caused by Gartmore, Gartmore 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 Gartmore and each of
its directors, officers, employees, agents and each person, if any, who controls
Gartmore within the meaning of the Securities Act of 1933, as amended (the "1933
Act"), (collectively, "Gartmore Affiliated Party") against any losses, claims,
damages or liabilities ("Gartmore Losses") to which Gartmore or any such
Gartmore Affiliated Party may become subject under the 1933 Act or otherwise,
insofar as such Gartmore 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 of NFS or with respect to the Trust or any of
the Funds, a material fact required to be stated therein or
necessary to make the statements therein with respect to the
Trust or any of the Funds 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;
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(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 Gartmore
specifically for use therein. NFS shall reimburse any legal or other expenses
reasonably incurred by Gartmore or any Gartmore Affiliated Party in connection
with investigating or defending any such Gartmore 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 that NFS may
otherwise have.
INDEMNIFICATION BY GARTMORE
---------------------------
Gartmore 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 1933 Act (collectively, "NFS Affiliated Party") against any
losses, claims, damages or liabilities ("NFS Losses") to which NFS, NFS
Affiliate/Subsidiary or any such NFS Affiliated Party may become subject under
the 1933 Act or otherwise, insofar as such NFS 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 Gartmore,
including but not limited to, the registration statements,
prospectuses, or sales literature of the Funds;
(2) The omission or alleged omission to state in such 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) A 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 Gartmore 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.
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Provided however, that Gartmore 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 Gartmore by or on behalf
of NFS specifically for use therein.
Gartmore shall reimburse any legal or other expenses reasonably incurred by NFS
or any NFS Affiliated Party in connection with investigating or defending any
such NFS Losses, provided however, that Gartmore 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 Gartmore may otherwise
have.
SERVICE FEES
------------
In consideration for the Services provided by NFS pursuant to this Agreement,
Gartmore 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 Gartmore a fee ("Service Fee"). Such fee will be
calculated at an annualized rate equal to the rates shown on Exhibit C 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 Gartmore 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) Gartmore or one of its affiliates from general operating
funds;
(b) Gartmore 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 D and incorporated herein by
reference. Services are listed on Exhibit E.
(c) Administrative Services fee paid by the Funds; or
(d) 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.
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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.
Fees paid pursuant to a Rule 12b-l Plan may be terminated at any time, without
the payment of any penalty, by the vote of a majority of the members of the
Board of Trustees of the Trust who are not interested persons of the Trust and
who have no direct or indirect financial interest in the operation of the Rule
12b-1 Plan or in any related agreements to the Rule 12b-l Plan ("Disinterested
Trustees") or by a majority of the outstanding voting securities of the
applicable Fund or Funds and/or applicable class or classes of such Fund or
Funds, upon delivery of written notice thereof to the parties to this Agreement.
NFS and Gartmore 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.
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 Gartmore upon at least 90 days'
advance written notice to the other;
(2) at any time upon Gartmore'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);
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(6) at the option of NFS or Gartmore, 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 National Association
of Securities Dealers, Inc., the U.S. Internal Revenue
Service, the U.S. 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 Gartmore 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 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 and deliver the Agreement and that the Agreement constitutes a legal,
valid and binding obligation, and is 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.
12
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. GARTMORE MUTUAL FUND CAPITAL TRUST
By: /s/ Xxxxx X. Xxxxxx By: /s/ Xxxxxx X. Xxxxxxx
---------------------------- ----------------------------
Name: Xxxxx X. Xxxxxx Name: Xxxxxx X. Xxxxxxx
Title: Product Officer Title: Senior Vice President
GARTMORE DISTRIBUTION SERVICES, INC.
By: /s/ Xxxxxx X. Xxxxxxx
----------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Senior Vice President
13
EXHIBIT A
This Exhibit corresponds to the Fund Agreement dated as of May 2, 2005.
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.
Nationwide Life Insurance Company of America
Nationwide Life and Annuity Insurance Company of America
VARIABLE ACCOUNTS
Nationwide Variable Account - II
Nationwide Variable Account - 3
Nationwide Variable Account - 4
Nationwide Variable Account - 5
Nationwide Variable Account - 6
Nationwide Variable Account - 7
Nationwide Variable Account - 8
Nationwide Variable Account - 9
Nationwide Variable Account - 10
Nationwide Variable Account - 11
Nationwide Variable Account - 11
Nationwide Variable Account - 12
Nationwide Variable Account -13
Nationwide Variable Account -14
Nationwide Variable Account -15
Nationwide Variable Account -16
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
A-1
Nationwide VL Separate Account - D
Nationwide VL Separate Account - E
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
Nationwide Private Placement Variable Account - II
Ohio DC Variable Account
A-2
EXHIBIT B
ADMINISTRATIVE SERVICES PROVIDED BY NFS
---------------------------------------
Pursuant to the Agreement, NFS shall perform all administrative and shareholder
services with respect to the Contracts (including various retirements plans,
which meet the definition of retirement plans under Sections 401, 403 and 457 of
the Code (each, a "Plan")), 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
redemption of shares of the Funds and all dividends and other
distributions not reinvested in shares of the Funds.
3. Supporting and responding to service inquiries about the Trust and the
Funds from Contract owners and Plans.
4. Maintaining and preserving all records required by law to be maintained
and preserved in connection with providing the Services for Contract
owners and Plans.
5. 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.
6. Receiving, aggregating and processing purchase and redemption orders
from Contract owners and Plans and placing net purchase and redemption
orders with the Funds' transfer agent on behalf of the Contract owners
and Plans.
B-1
EXHIBIT C
TO FUND PARTICIPATION AGREEMENT
This Exhibit corresponds with the Agreement dated as of May 2, 2005.
GVIT Funds Basis Points per annum
------------------------------------------------------------------------------------------------------ ----------------------------
Variable Annuity and Variable Life: 35 bps
Class I, Class III, and Class IV - All funds, except those otherwise noted
------------------------------------------------------------------------------------------------------ ----------------------------
Class II - All Funds 50 bps
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Money Market Fund 25 bps
------------------------------------------------------------------------------------------------------ ----------------------------
Money Market Fund Class V 20 bps
------------------------------------------------------------------------------------------------------ ----------------------------
Money Market Fund II 40 bps
------------------------------------------------------------------------------------------------------ ----------------------------
GVIT Investor Destinations Funds 40 bps
------------------------------------------------------------------------------------------------------ ----------------------------
Gartmore GVIT Global Health Sciences Class III - Choice Venue Product Only 50 bps
------------------------------------------------------------------------------------------------------ ----------------------------
Gartmore GVIT U.S. Growth Leaders Fund Class III - Choice Venue Product Only 50 bps
------------------------------------------------------------------------------------------------------ ----------------------------
2003 New VA/VL Menus:
------------------------------------------------------------------------------------------------------ ----------------------------
Xxx Xxxxxx GVIT Multi-Sector Bond Fund Class I 40 bps
------------------------------------------------------------------------------------------------------ ----------------------------
Federated GVIT High Income Bond Fund Class I 40 bps
------------------------------------------------------------------------------------------------------ ----------------------------
Class IV Shares of specific GVIT funds (Provident Distribution Only):
------------------------------------------------------------------------------------------------------ ----------------------------
Equity 500 Fund 10 bps
------------------------------------------------------------------------------------------------------ ----------------------------
Mid Cap Growth Fund 18 bps
------------------------------------------------------------------------------------------------------ ----------------------------
Money Market Fund 15 bps
------------------------------------------------------------------------------------------------------ ----------------------------
------------------------------------------------------------------------------------------------------ ----------------------------
457 and 401(k)
------------------------------------------------------------------------------------------------------ ----------------------------
Equity Funds 40 bps
------------------------------------------------------------------------------------------------------ ----------------------------
Fixed Income 35 bps
------------------------------------------------------------------------------------------------------ ----------------------------
Money Market Fund 25 bps
------------------------------------------------------------------------------------------------------ ----------------------------
------------------------------------------------------------------------------------------------------ ----------------------------
Nationwide Trust Company Program (Maintenance Fee) Calendar Year 2002
Annual maintenance fee per fund (daily recordkeeping and quarterly fact sheet) $2,500
------------------------------------------------------------------------------------------------------ ----------------------------
Nationwide Trust Company Program - One-Time Set-Up Fee for funds added to the
program beginning in October, 2002 $1,500
------------------------------------------------------------------------------------------------------ ----------------------------
Nationwide Advisory Services (Wrap) Program - One Time Set-Up Fee for Funds $1,500
------------------------------------------------------------------------------------------------------ ----------------------------
Nationwide Advisory Services (Wrap) Program - Annual Maintenance Fee $1,000
------------------------------------------------------------------------------------------------------ ----------------------------
C-1
EXHIBIT D (12B-1 PLAN)
TO FUND PARTICIPATION AGREEMENT
D-1
EXHIBIT E
SERVICES PROVIDED BY NFS FOR 12B-1 FEES
---------------------------------------
NFS shall perform services including, but are not limited to, some or all of the
following:
Shareholder services:
(a) Answering routine shareholder inquiries regarding the Funds.
(b) Providing information to shareholders on their investments in
the Funds.
(c) Processing purchase, exchange and redemption requests from
customers and placing orders with GDSI or the Funds'
designated transfer agent.
(d) Providing personnel and communication equipment used in
connection therewith.
(e) Providing such other services as Distributor may reasonably
request.
(f) Preparing such quarterly reports for Distributor as shall
reasonably be required by Distributor.
(g) Maintaining records of sales, redemptions and repurchases of
Shares and furnishing the Distributor with such records on
request.
(h) Distributing Prospectuses and reports to the
Client-shareholders.
Distribution Fee:
(a) GDSI or an affiliate can make payments to broker/dealers and
other eligible institutions for distribution assistance
pursuant to an agreement with the Broker/Dealer; and
(b) Reimbursement pursuant to an agreement in connection with
distribution assistance including, but not limited to, the
reimbursement of expenses relating to printing and
distributing advertising, sales literature and reports to
shareholders.
E-1
EXHIBIT F
NATIONWIDE PRIVACY STATEMENT
----------------------------
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:
o Information we receive from you on applications and other forms;
o Information about your transactions with us, our affiliates, or
others; and
o 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:
o 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.
o 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.
o 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.
F-1
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:
o underwriting insurance;
o administering your policy, account, or claim;
o as required or permitted by law; or
o 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 a ny questions about our privacy policy, please contact us
toll free at:
Individual Annuities (Best of America(R))
Life and Health Operations
0-000-000-0000
Nationwide(R) Retirement Solutions
1-877-677-3678
National Deferred Compensation
0-000-000-0000
Pension Operations 0-000-000-0000
o You may obtain a description of Nationwide Financial's procedures that
allow you to review your personal information.
o 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.
o 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.
