AMENDMENT NO. 1
PARTICIPATION AGREEMENT
The Participation Agreement (the "Agreement"), dated January 6, 2003, by and
among AIM Variable Insurance Funds, a Delaware trust; A I M Distributors, Inc.,
a Delaware corporation, Nationwide Life Insurance Company and Nationwide Life
and Annuity Insurance Company (collectively, "Nationwide"), each an Ohio life
insurance company, and Nationwide Investment Services Corporation ("NISC"), is
hereby amended to add additional parties to the Agreement, update various
provisions of the agreement and update Schedule A.
Pursuant to this Amendment, the following provisions are added to the Agreement:
WHEREAS, the Parties entered into the Agreement to provide for the use of the
Portfolios as investment options within Nationwide's Contracts.
WHEREAS, Nationwide Life Insurance Company of America (dba Nationwide Provident)
and Nationwide Life and Annuity Company of America are hereby added as
additional Parties to the Agreement on their own behalf and on behalf of each
separate account as set forth on Amended Schedule A.
WHEREAS, All references to "Nationwide" in the original Agreement and subsequent
Amendments shall now also include Nationwide Life Insurance Company of America
and Nationwide Life and Annuity Company of America (collectively "Nationwide").
WHEREAS, 1717 Capital Management Company ("1717"), a registered broker dealer
under the 1934 Act and member of the NASD, is also added as one of the principal
underwriters of the contracts, along with NISC.
NOW THEREFORE, the Parties agree as follows:
Section 2.3 of the Agreement is hereby deleted in its entirety and replaced with
the following:
2.3 APPLICABLE PRICE
(a) Share purchase payments and redemption orders that result from
purchase payments, premium payments, surrenders and other transactions
under Contracts (collectively, "Contract transactions") that Nationwide
receives prior to the close of regular trading on the New York Stock
Exchange (or such other time set by the Board for purposes of determining
the current net asset value of a Fund in accordance with Rule 22c-1 under
the 0000 Xxx) on a Business Day will be executed at the net asset values of
the appropriate Funds next computed after receipt by AVIF or its designated
agent of the orders. For purposes of this Section 2.3(a), Nationwide shall
be the designated agent of AVIF for receipt of orders relating to Contract
transactions, in accordance with Section 22(c) and Rule 22c-1 under the
1940 Act, on each Business Day and receipt by such designated agent shall
constitute receipt by AVIF; provided that AVIF receives notice of such
orders by 9:00 a.m. Central Time (10:00 a.m. Eastern Time) on the next
following Business Day or such later time as computed in accordance with
Section 2.1(b) hereof. In connection with this Section 2.3(a), Nationwide
represents and warrants that it will not submit any order for Shares or
engage in any practice, nor
will it knowingly allow or suffer any person acting on its behalf to submit
any order for Shares or engage in any practice, that would violate or cause
a violation of applicable law or regulation including, without limitation
Section 22 of the 1940 Act and the rules thereunder.
(b) Without limiting the scope or effect of Section 1.1 hereof,
pursuant to which the Board may reject a Share purchase order by or on
behalf of Nationwide under the circumstances described therein, Nationwide
and NISC agree to cooperate with the Fund and AIM to prevent any person
(including, but not limited to Contract owners, annuitants, insureds or
participants, as the case may be (collectively, "Participants")) from
engaging in any trading practices in any Fund (as described in the Fund's
prospectus) that the Board or AIM determines, in good faith and in their
sole discretion, to be detrimental or potentially detrimental to the other
shareholders of the Fund, or to be in contravention of any applicable law
or regulation including, without limitation, Section 22 of the 1940 Act and
the rules thereunder. Such cooperation may include, but shall not be
limited to, identifying the person or persons engaging in such trading
practices, facilitating the imposition of any applicable redemption fee on
such person or persons, limiting the telephonic or electronic trading
privileges of such person or persons, and taking such other remedial steps,
all to the extent permitted or required by applicable law.
Section 4.2 (b) of the Agreement is hereby deleted in its entirety and replaced
with the following:
4.2 INSURANCE AND CERTAIN OTHER LAW.
4.2 (b) Nationwide represents and warrants that (i) it is an insurance
company duly organized, validly existing and in good standing under
applicable state law and has full corporate power, authority and legal
right to execute, deliver and perform its duties and comply with its
obligations under this Agreement, (ii) it has legally and validly
established and maintains each Account as a separate account under
applicable state insurance law and the regulations thereunder, and
(iii) the Contracts comply in all material respects with all other
applicable federal and state laws and regulations.
Section 6.3 of the Agreement is hereby deleted in its entirety and replaced with
the following:
6.3 FUNDS TO REMAIN AVAILABLE
Notwithstanding any termination of this Agreement by Nationwide, AVIF
will, at the option of Nationwide, continue to make available additional
shares of the Fund pursuant to the terms and conditions of this Agreement,
for all Contracts in effect on the effective date of termination of this
Agreement (hereinafter referred to as "Existing Contracts"), unless AIM or
the Board determines that doing so would not serve the best interests of
the shareholders of the affected Funds or would be inconsistent with
applicable law or regulation. Specifically, without limitation, the owners
of the Existing Contracts will be permitted to reallocate investments in
the Fund (as in effect on such date), redeem investments in the Fund and/or
invest in the Fund upon the making of additional purchase payments under
the Existing Contracts. The parties agree that this
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Section 6.3 will not apply to any (i) terminations under Section 5 and the
effect of such terminations will be governed by Section 5 of this Agreement
or (ii) any rejected purchase and/or redemption order as described in
Section 2.3(b) hereof.
Section 9 - "NOTICES" is amended to include NATIONWIDE LIFE INSURANCE COMPANY OF
AMERICA and NATIONWIDE LIFE AND ANNUITY COMPANY OF AMERICA (the address for
"Notices" is the same as the address for Nationwide Life Insurance Company and
Nationwide Life and Annuity Company. The address for 1717 CAPITAL MANAGEMENT
COMPANY is Christiana Executive Campus, P. O. Xxx 00000 , Xxxxxxxxxx, Xxxxxxxx
00000.
Section 12- "INDEMNIFICATION" is amended to include 1717 for purposes of
indemnification of AVIF (Section 12.1) and for purposes of indemnification by
AVIF (Section 12.2).
Section 22 is hereby added to the Agreement:
SECTION 22. FORCE MAJEURE
Each Party shall be excused from the performance of any of its
obligations to the other where such nonperformance is occasioned by any
event beyond its control which shall include, without limitation, any
applicable order, rule or regulation of any federal, state or local body,
agency or instrumentality with jurisdiction, accident, natural disaster,
war, acts of terrorism or civil disorder, provided that the Party so
excused shall use all reasonable efforts to minimize its nonperformance and
overcome, remedy, cure or remove such event as soon as is reasonably
practicable, and such performance shall be excused only for so long as, in
any given case, the force or circumstances making performance impossible
shall exist.
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Schedule A of the Agreement is hereby deleted in its entirety and replaced with
the following:
SCHEDULE A
FUNDS AVAILABLE UNDER THE CONTRACTS
SERIES I AND SERIES II SHARES
AIM V.I. Aggressive Growth Fund
AIM V.I. Balanced Fund
AIM V.I. Basic Value Fund
AIM V.I. Blue Chip Fund
AIM V.I. Capital Appreciation Fund
AIM V.I. Capital Development Fund
AIM V.I. Core Equity Fund
AIM V.I. Dent Demographic Trends Fund
AIM V.I. Diversified Income Fund
AIM V.I. Government Securities Fund
AIM V.I. Growth Fund
AIM V.I. High Yield Fund
AIM V.I. International Growth Fund
AIM V.I. Large Cap Growth Fund
AIM V.I. Mid Cap Core Equity Fund
AIM V.I. Money Market Fund
AIM V.I. Premier Equity Fund
AIM V.I. Real Estate Fund
AIM V.I. Small Cap Equity Fund
INVESCO VIF - Core Equity Fund (name will change to AIM V.I. Core Stock Fund
effective October 15, 2004)
INVESCO VIF - Dynamics Fund (name will change to AIM V.I. Dynamics Fund
effective October 15, 2004)
INVESCO VIF - Financial Services Fund (name will change to AIM V.I. Financial
Services Fund effective October 15, 2004)
INVESCO VIF - Health Sciences Fund (name will change to AIM V.I. Health Sciences
Fund effective October 15, 2004)
INVESCO VIF - Leisure Fund (name will change to AIM V.I. Leisure Fund effective
October 15, 2004)
INVESCO VIF - Small Company Growth Fund (name will change to AIM V.I. Small
Company Growth Fund effective October 15, 2004)
INVESCO VIF - Technology Fund(1) (name will change to AIM V.I. Technology Fund
effective October 15, 2004)
INVESCO VIF - Total Return Fund (name will change to AIM V.I. Total Return Fund
effective October 15, 2004)
INVESCO VIF - Utilities Fund(1) ((name will change to AIM V.I. Utilities Fund
effective October 15, 2004)
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SEPARATE ACCOUNTS WHICH MAY UTILIZE THE FUNDS
- Nationwide Variable Account
- 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 - 12
- Nationwide Variable Account - 13
- Nationwide Variable Account - 14
- Nationwide Variable Account - 15
- Nationwide Variable Account - 16
- Nationwide Variable Account - 17
- Multi-Flex Variable Account
- Nationwide VA Separate Account - A
- Nationwide VA Separate Account - B
- Nationwide VA Separate Account - C
- Nationwide VA Separate Account - D
- Nationwide VLI Separate Account
- Nationwide VLI Separate Account - 2
- Nationwide VLI Separate Account - 3
- Nationwide VLI Separate Account - 4
- Nationwide VLI Separate Account - 5
- Nationwide VLI Separate Account - 6
- Nationwide VL Separate Account
- Nationwide VL Separate Account - A
- Nationwide VL Separate Account - B
- Nationwide VL Separate Account - C
- Nationwide VL Separate Account - D
- Nationwide Private Placement Variable Account
- Nationwide Provident VLI Separate Account 1
- Nationwide Provident VLI Separate Account A
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All other terms and provisions of the Agreement not amended herein shall remain
in full force and effect.
Effective date: April 30, 2004
AIM VARIABLE INSURANCE FUNDS
Attest: /s/ Xxx X. Xxxxxxxx By: /s/ Xxxxxx X. Xxxxxx
----------------------------- ------------------------------------
Name: Xxx X. Xxxxxxxx Name: Xxxxxx X. Xxxxxx
Title: Assistant Secretary Title: President
A I M DISTRIBUTORS, INC.
Attest: /s/ Xxx X. Xxxxxxxx By: /s/ Xxxx X. Needles
----------------------------- ------------------------------------
Name: Xxx X. Xxxxxxxx Name: Xxxx X. Needles
Title: Assistant Secretary Title: President
NATIONWIDE LIFE INSURANCE COMPANY AND
NATIONWIDE LIFE AND ANNUITY INSURANCE
COMPANY
Attest: /s/ Xxxxx X. Xxxxxx By: /s/ Xxxxxxx X. Xxxxxx
----------------------------- ------------------------------------
Name: Name:
------------------------------- ----------------------------------
Title: Title:
------------------------------ ---------------------------------
NATIONWIDE LIFE INSURANCE COMPANY OF
AMERICA
AND NATIONWIDE LIFE AND ANNUITY
COMPANY OF AMERICA
Attest: /s/ Xxxx Xxxxxxxxxx By: /s/ Xxxxx X. Xxxxxxxx
----------------------------- ------------------------------------
Name: Name:
------------------------------- ----------------------------------
Title: Title:
------------------------------ ---------------------------------
NATIONWIDE INVESTMENT SERVICES
CORPORATION
Attest: /s/ Xxxxx X. Xxxxxx By: /s/ Xxxxxxx X. Xxxxxx
----------------------------- ------------------------------------
Name: Name:
------------------------------- ----------------------------------
Title: Title:
------------------------------ ---------------------------------
1717 CAPITAL MANAGEMENT COMPANY
Attest: /s/ Xxxx Xxxxxxxxxx By: /s/ Xxxxx X. Xxxxxxxx
----------------------------- ------------------------------------
Name: Name:
------------------------------- ----------------------------------
Title: Title:
------------------------------ ---------------------------------
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