Exhibit 99.(b)(8)(bb)(i)
FUND PARTICIPATION AGREEMENT
THIS AGREEMENT, made and entered into this 1st day of May, 2007 (the
"Agreement") by and among JEFFERSON NATIONAL LIFE INSURANCE COMPANY, organized
under the laws of the State of Texas (the "Company"), on behalf of itself and
each separate account of the Company named in Schedule A to this Agreement, as
may be amended from time to time (each separate account referred to as the
"Separate Account" and collectively as the "Separate Accounts"); NATIONWIDE
VARIABLE INSURANCE TRUST, an open-end management investment company organized as
a statutory trust under the laws of the State of Delaware (the "Trust"); and
NATIONWIDE FUND DISTRIBUTORS LLC, a limited liability company organized under
the laws of the State of Delaware and principal underwriter/distributor of the
Trust (the "Distributor").
WHEREAS, the Trust engages in business as an open-end diversified,
management investment company and was established for the purpose of serving as
the investment vehicle for separate accounts established for variable life
insurance contracts and variable annuity contracts to be offered by insurance
companies which have entered into participation agreements substantially similar
to this Agreement (the "Participating Insurance Companies"), and
WHEREAS, beneficial interests in the Trust are divided into several
series of shares, each representing the interest in a particular managed
portfolio of securities and other assets (each, a "Fund" and collectively, the
"Funds"); and
WHEREAS, the Company, as depositor, has established the Separate
Accounts to serve as investment vehicles for certain variable annuity contracts
and variable life insurance policies and funding agreements offered by the
Company set forth on Schedule A (the "Contracts"); and
WHEREAS, the Separate Accounts are duly organized, validly existing
segregated asset accounts, established by resolutions of the Board of Directors
of the Company under the insurance laws of the State of Texas, to set aside and
invest assets attributable to the Contracts; and
WHEREAS, to the extent permitted by applicable insurance laws and
regulations, the Company intends to purchase shares of the Funds named in
Schedule B, as such schedule may be amended from time to time (the "Designated
Funds") on behalf of the Separate Accounts to fund the Contracts; and
March 1, 2005 Page 1 of 26
WHEREAS, the Distributor is authorized to sell such shares of the
Designated Funds to unit investment trusts such as the Separate Accounts at net
asset value.
NOW, THEREFORE, in consideration of their mutual promises, the Company,
the Trust and the Distributor agree as follows:
ARTICLE I - SALE OF FUND SHARES
1.1 The Distributor agrees to sell to the Company those shares of the
Designated Funds which the Company orders on behalf of each Separate
Account, executing such orders on a daily basis at the net asset value
next computed after receipt and acceptance by the Trust or its designee
of the order for the shares of the Trust. For purposes of this Section
1.1, the Company will be the designee of the Trust solely for the
purpose of receiving such orders from each Separate Account and receipt
by the Company will constitute receipt by the Trust; provided that the
Company provides the Trust with a purchase order by 9:00 a.m. Eastern
Time on the next following Business Day. "Business Day" will mean any
day on which the New York Stock Exchange is open for trading and on
which the Trust calculates its net asset value pursuant to the rules of
the Securities and Exchange Commission (the "SEC"). The Trust may net
the redemption requests it receives from the Company under Section 1.3
of this Agreement against the purchase orders it receives from the
Company under this Section 1.1 for each Designated Fund.
1.2 The Company will transmit payment for shares of any Designated Fund
purchased by the end of the same Business Day an order to purchase
shares of the Designated Fund is provided to the Trust in accordance
with Section 1.1 (i.e., T + 1). Payment will be made in federal funds
transmitted by wire.
1.3 The Trust agrees to redeem, upon the Company's request, any full or
fractional shares of the Designated Funds held by the Company,
executing such requests on a daily basis at the net asset value next
computed after receipt and acceptance by the Trust or its designee of
the request for redemption. For purposes of this Section 1.3, the
Company will be the designee of the Trust solely for receipt of
requests for redemption from each Separate Account and receipt by the
Company will constitute receipt by the Trust; provided that the Company
provides the Trust with a redemption request by 9:00 a.m. Eastern Time
on the next following Business Day. Payment will be made in federal
funds transmitted by wire to the Company's account as designated by the
Company in writing by the end of the same Business Day the Trust
receives notice of the redemption order from the Company (i.e., T + 1).
The Trust reserves the right to delay payment of redemption proceeds,
but in no event may such payment be delayed longer than the period
permitted under Section 22(e) of the Investment Company Act of 1940
March 1, 2005 Page 2 of 26
(the "1940 Act"). The Trust will not bear any responsibility whatsoever
for the proper disbursement or crediting of redemption proceeds; the
Company alone will be responsible for such action. If a redemption
request is received after 9:00 a.m. Eastern Time, such redemption
request will be considered to be received on the next following
Business Day and payment for redeemed shares will be made on the next
following Business Day (i.e., T + 2).
1.4 The Company will not aggregate orders received from its Contract
holders after close of the New York Stock Exchange (generally, 4:00
p.m. Eastern Time) ("Market Close") with orders received before Market
Close, and warrants that its internal control structure concerning the
processing and transmission of orders is suitably designed to prevent
or detect on a timely basis orders received after Market Close from
being aggregated with orders received before Market Close and to
minimize errors that could result in late transmission of orders.
Orders received by Company before Market Close will receive that day's
net asset value and Orders received by Company after Market Close will
receive the next day's net asset value.
1.5 Each purchase, redemption, and exchange order placed by the Company
shall be placed separately for each Designated Fund and shall not be
netted with respect to any other Designated Funds. However, with
respect to payment of the purchase price by the Company and of
redemption proceeds by the Trust, the Company and the Trust shall net
purchase and redemption orders received under Section 1.1 and Section
1.3 of this Agreement, respectively, with respect to each Designated
Fund and shall transmit one net payment for all Designated Funds.
1.6 The Trust agrees to make shares of the Designated Funds available for
as long as they are offered to the public for purchase at the
applicable net asset value per share by Participating Insurance
Companies and their separate accounts on those days on which the Trust
calculates the net asset value of each Designated Fund pursuant to
rules of the Commission; provided, however, that the Distributor may
refuse to sell shares of any Designated Fund to any person, or suspend
or terminate the offering of shares of any Designated Fund if such
action is required by law or by regulatory authorities having
jurisdiction or is, in its sole discretion, acting in good faith and in
light of its duties under federal and any applicable state laws,
necessary in the best interests of the shareholders of such Designated
Fund.
1.7 The Trust and the Distributor agree that shares of the Trust will be
sold only to Participating Insurance Companies and their separate
accounts, qualified pension and retirement plans or such other persons
as are permitted under applicable provisions of the Internal Revenue
Code of 1986, as amended, (the "Code"), and regulations promulgated
thereunder, the sale to which will not impair the tax treatment
currently afforded the Contracts. No shares of any Fund will be sold
directly to the general public.
March 1, 2005 Page 3 of 26
1.7 The Trust will not sell Trust shares to any insurance company or
separate account unless an agreement containing provisions
substantially the same as those in Articles I, III, V, and VII of this
Agreement are in effect to govern such sales.
1.8 The Company agrees to purchase and redeem the shares of the Designated
Funds offered by the then current prospectus of the Trust in accordance
with the provisions of such prospectus.
1.9 Issuance and transfer of the shares of the Designated Funds will be by
book entry only. Stock certificates will not be issued to the Company
or to any Separate Account. Purchase and redemption orders for shares
of the Designated Funds will be recorded in an appropriate title for
each Separate Account or the appropriate sub-account of each Separate
Account.
1.10 The Trust will furnish same day notice (by electronic means) to the
Company of the declaration of any income, dividends or capital gain
distributions payable on each Designated Fund's shares. The Company
hereby elects to receive all such income, dividends and distributions
as are payable on the Fund shares in the form of additional shares of
that Fund. The Trust will notify the Company of the number of shares so
issued as payment of such dividends and distributions.
1.11 The Trust will make the net asset value per share for each Designated
Fund available to the Company via electronic means on a daily basis as
soon as reasonably practical after the net asset value per share is
calculated and will use its best efforts to make such net asset value
per share available by 6:30 pm, Eastern Time, each Business Day. If the
Trust provides the Company materially incorrect net asset value per
share information (as determined under SEC guidelines), the Company and
the Trust shall be entitled to an adjustment to the number of shares
purchased or redeemed to reflect the correct net asset value per share.
Any material error in the calculation or reporting of net asset value
per share, dividend or capital gain information shall be reported to
the Company upon discovery by the Trust. Any administrative or other
costs or losses incurred by Company for correcting underlying Contract
owner accounts as a result of such material error shall be at Trust's
expense.
1.12 Upon notice to the Company, the Trust reserves the right to reject any
purchase orders, including exchanges, for any reason, including if the
Trust or the Distributor believes holders of Contracts are engaging in
short-term or excessive trading into and out of a Fund or otherwise
engaging in trading that may be disruptive to a Fund ("Market Timing").
The Company agrees to cooperate with the Trust and/or Distributor to
monitor for Market Timing by its Contract holders. Failure of either
the Trust or the Distributor to reject any purchase orders that might
be deemed to be Market Timing shall not constitute a waiver of either
the Trust's or the Distributor's rights under this section.
March 1, 2005 Page 4 of 26
ARTICLE II - REPRESENTATIONS AND WARRANTIES
2.1 The Company represents and warrants that the Contracts are or will be
registered under the Securities Act of 1933 (the "1933 Act"), or are
exempt from registration thereunder, and that the Contracts will be
issued and sold in compliance with all applicable federal and state
laws. The Company further represents and warrants that: (i) it is an
insurance company duly organized and in good standing under applicable
law; (ii) it has legally and validly established each Separate Account
as a separate account under the laws of the State of Texas; (iii) each
Separate Account is or will be registered as a unit investment trust in
accordance with the provisions of the 1940 Act to serve as a segregated
investment account for the Contracts, or is exempt from registration
thereunder; and (iv) it will maintain such registration for so long as
any Contracts are outstanding. The Company will amend each registration
statement under the 1933 Act for the Contracts and the registration
statement under the 1940 Act for the Separate Accounts from time to
time as required in order to effect the continuous offering of the
Contracts or as may otherwise be required by applicable law. The
Company will register and qualify the Contracts for sale in accordance
with the securities laws of the various states only if, and to the
extent, deemed necessary by the Company.
2.2 Subject to the Trust's representations in Article III, the Company
represents and warrants that the Contracts are currently and at the
time of issuance will be treated as annuity contracts and/or life
insurance policies (as applicable) under applicable provisions of the
Code, and that it will maintain such treatment and that it will notify
the Trust and the Distributor immediately upon having a reasonable
basis for believing that the Contracts have ceased to be so treated or
that they might not be so treated in the future.
2.3 The Company represents and warrants that it will not purchase shares of
the Designated Fund(s) with assets derived from tax-qualified
retirement plans except, indirectly, through Contracts purchased in
connection with such plans.
2.4 The Trust represents and warrants that shares of the Designated Fund(s)
sold pursuant to this Agreement will be registered under the 1933 Act
and duly authorized for issuance in accordance with applicable law and
that the Trust is and will remain registered as an open-end, management
investment company under the 1940 Act for as long as such shares of the
Designated Fund(s) are sold. The Trust will amend the registration
statement for its shares under the 1933 Act and the 1940 Act from time
to time as required in order to effect the continuous offering of its
shares. The Trust will register and qualify the shares of the
Designated Fund(s) for sale in accordance with the laws of the various
states only if and to the extent deemed advisable by the Trust or the
Distributor.
March 1, 2005 Page 5 of 26
2.5 The Trust represents that it will use its best efforts to comply with
any applicable state insurance laws or regulations as they may apply to
the investment objectives, policies and restrictions of the Designated
Funds, to the extent specifically requested in writing by the Company
and to the extent that compliance with such laws will not materially
interfere with the Trust's daily operations and investment activities.
If the Trust cannot reasonably comply with such state insurance laws or
regulations, it will so notify the Company in writing. The Trust makes
no other representation as to whether any aspect of its operations
(including, but not limited to, fees and expenses, and investment
policies) complies with the insurance laws or regulations of any state.
The Company represents that it will use its best efforts to notify the
Trust of any restrictions imposed by state insurance laws that may
become applicable to the Trust as a result of the Separate Accounts'
investments therein. The Trust and the Distributor agree that they will
furnish the information reasonably required by state insurance laws to
assist the Company in obtaining the authority needed to issue the
Contracts in various states.
2.6 The Trust represents and warrants that, to the extent that it decides
to finance distribution expenses pursuant to Rule 12b-1 under the 1940
Act, the Trust undertakes to have the Trustees, a majority of whom are
not "interested" persons of the Trust, formulate and approve any plan
under Rule 12b-1 to finance distribution expenses. The Trust shall
notify the Company immediately upon determining to finance distribution
expenses pursuant to a plan adopted in accordance with Rule 12b-1 under
the 0000 Xxx.
2.7 The Trust represents that it is lawfully organized and validly existing
under the laws of the State of Delaware and that it does and will
comply in all material respects with applicable provisions of the 0000
Xxx.
2.8 The Trust represents and warrants that all of its trustees, officers,
employees, investment advisers, and other individuals/entities having
access to the funds and/or securities of the Trust are and continue to
be at all times covered by a blanket fidelity bond or similar coverage
for the benefit of the Trust in an amount not less than the minimal
coverage as required currently by Rule 17g-1 of the 1940 Act or related
provisions as may be promulgated from time to time. The aforesaid bond
includes coverage for larceny and embezzlement and is issued by a
reputable bonding company.
2.9 The Company represents and warrants that all of its directors,
officers, employees, investment advisers, and other
individuals/entities employed by the Company dealing with the money
and/or securities of the Separate Accounts are covered by a blanket
fidelity bond or similar coverage in an amount not less than required
under applicable law. The aforesaid bond includes coverage for larceny
and embezzlement and is issued by a reputable bonding company. The
Company agrees to hold for the benefit of the Trust and to pay to the
Trust any amounts lost from larceny, embezzlement or other
March 1, 2005 Page 6 of 26
events covered by the aforesaid bond to the extent such amounts derive
from activities described in this Agreement. The Company agrees to make
all reasonable efforts to see that this bond or another bond containing
these provisions is always in effect, and agrees to notify the Trust in
the event that such coverage no longer applies.
2.10 The Distributor represents and warrants that it: (i) is registered as a
broker-dealer under the Securities and Exchange Act of 1934, as amended
(the "1934 Act") and will remain duly registered under all applicable
federal and state securities laws; (ii) is a member in good standing of
the National Association of Securities Dealers, Inc. ("NASD"); (iii)
serves as principal underwriter/distributor of the Trust; and (iv) will
perform its obligations for the Trust in accordance in all material
respects with the laws of the State of Delaware and any applicable
state and federal securities laws.
ARTICLE III -COMPLIANCE
3.1 The Trust and the Distributor acknowledge that any failure (whether
intentional or in good faith or otherwise) of any Designated Fund to
comply with the requirements of Subchapter M of the Code or the
diversification requirements of Section 817(h) of the Code may result
in the Contracts not being treated as variable contracts for federal
income tax purposes, which would have adverse tax consequences for
Contract owners and could also adversely affect the Company's corporate
tax liability. The Trust and the Distributor further acknowledge that
any failure of any Designated Fund may result in costs and expenses
being incurred by the Company in obtaining whatever regulatory
authorizations are required to substitute shares of another investment
company for those of the failed Designated Fund or as well as fees and
expenses of legal counsel and other advisors to the Company and any
federal income taxes, interest or tax penalties incurred by the Company
in connection with any such failure of any Designated Fund.
3.2 The Trust represents and warrants that each Designated Fund is
currently qualified as a Regulated Investment Company under Subchapter
M of the Code, and the Trust will maintain such qualification (under
Subchapter M or any successor or similar provision) and that the Trust
will notify the Company immediately upon having a reasonable basis for
believing that a Designated Fund has ceased to so qualify or that such
Designated Fund might not so qualify in the future.
3.3 The Trust represents that it will at all times invest money from the
Contracts in such a manner as to ensure that the Contracts will be
treated as variable contracts under the Code and the regulations issued
thereunder; including, but not limited to, that each Designated Fund
will at all times comply with Section 817(h) of the Code and Treasury
Regulation 1.817-5, as amended from time to time, relating to
March 1, 2005 Page 7 of 26
the diversification requirements for variable annuity, endowment, or
life insurance contracts, and with Section 817(d) of the Code, relating
to the definition of a variable contract, and any amendments or other
modifications to such Section or Regulation. The Trust will notify the
Company immediately upon having a reasonable basis for believing that
the Trust or a Designated Fund thereunder has ceased to comply with the
diversification requirements or that the Trust or a Designated Fund
thereunder might not comply with the diversification requirements in
the future. In the event of a breach of this representation by the
Trust, it will take all reasonable steps to adequately diversify the
affected Designated Fund so as to achieve compliance within the grace
period afforded by Treasury Regulation 1.817-5. The Trust shall provide
Company a certification of its compliance with Section 817(h) of the
Code and Treasury Regulation 1.817-5 within twenty (20) days of the end
of each calendar quarter.
3.4 The Company hereby certifies that it has established and maintains an
anti-money laundering ("AML") program that includes written policies,
procedures and internal controls reasonably designed to identify its
Contract holders and has undertaken appropriate due diligence efforts
to "know its customers" in accordance with all applicable anti-money
laundering regulations in its jurisdiction including, where applicable,
the USA PATRIOT Act of 0000 (xxx "Xxxxxxx Xxx"). The Company further
confirms that it will monitor for suspicious activity in accordance
with the requirements of the Patriot Act.
ARTICLE IV - PROSPECTUS AND PROXY STATEMENTS; VOTING
4.1 The Trust or the Distributor, at its expense, will provide the Company
with as many copies of the current Trust prospectus and any supplements
thereto for the Designated Fund(s) as the Company may reasonably
request for distribution to Contract owners at the time of Contract
fulfillment and confirmation. The Trust will also provide as many
copies of said prospectus as necessary for distribution to existing
Contract owners. The Trust will provide the copies of said prospectus
to the Company or to its mailing agent for distribution. To the extent
that the Designated Fund(s) are one or more of several Funds of the
Trust, the Trust is obligated to provide the Company only with
disclosure related to the Designated Fund(s). If requested by the
Company, in lieu thereof, the Trust or the Distributor will provide
such documentation, including a final copy of a current prospectus set
in type or camera-ready or electronic format, and other assistance as
is reasonably necessary in order for the Company at least annually (or
more frequently if the Trust prospectus is amended more frequently) to
March 1, 2005 Page 8 of 26
have the new prospectus for the Contracts and the Trust's new
prospectus printed together. The Trust or the Distributor will, upon
request, provide the Company with a copy of the Trust's prospectus
through electronic means to facilitate the Company's efforts to provide
Trust prospectuses via electronic delivery.
4.2 The Trust's prospectus will state that the Statement of Additional
Information (the "SAI") for the Trust is available and will disclose
how investors can obtain the SAI.
4.3 The Trust, at its expense, will provide the Company or its mailing
agent with copies of its proxy material, if any, with respect to the
Designated Funds, reports to shareholders/Contract owners and other
communications to shareholders/Contract owners in such quantity as the
Company will reasonably require. The Company will distribute this proxy
material, reports and other communications to existing Contract owners
and will xxxx the Trust for the reasonable cost of such distribution.
4.4 If and to the extent required by law, the Company will:
(a) solicit voting instructions from Contract owners;
(b) vote the shares of the Designated Funds held in the Separate
Account in accordance with instructions received from Contract
owners; and
(c) vote shares of the Designated Funds held in the Separate
Account for which no timely instructions have been received in
the same proportion as shares of such Designated Fund for
which instructions have been received from the Company's
Contract owners,
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. The Company reserves the right to vote shares of the
Designated Funds held in any segregated asset account in its own right,
to the extent permitted by law. The Company will be responsible for
assuring that the Separate Accounts participating in the Trust
calculate voting privileges in a manner consistent with all legal
requirements, including the Proxy Voting Procedures set forth in
Schedule C and the Mixed and Shared Funding Order, as described in
Section 7.1.
4.5 The Trust will comply with all provisions of the 1940 Act requiring
voting by shareholders.
ARTICLE V - SALES MATERIAL AND INFORMATION
5.1 The Company shall not give any information or make any representations
or statements on behalf of the Trust or Distributor or concerning the
Trust, the Distributor or the Trust's investment adviser in connection
with the Contracts other than information or representations contained
in and accurately derived from the Trust's registration statement or
prospectus (as such registration statement and prospectus may be
amended or supplemented from time to time), reports of the Trust which
are in the
March 1, 2005 Page 9 of 26
public domain or approved by the Trust or the Distributor for
distribution to Contract owners, Trust-sponsored proxy statements, or
in sales literature or other promotional material provided or approved
by the Trust or Distributor, except with the written permission of the
Trust or Distributor.
5.2 The Trust or the Distributor shall not give any information or make any
representations or statements on behalf of the Company or concerning
the Company, each Separate Account, or the Contracts other than the
information or representations contained in a registration statement or
prospectus for the Contracts (as such registration statement or
prospectus may be amended or supplemented from time to time), reports
of the Separate Accounts or the Contracts which are in the public
domain or approved by the Company for distribution to Contract owners,
or in sales literature or other material provided or approved by the
Company, except with permission of the Company.
5.3 The Company will provide to the Trust at least one complete copy of all
definitive prospectuses, definitive SAI, reports, solicitations for
voting instructions, sales literature and other promotional materials,
applications for exemptions, requests for no action letters, and all
amendments to any of the above, that relate to the Contracts or each
Separate Account, contemporaneously with the filing of each such
document with the Commission or the NASD (except that with respect to
post-effective amendments to such prospectuses and SAIs and sales
literature and promotional material, only those prospectuses and SAIs
and sales literature and promotional material that relate to or refer
to the Trust or the Designated Funds will be provided.) In addition,
the Company will provide to the Trust at least one complete copy of (i)
a registration statement that relates to the Contracts or each Separate
Account, containing representative and relevant disclosure concerning
the Trust or the Designated Funds; and (ii) any post-effective
amendments to any registration statements relating to the Contracts or
such Separate Account that refer to or relate to the Trust or the
Designated Funds.
5.4 For purposes of this Article V, the phrase "sales literature or other
promotional material" includes, but is not limited to, advertisements
(such as material published, or designed for use in, a newspaper,
magazine, or other periodical, radio, television, telephone or tape
recording, videotape display, signs or billboards, motion pictures, or
other public media, (i.e., on-line networks such as the Internet or
other electronic messages)), sales literature (i.e., any written
communication distributed or made generally available to customers or
the public, including brochures, circulars, research reports, market
letters, form letters, seminar texts, reprints or excerpts of any other
advertisement, sales literature, or published article), educational or
training materials or other communications distributed or made
generally available to some or all agents or employees, registration
statements, prospectuses, SAIs, shareholder reports, and proxy
materials and any other material constituting sales literature or
advertising under the NASD Conduct Rules, the 1933 Act or the 1940 Act.
March 1, 2005 Page 10 of 26
5.5 The Trust and the Distributor hereby consent to the Company's use of
the names "Nationwide Variable Insurance Trust," "Nationwide Funds
Group," "Nationwide Fund Advisors" and "Nationwide Fund Distributors
LLC" as well as the names of the Designated Funds set forth in Schedule
B of this Agreement, in connection with marketing the Contracts,
subject to the terms of this Article V. The Trust and the Distributor
hereby consent to the use of any trademark, trade name, service xxxx or
logo used by the Trust and the Distributor, subject to the Trust's
and/or the Distributor's approval of such use and in accordance with
reasonable requirements of the Trust or the Distributor. Such consent
will terminate with the termination of this Agreement. The Company
agrees and acknowledges that either of the Trust, its investment
adviser or the Distributor are the owner of the name, trademark, trade
name, service xxxx and logo and that all use of any designation
comprised in whole or in part of the name, trademark, trade name,
service xxxx and logo under this Agreement shall inure to the benefit
of the Trust, its investment adviser and/or the Distributor.
ARTICLES VI - FEES, COSTS AND EXPENSES
6.1 Each party shall, in accordance with the allocation of expenses
specified in this Agreement, reimburse the other party(ies) for
expenses initially paid by one party but allocated to another party. In
addition, nothing herein shall prevent the parties hereto from
otherwise agreeing to perform and arranging for appropriate
compensation for (i) for distribution and shareholder-related services
under a plan adopted in accordance with Rule 12b-1 under the 1940 Act;
and (ii) other services that are not primarily intended to result in
the sale of shares of the Designated Funds, which are provided to
Contract owners relating to the Designated Funds.
6.2 All expenses incident to performance by the Trust of this Agreement
will be paid by the Trust or the Distributor to the extent permitted by
law. All shares of the Designated Funds will be duly authorized for
issuance and registered in accordance with applicable federal law and,
to the extent deemed advisable by the Trust, in accordance with
applicable state law, prior to sale. The Trust will bear the expenses
for the cost of registration and qualification of the Trust's shares,
including without limitation, the preparation of and filing with the
SEC of Forms N-1A and Rule 24f-2 Notices on behalf of the Trust and
payment of all applicable registration or filing fees (if applicable)
with respect to shares of the Trust; preparation and filing of the
Trust's prospectus, SAI and registration statement, proxy materials and
reports; typesetting the Trust's prospectus; typesetting and printing
proxy materials and reports to Contract owners; the preparation of all
statements and notices required by any federal or state law; all taxes
on the issuance or transfer of the Trust's shares; any expenses
permitted to be paid or assumed by the Trust pursuant to a plan, if
any, under Rule 12b-1 under the 1940 Act; and other costs associated
March 1, 2005 Page 12 of 26
with preparation and printing of prospectuses and SAIs for the
Designated Funds in electronic or typeset format for distribution to
Contract Owners.
6.3 The Company shall bear all expenses associated with the registration,
qualification, and filing of the Contracts under applicable federal
securities and state insurance laws; the cost of preparing, printing,
and distributing the Contracts' prospectus and SAI; and the cost of
printing and distributing annual individual account statements for
Contract owners as required by state law.
ARTICLE VII - MIXED & SHARED FUNDING RELIEF
7.1 The Trust represents and warrants that it has received an order from
the SEC granting Participating Insurance Companies and variable annuity
separate accounts and variable life insurance separate accounts relief
from the provisions of Sections 9(a), 13(a), 15(a), and 15(b) of the
1940 Act and Rules 6e-2(b)(15) and 6e-3(T)(b)(15) thereunder, to the
extent necessary to permit shares of the Trust to be sold to and held
by variable annuity separate accounts and variable life insurance
separate accounts of both affiliated and unaffiliated Participating
Insurance Companies (the "Mixed and Shared Funding Order"). If and to
the extent that the Trust engages in Mixed and Shared funding as
contemplated by the Mixed and Shared Funding Order, this Article VII
shall apply. To that end, the parties to this Agreement agree that the
conditions or undertakings specified in the Mixed and Shared Funding
Order and that may be imposed on the Company, the Trust and/or its
investment adviser by virtue of the receipt of such order by the SEC,
will be incorporated herein by reference, and such parties agree to
comply with such conditions and undertakings to the extent applicable
to each such party.
7.2 The Trustees will monitor the Trust for the existence of any material
irreconcilable conflict among the interests of the Contract owners of
all separate accounts investing in the Trust. A material irreconcilable
conflict may arise for a variety of reasons, including, but not limited
to: (a) an action by any state insurance regulatory authority; (b) a
change in applicable federal or state insurance, tax, or securities
laws or regulations, or a public ruling, private letter ruling,
no-action or interpretative letter, or any similar action by insurance,
tax, or securities regulatory authorities; (c) an administrative or
judicial decision in any relevant proceeding; (d) the manner in which
the investments of any Fund are being managed; (e) a difference in
voting instructions given by variable annuity contract owners and
variable life insurance contract owners; or (f) a decision by a
Participating Insurance Company to disregard the voting instructions of
Contract owners. The Board of Trustees will promptly inform the Company
if it determines that a material irreconcilable conflict exists and the
implications thereof. A majority of the Trustees will consist of
persons who are not "interested" persons of the Trust.
March 1, 2005 Page 12 of 26
7.3 The Company will promptly report any potential or existing conflicts of
which it is aware to the Board of Trustees. The Company agrees to
assist the Board of Trustees in carrying out its responsibilities under
the Mixed and Shared Funding Order by promptly providing the Board of
Trustees with all information reasonably necessary for the Trustees to
consider any issues raised. This includes, but is not limited to, an
obligation by the Company to inform the Board of Trustees whenever
Contract owner voting instructions are disregarded. The Board of
Trustees will record in its minutes or other appropriate records, all
reports received by it and all action with regard to a conflict.
7.4 If it is determined by a majority of the Trustees, or a majority of the
disinterested Trustees of the Board, that a material irreconcilable
conflict exists, the Company and other Participating Insurance
Companies will, at their expense and to the extent reasonably
practicable (as determined by a majority of the disinterested
Trustees), take whatever steps are necessary to remedy or eliminate the
material irreconcilable conflict, up to and including: (a) withdrawing
the assets allocable to some or all of the Separate Accounts from the
relevant Fund and reinvesting such assets in a different investment
medium, including another Fund, or submitting the question as to
whether such segregation should be implemented by a vote of all
affected Contract owners and, as appropriate, segregating the assets of
any appropriate group (i.e., variable annuity Contract owners or
variable life insurance Contract owners of one or more Participating
Insurance Companies) that votes in favor of such segregation, or
offering to the affected Contract owners the option of making such a
change; and (b) establishing a new registered management investment
company or managed separate account.
7.5 If the Company's disregard of voting instructions could conflict with
the majority of Contract owner voting instructions, and the Company's
judgment represents a minority position or would preclude a majority
vote, the Company may be required, at the Trust's election, to withdraw
the Separate Account's investment in the Trust and terminate this
Agreement with respect to such Separate Account, and no charge or
penalty will be imposed as a result of such withdrawal. Any such
withdrawal and termination must take place within six (6) months after
written notice is given that this provision is being implemented
subject to applicable law but in any event consistent with the terms of
the Mixed and Shared Funding Order. Until such withdrawal and
termination is implemented, the Distributor and the Trust shall
continue to accept and implement orders by the Company for the purchase
and redemption of shares of the Trust.
7.6 If a particular state insurance regulator's decision applicable to the
Company conflicts with the majority of other state insurance
regulators, then the Company will withdraw the Separate Account's
investment in the Trust and terminate this Agreement with respect to
such Separate Account, subject to applicable law but in any event
consistent with the terms of the Mixed and Shared Funding Order. Until
such
March 1, 2005 Page 13 of 26
withdrawal and termination is implemented, the Distributor and the
Trust shall continue to accept and implement orders by the Company for
the purchase and redemption of shares of the Trust. Such withdrawal and
termination shall be limited to the extent required by the foregoing
material irreconcilable conflict as determined by a majority of the
disinterested Trustees.
7.7 For purposes of Sections 7.4 through 7.7 of this Agreement, a majority
of the disinterested Trustees will determine whether any proposed
action adequately remedies any material irreconcilable conflict, but in
no event will the Trust be required to establish a new funding medium
for the Contracts. The Company will not be required by Section 7.4 to
establish a new funding medium for the Contracts if an offer to do so
has been declined by vote of a majority of Contract owners materially
adversely affected by the material irreconcilable conflict.
7.8 The Company will at least annually submit to the Trustees such reports,
materials, or data as the Trustees may reasonably request so that the
Trustees may fully carry out the duties imposed upon the Trustees by
the Mixed and Shared Funding Order, and said reports, materials and
data will be submitted more frequently if deemed appropriate by the
Trustees.
7.9 If and to the extent that Rule 6e-2 and Rule 6e-3(T) are amended, or
Rule 6e-3(T) is adopted, to provide relief from any provision of the
1940 Act or the rules promulgated thereunder with respect to mixed or
shared funding (as defined in the Mixed and Shared Funding Order) on
terms and conditions materially different from those contained in the
Mixed and Shared Funding Order, the Trust and/or the Company, as
appropriate, will take such steps as may be necessary to comply with
Rules 6e-2 and 6e-3(T), as amended, and Rule 6e-3, as adopted, to the
extent such rules are applicable.
7.10 The Company agrees to provide disclosure in Contract prospectuses
regarding the potential risks of mixed and shared funding as may be
appropriate. The Trust agrees that its prospectuses shall disclose, to
the extent applicable, that its shares are offered to insurance company
separate accounts that fund both annuity and life insurance contracts,
that the interests of various contract owners designating the Trust as
a vehicle for investment by their subaccounts may conflict, and that
the Board of Trustees will monitor for the existence of any material
conflicts and determine what action, if any, should be taken.
ARTICLE VIII - INDEMNIFICATION
8.1 The Company agrees to indemnify and hold harmless the Trust, the
Distributor and each of their respective Trustees, directors, officers,
employees and agents ("Trust Parties") and each person, if any, who
controls a Trust Party within the meaning of Section 15 of the 1933 Act
(collectively the "Indemnified Parties" for purposes of this Section
8.1) against any and all losses, claims, damages, liabilities
(including amounts paid in settlement with the written consent of the
Company) or expenses
March 1, 2005 Page 14 of 26
(including the reasonable costs of investigating or defending any
alleged loss, claim, damage, liability or expense and reasonable legal
counsel fees incurred in connection therewith) (collectively,
"Losses"), to which the Indemnified Parties may become subject under
any statute or regulation, or common law or otherwise, insofar as such
Losses:
(a) arise out of or are based upon any untrue statements or
alleged untrue statements of any material fact contained in the
registration statement, prospectus or other offering material for the
Contracts or in the Contracts themselves or in sales literature
generated or approved by the Company on behalf of the Contracts or
Accounts (or any amendment or supplement to any of the foregoing)
(collectively, "Company Documents" for the purposes of this Section
8.1), or arise out of or are based upon the omission or the alleged
omission to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading, provided
that this indemnity shall not apply as to any Indemnified Party if such
statement or omission or such alleged statement or omission was made in
reliance upon and was accurately derived from written information
furnished to the Company by or on behalf of the Trust or Distributor
for use in Company Documents or otherwise for use in connection with
the sale of the Contracts or Shares; or
(b) arise out of or result from statements or representations
(other than statements or representations contained in and accurately
derived from Trust Documents as defined in Section 8.2(a)) or wrongful
conduct of the Company or persons under its control, with respect to
the sale or acquisition of the Contracts or Shares; or
(c) arise out of or result from any untrue statement or
alleged untrue statement of a material fact contained in Trust
Documents as defined in Section 8.2(a) or the omission or alleged
omission to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading if such
statement or omission was made in reliance upon and accurately derived
from written information furnished to the Trust or Distributor by or on
behalf of the Company; or
(d) arise out of or result from any failure by the Company to
provide the services or furnish the materials required under the terms
of this Agreement; or
(e) arise out of or result from any material breach of any
representation and/or warranty made by the Company in this Agreement or
arise out of or result from any other material breach of this Agreement
by the Company.
8.2 The Distributor and the Trust agree to indemnify and hold harmless the
Company and each of its directors, officers, employees and agents and
each person, if any, who controls the Company within the meaning of
Section 15 of the 1933 Act (collectively, the "Indemnified Parties" for
purposes of this
March 1, 2005 Page 15 of 26
Section 8.2) against any and all losses, claims, damages, liabilities
(including amounts paid in settlement with the written consent of the
Trust Parties) or expenses (including the reasonable costs of
investigating or defending any alleged loss, claim, damage liability or
expense and reasonable legal counsel fees incurred in connection
therewith) (collectively, "Losses"), to which the Indemnified Parties
may become subject under any statute or regulation, or at common law or
other wise, insofar as such Losses:
(a) arise out of or are based upon any untrue statements or
alleged untrue statement of any material fact contained in the
registration statement or prospectus for the Trust (or any amendment or
supplement thereto) (collectively, "Trust Documents" for the purposes
of this Section 8.2), or arise out of or are based upon the omission or
the alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not
misleading, provided that this indemnity shall not apply as to any
Indemnified Party if such statement or omission or such alleged
statement or omission was made in reliance upon and was accurately
derived from written information furnished to the Trust Parties by or
on behalf of the Company for use in Trust Documents or otherwise for
use in connection with the sale of the Contracts; or
(b) arise out of or result from statements or representations
(other than statements or representations contained in and accurately
derived from Company Documents as defined in Section 8.1(a)) or
wrongful conduct of a Trust Party or persons under its respective
control, with respect to the sale or acquisition of the Contracts or
Shares; or
(c) arise out of or result from any untrue statement or
alleged untrue statement of a material fact contained in Company
Documents or the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the
statements therein not misleading if such statement or omission was
made in reliance upon and accurately derived from written information
furnished to the Company by or on behalf of the Trust Parties; or
(d) arise out of or result from any failure by the Distributor
or the Trust to provide the services or furnish the materials required
under the terms of this Agreement; or
(e) arise out of or result from any material breach of any
representation and/or warranty made by the Distributor or the Trust in
this Agreement or arise out of or result from any other material breach
of this Agreement by the Distributor or the Trust.
8.3 Neither the Company, the Distributor nor the Trust shall be liable
under the indemnification provisions of Section 8.1 or 8.2, as
applicable, with respect to any Losses incurred or assessed against any
Indemnified Party to the extent such Losses arise out of or result from
such Indemnified Party's willful
March 1, 2005 Page 16 of 26
misfeasance, bad faith or gross negligence in the performance of such
Indemnified Party's duties or by reason of such Indemnified Party's
reckless disregard of obligations or duties under this Agreement.
8.4 Neither the Company, the Distributor nor the Trust shall be liable
under the indemnification provisions of Section 8.1 or 8.2, as
applicable, with respect to any claim made against an Indemnified Party
unless such Indemnified Party shall have notified the other party in
writing within a reasonable time after the summons, or other first
written notification, giving information of the nature of the claim
shall have been served upon or otherwise received by such Indemnified
Party (or after such Indemnified Party shall have received notice of
service upon or other notification to any designated agent), but
failure to notify the party against whom indemnification is sought of
any such claim shall not relieve that party from any liability which it
may have to the Indemnified Party in the absence of Sections 8.1 and
8.2.
8.5 In case any such action is brought against the Indemnified Parties, the
indemnifying party shall be entitled to participate, at its own
expense, in the defense of such action. The indemnifying party also
shall be entitled to assume the defense thereof, with counsel
reasonably satisfactory to the party named in such action. After notice
from the indemnifying party to the Indemnified Party of an election to
assume such defense, the Indemnified Party shall bear the fees and
expenses of any additional counsel retained by it, and the indemnifying
party will not be liable to the Indemnified Party under this Agreement
for any legal or other expenses subsequently incurred by such party
independently in connection with the defense thereof other than
reasonable costs of investigation.
ARTICLE IX - APPLICABLE LAW
9.1 This Agreement will be construed and the provisions hereof interpreted
under and in accordance with the laws of the State of Delaware.
9.2 This Agreement will be subject to the provisions of the 1933 Act, the
1934 Act and the 1940 Act, and the rules and regulations and rulings
thereunder, including such exemptions from those statutes, rules and
regulations as the SEC may grant (including, but not limited to, the
Mixed and Shared Funding Order) and the terms hereof will be
interpreted and construed in accordance therewith.
ARTICLE X - TERMINATION
10.1 This Agreement may be terminated by either party for any reason by
sixty (60) days' advance written notice delivered to the other party.
10.2 This Agreement may be terminated at the option of either the
Distributor or the Trust upon institution of formal proceedings against
the Company by the NASD, the SEC, the insurance commission of any state
or any other regulatory body regarding the Company's duties under this
Agreement or related to
March 1, 2005 Page 17 of 26
the sale of the Contracts, the operation of a Separate Account, the
administration of the Contracts or the purchase of the Trust's shares,
or an expected or anticipated ruling, judgment or outcome which would,
in the Trust's or the Distributor's respective reasonable judgment,
materially impair the Company's ability to meet and perform the
Company's obligations and duties hereunder.
10.3 This Agreement may be terminated at the option of the Trust or the
Distributor if the Internal Revenue Service determines that the
Contracts cease to qualify as annuity contracts or life insurance
policies, as applicable, under the Code, or if the Trust or Distributor
reasonably believes that the Contracts may fail to so qualify.
10.4 This Agreement may be terminated by the Trust or the Distributor, at
either's option, if either the Trust or the Distributor shall
determine, in its sole judgment exercised in good faith, that either
(1) the Company shall have suffered a material adverse change in its
business or financial condition, (2) the Company shall have been the
subject of material adverse publicity which is likely to have a
material adverse impact upon the business and operations of either the
Trust or the Distributor, or (3) the Company breaches any obligation
under this Agreement in a material respect and such breach shall
continue unremedied for thirty (30) days after receipt by the Company
of notice in writing from the Trust or Distributor of such breach.
10.5 This Agreement may be terminated at the option of the Company if (A)
the Internal Revenue Service determines that any Fund fails to qualify
as a "Regulated Investment Company" under the Code or fails to comply
with the diversification requirements of Section 817(h) of the Code, or
(B) the Company shall determine, in its sole judgment exercised in good
faith, that either (1) the Trust or the Distributor shall have been the
subject of material adverse publicity which is likely to have a
material adverse impact upon the business and operations of the
Company, or (2) the Trust or Distributor breaches any obligation under
this Agreement in a material respect and such breach shall continue
unremedied for thirty (30) days after receipt of notice in writing to
the Trust or the Distributor from the Company of such breach.
10.6 Notwithstanding any termination of this Agreement, the Trust will, upon
the mutual agreement of the parties hereto, continue to make available
additional shares of the Trust pursuant to the terms and conditions of
this Agreement, for all existing Contracts in effect on the effective
date of termination of this Agreement (hereinafter referred to as
"Existing Contracts"). Specifically, without limitation, if the Trust
and Distributor so agree to make additional Shares available, the
owners of the Existing Contracts will be permitted to reallocate
investments in the Trust (as in effect on such date), redeem
investments in the Trust and/or invest in the Trust upon the making of
additional purchase payments under the Existing Contracts.
March 1, 2005 Page 18 of 26
10.7 In the event of a termination of this Agreement pursuant to this
Article X, the Trust and the Distributor shall promptly notify the
Company in writing whether the Distributor and the Trust will continue
to make Trust shares available after such termination; if the
Distributor and the Trust will continue to make Trust shares so
available, the provisions of this Agreement shall remain in effect
except for Section 10.1 and thereafter either the Trust, Distributor or
the Company may terminate the Agreement as so continued pursuant to
this Section 10.7 upon prior written notice to the other parties, such
notice to be for a period that is reasonable under the circumstances
but need not be greater than six months.
10.8 The provisions of Article VIII shall survive the termination of this
Agreement, and the provisions of Articles IV and VII shall survive the
termination of this Agreement as long as shares of the Trust are held
on behalf of Contract owners in accordance with Section 10.7.
March 1, 2005 Page 19 of 26
ARTICLE XI - INFORMATION SHARING
11.1 AGREEMENT TO PROVIDE INFORMATION. The Company agrees to provide the
Trust, upon written request, the taxpayer identification number
("TIN"), if known, of any or all Shareholder(s) of the account and the
amount, date, name or other identifier of any registered
representative(s) associated with the Shareholder(s) or account (if
known), and transaction type (purchase, redemption, transfer, or
exchange) of every purchase, redemption, transfer, or exchange of
Shares held through an account maintained by the Company during the
period covered by the request.
11.1.1 PERIOD COVERED BY REQUEST. Requests must set forth a specific period,
not to exceed 12 months from the date of the request, for which
transaction information is sought. The Trust may request transaction
information older than 12 months from the date of the request as it
deems necessary to investigate compliance with policies established by
the Trust for the purpose of eliminating or reducing any dilution of
the value of the outstanding shares issued by the Trust.
11.1.2 FORM AND TIMING OF RESPONSE. The Company agrees to transmit the
requested information that is on its books and records to the Trust or
its designee promptly, but in any event not later than five (5)
business days, after receipt of a request. If the requested information
is not on the Company's books and records, the Company agrees to: (i)
provide or arrange to provide the requested information from
Shareholders who hold an account with an indirect intermediary; or (ii)
if directed by the Trust, block further purchases of Trust Shares from
such indirect intermediary. In such instance, the Company agrees to
inform the Trust whether it plans to perform (i) or (ii). Responses
required by this paragraph must be communicated in writing and in a
format mutually agreed upon by the parties. To the extent practicable,
the format for any transaction information provided to the Trust should
be consistent with the NSCC Standardized Data Reporting Format. For
purposes of this provision, an "indirect intermediary" has the same
meaning as in SEC Rule 22c-2 under the 1940 Act.
11.1.3 LIMITATIONS ON USE OF INFORMATION. The Trust agrees not to use the
information received for marketing or any other similar purpose without
the prior written consent of the Company.
11.2 AGREEMENT TO RESTRICT TRADING. The Company agrees to execute written
instructions from the Trust to restrict or prohibit further purchases
or exchanges of Shares by a Shareholder that has been identified by the
Trust as having engaged in transactions of the Trust's Shares (directly
or indirectly through the Company's account) that violate policies
established by the Trust for the purpose of eliminating or reducing any
dilution of the value of the outstanding Shares issued by the Trust.
11.2.1 FORM OF INSTRUCTIONS. Instructions must include the TIN, if known, and
the specific restriction(s) to be executed. If the TIN is not known,
the instructions must include an equivalent identifying number of the
Shareholder(s) or account(s) or other agreed upon information to which
the instruction relates.
March 1, 2005 Page 20 of 26
11.2.2 TIMING OF RESPONSE. The Company agrees to execute instructions as soon
as reasonably practicable, but not later than five business days after
receipt of the instructions by the Company.
11.2.3 CONFIRMATION BY COMPANY. The Company must provide written confirmation
to the Trust that instructions have been executed. The Company agrees
to provide confirmation as soon as reasonably practicable, but not
later than ten business days after the instructions have been executed.
11.3 DEFINITIONS. For purposes of this section:
11.3.1 The term "Trust" includes the Distributor and the Trust's transfer
agent. The term not does include any "excepted funds" as defined in SEC
Rule 22c-2(b) under the 0000 Xxx.
11.3.2 The term "Shares" means the interest of Shareholders or contract
holders corresponding to the redeemable securities of record issued by
the Trust under the 1940 Act that are held by the Company.
11.3.3 The term "Shareholder" means the contract holder or beneficial owner of
Shares, whether the Shares are held directly or by the Company in
nominee name.
11.3.4 The term "written" includes electronic writings and facsimile
transmissions.
11.4 THE OBLIGATION OF COMPANY TO PROVIDE THE INFORMATION DESCRIBED IN
SECTION 11.1 OF THIS AGREEMENT IS NOT EFFECTIVE UNTIL OCTOBER 16, 2007;
PROVIDED, HOWEVER, THAT, PRIOR TO OCTOBER 16, 2007, COMPANY SHALL
PROVIDE TRUST WITH SUCH INFORMATION AS IS NECESSARY FOR TRUST TO
MONITOR FOR INAPPROPRIATE TRADING.
ARTICLE XII
Any notice will be deemed duly given when sent by overnight courier or
certified mail, return receipt requested, to the other party at the
address of such party set forth below or at such other address as such
party may from time to time specify in writing to the other parties.
All notices will be deemed given three (3) business days after the date
received or rejected by the addressee:
IF TO THE COMPANY:
------------------
Jefferson National Life Insurance Company
0000 Xxxxxxxxx Xxxxxx Xxxxx, Xxxxx 0000
Xxxxxxxxxx, Xxxxxxxx 00000
Attn: General Counsel
IF TO THE TRUST:
----------------
Nationwide Variable Insurance Trust
0000 Xxxxx Xxxx, Xxxxx 0000
Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000
Attn: General Counsel
March 1, 2005 Page 21 of 26
IF TO THE DISTRIBUTOR:
----------------------
Nationwide Fund Distributors LLC
0000 Xxxxx Xxxx, Xxxxx 0000
Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000
Attn: Dealer Services
ARTICLE XIII - MISCELLANEOUS
13.1 All persons dealing with the Trust must look solely to the property of
the Trust or the Designated Funds for the enforcement of any claims
against the Trust or the Designated Funds as neither the Trustees,
officers, agents or shareholders assume any personal liability for
obligations entered into on behalf of the Trust or the Designated
Funds.
13.2 The Trust and the Distributor acknowledge that the identities of the
customers of the Company or any of its affiliates (collectively the
"Protected Parties" for purposes of this Section 13.2), information
maintained regarding those customers, and all computer programs and
procedures developed by the Protected Parties or any of their employees
or agents in connection with the Company's performance of its duties
under this Agreement are the valuable property of the Protected
Parties. The Trust and the Distributor agree that if they come into
possession of any list or compilation of the identities of or other
information about the Protected Parties' customers, or any other
property of the Protected Parties, other than such information as may
be independently developed or compiled by the Trust and the Distributor
from information supplied to them by the Protected Parties' customers
who also maintain accounts directly with the Trust and the Distributor,
the Trust and the Distributor will hold such information or property in
confidence and refrain from using, disclosing or distributing any of
such information or other property except: (a) with the Company' s
prior written consent; or (b) as required by law or judicial process.
The Trust and the Distributor acknowledge that any breach of the
agreements in this Section 13.2 would result in immediate and
irreparable harm to the Protected Parties for which there would be no
adequate remedy at law and agree that in the event of such a breach,
the Protected Parties will be entitled to equitable relief by way of
temporary and permanent injunctions, as well as such other relief as
any court of competent jurisdiction deems appropriate.
13.3 The captions in this Agreement are included for convenience of
reference only and in no way define or delineate any of the provisions
hereof or otherwise affect their construction or effect.
March 1, 2005 Page 22 of 26
13.4 This Agreement may be executed simultaneously in two or more
counterparts, each of which taken together will constitute one and the
same instrument.
13.5 If any provision of this Agreement will be held or made invalid by a
court decision, statute, rule or otherwise, the remainder of the
Agreement will not be affected thereby.
13.6 This Agreement will not be assigned by any party hereto without the
prior written consent of all the parties.
13.7 The rights, remedies and obligations contained in this Agreement are
cumulative and are in addition to any and all rights, remedies and
obligations, at law or in equity, which the parties hereto are entitled
to under state and federal law.
13.8 The parties to this Agreement acknowledge and agree that this Agreement
shall not be exclusive in any respect.
13.9 Each party to this Agreement will cooperate with each other party and
all appropriate governmental authorities (including without limitation
the SEC, the NASD and state insurance regulators) and will permit each
other and such authorities reasonable access to its books and records
in connection with any investigation or inquiry relating to this
Agreement or the transactions contemplated hereby.
13.10 Each party represents that the execution and delivery of this Agreement
and the consummation of the transactions contemplated herein have been
duly authorized by all necessary corporate or trust action, AS
applicable, by such party and when so executed and delivered this
Agreement will be the valid and binding obligation of such party
enforceable in accordance with its terms.
IN WITNESS WHEREOF, each of the parties hereto has caused this Agreement to be
executed in its name and behalf by its duly authorized representative and its
seal to be hereunder affixed hereto as of the date specified below.
JEFFERSON NATIONAL LIFE INSURANCE COMPANY
By: ______________________________
NATIONWIDE VARIABLE INSURANCE TRUST
By: ______________________________
NATIONWIDE FUND DISTRIBUTORS LLC
By: ______________________________
March 1, 2005 Page 23 of 26
PARTICIPATION AGREEMENT
SCHEDULE A
The following Separate Accounts of the Company are permitted in accordance with
the provisions of this Agreement to invest in Funds of the Trust shown in
Schedule B:
NAME OF SEPARATE ACCOUNT:
Jefferson National Life Annuity Account G
NAME OF SEPARATE ACCOUNT:
NAME OF SEPARATE ACCOUNT:
March 1, 2005 Page 24 of 26
PARTICIPATION AGREEMENT
SCHEDULE B
The Separate Account(s) shown on Schedule A may invest in the following
Designated Funds of the Trust:
NVIT Mid Cap Index Fund Class ID
NVIT S&P 500 Index Fund Class ID
NVIT Bond Index Fund Class ID
NVIT International Index Fund Class ID
NVIT Small Cap Index Fund Class ID
March 1, 2005 Page 26 of 26
