FUND PARTICIPATION AGREEMENT
This
Agreement dated as of the 13th day of
April, 2004
is made by and among Nationwide Financial Services, Inc. on behalf of its
subsidiary life insurance companies listed on Exhibit A (collectively
“Nationwide”) and the current and any future Nationwide separate accounts as
applicable (“Variable Accounts”) and Xxxxxxx Xxxxx Variable Series Funds, Inc.
(the “Funds”) and FAM Distributors, Inc. (“Distributor”) (collectively “the
Company”) which serves as advisor and distributor to the Funds, as listed on
Exhibit B.
RECITALS
WHEREAS,
Nationwide is engaged in developing and offering variable annuity and variable
life insurance products (collectively “Variable Products”) through its Variable
Accounts; and
WHEREAS,
Nationwide also provides administrative and/or recordkeeping services for the
Variable Products and in all other respects provides operational support in
connection with the offering and maintenance of the Variable Products;
and
WHEREAS,
Nationwide and the Company mutually desire the inclusion of the Funds as
investment options in the Variable Products; and
WHEREAS,
the Variable Products allow for the allocation of net amounts received by
Nationwide and the Variable Accounts to the Company for investment in shares
of
the Funds; and
WHEREAS,
selection of investment options is made by contract owners of the Variable
Products and such contract owners may reallocate their investments among the
investment options in accordance with the terms of the Variable Products;
and
NOW
THEREFORE, Nationwide and the Company, in consideration of the
undertaking described herein, agree that the Funds will be available as
investment options in the Variable Products offered by Nationwide, subject
to
the following:
REPRESENTATIONS
REPRESENTATIONS
BY NATIONWIDE
Nationwide
Financial Services, Inc. represents that it is a holding company duly organized
and in good standing under applicable state law. Nationwide
represents that its life insurance companies have been duly organized and are
in
good standing under applicable state law.
Nationwide
represents that its life insurance company subsidiaries have validly established
all separate accounts under applicable state law. Each Variable
Account is or will be registered as a unit investment trust in accordance with
the provisions of the Investment Company Act of 1940 (“1940 Act”), unless exempt
from registration based on Section 3(c) 1 or 3(c) 7 of the 1940 Act, or any
other applicable exemption.
Nationwide
represents that it will amend the registration statements under the Securities
Act of 1933 (the “1933 Act”) and the 1940 Act for the Variable Products from
time to time as required to effect the continuous offering of the Variable
Products, unless otherwise exempt. Nationwide will also seek to have
the Variable Products approved by state insurance authorities in jurisdictions
where those annuity contract or life insurance policies will be
offered.
Nationwide
represents that the annuity contracts and/or life insurance policies are
designed to be treated as annuity contracts and/or life insurance policies
under
the appropriate provisions of the Internal Revenue Code of 1986, as Amended
(the
“Code”). Nationwide shall make every effort to maintain such
treatment, and will promptly notify the Company upon having a reasonable basis
for believing that such annuity contracts or life insurance policies have ceased
to be so treated or that they might not be so treated in the
future.
Nationwide
represents that the Variable Products are designed for long-term investors
and
Nationwide has policies and procedures in place to detect and discourage
short-term trading or other abusive market timing practices, which include
but
are not limited to, monitoring contract owner activity, imposing trade
restrictions and enforcing redemption fees imposed by funds, if
applicable.
Nationwide
represents that it will conduct its activities hereunder in material conformity
with all applicable federal and state laws or regulations.
REPRESENTATIONS
BY THE COMPANY
The
Fund
represents that it is duly organized and validly existing under applicable
state
law. The Fund represents that its shares are duly authorized for
issuance in accordance with applicable law, that the Fund is registered as
an
open-end management investment company under the 1940 Act, and the Fund will
maintain its registration as an investment company under the 1940
Act.
The
Fund
shall take all such actions as are necessary to permit the sale of its shares
to
the Variable Accounts, including registering its shares sold to the Variable
Accounts under the 1933 Act. The Fund 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 Fund will register and qualify its shares for sale in all
states, where applicable, and will promptly notify Nationwide if any shares
are
not qualified in a particular state.
The
Fund(s) represents that the risks to shareholders of the Fund(s) resulting
from
abusive trading in the Fund(s) and any policies and procedures adopted to deal
with such risks, are clearly disclosed in the Fund(s) prospectus and Statement
of Additional Information; and that such policies, as disclosed, will be
uniformly and consistently enforced with respect to all shareholders unless
otherwise disclosed in the Fund(s) prospectus.
The
Fund
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. The Fund shall promptly notify
Nationwide 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.
The
Fund
represents that any insurance Funds utilized in the Variable Products 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. The Fund will notify Nationwide promptly upon having a
reasonable basis for believing any Fund has ceased to comply. The
Fund shall make every effort to remedy any failure to comply with Section 817(h)
within the time frame set forth by Section 817(h).
The
Distributor represents that it 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, and
is a
member in good standing of the National Association of Securities Dealers,
Inc.
(“NASD”) and serves as principal underwriter/distributor of the Funds and that
it will perform its obligations for the Fund in accordance with any applicable
state and federal securities laws.
The
Company represents that its investment advisor is duly registered as an
investment advisor under the Investment Advisors Act of 1940, as amended, and
will remain duly registered under all applicable federal and state securities
laws and that it will perform its obligations for the Fund in accordance with
any applicable state and federal securities laws.
TRADING
Subject
to the terms and conditions of this Agreement, Nationwide shall be appointed
to,
and agrees to act, as a limited agent of the Company for the sole purpose of
receiving instructions from duly authorized parties 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, Nationwide shall have no authority to act on behalf of the Company
or
to incur any cost or liability on its behalf. Both parties agree to
follow any written guidelines or standards relating to the sale or distribution
of the shares as may be provided in the provisions outlined in Exhibit C, as
well as to follow any applicable federal and/or state securities laws, rules
or
regulations.
VOTING
For
so
long as and to the extent that the Securities and Exchange Commission continues
to interpret the 1940 Act to require pass-through voting privileges for Variable
Products, Nationwide shall distribute all proxy material furnished by the
Company (provided that such material is received by Nationwide or its designated
age 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. Nationwide shall vote the Fund shares for which no
instructions have been received in the same proportion as Fund shares for which
said instructions have been received from the contract owners, provided that
such proportional voting is not prohibited by a contract owner’s qualified
retirement plan document, if applicable. Nationwide 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.
DOCUMENTS
AND OTHER MATERIALS
DOCUMENTS
PROVIDED BY NATIONWIDE
Nationwide
agrees to provide the Company, upon written request, any reports indicating
the
number of contract or policy owners having interests in the Variable Products
corresponding to a Variable Account’s acquisition of Fund shares and such other
information (including books and records) that the Company may reasonably
request or as may be necessary or advisable to enable it to comply with any
law,
regulation or order.
DOCUMENTS
PROVIDED BY THE COMPANY
Within
five (5) Business Days after the end of each calendar quarter, the Company
shall
provide Nationwide, or its designee, a quarterly statement of account, which
shall confirm all transactions made during that particular quarter.
The
Company shall promptly provide Nationwide with a reasonable quantity (in light
of the number of existing contracts or policy owners) of the Funds’
prospectuses, Statements of Additional Information and any supplements
thereto.
EXPENSES
All
expenses incident to the performance by Nationwide under this Agreement shall
be
paid by Nationwide. Likewise, all expenses incident to the
performance by the Fund under this Agreement shall be paid by the Company and/or
the Fund.
Nationwide
is responsible for the expenses of the cost of registration of the Variable
Products, unless otherwise exempt and the costs of having the Variable Products
approved by state insurance authorities in the applicable
jurisdictions.
The
Company and/or Fund is responsible for the expenses of the cost of registration
of the Funds’ shares, or preparation of the Funds’ prospectuses, statements of
additional information, proxy materials, reports and the preparation of other
related statements and notices required by law (“Fund Materials”) for
distribution in reasonable quantities to contract owners except as otherwise
mutually agreed upon by the parties to the Agreement.
Nationwide
is responsible for distributing Fund prospectuses to its existing contract
owners. For Nationwide’s annual mailing to contract owners of
Variable Product prospectuses and Fund prospectuses, the Company will provide
updated Fund prospectuses for mailing to contract owners, or if a combined
printing is done by Nationwide, the Company will pay the lesser of:
(a) The
cost to print individual fund prospectuses; or
(b) The
Company’s portion of the total printing costs if Nationwide does not use
individual prospectuses, but reprints fund prospectuses in another format;
or
(c) The
Company’s portion of the total reproduction costs if Nationwide does not use
individual printed prospectuses, but reproduces the prospectuses in another
allowable and appropriate medium (i.e. CD Rom or computer diskette) which is
mutually agreed upon by both Nationwide and the Company and subject to
reasonable costs.
FUND
SUBSTITUTION
Should
the removal of a Fund from a Variable Product be desired by one of the parties
hereto, such party seeking the Fund’s removal shall bear any expenses incurred
as a result of removing such Fund as an available investment
option. The parties agree to provide reasonable advance notice of
their election to remove a Fund. The Company acknowledges that
Nationwide may need to seek the approval of the Securities and Exchange
Commission (“SEC”) under Section 26 (c) of the 1940 Act for any fund
substitution.
MIXED
AND SHARED FUNDING
The
Company represents that it has or will obtain a mixed and shared funding order
issued by the SEC under Section 6(c) of the 1940 Act. As set forth in
the Notice of the Company’s application for the mixed and shared funding order,
Nationwide agrees to report any potential or existing conflicts promptly to
the
Board of Trustees of the Fund (the “Board”), and in particular whenever voting
instructions of contract owners are disregarded, and recognizes that it will
be
responsible for assisting the Board in carrying out its responsibilities under
such application. Nationwide agrees to carry out such
responsibilities with a view to the interests of existing contract
owners.
If
a
majority of the Board, or a majority of Disinterested Board Members, determines
that a material irreconcilable conflict exists with regard to contract owner
investments in the Fund, the Board shall give prompt notice to all Insurance
Companies participating in the Fund (“Participating Companies”). If
the Board determines that Nationwide is responsible for causing or creating
said
conflict, Nationwide shall at it sole cost and expense, and to the extent
reasonably practicable (as determined by a majority of the Disinterested Board
Members), take such action as is necessary to remedy or eliminate the
irreconcilable material conflict. Such necessary action may include,
but shall not be limited to:
(a) Withdrawing
the assets allocable to the Variable Account from the Fund and reinvesting
such
assets in a different investment medium, or submitting the question of whether
such segregation should be implemented to a vote of all affected contract
owners; and/or
(b) Establishing
a new separate account.
If
a
material irreconcilable conflict arises as a result of a decision by Nationwide
to disregard contract owner voting instructions and said decision represents
a
minority position or would preclude a majority vote by all contract owners
having an interest in the Fund, Nationwide may be required, at the Board’s
election, to withdraw the Variable Account’s investment in the
Fund.
For
the
purpose of this Section, a majority of the Disinterested Board Members shall
determine whether or not any proposed action adequately remedies any
irreconcilable material conflict, but in no event will the Company be required
to bear the expense of establishing a new funding medium for any Variable
Product. Nationwide shall not be required by this Section to
establish a new funding medium for any Variable Product if an offer to do so
has
been declined by vote of a majority of the contract owners materially adversely
affected by the irreconcilable material conflict.
SALES
LITERATURE
Nationwide
and its agents shall make no representations about the Company except those
contained in publicly available documents or other documents produced by the
Company (or an entity on its behalf). Nationwide agrees to allow a
reasonable period of time for the Company to review sales literature relating
to
the Variable Products, which discusses the Funds. Nationwide agrees
to furnish draft copies to the Company and allow a reasonable period of time
for
the review of such material prior to use and prior to the submission of such
material to any applicable regulatory entity. The Company must either
provide comments within a reasonable period of time or affirmatively decline
to
provide comments.
The
Company and its agents shall make no representations about Nationwide except
those contained in publicly available documents or other documents produced
by
Nationwide (or an entity on its behalf). The Company agrees to allow
a reasonable period of time for Nationwide to review sales literature relating
to the Funds, which discuss the Variable Products. The Company agrees
to furnish draft copies to Nationwide and allow a reasonable period of time
for
the review of such material prior to use and prior to the submission of such
material to any applicable regulatory entity. Nationwide must either
provide comments within a reasonable period of time or affirmatively decline
to
provide comments.
PRIVACY
AND CONFIDENTIALITY
For
purposes of this Section, “Customer Information” means non-public personally
identifiable information as defined in the Xxxxx-Xxxxx-Xxxxxx Act and the rules
and regulations promulgated thereunder, and each party agrees not to use,
disclose or distribute to others any such information except as necessary to
perform the terms of this Agreement and each party agrees to comply with all
applicable provisions of the Xxxxx-Xxxxx-Xxxxxx Act.
For
purposes of this Section, “Confidential Information” means any data or
information regarding proprietary or confidential information concerning each
of
the parties. Confidential Information does not include information
that (a) was in the public domain prior to the date of this Agreement or
subsequently came into the public domain through no fault of the Receiving
Party
or by violation of this Agreement; (b) was lawfully received by the Receiving
Party from a third party free of any obligation of confidence of such third
party; (c) was already in the possession of the Receiving Party prior to receipt
thereof directly or indirectly from the Disclosing Party; (d) is required to
be
disclosed pursuant to applicable laws, regulatory or legal process, subpoena
or
court order; or, (e) is subsequently and independently developed by employees,
consultants or agents of the Receiving Party without reference to or use of
the
Confidential Information disclosed under this Agreement. Each of the
parties warrants to the other that it shall not disclose to any person any
Confidential Information which it may acquire in the performance of this
Agreement; nor shall it use such Confidential Information for any purposes
other
than to fulfill its contractual obligations under this Agreement and it will
maintain the other party’s Customer and Confidential Information with reasonable
care, which shall not be less than the degree of care it would use for its
own
such information.
In
the
event Confidential Information includes Customer Information, the Customer
Information clause controls.
SECURITY
Both
Parties will maintain and enforce safety and physical security procedures with
respect to its access and maintenance of Confidential Information (in electronic
and paper format) that are in accordance with reasonable policies in these
regards, and provide reasonably appropriate safeguards against accidental or
unlawful destruction, loss, alteration or unauthorized disclosure or access
of
Confidential Information under this Agreement.
ANTI-MONEY
LAUNDERING
Nationwide
agrees that companies listed in Exhibit A will comply with the USA PATRIOT
Act
as applicable and effective. Further, the Company agrees that it will
comply with the USA PATRIOT Act as applicable and effective.
INDEMNIFICATION
INDEMNIFICATION
BY NATIONWIDE
(a) Nationwide
agrees to indemnify and hold harmless the Fund, the Distributor, the Advisor,
and each of their Directors, Trustees, officers, employees and agents, and
any
affiliated person of the Fund, Distributor or Advisor within the meaning of
Section 2(a)(3) of the 1940 Act (collectively, the “Indemnified Parties” for
purposes of this Section) against any and all losses, claims, damages,
liabilities (including amounts paid in settlement with the written consent
of
Nationwide) or litigation expenses (including reasonable legal and other
expenses), to which the Indemnified Parties may become subject under any statute
or regulation, at common law or otherwise, insofar as such losses, claims,
damages, liabilities or litigation expenses are related to the sale or
acquisition of the Fund’s shares or the Variable Products issued by Nationwide
and:
(i) arise
out of or are based upon any untrue statement or alleged untrue statement of
any
material fact contained in the registration statement or prospectus (which
shall
include the portions of any offering memoranda that contain information
regarding the Fund, Distributor or Advisor) for the Variable Products issued
by
Nationwide or sales literature or other promotional material for such Variable
Products (or any amendment or supplement to any of the foregoing), 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 agreement to indemnify 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 in conformity with
information furnished to Nationwide by or on behalf of the Fund for use in
the
registration statement or prospectus for the Variable Products issued by
Nationwide or sales literature or other promotional material (or any amendment
or supplement) or otherwise for use in connection with the sale of such Variable
Products or Fund shares; or
(ii) arise
out of or as a result of any untrue statement or misrepresentation (other than
misstatements or misrepresentations contained in the registration statement,
prospectus or sales literature or other promotional material of the Fund not
supplied by Nationwide or persons under its control) or wrongful conduct of
Nationwide or any of its affiliates, employees or agents with respect to the
sale or distribution of the Variable Products issued by Nationwide or the Fund
shares; or
(iii) arise
out of any untrue statement or alleged untrue statement of a material fact
contained in a registration statement, prospectus, or sales literature or other
promotional material of the Fund or any amendment thereof or supplement thereto
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 a statement or omission was made in reliance upon information furnished
by
or on behalf of Nationwide; or
(iv) arise
out of or result from any material breach of any representation and/or warranty
made by Nationwide in this Agreement or arise out of or result from any other
material breach of this Agreement by Nationwide; except to the extent provided
in Sections (b) and (c) below.
(b) Nationwide
shall not be liable under this indemnification provision with respect to any
losses, claims, damages, liabilities or litigation expenses to which an
Indemnified Party would otherwise be subject by reason of willful misfeasance,
bad faith, or gross negligence in the performance of the Indemnified Party’s
duties or by reason of the Indemnified Party’s reckless disregard of obligations
or duties under this Agreement.
(c) Nationwide
shall not be liable under this indemnification provision with respect to any
claim made against an Indemnified Party unless such Party shall have notified
Nationwide in writing within a reasonable time after the summons or other first
legal process giving information of the nature of the claim shall have been
served upon such Indemnified Party (or after such Party shall have received
notice of such service on any designated agent).
(d) In
case any such action is brought against the Indemnified Parties, Nationwide
shall be entitled to participate, at its own expense, in the defense of such
action. Nationwide shall also be entitled to assume the defense
thereof, with counsel satisfactory to the party named in the
action. After notice from Nationwide to such party of Nationwide’s
election to assume the defense thereof, the Indemnified Party shall bear the
fees and expenses of any additional counsel retained by it, and Nationwide
will
not be liable to such 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. If Nationwide
assumes the defense or representation of an Indemnified Party, Nationwide shall
not consent or agree to any settlement without the prior approval of the
Indemnified Party.
INDEMNIFICATION
BY THE COMPANY
(a) The
Company agrees to indemnity and hold harmless Nationwide and Nationwide’s
affiliated principal underwriter of the Variable Products, and each of their
Directors, Officers, employees, and agents, and any affiliated person of
Nationwide within the meaning of Section 2(a)(3) of the 1940 Act (collectively,
the “Indemnified Parties” for purposes of this Section) against any and all
losses, claims, damages, liabilities (including amounts paid in settlement
with
the written consent of the Company) or litigation expenses (including reasonable
legal and other expenses) to which the Indemnified Parties may become subject
under any statute or regulation, at common law or otherwise, insofar as such
losses, claims, damages, liabilities or litigation expenses are related to
the
sale or acquisition of the Fund’s shares or the Variable Products issued by
Nationwide and:
(i) arise
out of or based upon any untrue statement or alleged untrue statement of any
material fact contained in the registration statement or prospectus or sales
literature or other promotional material of the Fund (or any amendment or
supplement to any of the foregoing), 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 agreement to indemnify 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 in conformity with information furnished to the
Company or the Fund or the designee of either by or on behalf of Nationwide
for
use in the registration statement or prospectus for the Fund or in sales
literature or other promotional material (or any amendment or supplement) or
otherwise for use in connection with the sale of the Variable Products issued
by
Nationwide or Fund shares; or
(ii) arise
out of or as a result of any untrue statement or misrepresentations (other
than
misstatements or misrepresentations contained in the registration statement,
prospectus or sales literature or other promotional material for the Variable
Products not supplied by the Company or any employees or agents thereof) or
wrongful conduct of the Company, or the affiliates, employees, or agents of
the
Company with respect to the sale or distribution of the Variable Products issued
by Nationwide or Fund shares; or
(iii) arise
out of any untrue statement or alleged untrue statement of a material fact
contained in a registration statement, prospectus, or sales literature or other
promotional material covering the Variable Products issued by Nationwide, or
any
amendment thereof or supplement thereto, or the omission or alleged omission
to
state therein a material fact required to be stated therein or necessary to
make
the statement or statements therein not misleading, if such statement or
omission was made in reliance upon information furnished to Nationwide by or
on
behalf of the Fund; or
(iv) arise
out of or result from any material breach of any representation and/or warranty
made by the Company or the Fund in this Agreement or arise out of or result
from
any other material breach of this Agreement by the Company; except to the extent
provided in Sections (b) and (c) hereof.
(b) The
Company shall be not liable under this indemnification provision with respect
to
any losses, claims, damages, liabilities or litigation expenses to which an
Indemnified Party would otherwise be subject by reason of willful misfeasance,
bad faith, or gross negligence in the performance of the Indemnified Party’s
duties or by reason of the Indemnified Party’s reckless disregard of obligations
or duties under this Agreement.
(c) The
Company shall not be liable under this indemnification provision with respect
to
any claim made against an Indemnified Party unless such Party shall have
notified the Company in writing within a reasonable time after the summons
or
other first legal process giving information of the nature of the claim shall
have been served upon such Indemnified Party (or after such Party shall have
received notice of such service on any designated agent.)
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(c)
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In
case any such action is brought against the Indemnified Parties,
the
Company will be entitled to participate, at its own expense, in the
defense thereof. The Company shall also be entitled to assume
the defense of such action, with counsel satisfactory to the party
named
in the action. After notice from the Company to such party of
the Company’s election to assume the defense thereof, the Indemnified
Party shall bear the fees and expenses of any additional counsel
retained
by it, and the Company will not be liable to such party under this
Agreement for any legal or other expense subsequently incurred by
such
party independently in connection with the defense thereof other
than
reasonable costs of investigation. If the Company assumes the
defense or representation of an Indemnified Party, the Company shall
not
consent or agree to any settlement without the prior approval of
the
Indemnified Party.
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APPLICABLE
LAW
This
Agreement shall be construed in accordance with the laws of the State of
Ohio.
This
Agreement shall be subject to the provisions of the 1933, 1934 and 1940 Acts
and
the rules and regulations thereunder, including such exemptions from those
statutes, rules and regulations as the SEC may grant.
TERMINATION
This
Agreement shall terminate as to the availability of shares of the
Funds:
(1) at
the option of Nationwide or The Company upon at least 90 days advance written
notice to the other;
(2) at
any time upon the Company’s election, if the Company determines 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 Nationwide 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) at
the option of Nationwide, if Fund shares are not reasonably available to meet
the requirements of the Variable Products as determined by
Nationwide. Reasonable advance notice of election to terminate (and
time to cure) shall be furnished by Nationwide;
(4) upon
a decision by Nationwide, in accordance with the 1940 Act and applicable
regulations, to substitute such Fund shares with the shares of another
investment company for the Variable Products for which the Fund shares have
been
selected to serve as the underlying investment medium. Nationwide
shall give at least 60 days written notice to the Fund of any proposal to
substitute Fund shares;
(5) if
the applicable annuity contracts and life insurance policies are not treated
as
annuity contracts or life insurance policies by applicable regulatory entities
or under applicable rules and regulations;
(6) if
the Variable Accounts are not deemed “segregated asset accounts” by the
applicable regulatory entities or under applicable rules and
regulations;
(7) at
the option of Nationwide or the Fund, upon institution of relevant formal
proceedings against the broker-dealer(s) marketing the Variable Products, the
Variable Accounts, Nationwide or the Funds by the NASD, the IRS, the Department
of Labor, the SEC, state insurance departments or any other regulatory
body;
(8) upon
assignment of this Agreement unless such assignment is made with the written
consent of each party and in accordance with applicable law;
(9) in
the event Fund shares or the Variable Products 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 the Variable
Products issued or to be issued by Nationwide. Prompt written notice
shall be given by either party to the other in the event the conditions of
this
provision occur;
(10) At
the option of Nationwide, if Nationwide shall determine, in its sole judgment
reasonably exercised in good faith, that the Fund or the Company has suffered
a
material adverse change in its business or financial condition or is the subject
of material adverse publicity and such material adverse change or material
adverse publicity is likely to have a material adverse impact upon the business
and operation of Nationwide. Nationwide shall notify the Company in
writing of such determination and its intent to terminate this Agreement, and
after considering the actions taken by the Fund or Company and any other changes
in circumstances since the giving of such notice, such determination of
Nationwide shall continue to apply on the sixtieth (60th) day following
the
giving of such notice, which sixtieth day shall be the effective date of
termination;
(11) At
the option of the Company, if the Company shall determine, in its sole judgment
reasonably exercised in good faith, that Nationwide has suffered a material
adverse change in its business or financial condition or is the subject of
material adverse publicity and such material adverse change or material adverse
publicity is likely to have a material adverse impact upon the business and
operation of the Fund or The Company. The Company shall notify
Nationwide in writing of such determination and its intent to terminate this
Agreement, and after considering the actions taken by Nationwide and any other
changes in circumstances since the giving of such notice, such determination
of
the Fund shall continue to apply on the sixtieth (60th) day following
the
giving of such notice, which sixtieth day shall be the effective date of
termination; and
Notwithstanding
any of the foregoing provisions of this section (“Termination”), this Agreement
and all related agreements shall remain in full force and in effect for so
long
as allocations to any or all of the Variable Accounts remain invested in Fund
shares.
NOTICE
Each
notice required by this Agreement shall be given in writing to:
Nationwide
Financial Services, Inc.
Xxx
Xxxxxxxxxx Xxxxx 0-00-X0
Xxxxxxxx,
Xxxx 00000
Attention:
Securities Officer
Fax
Number: 000-000-0000
With
a
Copy to:
Nationwide
Financial
Xxx
Xxxxxxxxxx Xxxxx, 0-00-00
Xxxxxxxx,
Xxxx 00000
Attention:
Vice President- Investment and Advisory Services
FAM
Distributors, Inc.
Xxxxxxx
Xxxxx Variable Series Funds, Inc.
000
Xxxxxxxx Xxxx Xxxx
Xxxxxxxxxx,
XX 00000
Attention:
General Counsel
Fax
Number: 000-000-0000
Any
party
may change its address by notifying the other party(ies) in
writing.
ASSIGNMENT
This
Agreement shall be binding upon and shall inure to the benefit of the parties
and their respective successors and assigns; provided, however, that neither
this Agreement nor any rights, privileges, duties or obligations of the parties
may be assigned by any party without the written consent of the other parties
or
as expressly contemplated by this Agreement.
ENFORCEABILITY
If
any
portion of this Agreement shall be held or made invalid by a court decision,
statute, rule or otherwise, the remainder of the Agreement shall not be affected
thereby.
REMEDIES
NOT EXCLUSIVE
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 to this Agreement are entitled to under state and
federal laws.
TRADEMARKS
Except
to
the extent required by applicable law, no party shall use any other party’s
names, logos, trademarks or service marks, whether registered or unregistered,
without the prior consent of such party.
SURVIVABILITY
Sections
“Representations,” “Privacy/Confidentiality,”
“Indemnification,” and “Trademarks” hereof shall survive
termination of this Agreement. In addition, all provisions of this
Agreement shall survive termination of this Agreement in the event that any
Variable Accounts are invested in a Fund at the time the termination becomes
effective and shall survive for so long as such Variable Accounts remain so
invested.
NON-EXCLUSIVITY
Each
of
the parties acknowledges and agrees that this Agreement and the arrangements
described in this Agreement are intended to be non-exclusive and that each
of
the parties is free to enter into similar agreements and arrangements with
other
entities.
PARTNERSHIPS/JOINT
VENTURES
Nothing
in this Agreement shall be deemed to create a partnership or joint venture
by
and among the parties hereto.
AMENDMENTS
TO THIS AGREEMENT
This
Agreement may not be amended or modified except by a written agreement, which
includes any amendments to the Exhibits, executed by all parties to the
Agreement.
TERMINATION
OF PRIOR AGREEMENTS
Not
applicable.
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
biding 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.
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.
By:[Xxxxxxx
X.
Xxxxxx]
Title: Vice
President
THE
COMPANY
By[Xxxxxx
X.
Xxxx]
Title: Managing
Director
Exhibit
A
Subsidiary
Life Insurance Companies
Nationwide
Life Insurance Company
Nationwide
Life and Annuity Insurance Company
Nationwide
Life Insurance Company of America
Nationwide
Life and Annuity Company of America
Variable
Accounts
Nationwide
Variable Account
Nationwide
Variable Account-II
Nationwide
Variable Account-3
Nationwide
Variable Account-4
Nationwide
Variable Account-5
Nationwide
Variable Account-6
Nationwide
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 VA Separate Account 1
Nationwide
Provident VA Separate Account A
Nationwide
Provident VLI Separate Account 1
Nationwide
Provident VLI Separate Account A
EXHIBIT
B
FUNDS
All
current and future funds available for sale through the Variable Products,
including but not limited to any funds listed below.
|
FUND
NAME
|
SHARE
CLASS(ES)
|
|
Xxxxxxx
Xxxxx American Balanced V.I.
|
I,
II, and III
|
|
Xxxxxxx
Xxxxx Basic Value V.I.
|
I,
II, and III
|
|
Xxxxxxx
Xxxxx Core Bond V.I.
|
I,
II, and III
|
|
Xxxxxxx
Xxxxx Developing Markets V.I.
|
I,
II, and III
|
|
Xxxxxxx
Xxxxx Fundamental Growth V.I.
|
I,
II, and III
|
|
Xxxxxxx
Xxxxx Global Growth V.I.
|
I,
II, and III
|
|
Xxxxxxx
Xxxxx Global Allocation V.I.
|
I,
II, and III
|
|
Xxxxxxx
Xxxxx Government Bond V.I.
|
I,
II, and III
|
|
Xxxxxxx
Xxxxx High Current Income V.I.
|
I,
II, and III
|
|
Xxxxxxx
Xxxxx Index 500 V.I.
|
I,
II, and III
|
|
Xxxxxxx
Xxxxx International V.I.
|
I,
II, and III
|
|
Xxxxxxx
Xxxxx Large Cap Growth V.I.
|
I,
II, and III
|
|
Xxxxxxx
Xxxxx Large Cap Core V.I.
|
I,
II, and III
|
|
Xxxxxxx
Xxxxx Large Cap Value V.I.
|
I,
II, and III
|
|
Xxxxxxx
Xxxxx Small Cap Value V.I.
|
I,
II, and III
|
|
Xxxxxxx
Xxxxx Utilities and Telecom V.I.
|
I
|
EXHIBIT
C
FUND/SERV
PROCESSING PROCEDURES
AND
MANUAL
PROCESSING PROCEDURES
The
purchase, redemption and settlement of shares of a Fund (“Shares”) will normally
follow the Fund/SERV-Defined Contribution Clearance and Settlement Service
(“DCCS”) Processing Procedures below and the rules and procedures of the SCC
Division of the National Securities Clearing Corporation (“NSCC”) shall govern
the purchase, redemption and settlement of Shares of the Funds through NSCC
by
Nationwide. In the event of equipment failure or technical
malfunctions or the parties’ inability to otherwise perform transactions
pursuant to the FUND/SERV Processing Procedures, or the parties’ mutual consent
to use manual processing, the Manual Processing Procedures below will
apply.
It
is
understood and agreed that, in the context of Section 22 of the Investment
Company Act of 1940 (the “1940 Act”) and the rules and public interpretations
thereunder by the staff of the Securities and Exchange Commission (SEC Staff),
receipt by Nationwide of any Instructions from the contract owner prior to
the
Close of Trade on any Business Day shall be deemed to be receipt by the Funds
of
such Instructions solely for pricing purposes and shall cause purchases and
sales to be deemed to occur at the Share Price for such Business Day, except
as
provided in 4(c) of the Manual Processing Procedures. Each
Instruction shall be deemed to be accompanied by a representation by Nationwide
that it has received proper authorization from each contract owner whose
purchase, redemption, account transfer or exchange transaction is effected
as a
result of such Instruction.
Fund/SERV-DCCS
Processing Procedures
1. On
each business day that the New York Stock Exchange (the “Exchange”) is open for
business on which the Funds determine their net asset values (“Business Day”),
the Distributor shall accept, and effect changes in its records upon receipt
of
purchase, redemption, exchanges, account transfers and registration instructions
from Nationwide electronically through Fund/SERV (“Instructions”) without
supporting documentation from the contract owner. On each Business
Day, the Distributor shall accept for processing any Instructions from
Nationwide and shall process such Instructions in a timely manner.
2. Distributor
shall perform any and all duties, functions, procedures and responsibilities
assigned to it under this Agreement and as otherwise established by the
NSCC. Distributor shall conduct each of the foregoing activities in a
competent manner and in compliance with (a) all applicable laws, rules and
regulations, including NSCC Fund/SERV-DCCS rules and procedures relating to
Fund/SERV; (b) the then-current Prospectus of a Fund; and (c) any provision
relating to Fund/SERV in any other agreement of the Distributor that would
affect its duties and obligations pursuant to this Agreement.
3. Confirmed
trades and any other information provided by the Distributor to Nationwide
through Fund/SERV and pursuant to this Agreement shall be accurate, complete,
and in the format prescribed by the NSCC.
4. Trade
information provided by Nationwide to the Distributor through Fund/SERV and
pursuant to this Agreement shall be accurate, complete and, in the format
prescribed by the NSCC. All Instructions by Nationwide regarding each
Fund/SERV Account shall be true and correct and will have been duly authorized
by the registered holder.
5. For
each Fund/SERV transaction, Nationwide shall provide the Funds and the
Distributor with all information necessary or appropriate to establish and
maintain each Fund/SERV transaction (and any subsequent changes to such
information), which Nationwide hereby certifies is and shall remain true and
correct. Nationwide shall maintain documents required by the Funds to
effect Fund/SERV transactions. Nationwide certifies that all
Instructions delivered to the Distributor on any Business Day shall have been
received by Nationwide from the contract owner by the close of trading
(generally 4:00 p.m. Eastern Time (“ET”)) on the Exchange (the “Close of
Trading”) on such Business Day and that any Instructions received by it after
the Close of Trading on any given Business Day will be transmitted to
Distributor on the next Business Day.
Manual
Processing Procedures
1. On
each Business Day, Nationwide may receive Instructions from the contract owner
for the purchase or redemption of shares of the Funds based solely upon receipt
of such Instructions prior to the Close of Trading on that Business
Day. Instructions in good order received by Nationwide prior to the
close of trading on any given Business Day (generally, 4:00 p.m. ET (the “Trade
Date”)) and transmitted to the Distributor by no later than 9:00 a.m. ET the
Business Day following the Trade Date (“Trade Date plus One” or “T+1”), will be
executed at the NAV (“Share Price”) of each applicable Fund,
determined as of the Close of Trading on the Trade Day.
2. By
no later than 7:00 p.m. ET on each Trade Date (“Price Communication Time”), the
Distributor will use its best efforts to communicate to Nationwide via
electronic transmission acceptable to both parties, the Share Price of each
applicable Fund, as well as dividend and capital gain information and, in the
case of funds that credit a daily dividend, the daily accrual or interest rate
factor, determined at the Close of Trading on that Trade Date.
3. As
noted in Paragraph 1 above, by 9:00 a.m. ET on T+1 (“Instruction Cutoff Time”)
and after Nationwide has processed all approved transactions, Nationwide will
transmit to the Distributor via facsimile, telefax or electronic transmission
or
system-to-system, or by a method acceptable to Nationwide and the Distributor,
a
report (the “Instruction Report”) detailing the Instructions that were received
by Nationwide prior to the Funds’ daily determination of Share Price for each
Fund (i.e., the Close of Trading) on Trade Date.
(a) It
is understood by the parties that all Instructions from the contract owner
shall
be received and processed by Nationwide in accordance with its standard
transaction processing procedures. Nationwide or its designees shall
maintain records sufficient to identify the date and time of receipt of all
contract owner transactions involving the Funds and shall make or cause to
be
made such records available upon reasonable request for examination by the
Funds
or its designated representative or, by appropriate governmental
authorities. Under no circumstances shall Nationwide change, alter or
modify any Instructions received by it in good order.
(b) Following
the completion of the transmission of any Instructions by Nationwide to the
Distributor by the Instruction Cutoff Time, Nationwide will verify that the
Instruction was received by the Distributor.
(c) In
the event that an Instruction transmitted by Nationwide on any Business Day
is
not received by the Distributor by the Instruction Cutoff Time, due to
mechanical difficulties or for any other reason beyond Nationwide’s reasonable
control, such Instruction shall nonetheless be treated by the Distributor as
if
it had been received by the Instruction Cutoff Time, provided that Nationwide
retransmits such Instruction by facsimile transmission to the Distributor and
such Instruction is received by the Distributor’s financial control
representative no later than 9:00 a.m. ET on T+1. In addition,
Nationwide will place a phone call to a financial control representative of
the
Distributor to advise the Distributor that a facsimile transmission concerning
the Instruction is being sent.
(d) With
respect to all Instructions, the Distributor’s financial control representative
will manually adjust a Fund’s records for the Trade Date to reflect any
Instructions sent by Nationwide.
(e) By
no later than 4:00 p.m. on T+1, and based on the information transmitted to
the
Distributor pursuant to Paragraph 3(c) above, Nationwide will use its best
efforts to verify that all Instructions provided to the Distributor on T+1
were
accurately received and that the trades for each Account were accurately
completed and Nationwide will use its best efforts to notify Distributor of
any
discrepancies.
4. As
set forth below, upon the timely receipt from Nationwide of the Instructions,
the Fund will execute the purchase or redemption transactions (as the case
may
be) at the Share Price for each Fund computed as of the Close of Trading on
the
Trade Date.
(a) Except
as otherwise provided herein, all purchase and redemption transactions will
settle on T+1. Settlements will be through net Federal Wire transfers
to an account designated by a Fund. In the case of Instructions which
constitute a net purchase order, settlement shall occur by Nationwide initiating
a wire transfer by 2:00 p.m. ET on T+1 to the custodian for the Fund for receipt
by the Funds’ custodian by no later than the Close of Business at the New York
Federal Reserve Bank on T+1, causing the remittance of the requisite funds
to
the Distributor to cover such net purchase order. In the case of
Instructions which constitute a net redemption order, settlement shall occur
by
the Distributor causing the remittance of the requisite funds to cover such
net
redemption order by Federal Funds Wire by 2:00 p.m. ET on T+1, provided that
the
Fund reserves the right to (i) delay settlement of redemptions for up to seven
(7) Business Days after receiving a net redemption order in accordance with
Section 22 of the 1940 Act and Rule 22c-1 thereunder, or (ii) suspend
redemptions pursuant to the 1940 Act or as otherwise required by
law. Settlements shall be in U.S. dollars.
(b) Nationwide
(and its Variable Accounts) shall be designated as record owner of each account
(“Record Owner”). Distributor will provide Nationwide with all
written confirmations required under federal and state securities
laws.
(c) On
any Business Day when the Federal Reserve Wire Transfer System is closed, all
communication and processing rules will be suspended for the settlement of
Instructions. Instructions will be settled on the next Business Day
on which the Federal Reserve Wire Transfer System is open. The
original T+1 Settlement Date will not apply. Rather, for purposes of
this Paragraph 4(c) only, the Settlement Date will be the date on which the
Instruction settles.
(d) Nationwide
shall, upon receipt of any confirmation or statement concerning the accounts
by
such method acceptable to the Distributor and Nationwide, verify the accuracy
of
the information contained therein against the information contained in
Nationwide’s internal record-keeping system and shall promptly advise the
Distributor in writing of any discrepancies between such
information. The Distributor and Nationwide shall cooperate to
resolve any such discrepancies as soon as reasonably practicable.
INDEMNIFICATION
In
the
event of any error or delay with respect to both the Fund/SERV Processing
Procedures and the Manual Processing Procedures outlined in Exhibit C herein:
(i) which is caused by the Funds or the Distributor, the Distributor shall
make
any adjustments on the Funds’ accounting system necessary to correct such error
or delay and the responsible party or parties shall reimburse the contract
owner
and Nationwide, as appropriate, for any losses or reasonable costs incurred
directly as a result of the error or delay but specifically excluding any and
all consequential punitive or other indirect damages or (ii) which is caused
by
Nationwide, the Distributor shall make any adjustment on the Funds’ accounting
system necessary to correct such error or delay and the affected party or
parties shall be reimbursement by Nationwide for any losses or reasonable costs
incurred directly as a result of the error or delay, but specifically excluding
any and all consequential punitive or other indirect damages. In the
event of any such adjustments on the Funds’ accounting system, Nationwide shall
make the corresponding adjustments on its internal record-keeping
system. In the event that errors or delays with respect to the
Procedures are contributed to by more than one party hereto, each party shall
be
responsible for that portion of the loss or reasonable cost which results from
its error or delay. All parties agree to provide the other parties
prompt notice of any errors or delays of the type referred to herein and to
use
reasonable efforts to take such action as may be appropriate to avoid or
mitigate any such costs or losses.
Amendment
to Fund Participation Agreement
Reference
is made to the Fund Participation Agreement dated as of April 13, 2004, (the
“Agreement”) by and among Nationwide Financial Services, Inc. on behalf of its
subsidiary life insurance companies listed on Exhibit A (collectively,
“Nationwide”) and the current and any future Nationwide separate accounts as
applicable (“Variable Accounts”) and FAM Variable Series Funds, Inc. (the
“Funds”) and FAM Distributors, Inc., (“Distributor”) (collectively, “the
Company”) which serves as adviser and distributor to the Funds, as listed on
Exhibit B. This amendment to the Agreement is made as of
April 1, 2005.
WHEREAS,
the parties to the Agreement wish to amend it to include the FAM Series
Funds to be offered as investment options in the Variable
Products.
NOW
THEREFORE, the Agreement is amended as follows:
Exhibit
B
to the Agreement is hereby deleted and replaced with the attached Exhibit B,
and
all references in the Agreement to the Portfolios shall be deemed to refer
to
the series of shares of the Fund as set forth on Exhibit B as attached
hereto.
All
capitalized terms used herein without definition and defined in the Agreement
shall have the same meaning herein as therein.
All
other
provisions of the Agreement shall remain in full force and effect.
IN
WITNESS WHEREOF, the parties have caused their duly authorized officers to
execute this Amendment to Fund Participation Agreement as of the date and year
first above written.
NATIONWIDE
FINANCIAL SERVICES, INC.
By:
Name: [Xxxxx
X.
Xxxxxx]
Title: Officer
FAM
SERIES FUND, INC.
By:
Name: [Xxxxxx
X.
Xxxxx]
Title: Vice
President and
Treasurer
FAM
DISTRIBUTORS, INC.
By:
Name: [Xxxxxx
X.
Xxxx]
Title: Managing
Director
Exhibit
A
Subsidiary
Life Insurance Companies
Nationwide
Life Insurance Company
Nationwide
Life and Annuity Insurance Company
Nationwide
Life Insurance Company of America
Nationwide
Life and Annuity Company of America
Variable
Accounts
Nationwide
Variable Account
Nationwide
Variable Account-II
Nationwide
Variable Account-3
Nationwide
Variable Account-4
Nationwide
Variable Account-5
Nationwide
Variable Account-6
Nationwide
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 VA Separate Account 1
Nationwide
Provident VA Separate Account A
Nationwide
Provident VLI Separate Account 1
Nationwide
Provident VLI Separate Account A
EXHIBIT
B
FUNDS
All
current and future funds available for sale through the Variable Products,
including but not limited to any funds listed below.
|
FUND
NAME
|
SHARE
CLASS(ES)
|
|
Mercury
American Balanced V.I.
|
I,
II, and III
|
|
Mercury
Basic Value V.I.
|
I,
II, and III
|
|
Mercury
Core Bond V.I.
|
I,
II, and III
|
|
Mercury
Domestic Money Market V.I.
|
I,
II, and III
|
|
Mercury
Fundamental Growth V.I.
|
I,
II, and III
|
|
Mercury
Global Growth V.I.
|
I,
II, and III
|
|
Mercury
Global Allocation V.I.
|
I,
II, and III
|
|
Mercury
Government Bond V.I.
|
I,
II, and III
|
|
Mercury
High Current Income V.I.
|
I,
II, and III
|
|
Mercury
Index 500 V.I.
|
I,
II, and III
|
|
Mercury
International Value V.I.
|
I,
II, and III
|
|
Mercury
Large Cap Growth V.I.
|
I,
II, and III
|
|
Mercury
Large Cap Core V.I.
|
I,
II, and III
|
|
Mercury
Large Cap Value V.I.
|
I,
II, and III
|
|
Mercury
Value Opportunities V.I.
|
I,
II, and III
|
|
Mercury
Utilities and Telecommunications V.I.
|
I
|
Portfolios
of FAM Series Fund, Inc.
Offered
to Segregated Accounts of NATIONWIDE FINANCIAL SERVICES, INC.
|
Fund
Name
|
Share
Class
|
|
|
Mercury
Mid Cap Value Opportunities Portfolio
|
Class
I, Class II, Class III
|
|
|
Mercury
Global Small Cap Portfolio
|
Class
I, Class II, Class III
|
|
|
Mercury
Small Cap Index Portfolio
|
Class
I, Class II, Class III
|
|
|
Mercury
International Index Portfolio
|
Class
I, Class II, Class III
|
|
|
Mercury
Equity Dividend Portfolio
|
Class
I, Class II, Class III
|
|
|
Mercury
Low Duration Portfolio
|
Class
I, Class II, Class III
|
