FUND PARTICIPATION AGREEMENT
This
Agreement dated as of the 18th day of
February,
2003 is made by and among Nationwide Financial Services, Inc. (“NFS”) (including
any affiliates and/or subsidiaries listed on Exhibit A) and X.X. Xxxxxx Series
Trust II, (the “Fund”) a business trust organized under the laws of Delaware,
with respect to the Fund’s portfolio or portfolios set forth on Exhibit B
hereto, as such Exhibit may be revised from time to time (each such portfolio
also a “Fund”; if there is more than one Fund to which this Agreement applies,
the provisions herein shall apply severally to each such Fund).
WHEREAS,
NFS or a subsidiary or affiliate thereof (collectively referred to as “NFS
Affiliate/Subsidiary”) provides administrative and/or recordkeeping services to
variable contracts, which may include, but are not limited to, variable annuity
contracts, variable life insurance policies and various retirement plans which
meet the definition of retirement plans under Sections 401 or 403 of the
Internal Revenue Code (the “Code”) (collectively, “Contracts”); and
WHEREAS,
the Contracts allow for the allocation of net amounts received by NFS to
sub-accounts which correspond to each Fund for investment in shares of the
Funds; and
WHEREAS,
selection of a particular sub-account is made by the contract owner or by
participants in various types of retirement plans and such contract owners
and/or participants may reallocate their investment options among the
sub-accounts in accordance with the terms of the Contracts; and
WHEREAS,
NFS and the Fund mutually desire the inclusion of the Funds as investment
options for the Contracts; and
NOW
THEREFORE, NFS and the Fund, in consideration of the promises and undertakings
described herein, agree that the Funds will be available in products and
services provided by NFS subject to the following:
REPRESENTATIONS
AND UNDERTAKINGS
REPRESENTATIONS
BY NFS
NFS
represents that the NFS Affiliates/Subsidiaries, including Variable Accounts,
have been established and are in good standing under the state law in which
they
were organized. The Variable Accounts are registered under the
Investment Company Act of 1940 (the “1940 Act”), unless otherwise exempt
therefrom.
NFS
and
its agents shall make no representations concerning the Funds or Fund shares
except those contained in the Funds’ then current prospectuses, Statements of
Additional Information or other documents produced by the Fund (or an entity
on
its behalf) which contain information about the Funds. NFS agrees to
allow a reasonable period of time for the Fund to review any
advertising
and sales literature drafted by NFS (or agents on its behalf) with respect
to
the Funds prior to use and prior to submitting such material to any
regulator.
NFS
acknowledges that the identity of the Fund’s (and its affiliates’ and/or
subsidiaries’) shareholders and customers (“Customers”) and all information
maintained about Customers constitute the valuable property of the Fund and
its
affiliates.
NFS
acknowledges that the services provided for under this Agreement by the Fund
are
not exclusive and that the same skill will be used in performing services to
other companies in similar contexts.
NFS
represents that the Contracts marketed as annuity contracts and/or life
insurance policies are currently treated as annuity contracts and/or life
insurance policies under the appropriate provisions of the Code, and that it
shall make every effort to maintain such treatment. NFS will promptly
notify the Fund upon having a reasonable basis for believing that the Contracts
have ceased to be treated as annuity contracts or life insurance policies,
or
that the Contracts may not be so treated in the future.
For
Contracts issued through the Variable Accounts, NFS represents that each
Variable Account is a “segregated asset account” and that interests in each
Variable Account are offered exclusively through the purchase of a “variable
contract”, within the meaning of such terms pursuant to Section 1.817-5(f)(2) of
the Federal Tax Regulations, and that it shall make every effort to continue
to
meet such definitional requirements. NFS shall promptly notify the
Fund upon having a reasonable basis for believing that such requirements have
ceased to be met or that they may not be met in the future.
REPRESENTATIONS
BY THE FUND
The
Fund
and its agents shall make no representations about NFS except those contained
in
publicly available documents or other documents produced by NFS (or an entity
on
its behalf). The Fund agrees to allow a reasonable period of time for
NFS to review any advertising and sales literature drafted by the Fund (or
agents on its behalf) with respect to NFS prior to use and prior to submitting
such material to any regulator.
The
Fund
acknowledges that the identity of NFS’s (and its affiliates’ and/or
subsidiaries’) customers and that all information maintained about those
customers constitute the valuable property of NFS.
The
Fund
acknowledges that the services provided for under this Agreement by NFS or
an
NFS Affiliate/Subsidiary are not exclusive and that the same skill will be
used
in performing services to other companies in similar contexts.
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
NFS upon having a reasonable basis for believing that the Funds have ceased
to
so qualify, or that they may not qualify as such in the future.
The
Fund
represents that the Funds 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 the 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 NFS promptly upon having
a reasonable basis for believing that the Funds have ceased to so qualify,
or
that the Funds might not so qualify in the future.
CONFIDENTIALITY/PRIVACY
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a.
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For
purposes of this Section, the following definitions
apply:
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1.
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“Customer
means an individual who seeks to obtain or obtains an NFS
product.
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2.
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“Customer
Information” means non-public personally identifiable information as
defined in the Xxxxx-Xxxxx-Xxxxxx Act and the rules
and regulations promulgated there under
(“GLBA”).
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3.
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“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.
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b.
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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.
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c.
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Each
of the parties agree that they will maintain the confidentiality
of
Confidential and Customer Information received from each other using
reasonable care, which shall not be less than the degree of care
for its
own Confidential and Customer
Information.
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d.
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Each
party agrees not to use, disclose or distribute to others any Customer
Information, except as necessary to perform the terms of this Agreement
or
as permitted or required by law, including the Xxxxx-Xxxxx-Xxxxxx
Act.
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e.
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This
section shall survive the expiration of termination of this
Agreement.
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TRADING
Subject
to the terms and conditions of this Agreement, NFS shall be appointed to, and
agrees to act, as a limited agent of the Fund for the sole purpose of receiving
instructions from authorized
parties
as defined by the Contracts for the purchase and redemption of Fund shares
prior
to the close of regular trading each Business Day. A “Business Day”
shall mean any day on which the New York Stock Exchange is open for trading
and
on which the Fund calculates its net asset value as set forth in the Fund’s most
recent prospectus and Statement of Additional Information. Except as
particularly stated in this paragraph, NFS shall have no authority to act on
behalf of the Fund or to incur any cost or liability on its behalf.
Until
such time as the Fund and NFS are able to utilize the National Securities
Clearing Corporation (“NSCC”) Defined Contribution Clearing and Settlement
(“DCC&S”) Fund/SERV system, the Fund will use its best efforts to provide to
NFS or its designated agent closing net asset value, dividend or daily accrual
rate information and capital gain information by 7:00 P.M. Eastern Time each
Business Day. NFS or its agent shall use this data to calculate unit
values. Unit values shall be used to process the same Business Day’s
contract transactions. Orders derived from, and in amounts equal to,
instructions received by NFS prior to the Close of Trading on the New York
Stock
Exchange on any Business Day (“Day 1”) shall be transmitted without modification
(except for netting or aggregating such orders) to the Fund by 9:00 A.M. Easter
Time on the next Business Day following Day 1. Such trades will be
effected at the net asset value of each Fund’s shares calculated as of the Close
of Trading on Day 1. The Fund will not accept any order made on a
conditional basis or subject to any delay or contingency. NFS shall
only place purchase orders for shares of Funds on behalf of its customers whose
addresses recorded on NFS’ books are in a state or other jurisdiction in which
the Funds are registered or qualified for sale, or are exempt from registration
or qualification as confirmed in writing by the Fund.
Each
party shall notify the other of any errors, omissions or interruptions in,
or
delay or unavailability as promptly as possible.
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a)
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For
those purchase orders not transmitted via the DCC&S Fund/SERV system,
NFS shall transmit payment to the Fund or its designated agent in
federal
funds no later than the close of the Federal Reserve wire system
on the
Business Day following the day on which the instructions are treated
as
having been received by the Fund pursuant to this
Agreement.
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b)
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For
those redemption orders not transmitted via the DCC&S Fund/SERV
system, the Fund or its designated agent shall transmit payment in
federal
funds no later than the close of the Federal Reserve wire system
on the
Business Day following the day on which the instructions are treated
as
having been received by the Fund pursuant to this
Agreement.
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c)
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If
payment in Federal Funds for any purchase is not received on the
Business
Day described in Section a) above, NFS shall promptly upon the Fund’s
request, reimburse the Fund for any charges, costs, fees, interest
or
other expenses incurred by the Fund in connection with any advances
to, or
borrowings or overdrafts by, the Fund, or any similar expenses incurred
by
the Fund, as a result of portfolio transactions effected by the Fund
based
upon such purchase request.
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At
such
time as the Fund and NFS are able to transmit information via the NSCC’s
DCC&S Fund/SERV System:
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a)
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Orders
derived from, and in amounts equal to, instructions received by NFS
prior
to the Close of Trading Day 1 shall be transmitted without
modification (except for netting and aggregation of such orders)
via the
NSCC’s DCC&S Fund/SERV system to the Fund or its designated agent no
later than 5:00 A.M. Eastern Time on the Next Business
Day. Such trades will be effected at the net asset value of
each Fund’s shares calculated as of the Close of Trading on Day
1.
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b)
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The
Fund and NFS shall mutually agree that there may be instances when
orders
shall be transmitted to the Fund via facsimile no later than 9:00
A.M.
rather than through the DCC&S Fund/SERV system. In such
instances, such orders shall be transmitted to the Fund via facsimile
no
later than 9:00 A.M. Eastern Time on the Business Day following the
day on
which the instructions are treated as having been received by the
Fund
pursuant to this Agreement.
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c)
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With
respect to purchase and redemption orders received by the Fund on
any
Business Day for any Fund, within the time limits set forth in this
Agreement, settlement shall occur consistent with requirements of
DCC&S Fund/SERV system.
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At
such
time as the Fund and NFS are able to transmit information via the DCC&S
Fund/SERV system, the Fund or its designated agent shall send to NFS, via the
DCC&S Fund/SERV system, verification of net purchase or redemption orders or
notification of the rejection of such orders (“Confirmations”) on each Business
Day for which NFS has transmitted such orders. Such confirmations
shall include the total number of shares of each Fund held by NFS following
such
net purchase or redemption. The Fund, or its designated agent, shall
submit in a timely manner, such confirmations to the DCC&S Fund/SERV system
in order for NFS to receive such confirmations no later than 11:00 A.M. Eastern
Time the next Business Day. The Fund or its designated agent will
transmit to NFS via DCC&S NETWORKING system those Networking activity files
reflecting account activity. In addition, within ten (10) business
days after the end of each month, the Fund or its affiliate will send NFS a
statement of account which shall confirm all transactions made during that
particular month in the account.
DOCUMENTS
AND OTHER MATERIALS
DOCUMENTS
PROVIDED BY NFS
NFS
agrees to provide the Fund, upon written request, any reports indicating the
number of shareholders that hold interests in the Funds and such other
information (including books and records) that the Fund 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 FUND
Within
ten (10) Business Days after the end of each calendar month, the Fund shall
provide NFS, or its designee, a monthly statement of account, which shall
confirm all transactions made during that particular month.
The
Fund
shall promptly provide NFS, or cause NFS to be provided with, a reasonable
quantity of the Funds’ prospectuses, Statements of Additional Information and
any supplements thereto.
NOTICE
Each
notice required by this Agreement shall be given in writing to:
Nationwide
Financial Services, Inc.
Xxx
Xxxxxxxxxx Xxxxx x-00-X0
Xxxxxxxx,
Xxxx 00000
Attention: Securities
Officer
Fax
Number: 000-000-0000
X.X.
Xxxxxx Series Trust II
c/o
XX
Xxxxxx Xxxxx Bank
000
Xxxxx
Xxxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Attention: Mutual
Funds – Legal
Fax
Number: 000-000-0000
Any
party
may change its addresses by notifying the other party(ies) in
writing.
VOTING
For
Variable Accounts that are registered under the 1940 Act and so long as and
to
the extent that the Securities and Exchange Commission continues to interpret
the 1940 Act to require pass-through voting privileges for variable contract
owners, NFS shall distribute all proxy material furnished by the Fund (provided
that such material is received by NFS or its designated agent at least 10
Business Days prior to the date scheduled for mailing to contract owners) and
shall vote Fund shares in accordance with instructions received from the
contract owners who have interests in such Fund shares. NFS shall
vote the Fund shares for which no instructions have been received in the same
proportion as Fund shares for which said instructions have been received from
the contract owners, provided that such proportional voting is not prohibited
by
a contract owner’s plan or trust document, if applicable. NFS and its
agents will in no way recommend an action in connection with or oppose or
interfere with the solicitation of proxies in the Fund shares.
EXPENSES
All
expenses incident to the performance by NFS under this Agreement shall be paid
by NFS. Likewise, all expenses incident to the performance by the
Fund under this Agreement shall be paid by the Fund.
NFS
shall
not bear any of the expenses for the cost of registration of the Funds’ shares,
or preparation of the Funds’ prospectuses, proxy materials, and reports and the
preparation of other related statements and notices required by law (“Fund
Materials”) except as otherwise mutually agreed upon by the parties to the
Agreement.
NFS
shall
bear the expense of distributing Fund Materials to its existing and prospective
customers.
FUND
SUBSTITUTION
Should
the Fund desire to no longer have a fund be available in an NFS contract, the
Fund shall be responsible for any and all expenses incurred as a result of
removing such fund as an available investment option under the
Contract.
Should
NFS desire to no longer have a fund available in an NFS contract, NFS shall
be
responsible for any and all expenses incurred as a result of removing such
fund
as an available investment option under the Contract.
Should
the removal of a fund as an available investment option be mutually desired
by
the parties, the parties agree to equally share any expenses incurred as a
result of removing such fund as an available investment option.
Both
NFS
and Fund agree to provide reasonable advance notice of the election to remove
a
fund as an available investment option in order to permit the parties to file
documentation as may be required under applicable law.
CONFLICTS
The
Fund
has received a mixed and shared funding order dated December 1996 issued by
the
Securities and Exchange Commission under Section 6(c) of the 1940
Act. As set forth in the Notice of the Fund’s application for the
mixed and shared funding order, NFS 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 variable contract owners
(“Contractholders”) are disregarded, and recognizes that it will be responsible
for assisting the Board in carrying out its responsibilities under such
application. NFS agrees to carry out such responsibilities with a
view to the interests of existing Contractholders.
If
a
majority of the Board, or a majority of Disinterested Board Members, determines
that a material irreconcilable conflict exits with regard to Contractholder
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 NFS is responsible for causing or creating said
conflict, NFS shall at its 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:
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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 Contractholders; and/or
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b. Establishing
a new registered investment
company.
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If
a
material irreconcilable conflict arises as a result of a decision by NFS to
disregard Contractholder voting instructions and said decision represents a
minority position or would preclude a majority vote by all Contractholders
having an interest in the Fund, NFS 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 Fund be required
to
bear the expense of establishing a new funding medium for any variable
contract. NFS shall not be required by this Section to establish a
new funding medium for any variable contract if an offer to do so has been
declined by vote of a majority of the Contractholders materially adversely
affected by the irreconcilable material conflict.
INDEMNIFICATION
Each
party shall promptly notify the other party(ies) in writing of any situation
which presents or appears to involve a claim which may be the subject of
indemnification under this Agreement and the indemnifying party shall have
the
option to defend against any such claim. In the event the
indemnifying party so elects, it shall notify the indemnified party and shall
assume the defense of such claim, with counsel reasonably satisfactory to the
indemnified party, and the indemnified party shall cooperate fully with the
indemnifying party, at the indemnifying party’s expense, in defense of such
claim. Notwithstanding the foregoing, the indemnified party shall be
entitled to participate in the defense of such claim at its own expense through
counsel of its own choosing. Neither party shall admit to wrong-doing
nor make any compromise in any action or proceeding without the other party’s
prior written consent. Any notice given by the indemnifying party to
an indemnified party or participation in or control of the litigation of any
such claim by the indemnifying party shall in no event be deemed an admission
by
the indemnifying party of culpability, and the indemnifying party shall be
free
to contest liability among the parties with respect to the claim.
INDEMNIFCATION
BY NFS
NFS
agrees to reimburse and/or indemnify and hold harmless the Fund, its investment
adviser and their affiliates, and each of their directors, officers, employees,
agents and each person, if any, who controls the foregoing entities within
the
meaning of the Securities Act of 1933 (the “1933 Act”) (collectively,
“Affiliated Party”) against any losses, claims, damages or liabilities
(“Losses”) to which the Fund or any such Affiliated Party may become subject
under the 1933 Act or otherwise, insofar as such losses (or actions in respect
thereof) arise out of or are based upon, but not limited to:
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(1) Any
untrue statement or alleged untrue statement of any material fact
contained in the registration statement or Prospectus or sales literature
or advertisements of the Contracts or in information furnished by
NFS for
use in the registration statement or Prospectus or sales literature
or
advertisements of the Fund, 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;
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(2) Conduct,
statements or representations (other than statements or representations
contained in the Prospectus and sales literature or advertisements
of the
Fund) of NFS or its agents, with respect to the sale and distribution
of
Contracts for which Fund shares are an investment
option;
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(3) The
failure of NFS or an NFS Affiliate/Subsidiary to provide the services
and
furnish the materials under the terms of this
Agreement;
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(4) A
breach of a material term of this Agreement or of any of the
representations contained herein;
or
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(5) Any
failure to register Contracts or Variable Accounts that do not meet
any
exemptions under federal or state securities laws, state insurance
laws or
failure to otherwise comply with applicable laws, rules, regulations
or
orders.
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Provided
however, that NFS shall not be liable in any such case to the extent that such
statement, omission or representation or such alleged statement, alleged
omission or alleged representation was made in reliance upon and in conformity
with written information furnished to NFS by or on behalf of the Fund
specifically for use therein; and provided, further, that NFS shall not be
liable for special, consequential or incidental damages.
This
indemnity agreement shall be in addition to any liability that NFS may otherwise
have.
INDEMNIFICATION
BY THE FUND
The
Fund
agrees to reimburse and/or indemnify and hold harmless NFS and/or NFS
Affiliate/Subsidiary and each of its directors, officers, employees, agents
and
each person, if any, who controls NFS or NFS Affiliate/Subsidiary within the
meaning of the Securities Act of 1933 (the “1933 Act”) (collectively,
“Affiliated Party”) against any losses, claims, damages or liabilities
(“Losses”) to which NFS, NFS Affiliate/Subsidiary or any such Affiliated Party
may become subject under the 1933 Act or otherwise, insofar as such Losses
(or
actions in respect thereof) arise out of or are based upon, but not limited
to:
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(1)
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Any
untrue statement or alleged untrue statement of any material fact
contained in the registration statement or Prospectus or sales literature
or advertisements of the Fund or in information furnished by the
Fund for
use in the registration statement or Prospectus or sales literature
or
advertisements of the Contracts, or arise out of or are based upon
the
omission or the alleged omission to state herein a material fact
required
to be stated therein or necessary to make the statements therein
not
misleading;
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(2)
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The
Fund’s failure to keep applicable Funds qualified as regulated investment
companies as required by the 1940 Act and applicable regulations
thereunder, and if applicable, fully diversified as is required by
the
Code and applicable regulations
thereunder;
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(3)
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The
failure of the Fund to provide the services and furnish the materials
under the terms of this Agreement;
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(4)
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A
breach of material term of this Agreement or of any of the representations
contained herein; or
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(5)
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A
failure to register the Funds under federal or state securities laws
or to
otherwise comply with such laws, rules, regulations or
orders.
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Provided
however, that the Fund shall not be liable in any such case to the extent that
such statement, omission or representation or such alleged statement, alleged
omission or alleged representation was made in reliance upon and in conformity
with written information furnished to the Fund by or on behalf of NFS
specifically for use therein; and provided, further, that the Fund shall not
be
liable for special, consequential or incidental damages.
This
indemnity agreement shall be in addition to any liability which the Fund may
otherwise have.
COMPLIANCE
WITH AGREEMENT
The
forbearance or neglect of any party to insist upon strict compliance by another
party with any of the provisions of this Agreement, whether continuing or not,
or to declare a forfeiture of termination against the other parties, shall
not
be construed as a waiver of any rights or privileges of any party
hereunder. No waiver of any right or privilege of any party arising
from any default or failure of performance by any party shall affect the rights
or privileges of the other parties in the event of a further default or failure
of performance.
TERMINATION
This
Agreement shall terminate as to the availability of shares of the Funds for
new
Contracts:
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(1) at
the option of NFS or the Fund upon at least 90 days advance written
notice
to the other;
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(2) at
any time upon the Fund’s election, if the Funds determine that liquidation
of the Funds is in the best interest of the Funds or their beneficial
owners. Reasonable advance notice of election to liquidate
shall be provided to NFS in order to permit the substitution of Fund
shares, if necessary, with shares of another investment company pursuant
to the 1940 Act and other applicable securities
regulations;
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(3) if
the applicable annuity contracts and life insurance policies are
not
treated as annuity contracts or life insurance policies by the applicable
regulators or under applicable rules and
regulations;
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(4) if
the Variable Accounts are not deemed “segregated asset accounts” by the
applicable regulators or under applicable rules and
regulations;
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(5) at
the option of NFS, if Fund shares are not reasonably available to
meet the
requirements of Contracts as determined by NFS. Reasonable
advance notice of election to terminate (and time to cure) shall
be
furnished by NFS;
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(6) at
the option of NFS or the Fund, upon institution of relevant formal
proceedings against the broker-dealer(s) marketing the Contracts,
the
Variable Accounts, NFS, an NFS Affiliate/Subsidiary or the Funds
by the
NASD, the IRS, the Department of Labor, the SEC, state insurance
departments or any other regulatory
body;
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(7) upon
decision by NFS, in accordance with the 1940 Act and applicable
regulations, to substitute such Fund shares with the shares of another
investment company for Contracts for which the Fund shares have been
selected to serve as the underlying investment medium. NFS
shall give at least 60 days written notice to the Fund of any proposal
to
substitute Fund shares;
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(8) upon
assignment of this Agreement unless such assignment is made with
the
written consent of each party;
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(9) in
the event Fund shares or the Contracts are not registered, issued
or sold
pursuant to federal law and state securities laws, or such laws preclude
the use of Fund shares as an underlying investment medium of Contracts
issued or to be issued by an NFS Affiliate/Subsidiary. Prompt
written notice shall be given by either party to the other in the
event
the conditions of this provision
occur;
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(10) At
the option of NFS, if NFS shall determine, in its sole judgment reasonably
exercised in good faith, that the Fund or its investment adviser
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 NFS, NFS shall notify the
Fund
in writing of such determination and its intent to terminate this
Agreement, and after considering the actions taken by the Fund or
its
investment adviser and any other changes in circumstances since the
giving
of such notice, such determination of NFS 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;
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(11) At
the option of the Fund, if the Fund shall determine, in its sole
judgment
reasonably exercised in good faith, that NFS 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 its investment adviser, the
Fund
shall notify NFS in writing of such determination and its intent
to
terminate this Agreement, and after considering the actions taken
by NFS
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.
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JURISDICTION
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This
Agreement shall be construed and the provisions hereof interpreted under and
in
accordance with the laws of Ohio, without respect to its choice of law
provisions and in accordance with the 1940 Act. In the case of any
conflict, the 1940 Act shall control.
PARTNERSHIPS/JOINT
VENTURES
Nothing
in this Agreement shall be deemed to create a partnership or joint venture
by
and among the parties hereto.
AMENDMENTS
TO THIS AGREEMENT
This
Agreement may not be amended or modified except by a written amendment, which
includes any amendments to the Exhibits, executed by all parties to the
Agreement.
EXECUTION
Each
party hereby represents and warrants to the other that the persons executing
this Agreement on its behalf are duly authorized and empowered to execute and
deliver the Agreement and that the Agreement constitutes a legal, valid and
binding obligation, and is enforceable in accordance with its
terms. Except as particularly set forth herein, neither party assumes
any responsibility hereunder and will not be liable to the other for any
damages, loss of data, delay or any other loss whatsoever caused by events
beyond its control.
This
Agreement has been executed on behalf of the Fund by the undersigned officer
of
the Fund in his capacity as an officer of the Fund. The obligations
of this Agreement shall only be binding upon the assets and property of the
Fund
and shall not be binding upon any Trustee, officer or shareholder of the Fund
individually.
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
Investment
Management Relationships
X.X.
XXXXXX SERIES TRUST
II
__________________________________________
By: Xxxxxx
Xxxxxxx
Title: Vice
President
EXHIBIT
A
Registered
Broker Dealers
Nationwide
investment Services Corporation
Affiliates
and Subsidiaries
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
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
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
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FUNDS
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X.X.
Xxxxxx Bond Portfolio
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X.X.
Xxxxxx U.S. Disciplined Equity Portfolio
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X.X.
Xxxxxx Small Company Portfolio
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X.X.
Xxxxxx International Opportunities Portfolio
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X.X.
Xxxxxx Mid Cap Value Portfolio
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