AMENDMENT NO. 3
PARTICIPATION AGREEMENT
This Third Amendment ("Amendment") dated as of January 13, 2009 is, by and among
AIM Variable Insurance Funds, a Delaware trust ("AVIF"); A I M Distributors,
Inc. ("AIM Distributors"); and Nationwide Financial Services, Inc., on behalf of
its subsidiaries listed on Schedule A (collectively, "Nationwide") and the
current and any future Nationwide separate accounts as applicable ("Accounts").
This Amendment amends the Participation Agreement (the "Agreement"), dated
January 6, 2003.
WHEREAS, AVIF, AIM Distributors, Nationwide Life Insurance Company, Nationwide
Life and Annuity Insurance Company, and Nationwide Investment Services
Corporation ("NISC") originally entered into the Agreement; and
WHEREAS, on March 31, 2008, A I M Distributors, Inc. was renamed Invesco Aim
Distributors, Inc. and all references to A I M Distributors, Inc. will hereby be
deleted and replaced with Invesco Aim Distributors, Inc.; and
WHEREAS, Nationwide Life Insurance Company of America (dba Nationwide
Provident), Nationwide Life and Annuity Company of America, and 1717 Capital
Management Company were added as parties to the Agreement under Amendment No. 1
to the Agreement, dated April 30, 2004; and
WHEREAS, Nationwide Life Insurance Company, Nationwide Life and Annuity
Insurance Company, Nationwide Life Insurance Company of America, Nationwide Life
and Annuity Company of America, NISC, and 1717 Capital Management Company are
subsidiaries of Nationwide Financial Services, Inc.; and
WHEREAS, the parties have agreed that Nationwide Life Insurance Company,
Nationwide Life and Annuity Insurance Company, Nationwide Life Insurance Company
of America, Nationwide Life and Annuity Company of America, NISC, and 1717
Capital Management Company will be replaced as parties to the Agreement by
Nationwide Financial Services, Inc., on behalf of its subsidiaries listed on
Schedule A and the current and any future Nationwide separate accounts as
applicable; and
WHEREAS, Nationwide, AVIF, AIM, and AIM Distributors desire to amend the
Agreement.
NOW, THEREFORE, the Parties agree to amend the Agreements as follows:
1. Nationwide Life Insurance Company, Nationwide Life and Annuity Insurance
Company, Nationwide Life Insurance Company of America, Nationwide Life and
Annuity Company of America, NISC, and 1717 Capital Management Company will
be replaced with Nationwide Financial Services, Inc., as a party to the
Agreement. All references to "Nationwide" and "NISC" in the Agreement and
subsequent amendments will be referring to Nationwide
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Financial Services, Inc., on behalf of its subsidiaries listed on Schedule
A and the current and any future Nationwide separate accounts.
2. "SECTION 9. NOTICES" is updated with the following address for Nationwide:
Nationwide Financial
Xxx Xxxxxxxxxx Xxxxx, 0-00-00
Xxxxxxxx, Xxxx 00000
Attention: AVP - NF Investment Offerings
3. "SECTION 18. CONFIDENTIALITY" is deleted in its entirety and replaced with
the following:
SECTION 18. CONFIDENTIALITY
AVIF acknowledges that the identities of the customers of Nationwide or any
of its affiliates (collectively, the "Nationwide Protected Parties" for
purposes of this Section 18), information maintained regarding those
customers, and all computer programs and procedures or other information
developed by the Nationwide Protected Parties or any of their employees or
agents in connection with Nationwide's performance of its duties under this
Agreement are the valuable property of the Nationwide Protected Parties.
AVIF agrees that if it comes into possession of any list or compilation of
the identities of or other information about the Nationwide Protected
Parties' customers, or any other information or property of the Nationwide
Protected Parties, other than such information as may be independently
developed or compiled by AVIF from information supplied to it by the
Nationwide Protected Parties' customers who also maintain accounts directly
with AVIF, AVIF will hold such information or property in confidence and
refrain from using, disclosing or distributing any of such information or
other property except: (a) with Nationwide's prior written consent; or (b)
as required by law or judicial process. Nationwide acknowledges that the
identities of the customers of AVIF or any of its affiliates (collectively
the "AVIF Protected Parties" for purposes of this Section 18), information
maintained regarding those customers, and all computer programs and
procedures or other information developed by the AVIF Protected Parties or
any of their employees or agents in connection with AVIF's performance of
its duties under this Agreement are the valuable property of the AVIF
Protected Parties. Nationwide agrees that if it comes into possession of
any list or compilation of the identities of or other information about the
AVIF Protected Parties' customers or any other information or property of
the AVIF Protected Parties, other than such information as may be
independently developed or compiled by Nationwide from information supplied
to it by the AVIF Protected Parties' customers who also maintain accounts
directly with Nationwide, Nationwide will hold such information or property
in confidence and refrain from using, disclosing or distributing any of
such information or other property except: (a) with AVIF's prior written
consent; or (b) as required by law or judicial process. Each party
acknowledges that any breach of the agreements in this Section 18 would
result in immediate and irreparable harm to the other parties for which
there would be no adequate remedy at law and agree that in the event of
such a breach, the other parties will be entitled to equitable relief by
way of temporary and permanent injunctions, as well as such other relief as
any court of competent jurisdiction deems appropriate.
Any fees payable to Nationwide for performing the administrative services
under this arrangement are not considered confidential information.
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4. The following language is hereby added to the Agreement:
DISCLOSURE
Each party may disclose that it has entered into this arrangement. Further,
each party may disclose any fees payable to Nationwide for performing
certain administrative services.
5. Schedule A of the Agreement is hereby deleted in its entirety and replaced
with the Schedule A attached hereto.
6. Except as specifically set forth herein, all other provisions of the
Agreement shall remain in full force and effect.
IN WITNESS WHEREOF, the undersigned have executed this Amendment as of the date
first written above.
AIM VARIABLE INSURANCE FUNDS
By: /s/ Xxxx X. Xxxx
---------------------------------
Name: Xxxx X. Xxxx
Title: Senior Vice President
INVESCO AIM DISTRIBUTORS, INC.
By: /s/ Xxxx Xxxxxx
---------------------------------
Name: Xxxx Xxxxxx
Title: President
NATIONWIDE FINANCIAL SERVICES, INC.
/s/ Xxxxx X. Xxxxxx
-------------------------------------
By: Xxxxx X. Xxxxxx
Title: AVP - NF Investment Offerings
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SCHEDULE A
FUNDS AVAILABLE UNDER THE CONTRACTS
All current and future funds available for sale through the Contracts, including
but not limited to any funds listed below.
Series I and II shares
AIM V.I. Basic Balanced Fund
AIM V.I. Basic Value Fund
AIM V.I. Capital Appreciation Fund
AIM V.I. Capital Development Fund
AIM V.I. Core Equity Fund
AIM V.I. Diversified Income Fund
AIM V.I. Dynamics Fund
AIM V.I. Financial Services Fund
AIM V.I. Global Health Care Fund
AIM V.I. Global Real Estate Fund
AIM V.I. Government Securities Fund
AIM V.I. High Yield Fund
AIM V.I. International Growth Fund
AIM V.I. Large Cap Growth Fund
AIM V.I. Leisure Fund
AIM V.I. Mid Cap Core Equity Fund
AIM V.I. Money Market Fund
AIM V.I. Small Cap Equity Fund
AIM V.I. Technology Fund
AIM V.I. Utilities Fund
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
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