Exhibit No. Ex-99.h.6
FUND PARTICIPATION AGREEMENT
THIS AGREEMENT is entered into as of this 1st day of May, 2007 among
NATIONWIDE FINANCIAL SERVICES, INC. on behalf of its subsidiary life insurance
companies listed on Attachment B (collectively "Nationwide"), and certain of its
separate accounts; NATIONWIDE FUND MANAGEMENT LLC ("NFM"), a subsidiary of
Nationwide, on its own behalf and on behalf of Nationwide Variable Insurance
Trust; AMERICAN FUNDS INSURANCE SERIES ("Series"), an open-end management
investment company organized under the laws of the Commonwealth of
Massachusetts, and CAPITAL RESEARCH AND MANAGEMENT COMPANY ("CRMC"), a
corporation organized under the laws of the State of Delaware.
WITNESSETH:
WHEREAS, Nationwide proposes to issue, now and in the future, certain
multi-manager variable annuity contracts and/or variable life policies (the
"Contracts");
WHEREAS, Nationwide has established pursuant to applicable insurance
law one or more separate accounts (each, an "Account") for purposes of issuing
the Contracts and has or will register each Account (unless the Account is
exempt from such registration) with the United States Securities and Exchange
Commission (the "Commission") as a unit investment trust under the Securities
Act of 1933 (the "1933 Act") and the Investment Company Act of 1940 (the "1940
Act");
WHEREAS, the Contracts, which are or will be registered by Nationwide
(unless exempt from such registration) with the Commission for offer and sale,
will be in compliance with all applicable laws prior to being offered for sale;
WHEREAS, the Series has received a "Mixed and Shared Funding Order"
from the Commission granting relief from certain provisions of the 1940 Act and
the rules thereunder to the extent necessary to permit shares of the Series to
be sold to variable annuity and life insurance separate accounts of unaffiliated
insurance companies;
WHEREAS, the Series is divided into various funds (the "Master Funds"),
and each Master Fund is subject to certain fundamental investment policies which
may not be changed without a majority vote of the shareholders of such Master
Fund;
WHEREAS, Nationwide Variable Insurance Trust, a Delaware statutory
trust that is registered as an investment company pursuant to the 1940 Act (the
"Trust") is divided into various series (the "Portfolios"), and each Portfolio
has its own assets and liabilities and invests in securities in accordance with
its investment objectives and policies, as described in the registration
statement for the Portfolios;
WHEREAS, certain Portfolios propose to hold as their only investment
shares of a corresponding Master Fund as set forth in ATTACHMENT A, as such
Appendix may be amended
from time to time by mutual agreement in writing, with each such Portfolio
having the same investment objective and compatible fundamental investment
restrictions and policies as the corresponding Master Fund as described in the
registration statement for the Master Fund;
WHEREAS, certain Master Funds (through the Portfolios) listed in
ATTACHMENT A to this Agreement will serve as certain of the underlying
investment mediums for the Contracts issued with respect to the Accounts listed
on ATTACHMENT B; and
WHEREAS, CRMC is the investment adviser for the Series.
NOW, THEREFORE, in consideration of the foregoing and of mutual
covenants and conditions set forth herein and for other good and valuable
consideration, Nationwide, NFM, the Series and CRMC hereby agree as follows:
1. The Series and CRMC each represents and warrants to Nationwide
and NFM that: (a) a registration statement under the 1933 Act and under the 1940
Act (collectively, the "SEC Filings") with respect to the Series has been filed
with the Commission in the form previously delivered to Nationwide and NFM, and
copies of any and all amendments thereto will be forwarded to Nationwide and NFM
at the time that they are filed with the Commission; (b) the Series is, and
shall be at all times while this Agreement is in force, lawfully organized,
validly existing, and properly qualified as an open-end management investment
company in accordance with the laws of the Commonwealth of Massachusetts; (c)
the Series' registration statement and any further amendments thereto will, when
they become effective, and all definitive prospectuses and statements of
additional information and any further supplements thereto (the "Prospectus")
shall, conform in all material respects to the requirements of the 1933 Act and
the 1940 Act and the rules and regulations of the Commission thereunder, and
will not contain any untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the statement
therein not misleading; provided, however, that this representation and warranty
shall not apply to any statements or omissions made in reliance upon and in
conformity with information furnished in writing to the Series by Nationwide and
NFM expressly for use therein; and (d) the Series and CRMC will comply in all
material respects with all applicable laws and regulations, including, without
limitation, the 1933 Act and the 1940 Act and the rules and regulations
thereunder.
2a. NFM (on behalf of itself and the Trust) represents and
warrants to the Series and CRMC that (a) the shares of the Portfolios are or
will be registered under the 1933 Act and that the shares will be issued, sold
and distributed in compliance in all material respects with all applicable
federal securities laws; (b) the Trust is, and shall be at all times while this
Agreement is in force, lawfully organized and validly existing under the laws of
Delaware; (c) the Trust is and shall remain at all times while this Agreement is
in force, registered as an open-end management investment company under the 1940
Act; and (d) the SEC Filings (including the registration statement) of the Trust
conform or, when they become effective, will conform in all material respects to
the requirements of the 1933 Act and the 1940 Act, and the rules and regulations
of the Commission thereunder, and will not contain any untrue statement of a
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material fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading; provided, however, that
this representation and warranty shall not apply to any statements or omissions
made in reliance upon and in conformity with information furnished in writing to
the Trust by CRMC or the Series expressly for use therein.
2b. Nationwide, NFM and the Trust will comply in all material
respects with all applicable laws and regulations, including, without
limitation, the 1933 Act and the 1940 Act and the rules and regulations
thereunder.
3a. The Series will furnish to Nationwide and NFM such information
with respect to the Series in such form and signed by such of its officers as
Nationwide and NFM may reasonably request, and will warrant that the statements
therein contained when so signed will be true and correct. The Series will
advise Nationwide and NFM immediately of: (a) the issuance by the Commission of
any stop order suspending the effectiveness of the registration statement of the
Series or the initiation of any proceeding for that purpose; (b) the institution
of any proceeding, investigation or hearing involving the offer or sale of the
Contracts or the Series of which it becomes aware; or (c) the happening of any
material event, if known, which makes untrue any statement made in the
registration statement of the Series or which requires the making of a change
therein in order to make any statement made therein not misleading.
3b. The Series will use best efforts to register for sale under
the 1933 Act and, if required, under state securities laws, such additional
shares of the Series as may reasonably be necessary for use as the funding
vehicle for the Contracts.
4. The Series agrees to make Class 1 shares of the Master Funds
listed on ATTACHMENT A hereto available to the Portfolios. Master Fund shares to
be made available to Accounts for the Contracts (through the Portfolios) shall
be sold by the Series and purchased by the Trust for a given Account at the net
asset value of the respective class of the respective Master Fund (without the
imposition of a sales load) next computed after receipt of each order by the
Series or its designee, as established in accordance with the provisions of the
then current Prospectus of the Series.
For purposes of this Paragraph 4, Nationwide shall be a designee of the
Trust and the Series for receipt of such orders from each Account, and receipt
by such designee by 4:00 p.m. Eastern time (or other such time the Board of
Trustees of the Series shall so designate) shall constitute receipt by both the
Trust and the Series; provided that the Trust and the Series each receive notice
of such order by 9:30 a.m. Eastern time on the following Business Day ("Next
Business Day"). "Business Day" shall mean any day on which the New York Stock
Exchange ("NYSE") is open for trading and on which the Series calculates the net
asset values of each class of shares of each Master Fund pursuant to the rules
of the Commission. The Series will make the Class 1 shares of each Master Fund
available indefinitely for purchase at the applicable net asset value per share
by the Trust and the Accounts on those days on which the Series calculates the
net asset values of each such class pursuant to the rules of the Commission, and
the Series shall use its best efforts to calculate such net asset values on each
day on which the NYSE is open for trading. The Series shall make the net asset
value per share for Class 1 shares of each Master
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Fund available to the Trust on a daily basis as soon as reasonably practical
after the Series calculates such net asset values per share, and the Series
shall use its best efforts to make such net asset values per share available by
6:30 p.m. Eastern time. CRMC and the Series shall report to NFM and Nationwide
any material error in the calculation of the net asset values, dividends or
capital gain information as soon as practicable upon discovery. The Series and
CRMC are responsible for maintaining net asset values for each class of each
Fund in accordance with the requirements of the 1940 Act and the Series' then
current Prospectus. Payments for shares purchased will be made in federal funds
transmitted by wire on the Next Business Day, and NFM and the Series shall each
use commercially reasonable efforts to wire (or cause to be wired) funds to the
other, for the purpose of settling net purchase orders or orders of redemption,
by 3:00 p.m. Eastern time on the Next Business Day.
The Series reserves the right to temporarily suspend sales if
the Board of Trustees of the Series, acting in good faith and in light of its
fiduciary duties under federal and any applicable state laws, deems it
appropriate and in the best interests of shareholders or in response to the
order of an appropriate regulatory authority. Further, the Series reserves the
right to reject any purchase order if, in the opinion of the officers of the
Series or CRMC, the trading activities of any contract owner, through the Trust,
is or potentially may be harmful to the Series.
Nationwide and the Trust have policies and procedures in place to
detect and discourage short-term or disruptive trading practices, which may
include (but is not limited to) monitoring Contract holder trading activity.
Nationwide, NFM and the Trust reserve the right to refuse, to impose limitations
on, or to limit any transaction request if the request would tend to disrupt
Contract administration or is not in the best interest of the Contract holders
or an Account or Subaccount.
5. NFM shall cause the Trust to make shares of the Portfolios
listed on ATTACHMENT A available only to Nationwide and will register for sale
under the 1933 Act and, if required, under state securities laws, such
additional shares of the Portfolios as may reasonably be necessary for use as
the funding vehicle for the Contracts and to maintain a continuous offering of
the shares of the Portfolios.
6. The Contracts funded through each Account will provide for the
allocation of net amounts among certain Subaccounts corresponding to the Class 1
shares of each Master Fund (each, a "Subaccount") for investment in shares of
the Portfolios as may be offered from time to time in the Contracts. The
selection of the particular Subaccount is to be made by the Contract owner and
such selection may be changed in accordance with the terms of the Contracts.
7. Transfer of the Series' shares will be by book entry only. No
stock certificates will be issued to the Accounts or Portfolios. Shares ordered
from a particular Master Fund will be recorded by the Series as instructed by
NFM in an appropriate title for the corresponding Portfolio. Shares ordered from
a particular Portfolio will be recorded by NFM or the Trust's transfer agent as
instructed by Nationwide in an appropriate title for the corresponding Account
or Subaccount.
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8. The Series shall furnish notice promptly to NFM of any
dividend or distribution payable on any shares of the Master Funds held by the
Portfolios. NFM, on behalf of the Trust, hereby elects to receive all such
dividends and distributions as are payable on shares of a Master Fund recorded
in the title for the corresponding Portfolio in additional shares of that Master
Fund. The Series shall notify NFM of the number of shares so issued. NFM
reserves the right to revoke this election and to receive all such income
dividends and capital gain distributions in cash.
9. The Series shall effect redemptions of interests in the Master
Funds in accordance with the terms of the Master Funds' then current Prospectus
and the provisions of the 1940 Act and the rules and regulations thereunder. For
purposes of this Paragraph 9, Nationwide shall be a designee of each Portfolio
and each Master Fund for receipt of requests for redemption from each Account,
and receipt by such designee by 4:00 p.m. Eastern time (or other such time the
Boards of Trustees of the Trust and the Series shall so designate) shall
constitute receipt by the Trust and the Series; provided that the Trust or
Series each receives actual notice of such request for redemption by 9:30 a.m.
Eastern time on the Next Business Day. Nationwide shall purchase and redeem the
shares of the Portfolios offered by the then current Prospectus of the Trust in
accordance with the provisions of such Prospectus.
All redemption requests, including any redemptions requests
that the Trust receives from an Account which necessitate a redemption request
to the Series and a redemption of a Portfolio's entire interest from a Master
Fund, will be effected in cash at the next determined net asset value after the
redemption request is received, payable in federal funds. The Series will use
its best efforts to settle redemptions on the business day following the receipt
of a redemption request by the Series and if such next business day settlement
is not practicable, then as soon thereafter as practicable, and will immediately
notify the Trust regarding the anticipated settlement date, which shall in all
events be a date permitted under the 1940 Act. The Trust will settle redemptions
immediately upon receipt of proceeds from the Series.
10. The Series shall pay all expenses incidental to its
performance under this Agreement. The Series shall see to it that all of its
shares are registered and authorized for issue in accordance with applicable
federal and state laws prior to their purchase for the Account. The Series shall
bear the expenses for the cost of registration of its shares, preparation of
prospectuses and statements of additional information to be sent to existing
Contract owners (upon request in the case of the statement of additional
information), proxy statements and related materials and annual and semi-annual
shareholder reports, the printing and distribution of such items to each
Contract owner who has allocated net amounts to any Subaccount, the preparation
of all statements and notices required from it by any federal or state law, and
taxes on the issue or transfer of the Series' shares subject to this Agreement.
The Series will provide Nationwide, at least once a year, with enough copies of
its Statement of Additional Information to be able to distribute one to each
Contract owner or prospective Contract owner who requests such Statement of
Additional Information.
With respect to any prospectus and annual and semi-annual reports (the
"Reports") of the
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Series that are printed in combination with any one or more such Reports of
other investment options for the Contracts (the "Booklet"), the Series shall
bear the costs of printing and mailing the Booklet to existing Contract owners
based on the ratio of the number of pages of the Series' Reports included in the
Booklet to the number of pages in the Booklet as a whole.
11. Nationwide shall bear the expenses for the cost of preparation
and delivery of Series prospectuses (and supplements thereto) to be sent to
prospective Contract owners. The Series shall provide, at its expense, such
documentation (in camera-ready or other mutually agreeable form) and other
assistance as is reasonably necessary in order for Nationwide once each year (or
more frequently if the prospectus for the Series is amended), and twice each
year in the case of the annual and semi-annual shareholder reports, to have the
prospectus or prospectuses, and the annual and semi-annual shareholder reports
for the Contracts and the Series, printed together in one or more documents
(such printing to be done at Nationwide's expense with respect to prospective
investors).
12. Nationwide and NFM represent and warrant to the Series that
any information furnished in writing by Nationwide or NFM to the Series for use
in the registration statement of the Series will not result in the registration
statement's failing to conform in all respects to the requirements of the 1933
Act and the 1940 Act and the rules and regulations thereunder or containing any
untrue statement of a material fact or omission to state a material fact
required to be stated therein or necessary to make the statements therein not
misleading.
The Series represents and warrants to Nationwide and NFM that
any information furnished in writing by the Series to Nationwide or NFM for use
in the registration statement of the Trust or Nationwide will not result in the
registration statement's failing to conform in all respects to the requirements
of the 1933 Act and the 1940 Act and the rules and regulations thereunder or
containing any untrue statement of a material fact or omission to state a
material fact required to be stated therein or necessary to make the statements
therein not misleading.
13. Nationwide, NFM and their affiliates shall make no
representations concerning the Series' shares except those contained in the then
current Prospectus of the Series, current statement of additional information of
the Series, in such printed information subsequently issued on behalf of the
Series or other funds managed by CRMC as supplemental to the Series' Prospectus,
in information published on the Series' or CRMC's internet site, or in materials
approved by CRMC or its affiliate.
14. Shares of the Series may be offered to separate accounts of
various insurance companies in addition to Nationwide. The Series represents,
warrants and covenants that no shares of the Series shall be sold to the general
public in contravention of Section 817 of the Internal Revenue Code of 1986, as
amended, and the regulations thereunder (the "Code"). The Series agrees that
each Master Fund will comply with the diversification requirements of Section
817. The Series also agrees to maintain each Master Fund's qualification as a
"regulated investment company" ("RIC") under the Code. The Series will provide
Nationwide and NFM with securities holdings reports for each Master Fund within
ten days after each calendar quarter.
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15. The parties to this Agreement recognize that due to
differences in tax treatment or other considerations, the interests of various
Contract owners participating in one or more of the Portfolios or Master Funds
might, at some time, be in conflict. Each party shall report to the other party
any potential or existing conflict of which it becomes aware. The Board of
Trustees of the Series shall promptly notify Nationwide and NFM of the existence
of irreconcilable material conflict and its implications. If such a conflict
exists, Nationwide will, at its own expense, take whatever action it deems
necessary to remedy such conflict; in any case, Contract owners will not be
required to bear such expenses.
The Series hereby notifies Nationwide and NFM that it may be
appropriate to include in the Prospectus pursuant to which a Contract is offered
disclosure regarding the risks of mixed and shared funding.
16. Nationwide and NFM agree to indemnify and hold the Series and
CRMC harmless against any and all losses, claims, damages, liabilities or
litigation (including reasonable legal and other expenses) to which the Series
or CRMC may be subject under any statute, at common law or otherwise, insofar as
such losses, claims, damages, liabilities or expenses (or actions in respect
thereof) or settlements arising as a result of Nationwide's or NFM's: (a) making
untrue statements of material facts or omitting material facts in the Trust's or
a Contract's registration statement, prospectus, statement of additional
information, semi-annual or annual reports to Contract owners and sales
literature for the Contracts; (b) making untrue statements of material facts
that the Series or CRMC includes in the same materials of the Series, provided
that Series or CRMC relies on information supplied by Nationwide or NFM; (c)
unlawful conduct, bad faith, willful malfeasance, or gross negligence by
Nationwide with respect to the sale of the Contracts, Portfolio or Master Fund
shares; and (d) breaching this Agreement or a representation or warranty.
17. The Series and CRMC each agrees to indemnify and hold
Nationwide, NFM and the Trust and/or their respective affiliates ("Nationwide
Parties") harmless against any and all losses, claims, damages, liabilities or
litigation (including reasonable legal and other expenses) to which the
Nationwide Parties may be subject under any statute, at common law or otherwise,
insofar as such losses, claims, damages, liabilities or expenses (or actions in
respect thereof) or settlements arising as a result of the Series', or CRMC's:
(a) making untrue statements of material facts or omitting material facts in the
Series' registration statement, prospectuses or statements of additional
information, semi-annual and annual reports to shareholders, and sales
literature; (b) making untrue statements of material facts that the Series
includes in its materials, provided a Nationwide Party relies on information
supplied by the Series; (c) unlawful conduct, bad faith, willful malfeasance, or
gross negligence by the Series with respect to the sale of the Contracts,
Portfolio or Master Fund shares or the operation of the Series or a Master Fund;
(d) failure of the Series to comply with any Master Fund's investment
objectives, policies and restrictions; and (e) breaching this Agreement or a
representation or warranty, including, but not limited to, the representations,
warranties and covenants in Section 14.
18. Nationwide shall be responsible for assuring that the Account
calculates pass-through voting privileges of Contract owners in a manner
consistent with the method of
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calculating pass-through voting privileges set forth in the current Contract.
19. The parties understand that there is no intention to create a
joint venture in the subject matter of this Agreement. Accordingly, the right to
terminate this Agreement and to engage in any activity not inconsistent with
this Agreement is absolute. This Agreement will terminate:
(a) by mutual agreement at any time; or
(b) any party at any time upon sixty days' written notice to the
other parties; or
(c) at the option of Nationwide, NFM, CRMC or the Series upon ten
calendar days' prior written notice to the other party if a
final non-appealable administrative or judicial decision is
entered against the other party which has a material impact on
the Contracts; or
(d) at the option of Nationwide or NFM, upon ten calendar days'
prior written notice, if shares of the Series are not
reasonably available; or
(e) at the option of Nationwide or NFM, immediately upon written
notice, if the Series or CRMC fails to meet the requirements
for either diversification under Section 817 or RIC status
under the Code; or
(f) in the event the Series' shares are not registered, issued or
sold in accordance with applicable state and/or federal law or
such law precludes the use of such shares as an underlying
investment for the Portfolios or the Contracts issued or to be
issued by Nationwide; in such event prompt notice shall be
given by Nationwide, NFM or the Series to each of the other
parties; or
(g) at Nationwide's or NFM's option by written notice to the
Series and/or CRMC if Nationwide shall determine in its sole
judgment exercised in good faith, that either the Series or
CRMC has suffered a material adverse change in its business,
operations, financial condition or prospects since the date of
this Agreement or is the subject of material adverse
publicity; or
(h) at the option of the Series or CRMC by written notice to
Nationwide and NFM if the Series or CRMC shall determine in
its sole judgment exercised in good faith, that Nationwide or
NFM has suffered a material adverse change in its business,
operations, financial condition or prospects since the date of
this Agreement or is the subject of material adverse
publicity.
The effective date for termination pursuant to any notice given under
this Paragraph shall be calculated beginning with the date of receipt of such
notice.
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20. All notices, consents, waivers, and other communications under
this Agreement must be in writing, and will be deemed to have been duly
received: (a) when delivered by hand (with written confirmation of receipt); (b)
when sent by telecopier (with written confirmation of receipt), provided that a
copy is mailed by registered mail, return receipt requested; or (c) the day
after it is sent by a nationally recognized overnight delivery service, in each
case to the appropriate addresses and telecopier numbers set forth below (or to
such other addresses and facsimile numbers as a party may designate by notice to
the other parties):
IF TO NATIONWIDE:
Nationwide Financial Services
Xxx Xxxxxxxxxx Xxxxx, 0-00-X0
Xxxxxxxx, Xxxx 00000
Attention: AVP Associate General Counsel
Facsimile No.: 614.249.2112
WITH A COPY TO:
Nationwide Financial
Xxx Xxxxxxxxxx Xxxxx 0-00-00
Xxxxxxxx, Xxxx 00000
Attention: Product Officer
Facsimile No.: (614) 249- 7166
IF TO NFM:
Nationwide Fund Management LLC
0000 Xxxxx Xxxx, Xxxxx 0000
Xxxxxxxxxxxx, XX 00000
Attn: Legal Dept.
Facsimile No.: (000) 000-0000
IF TO SERIES:
American Funds Insurance Series
000 X. Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxx, Senior Vice President
Facsimile No.: (000) 000-0000
WITH A COPY TO:
Capital Research and Management Company
000 X. Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxxxxxx, Vice President and Senior Counsel,
Fund Business Management Group
Facsimile No.: (000) 000-0000
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IF TO CRMC:
Capital Research and Management Company
000 X. Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxx, Senior Vice President and Legal Counsel,
Fund Business Management Group, and Secretary
Facsimile No.: (000) 000-0000
WITH A COPY TO:
Capital Research and Management Company
000 X. Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxxxxxx, Vice President and Senior Counsel,
Fund Business Management Group
Facsimile No.: (000) 000-0000
21. If this Agreement terminates, any provision of this Agreement
necessary to the orderly windup of business under it will remain in effect as to
that business, after termination.
22. If this Agreement terminates, the Series, at Nationwide's
option, will continue to make additional shares of the Series available for all
existing Contracts as of the effective date of termination (under the same terms
and conditions as were in effect prior to termination of this Agreement with
respect to existing Contract owners), unless the Series liquidates or applicable
laws prohibit further sales. Nationwide agrees not to redeem shares unless: (i)
the Agreement is terminated pursuant to Section 19(d) or 19(e); (ii)
legitimately required to do so according to a Contract owner's request; or (iii)
under an order from the Commission or pursuant to a vote of Contract owners.
23. The obligations of the Series under this Agreement are not
binding upon any of the Trustees, officers, employees or shareholders (except
CRMC if it is a shareholder) of the Series individually, but bind only the
Series' assets. When seeking satisfaction for any liability of the Series in
respect of this Agreement, NFM, Nationwide and the Account agree not to seek
recourse against said Trustees, officers, employees or shareholders, or any of
them, or any of their personal assets for such satisfaction. Notwithstanding the
foregoing, if Nationwide or NFM seek satisfaction for any liability of the
Series in respect of this Agreement, Nationwide (on behalf of itself or any
Account) and/or NFM may seek recourse against CRMC.
24. This Agreement shall be construed in accordance with the laws
of the Commonwealth of Massachusetts.
25. This Agreement and the parties' rights, duties and obligations
under this Agreement are not transferable or assignable by any of them without
the express, prior written consent of the other parties hereto. Any attempt by a
party to transfer or assign this Agreement or any of its rights, duties or
obligations under this Agreement without such consent is void; provided,
however, that a merger of, reinsurance arrangement by, or change of control of a
party shall not be deemed to be an assignment for purposes of this Agreement.
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26. The following Paragraphs shall survive any termination of this
Agreement: 4, 16, 17, 20-26.
27. This Agreement and any amendment to it may be executed in one
or more counterparts. All of those counterparts shall constitute one and the
same agreement.
28. This Agreement replaces and supersedes the Fund Participation
Agreement, dated May 1, 2006, among Nationwide Financial Services, Inc. on
behalf of certain subsidiary life insurance companies and separate accounts,
Gartmore SA Capital Trust, on its own behalf and on behalf of Gartmore Variable
Insurance Trust, American Funds Insurance Series and Capital Research and
Management Company.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed and attested as of the date first above written.
NATIONWIDE FINANCIAL SERVICES, INC.
(ON BEHALF OF ITSELF AND EACH ACCOUNT)
Attest:
By: _______________________________
___________________________ Its:
NATIONWIDE FUND MANAGEMENT LLC
(on behalf of itself and the Trust)
Attest:
By: _______________________________
___________________________ Its:
AMERICAN FUNDS INSURANCE SERIES
Attest:
By: _______________________________
___________________________ Its: Secretary
CAPITAL RESEARCH AND MANAGEMENT COMPANY
Attest:
By: _______________________________
___________________________ Its: Vice President and Secretary
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ATTACHMENT A
MASTER FUNDS AND CORRESPONDING PORTFOLIOS
-----------------------------------------
------------------------------------------------------------ ---------------------------------------------------------
American Funds Insurance Series Master Funds:- Nationwide Variable Insurance Trust Portfolios:
------------------------------------------------------------ ---------------------------------------------------------
|_| Growth Fund Class I |_| American Funds NVIT Growth Fund
------------------------------------------------------------ ---------------------------------------------------------
|_| Global Growth Fund Class I |_| American Funds NVIT Global Growth Fund
------------------------------------------------------------ ---------------------------------------------------------
|_| Bond Fund Class I |_| American Funds NVIT Bond Fund
------------------------------------------------------------ ---------------------------------------------------------
|_| Asset Allocation Fund Class I |_| American Funds NVIT Asset Allocation Fund
------------------------------------------------------------ ---------------------------------------------------------
|_| Growth-Income Fund Class I |_| American Funds NVIT Growth-Income Fund
------------------------------------------------------------ ---------------------------------------------------------
ATTACHMENT B
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
LIST OF ACCOUNTS:
-----------------
NATIONWIDE VARIABLE ACCOUNT- II
-------------------------------
NATIONWIDE VARIABLE ACCOUNT- 7
------------------------------
NATIONWIDE VARIABLE ACCOUNT- 9
------------------------------
NATIONWIDE VLI SEPARATE ACCOUNT- 2
----------------------------------
NATIONWIDE VLI SEPARATE ACCOUNT- 4
----------------------------------
NATIONWIDE VLI SEPARATE ACCOUNT- 7
----------------------------------
NATIONWIDE SEPARATE ACCOUNT VL- G
---------------------------------
NATIONWIDE PROVIDENT VLI SEPARATE ACCOUNT A
-------------------------------------------
