FUND PARTICIPATION AGREEMENT
This
Agreement dated as of the 7th day of August, 2007 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”)
Xxxxx Variable Account Fund, Inc. (the “Fund”), and Xxxxx Distributors, LLC (the
“Company") which serves as Distributor to the Funds 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 it will conduct its activities hereunder in material conformity
with all applicable federal and state laws or regulations.
REPRESENTATIONS
BY THE COMPANY
Each
Fund
represents that it is duly organized and validly existing under applicable
state
law. Each 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.
Each
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. Each 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. Each 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.
Each
Fund
represents that it is currently qualified as a regulated investment company
under Subchapter M of the Code, and that it shall make every effort to maintain
such qualification. Each Fund shall promptly notify Nationwide upon
having a reasonable basis for believing that it has ceased to so qualify, or
that it may not qualify as such in the future.
The
Funds
represent 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 Funds will notify Nationwide promptly upon having a
reasonable basis for believing any Fund has ceased to comply. The
Funds 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
Company, as the distributor of the Funds represents that it (i) is registered
as
a broker-dealer under the Securities and Exchange Act of 1934, as amended (the
“1934 Act”) and will remain duly registered under all applicable federal and
state securities laws, (ii) is a member in good standing of the National
Association of Securities Dealers, Inc. (“NASD”), (iii) serves as principal
underwriter/distributor of the Funds, and (iv) will perform its obligations
for
each 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
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. 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 shall fulfill its
obligation under, and abide by the terms and conditions of, the Mixed and Shared
Funding Exemptive Order. 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 month, the Company shall
provide Nationwide, or its designee, a monthly statement of account, which
shall
confirm all transactions made during that particular month.
The
Company shall promptly provide Nationwide with a reasonable quantity (in light
of the number of existing contract or policy owners) of the Funds’ prospectuses,
Statements of Additional Information and any supplements thereto, and
semi-annual and annual reports.
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
Funds under this Agreement shall be paid by the Company and/or the
Funds.
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 the Funds are 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 and semi-annual and annual
reports to its existing contract owners. For Nationwide’s annual
mailing to contract owners of Variable Product prospectuses and Fund
prospectuses and its mailing of semi-annual and annual reports, the Company
will
provide updated Fund prospectuses and semi-annual and annual reports for mailing
to contract owners, or if a combined printing is done by Nationwide, the Company
will pay the lesser of:
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(a)
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The
cost to print individual fund prospectuses and semi-annual and annual
reports; or
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(b)
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The
Company's portion of the total printing costs if Nationwide does
not use
individual prospectuses and semi-annual and annual reports, but reprints
such documents in another format;
or
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(c)
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The
Company’s portion of the total reproduction costs if Nationwide does not
use individual printed prospectuses and semi-annual and annual reports,
but reproduces such documents 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.
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FUND
SUBSTITUTION
Should
the removal of a Fund from a Variable Product be desired by the parties, the
parties agree to share any reasonable 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 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)
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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
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(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 Fund 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
MATERIAL and INFORMATION
Nationwide
and its agents shall make no representations about the Company or the Funds
except those contained in the Funds’ current prospectuses, statements of
additional information, advertising, sales literature or other promotional
material produced by the Company or the Funds (or an entity on their behalf).
Nationwide agrees to furnish draft copies of any sales literature that discusses
the Funds to the Company and allow the Company 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. Failure to provide comments or affirmatively decline to provide
comments within a reasonable period of time shall constitute acceptance of
such
sales literature. In the event that there are no material changes thereto,
Nationwide shall not be required to furnish draft copies of sales literature
to
the Company that is substantially similar to sales literature that has been
previously accepted by the Company.
The
Company and its agents shall make no representations about Nationwide except
those contained in current publicly available documents or other documents
produced by Nationwide (or an entity on its behalf). The Company agrees to
furnish draft copies of any sales literature that discusses the Variable
Products to Nationwide and allow Nationwide 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. Failure to provide comments or affirmatively decline to provide
comments within a reasonable period of time shall constitute acceptance of
such
sales literature. In the event that there are no material changes thereto,
the
Company shall not be required to furnish draft copies of sales literature to
Nationwide that is substantially similar to sales literature that has been
previously accepted by Nationwide.
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 and the next, “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 no 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
Each
party 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
Nationwide
agrees to indemnify and hold harmless the Company and Funds, and its officers,
directors, employees, agents, affiliated persons, subsidiaries and
each person, if any, who controls the Company and/or Funds within the meaning
of
the Investment Company Act of 1940 (collectively, the “Indemnified Parties” for
purposes of this Section) against any losses, claims, expenses, damages,
liabilities (including amounts paid in settlement thereof) and/or litigation
expenses (including reasonable legal and other
expenses) (collectively the “Losses”), to which the Indemnified
Parties may become subject to when such Losses result from a breach by
Nationwide of a material provision of this Agreement. Nationwide will
reimburse any reasonable legal or other expenses reasonably incurred by the
Indemnified Parties in connection with investigating or defending any such
Losses. Nationwide shall not be liable for indemnification hereunder if such
Losses are attributable to the bad faith, negligence, willful misfeasance or
misconduct of the Company or Fund in performing its obligations under this
Agreement. Nationwide further agrees to indemnify and hold harmless
the Indemnified Parties related to the Variable Products (issued by Nationwide)
that arise out of or are based upon any untrue or alleged untrue statement
or
misrepresentation of any material fact contained in the registration statement,
prospectus, or supplement for the Variable Products. Notwithstanding
the foregoing, this agreement to indemnify the Indemnified Parties shall not
apply if such statement is based on information furnished to Nationwide by
or on
behalf of the Company or the Funds.
The
Company and Funds agree to indemnify and hold harmless Nationwide and its
officers, directors, employees, agents, affiliated persons, subsidiaries and
each person, if any, who controls Nationwide within the meaning of the
Investment Company Act of 1940 (collectively, the “Indemnified Parties” for
purposes of Section) against any Losses, to which the Indemnified Parties may
become subject to when such Losses result from a breach by the Company and/or
Funds of a material provision of this Agreement. The Company and/or
Funds will reimburse any legal or other expenses reasonably incurred by the
Indemnified Parties in connection with investigating or defending any such
Losses. The Company and Funds shall not be liable for indemnification
hereunder if such Losses are attributable to the bad faith, negligence, willful
misfeasance or misconduct of Nationwide in performing its obligations under
this
Agreement. The Company and Funds further agree to indemnify and hold
harmless the Indemnified Parties related to the acquisition of the Funds’ shares
that arise out of or are based upon any untrue or alleged untrue statement
or
misrepresentation of any material fact contained in the registration statement,
prospectus, or supplement for the Funds. Notwithstanding the
foregoing, this agreement to indemnify the Indemnified Parties shall not apply
if such statement is based on information furnished to the Company or the Funds
by or on behalf of Nationwide.
Promptly
after receipt by an indemnified party hereunder of notice of the commencement
of
action, such indemnified party will, if a claim in respect thereof is to be
made
against the indemnifying party hereunder, notify the indemnifying party, in
writing, of the commencement thereof; but the failure to notify the indemnifying
party will not relieve it from any liability which it may have to any
indemnified party otherwise than under this Section except to the extent that
the indemnifying party has been prejudiced by such failure to give
notice. In the event that such an action is brought against any
indemnified party, the indemnifying party will be entitled to participate
therein and, to the extent that it may wish to, assume the defense thereof,
with
counsel satisfactory to such indemnified party, and after notice from the
indemnifying party to such indemnified party of its election to assume the
defense thereof, the indemnifying party will not be liable to such indemnified
party under this Section for any legal or other expenses
subsequently incurred by such indemnified party in connection with the defense
thereof other than reasonable costs of investigation.
If
the
indemnifying party assumes the defense of any such action, the indemnifying
party shall not, without the prior written consent of the indemnified parties
in
such action, settle or compromise the liability of the indemnified parties
in
such action, or permit a default or consent to the entry of any judgment in
respect thereof, unless in connection with such settlement, compromise or
consent, each indemnified party receives from such claimant an unconditional
release from all liability in respect of such claim.
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.
ARBITRATION
Any
controversy or claim arising out of or relating to this Agreement, or the breach
thereof, shall be settled by arbitration administered by the America Arbitration
Association in accordance with its Commercial Arbitration Rules and Supplemental
Procedures for Securities Arbitration, and judgment on the award rendered by
the
arbitrator(s) may be entered in any court having jurisdiction thereof. The
arbitrators shall award to the prevailing party, if any, as determined by the
arbitrators, all of its costs and fees. “Cost and fees” mean all reasonable
pre-award expenses of the arbitration, including the arbitrators’ fees,
administrative fees, travel expenses, out-of-pocket expenses such as copying
and
telephone, court costs, witness fees, and attorneys’ fees.
TERMINATION
This
Agreement shall terminate as to the availability of shares of a Fund (if
specified) or all the Funds:
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(1)
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at
the option of Nationwide or the Company upon at least 90 days advance
written notice to the other;
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(2)
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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;
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(3)
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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;
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(4)
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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;
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(5)
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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;
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(6)
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if
the Variable Accounts are not deemed “segregated asset accounts” by the
applicable regulatory entities or under applicable rules and
regulations;
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(7)
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at
the option of Nationwide or the Company, upon institution of relevant
formal proceedings against either Nationwide or the Company 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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(8)
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upon
assignment of this Agreement unless such assignment is made with
the
written consent of each party and in accordance with applicable
law;
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(9)
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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;
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(10)
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At
the option of Nationwide, if Nationwide shall determine, in its sole
judgment
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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 Funds 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; or
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(11)
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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 Funds 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
Funds 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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Notwithstanding
any of the foregoing provisions of this section ("Termination"), this Agreement
and all related agreements shall remain in 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 and delivered by
U.S. first class mail, overnight courier, or facsimile (with a paper copy
provided via U.S. mail), in each case prepaid and addressed, to:
If
to
Nationwide:
Nationwide
Financial Services, Inc.
Xxx
Xxxxxxxxxx Xxxxx 0-00-X0
Xxxxxxxx,
Xxxx 00000
Attention: Associate
General Counsel
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
If
to the
Company:
Xxxxx
Distributors, LLC
0000
X.
Xxxxxx Xxxx, Xxxxx 000
Xxxxxx,
Xxxxxxx 00000
Attention: Xxxxxx
Xxxx, Vice President
Fax
Number: 000-000-0000
If
to the
Fund:
0000
X.
Xxxxxx Xxxx, Xxxxx 000
Xxxxxx,
Xxxxxxx 00000
Attention: Xxxxxx
Xxxx, Vice President
Fax
Number: 000-000-0000
Any
party
may change its address by notifying the other party(ies) in
writing. Notices will be deemed given upon dispatch.
ENTIRE
AGREEMENT
This
Agreement, together with all contemporaneous exhibits, sets forth the entire
understanding of the parties with respect to the subject matter of this
Agreement and supersedes any and all prior discussions, representations, and
understandings, whether written or oral, between the parties related to the
subject of this Agreement.
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.
WAIVER
OF AGREEMENT
No
term
or provision of this Agreement may be waived or modified unless done so in
writing and signed by the party against whom such waiver or modification is
sought to be enforced. Either party’s failure to insist at any time
on strict compliance with this Agreement or with any of the terms under this
Agreement or any continued course of such conduct on its part will in no event
constitute or be considered a waiver by such party of any of its rights or
privileges.
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.
FORCE
MAJEURE
No
party
to this Agreement will be responsible for delays resulting from acts beyond
the
reasonable control of such party, provided that the nonperforming party uses
commercially reasonable efforts to avoid or remove such causes of nonperformance
and continues performance hereunder as soon as practicable as soon as such
causes are avoided, rectified or removed.
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 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:
Title:
Xxxxx
Distributors, LLC
________________________________
By:
Title:
Xxxxx
Variable Account Fund, Inc.
_________________________________
By:
Title:
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
EXHIBIT
B
FUNDS
All
current and future funds available for sale through the Variable Products,
including but not limited to any funds listed below.
Xxxxx
Value Portfolio
Xxxxx
Financial Portfolio
Xxxxx
Real Estate Portfolio
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
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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 Company 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 Company shall accept
for processing any Instructions from Nationwide and shall process
such
Instructions in a timely manner.
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|
2.
|
Company
shall perform any and all duties, functions, procedures and
responsibilities assigned to it under this Agreement and as otherwise
established by the NSCC. Company 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 Company that would affect its duties and
obligations pursuant to this
Agreement.
|
|
3.
|
Confirmed
trades and any other information provided by the Company to Nationwide
through Fund/SERV and pursuant to this Agreement shall be accurate,
complete, and in the format prescribed by the
NSCC.
|
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4.
|
Trade
information provided by Nationwide to the Company 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.
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5.
|
For
each Fund/SERV transaction, Nationwide shall provide the Funds and
the
Company 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 Company 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 Company 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 Company by no later than
9:30 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
Date.
|
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2.
|
By
no later than 6:00 p.m. ET on each Trade Date (“Price Communication
Time”), the Company 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 9:30 a.m. ET on T+1 (“Instruction Cutoff
Time”) and after Nationwide has processed all approved transactions,
Nationwide will transmit to the Company via facsimile, telefax or
electronic transmission or system-to-system, or by a method acceptable
to
Nationwide and the Company, 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 Company by the Instruction Cutoff Time, Nationwide will verify
that
the Instruction was received by the
Company.
|
|
|
(c)
|
In
the event that an Instruction transmitted by Nationwide on any Business
Day is not received by the Company 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
Company as if it had been received by the Instruction Cutoff Time,
provided that Nationwide retransmits such Instruction by facsimile
transmission to the Company and such Instruction is received by the
Company’s financial control representative no later than 9:30 a.m. ET on
T+1. In addition, Nationwide will use its best efforts to place
a phone call to a financial control representative of the Company
prior to
12:00 p.m. noon ET on T+1 to advise the Company that a facsimile
transmission concerning the Instruction is being
sent.
|
|
|
(d)
|
With
respect to all Instructions, the Company’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 Company pursuant to Paragraph 3(c) above, Nationwide will
use its
best efforts to verify that all Instructions provided to the Company
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
Company 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 1:00 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 Company to cover
such
net purchase order. In the case of Instructions which
constitute a net redemption order, settlement shall occur by the
Company
causing the remittance of the requisite funds to cover such net redemption
order by Federal Funds Wire by 1:00 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”) and Company shall 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, verify the accuracy of the information contained therein
against
the information contained in Nationwide’s internal record-keeping system
and shall promptly advise the Company in writing of any discrepancies
between such information. The Company and Nationwide shall
cooperate to resolve any such discrepancies as soon as reasonably
practicable.
|
Adjustments
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 Company, the Company
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 Company shall make any adjustment
on the Funds’ accounting system necessary to correct such error or delay and the
affected party or parties shall be reimbursed 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.
