Exhibit h(ix) under Form N-1A
Exhibit 10 under Item 601/Reg. S-K
FUND PARTICIPATION AGREEMENT
This AGREEMENT is made this 1st day of May, 2004, by and among
Nationwide Life Insurance Company and Nationwide Life and Annuity Insurance
Company (collectively, the "Insurer"), stock life insurance companies
domiciled in Ohio, on their behalf and on behalf of the separate accounts of
the Insurer listed on Exhibit A to this Agreement (the "Separate Accounts");
the Huntington VA Funds (the "Fund" or "Funds"), a Massachusetts business
trust; Huntington Asset Advisors, Inc. (the "Adviser"), a registered
investment adviser; and Edgewood Services, Inc. (the "Distributor"), a New
York corporation.
W I T N E S S E T H
WHEREAS, the Fund is registered with the Securities and Exchange
Commission ("SEC") as an open-end management investment company under the
Investment Company Act of 1940 ("1940 Act") and the Fund is authorized to
issue separate classes of shares of beneficial interest ("shares"), each
representing an interest in a separate portfolio of assets known as a
"portfolio" and each portfolio has its own investment objective, policies,
and limitations; and
WHEREAS, the Fund has engaged the Adviser, an investment adviser
registered under the Investment Advisers Act of 1940 ("Advisers Act"), to
provide investment advisory services, including managing the Fund pursuant to
applicable diversification requirements of the Internal Revenue Code of 1986,
as amended ("Code");
WHEREAS, the Fund is available to offer shares of one or more of its
portfolios to separate accounts of insurance companies that fund variable
annuity contracts ("Variable Contracts") and to serve as an investment
medium for Variable Contracts offered by insurance companies that have
entered into participation agreements substantially similar to this agreement
("Participating Insurance Companies"), and the Fund may be made available in
the future to offer shares of one or more of its portfolios to separate
accounts of insurance companies that fund variable life insurance policies
(at which time such policies would also be "Variable Contracts" hereunder),
subject to receipt of any required relief pursuant to an exemptive order from
the SEC, granting Participating Insurance Companies and variable annuity and
variable life insurance separate accounts exemptions from the provisions of
sections 9(a), 13(a), 15(a), and 15(b) of the 1940 Act and Rules 6e-2(b)(15)
and 6e-3(T)(b)(15) thereunder, to the extent necessary to permit shares of
the Fund to be sold to and held by variable annuity and variable life
insurance separate accounts of life insurance companies that may or may not
be affiliated with one another (hereinafter the "Mixed and Shared Funding
Exemptive Order"); and
WHEREAS, the Fund is currently comprised of ten separate portfolios and
may establish other similar portfolios in the future; and
WHEREAS, the Distributor is registered as a broker-dealer with the SEC
under the Securities Exchange Act of 1934 ("1934 Act"), and is a member in
good standing of the National Association of Securities Dealers, Inc.
("NASD"); and
WHEREAS, to the extent permitted by applicable insurance laws and
regulations, the Insurer wishes to purchase shares of one or more of the
Fund's portfolios on behalf of its Separate Accounts to serve as an
investment medium for Variable Contracts funded by the Separate Accounts, and
the Distributor is authorized to sell shares of the Fund's portfolios;
NOW, THEREFORE, in consideration of the foregoing and the mutual
promises and covenants hereinafter set forth, the parties hereby agree as
follows:
ARTICLE I. Sale of Fund Shares
1.1 The Distributor agrees to sell to the Insurer those shares of the
portfolios offered and made available by the Fund and identified on Exhibit B
("Portfolios") that the Insurer orders on behalf of its Separate Accounts,
and agrees to execute such orders on each business day on which the Fund
calculates its net asset value pursuant to rules of the SEC and as described
in the Fund's prospectus and statement of additional information (together,
the "prospectus") and on which the New York Stock Exchange is open for
regular trading ("Business Day") at the net asset value next computed after
receipt and acceptance by the Fund or its agent of the order for the shares
of the Fund.
1.2 The Fund agrees to make available on each Business Day shares of
the Portfolios for purchase at the applicable net asset value per share by
the Insurer on behalf of its Separate Accounts; provided, however, that the
Board of Trustees of the Fund may refuse to sell shares of any Portfolio to
any person, or suspend or terminate the offering of shares of any Portfolio,
if such action is required by law or by regulatory authorities having
jurisdiction or is, in the sole discretion of the Trustees, acting in good
faith and in light of the Trustees' fiduciary duties under applicable law,
necessary in the best interests of the shareholders of any Portfolio.
1.3 The Fund and the Distributor agree that shares of the Portfolios
of the Fund will be sold only to Participating Insurance Companies, their
separate accounts, and other persons consistent with each Portfolio being
adequately diversified pursuant to Section 817(h) of the Code, and the
regulations thereunder. No shares of any Portfolio will be sold directly to
the general public to the extent not permitted by applicable tax law.
1.4 The Fund and the Distributor will not sell shares of the
Portfolios to any insurance company or separate account unless an agreement
containing provisions substantially the same as the provisions in Article IV
of this Agreement is in effect to govern such sales.
1.5 Upon receipt of a request for redemption in proper form from the
Insurer, the Fund agrees to redeem any full or fractional shares of the
Portfolios held by the Insurer, ordinarily executing such requests on each
Business Day at the net asset value next computed after receipt and
acceptance by the Fund or its agent of the request for redemption, except
that the Fund reserves the right to suspend the right of redemption,
consistent with Section 22(e) of the 1940 Act and any rules thereunder. Such
redemption shall be paid consistent with applicable rules of the SEC and
procedures and policies of the Fund as described in the current registration
statement.
1.6 For purposes of Sections 1.2 and 1.5, the Insurer shall be the
agent of the Fund for the limited purpose of receiving and accepting purchase
and redemption orders from each Separate Account, and receipt of such orders
by the close of regular trading (generally 4:00 p.m. Eastern time) on each
Business Day by the Insurer shall be deemed to be receipt by the Fund for
purposes of Rule 22c-1 of the 1940 Act; provided that the Insurer provides
notice of such orders to the Fund on the next following Business Day by 9:00
a.m. Eastern time; provided, further, however, that the Insurer received such
purchase or redemption order prior to the close of regular trading on the New
York Stock Exchange on the previous Business Day. Insurer agrees to submit
such orders electronically through secured trading systems as described on
Exhibit C to this Agreement or, if it is unable to submit orders
electronically, Insurer shall submit such orders through manual transmissions
using the procedures described in Exhibit C to this Agreement.
1.7 The Insurer agrees to purchase and redeem the shares of each
Portfolio in accordance with the provisions of the current prospectus for the
Fund.
1.8 Unless otherwise specified in Exhibit C, the Insurer shall pay
for shares of the Portfolio on the next Business Day after it places an order
to purchase shares of the Portfolio, and payment shall be in federal funds
transmitted by wire.
1.9 Issuance and transfer of shares of the Portfolios will be by book
entry only unless otherwise agreed by the Fund. Stock certificates will not
be issued to the Insurer or the Separate Accounts unless otherwise agreed by
the Fund. Shares ordered from the Fund will be recorded in an appropriate
title for the Separate Accounts or the appropriate subaccounts of the
Separate Accounts.
1.10 Unless otherwise specified in Exhibit C, the Fund or its agent
shall make available to the Insurer same day notice of any income dividends
or capital gain distributions payable on the shares of the Portfolios. The
Insurer hereby elects to reinvest in the Portfolio all such dividends and
distributions as are payable on a Portfolio's shares and to receive such
dividends and distributions in additional shares of that Portfolio. The
Insurer reserves the right to revoke this election in writing and to receive
all such dividends and distributions in cash. The Fund or its agent shall
notify the Insurer of the number of shares so issued as payment of such
dividends and distributions.
1.11 Unless otherwise specified in Exhibit C, the Fund shall instruct
its fund accountant to make available to the Insurer on each Business Day the
net asset value per share for each Portfolio as soon as reasonably practical
after the net asset value per share is calculated and shall use its best
efforts to make such net asset value per share available by 7:00 p.m. Eastern
time.
ARTICLE II. Representations and Warranties
2.1 The Insurer represents and warrants that it is an insurance
company duly organized and in good standing under applicable law and that it
is taxed as an insurance company under Subchapter L of the Code.
2.2 The Insurer represents and warrants that it has legally and
validly established each of the Separate Accounts as a separate account under
the Ohio Revised Code, and that each of the Separate Accounts is a validly
existing separate account under applicable federal and state law.
2.3 The Insurer represents and warrants that the Variable Contracts
issued by the Insurer or interests in the Separate Accounts under such
Variable Contracts (1) are or, prior to issuance, will be registered as
securities under the Securities Act of 1933 ("1933 Act") or, alternatively,
(2) are not registered because they are properly exempt from registration
under the 1933 Act or will be offered exclusively in transactions that are
properly exempt from registration under the 0000 Xxx.
2.4 The Insurer represents and warrants that each of the Separate
Accounts (1) has been registered as a unit investment trust in accordance
with the provisions of the 1940 Act or, alternatively, (2) has not been
registered in proper reliance upon an exclusion from registration under the
0000 Xxx.
2.5 The Insurer represents that the Variable Contracts issued by the
Insurer are currently treated as annuity contracts or life insurance policies
(which may include modified endowment contracts), whichever is appropriate,
under applicable provisions of the Code.
2.6 The Insurer will comply with the terms of the prospectus of each
Fund. If adopted by the Fund, the Insurer will use its best efforts to
impose and collect Fund redemption fees in accordance with the terms set
forth in each Fund's prospectus, and in accordance with applicable law. If
Insurer is unable to impose or collect such redemption fees after such fees
are imposed, the Insurer shall promptly notify the Fund, and, upon giving
such notice, shall cease to offer the Fund until such time as the Insurer can
collect such redemption fees.
2.7 The Insurer will only forward to the Fund or its designee for
purchase or redemption as of the close of trading on each Business Day
Instructions it receives prior to the close of trading on such day.
2.8 The Insurer has adopted and implemented internal controls
reasonably designed to prevent Instructions received from or on behalf of the
Separate Accounts on a given Business Day after the close of trading from
being aggregated with the order for net purchases or net redemptions of
shares for that Business Day.
2.9 The Fund represents and warrants that it is duly organized as a
business trust under the laws of the State of Massachusetts, and is in good
standing under applicable law.
2.10 The Fund represents and warrants that the shares of the
Portfolios are duly authorized for issuance in accordance with applicable law
and that the Fund is registered as an open-end management investment company
under the 0000 Xxx.
2.11 The Adviser represents and warrants that the Portfolios currently
comply, and will continue to comply, with the diversification provisions of
Section 817(h) of the Code and the regulations issued thereunder relating to
the diversification requirements for variable life insurance policies and
variable annuity contracts.
2.12 The Distributor represents and warrants that it is a member in
good standing of the NASD and is registered as a broker-dealer with the SEC.
2.13 The Adviser represents and warrants that it is an investment
adviser registered under the Advisers Act duly organized and in good standing
under applicable law.
ARTICLE III. General Duties
3.1 The Fund shall take all such actions as are necessary to permit
the sale of the shares of each Portfolio to the Separate Accounts, including
maintaining its registration as an investment company under the 1940 Act, and
registering the shares of the Portfolios sold to the Separate Accounts under
the 1933 Act for so long as required by applicable law. The Fund shall amend
its Registration Statement filed with the SEC under the 1933 Act and the 1940
Act from time to time as required in order to effect the continuous offering
of the shares of the Portfolios. The Fund shall register and qualify the
shares for sale in accordance with the laws of the various states to the
extent deemed necessary by the Fund or the Distributor.
3.2 The Fund shall make every effort to maintain qualification of
each Portfolio as a Regulated Investment Company under Subchapter M of the
Code (or any successor or similar provision) and shall notify the Insurer
immediately upon having a reasonable basis for believing that a Portfolio has
ceased to so qualify or that it might not so qualify in the future.
3.3 The Fund and Adviser shall make every effort to ensure that each
Portfolio complies with the diversification provisions of Section 817(h) of
the Code and the regulations issued thereunder relating to the
diversification requirements for variable life insurance policies and
variable annuity contracts and any prospective amendments or other
modifications to Section 817 or regulations thereunder, and shall notify the
Insurer immediately upon having a reasonable basis for believing that any
Portfolio has ceased to comply. The Fund shall make every effort to remedy
any Portfolio's failure to comply with Section 817(h) of the Code and
regulations thereunder within the time frame set forth by Section 817(h) and
the regulations thereunder.
3.4 The Insurer shall take all such actions as are necessary under
applicable federal and state law to permit the sale of the Variable Contracts
issued by the Insurer, including registering each Separate Account as an
investment company to the extent required under the 1940 Act, and registering
the Variable Contracts or interests in the Separate Accounts under the
Variable Contracts to the extent required under the 1933 Act, and obtaining
all necessary approvals to offer the Variable Contracts from state insurance
commissioners.
3.5 The Insurer shall make every effort to maintain the treatment of
the Variable Contracts issued by the Insurer as annuity contracts or life
insurance policies, whichever is appropriate, under applicable provisions of
the Code, and shall notify the Fund and the Distributor immediately upon
having a reasonable basis for believing that such Variable Contracts have
ceased to be so treated or that they might not be so treated in the future.
In that regard, the Insurer shall make every effort to remedy any Variable
Contract's failure to be treated as annuity contracts or life insurance
policies, as appropriate, under applicable provisions of the Code, including
Section 72 and regulations thereunder within the required time frames.
3.6 The Insurer or its agents shall offer and sell the Variable
Contracts issued by the Insurer in accordance with applicable provisions of
the 1933 Act, the 1934 Act, the 1940 Act, the NASD Rules of Fair Practice,
and state insurance law respecting the offering of variable life insurance
policies and variable annuity contracts.
3.7 The Distributor shall sell and distribute the shares of the
Portfolios of the Fund in accordance with the applicable provisions of the
1933 Act, the 1934 Act, the 1940 Act, the NASD Rules of Fair Practice, and
state law.
3.8 During such time as the Fund engages in activities that require a
Mixed and Shared Funding Exemptive Order, a majority of the Board of Trustees
of the Fund shall consist of persons who are not "interested persons" of the
Fund ("disinterested Trustees"), as defined by Section 2(a)(19) of the 1940
Act and the rules thereunder, and as modified by any applicable orders of the
SEC, except that if this provision of this Section 3.8 is not met by reason
of the death, disqualification, or bona fide resignation of any Trustee or
Trustees, then the operation of this provision shall be suspended (a) for a
period of 45 days if the vacancy or vacancies may be filled by the Fund's
Board; (b) for a period of 60 days if a vote of shareholders is required to
fill the vacancy or vacancies; or (c) for such longer period as the SEC may
prescribe by rule or order upon application.
3.9 Provided it is consistent with their fiduciary duties, the
Insurer and its agents will not in any way recommend any proposal in
opposition to, or oppose or interfere with, any proposal submitted by the
Fund at a meeting of owners of Variable Contracts or shareholders of the
Fund, and will in no way recommend any proposal in opposition to, or oppose
or interfere with, the solicitation of proxies by the Fund of shares held by
Contract Owners, without the prior written consent of the Fund.
3.10 Each party hereto shall cooperate with each other party and all
appropriate governmental authorities having jurisdiction (including, without
limitation, the SEC, the NASD, and state insurance regulators) and shall
permit such authorities reasonable access to its books and records in
connection with any investigation or inquiry relating to this Agreement or
the transactions contemplated hereby.
ARTICLE IV. Potential Conflicts
4.1 If and during the time that the Fund engages in activities that
require a Mixed and Shared Funding Exemptive Order, the parties shall comply
with the conditions in this Article IV.
4.2 The Fund's Board of Trustees shall monitor the Fund for the
existence of any material irreconcilable conflict (1) between the interests
of owners of variable annuity contracts and variable life insurance policies,
and (2) between the interests of owners of Variable Contracts ("Variable
Contract Owners") issued by different Participating Life Insurance Companies
that invest in the Fund. A material irreconcilable conflict may arise for a
variety of reasons, including: (a) an action by any state insurance
regulatory authority; (b) a change in applicable federal or state insurance,
tax, or securities laws or regulations, or a public ruling, private letter
ruling, no-action or interpretive letter, or any similar action by insurance,
tax, or securities regulatory authorities; (c) an administrative or judicial
decision in any relevant proceeding; (d) the manner in which the investments
of any Portfolio of the Fund are being managed; (e) a difference in voting
instructions given by variable annuity and variable life insurance contract
owners; or (f) a decision by a Participating Insurance Company to disregard
the voting instructions of Variable Contract Owners.
4.3 The Insurer agrees that it shall report any potential or existing
conflicts of which it is aware to the Fund's Board of Trustees. The Insurer
will be responsible for assisting the Board of Trustees of the Fund in
carrying out its responsibilities under the Mixed and Shared Funding
Exemptive Order, or, if the Fund is engaged in mixed funding or shared
funding in reliance on Rule 6e-2, 6e-3(T), or any other regulation under the
1940 Act, the Insurer will be responsible for assisting the Board of Trustees
of the Fund in carrying out its responsibilities under such regulation, by
providing the Board with all information reasonably necessary for the Board
to consider any issues raised. This includes, but is not limited to, an
obligation by the Insurer to inform the Board whenever Variable Contract
Owner voting instructions are disregarded. The Insurer shall carry out its
responsibility under this Section 4.3 with a view only to the interests of
the Variable Contract Owners.
4.4 The Insurer agrees that in the event that it is determined by a
majority of the Board of Trustees of the Fund or a majority of the Fund's
disinterested Trustees that a material irreconcilable conflict exists, the
Insurer shall, at its expense and to the extent reasonably practicable (as
determined by a majority of the disinterested Trustees of the Board of the
Fund), take whatever steps are necessary to remedy or eliminate the
irreconcilable material conflict, up to and including: (1) withdrawing the
assets allocable to some or all of the Separate Accounts from the Fund or any
Portfolio and reinvesting such assets in a different investment medium,
including another portfolio of the Fund, or submitting the question as to
whether such segregation should be implemented to a vote of all affected
Variable Contract Owners and, as appropriate, segregating the assets of any
appropriate group (i.e., annuity contract owners or life insurance contract
owners of contracts issued by one or more Participating Insurance Companies),
that votes in favor of such segregation, or offering to the affected Variable
Contract Owners the option of making such a change; and (2) establishing a
new registered investment company or separate account. If a material
irreconcilable conflict arises because of the Insurer's decision to disregard
Variable Contract Owners' voting instructions and that decision represents a
minority position or would preclude a majority vote, the Insurer shall be
required, at the Fund's election, to withdraw the Separate Accounts'
investment in the Fund, provided, however, that such withdrawal and
termination shall be limited to the extent required by the foregoing material
irreconcilable conflict as determined by a majority of the disinterested
Trustees, and no charge or penalty will be imposed as a result of such
withdrawal. These responsibilities shall be carried out with a view only to
the interests of the Variable Contract Owners. A majority of the
disinterested Trustees of the Fund shall determine whether or not any
proposed action adequately remedies any material irreconcilable conflict, but
in no event will the Fund or its investment adviser or the Distributor be
required to establish a new funding medium for any Variable Contract. The
Insurer shall not be required by this Section 4.4 to establish a new funding
medium for any Variable Contract if any offer to do so has been declined by
vote of a majority of Variable Contract Owners materially adversely affected
by the material irreconcilable conflict.
4.5 The Insurer, at least annually, shall submit to the Fund's Board
of Trustees such reports, materials, or data as the Board reasonably may
request so that the Trustees of the Fund may fully carry out the obligations
imposed upon the Board by the conditions contained in the application for the
Mixed and Shared Funding Exemptive Order and said reports, materials, and
data shall be submitted more frequently if deemed appropriate by the Board.
4.6 All reports of potential or existing conflicts received by the
Fund's Board of Trustees, and all Board action with regard to determining the
existence of a conflict, notifying Participating Insurance Companies of a
conflict, and determining whether any proposed action adequately remedies a
conflict, shall be properly recorded in the minutes of the Board of Trustees
of the Fund or other appropriate records, and such minutes or other records
shall be made available to the SEC upon request.
4.7 The Board of Trustees of the Fund shall promptly notify the
Insurer in writing of its determination of the existence of an irreconcilable
material conflict and its implications.
ARTICLE V. Prospectuses and Proxy Statements; Voting
5.1 The Insurer shall deliver such prospectuses, proxy statements and
periodic reports of the Fund to the owners of Variable Contracts issued by
the Insurer as required to be distributed to such Variable Contract Owners
under applicable federal or state law. Such delivery may be accomplished
through electronic means subject to the standards prescribed by the SEC.
5.2 The Distributor shall provide the Insurer with as many copies of
the current prospectus of the Fund as the Insurer may reasonably request. If
requested by the Insurer in lieu thereof, the Fund shall provide such
documentation (including a final copy of the Fund's prospectus as set in type
or in camera-ready copy and/or in electronic form) and other assistance as is
reasonably necessary in order for the Insurer to produce in printed and/or
electronic form either a stand-alone document or in a combined document
together with the current prospectus for the Variable Contracts issued by the
Insurer and the current prospectus for the Fund, or a document combining the
Fund prospectus with prospectuses of other funds in which the Variable
Contracts may be invested. The Fund shall bear the proportionate expense of
printing copies of its current prospectus that will be distributed to
existing Variable Contract Owners (whether in a stand-alone document or in a
combined document), and the Insurer shall bear the expense of printing copies
of the Fund's prospectus that are used in connection with offering the
Variable Contracts issued by the Insurer.
5.3 The Fund and the Distributor shall provide, at the Fund's
expense, such copies of the Fund's current Statement of Additional
Information ("SAI") as may reasonably be requested, to the Insurer and to any
owner of a Variable Contract issued by the Insurer who requests such SAI.
Such delivery may be accomplished through electronic means subject to the
standards prescribed by the SEC.
5.4 The Fund, at its expense, shall provide the Insurer with copies
of its proxy statements, periodic reports to shareholders, and other
communications to shareholders in such quantity as the Insurer shall
reasonably require for purposes of distributing to owners of Variable
Contracts issued by the Insurer. The Fund, at the Insurer's expense, shall
provide the Insurer with copies of its periodic reports to shareholders and
other communications to shareholders in such quantity as the Insurer shall
reasonably request for use in connection with offering the Variable Contracts
issued by the Insurer. If requested by the Insurer in lieu thereof, the Fund
shall provide such documentation (including a final copy of the Fund's proxy
statements, periodic reports to shareholders, and other communications to
shareholders, as set in type or in camera-ready copy or in electronic form)
and other assistance as reasonably necessary in order for the Insurer to
print or electronically deliver such shareholder communications for
distribution to owners of Variable Contracts issued by the Insurer.
5.5 For so long as the SEC interprets the 1940 Act to require
pass-through voting by Participating Insurance Companies whose Separate
Accounts are registered as investment companies under the 1940 Act, the
Insurer shall vote shares of each Portfolio of the Fund held in a Separate
Account or a subaccount thereof, whether or not registered under the 1940
Act, at regular and special meetings of the Fund in accordance with
instructions timely received by the Insurer (or its designated agent) from
owners of Variable Contracts funded by such Separate Account or subaccount
thereof having a voting interest in the Portfolio. The Insurer shall vote
shares of a Portfolio of the Fund held in a Separate Account or a subaccount
thereof that are attributable to the Variable Contracts as to which no timely
instructions are received, as well as shares held in such Separate Account or
subaccount thereof that are not attributable to the Variable Contracts and
owned beneficially by the Insurer (resulting from charges against the
Variable Contracts or otherwise), in the same proportion as the votes cast by
owners of the Variable Contracts funded by that Separate Account or
subaccount thereof having a voting interest in the Portfolio from whom
instructions have been timely received. The Insurer shall vote shares of
each Portfolio of the Fund held in each separate account, if any, in the same
proportion as the votes cast with respect to shares of the Portfolio held in
all Separate Accounts of the Insurer or subaccounts thereof, in the aggregate.
5.6 If and during the time as the Fund engages in activities that
require a Mixed and Shared Funding Exemptive Order, the Fund shall disclose
in its prospectus that (1) the Fund is intended to be a funding vehicle for
variable annuity and variable life insurance contracts offered by various
insurance companies, (2) material irreconcilable conflicts possibly may
arise, and (3) the Board of Trustees of the Fund will monitor events in order
to identify the existence of any material irreconcilable conflicts and to
determine what action, if any, should be taken in response to any such
conflict. The Fund hereby notifies the Insurer that prospectus disclosure
may be appropriate regarding potential risks of offering shares of the Fund
to separate accounts funding both variable annuity contracts and variable
life insurance policies and to separate accounts funding Variable Contracts
of unaffiliated life insurance companies.
ARTICLE VI. Sales Material and Information
6.1 Unless the parties mutually agree to alternative time frames, the
Insurer shall furnish, or shall cause to be furnished, to the Fund or its
designee, each piece of sales literature or other promotional material in
which the Fund (or any Portfolio thereof), the Adviser or the Distributor is
named at least 15 days prior to the anticipated use of such material, and no
such sales literature or other promotional material shall be used unless the
Fund, the Adviser and the Distributor or their designee approve the material
or do not respond with comments on the material within 10 days from receipt
of the material.
6.1(a) The Fund and the Adviser hereby consent to the
establishment by the Insurer of a link between the World Wide Web internet
site of the Fund (whether it be the Fund's website or the Adviser's website
containing information about the Fund) and the World Wide Web internet site
of the Insurer (each, a "Web Site"). Such link may be established for the
purpose of facilitating access to information made available on the Fund's
Web Site, including the Fund's prospectus, as may be amended from time to
time. Any such link shall be displayed on the Insurer's Web Site in equal
prominence with any other link or links that the Insurer may provide to the
Web Sites of other underlying investment companies that serve as investments
for the Insurer's Variable Contracts. The establishment of such link shall
not relieve the Insurer of its responsibility for the delivery of the
prospectuses, proxy statements, or periodic reports of the Fund as provided
for in Section 5.1 hereof. The consent provided hereby shall terminate upon
the termination of this Agreement as provided for in Article VI hereof. The
text contained on the Insurer's Web Site related to such link shall be
subject to Article VI hereof, including, without limitation, the requirement
that the Insurer provide such text to the Fund for prior review in accordance
with Section 6.1 hereof.
6.2 The Insurer agrees that neither it nor any of its affiliates or
agents shall give any information or make any representations or statements
on behalf of the Fund and Adviser or concerning the Fund and Adviser other
than the information or representations contained in the Registration
Statement or prospectus for the Fund shares, as such registration statement
and prospectus may be amended or supplemented from time to time, or in
reports or proxy statements for the Fund, or in sales literature or other
promotional material approved by the Fund or its designee and by the
Distributor or its designee, except with the permission of the Fund or its
designee and the Distributor or its designee.
6.3 Unless the parties mutually agree to alternative time frames, the
Fund, the Adviser and the Distributor or their designee shall furnish to the
Insurer or its designee, each piece of sales literature or other promotional
material in which the Insurer or its Separate Accounts are named at least 15
days prior to the anticipated use of such material, and no such material
shall be used unless the Insurer or its designee approves the material or
does not respond with comments on the material within 10 days from receipt of
the material.
6.4 The Fund, the Adviser and the Distributor agree that each and the
affiliates and agents of each shall not give any information or make any
representations on behalf of the Insurer or its affiliates, or concerning the
Insurer or its affiliates, the Separate Accounts, or the Variable Contracts
issued by the Insurer, other than the information or representations
contained in a registration statement or prospectus for such Variable
Contracts, as such registration statement and prospectus may be amended or
supplemented from time to time, or in reports for the Separate Accounts or
prepared for distribution to owners of such Variable Contracts, or in sales
literature or other promotional material approved by the Insurer or its
designee, except with the permission of the Insurer or its designee.
6.5 The Fund will provide to the Insurer at least one complete copy
of any Mixed and Shared Funding Exemptive Order, notice and exemptive
application, and any amendments thereto, all prospectuses, Statements of
Additional Information, reports, proxy statements and other voting
solicitation materials, and all amendments and supplements to any of the
above, that relate to the Fund or its shares, promptly after the filing of
such document with the SEC or other regulatory authorities.
6.6 The Insurer will provide to the Fund all prospectuses (which
shall include the portions of an offering memorandum that contains
information regarding the Fund, Distributor or Adviser if the Variable
Contracts issued by the Insurer or interests therein are not registered under
the 1933 Act), Statements of Additional Information, reports, solicitations
for voting instructions relating to the Fund, and all amendments or
supplements to any of the above that relate to the Variable Contracts issued
by the Insurer or the Separate Accounts which utilize the Fund as an
underlying investment medium, promptly after the filing of such document with
the SEC or other regulatory authority.
6.7 For purposes of this Agreement, the phrase "sales literature or
other promotional material" includes, but is not limited to, advertisements
(such as material published, or designed for use, in a newspaper, magazine,
or other periodical, radio, television, telephone or tape recording,
videotape display, signs or billboards, motion pictures, computerized media,
Web site or other public media), sales literature or other promotional
material (i.e. any written communication distributed or made generally
available to customers or the public, including brochures, circulars,
information provided on a Web site, research reports, market letters, form
letters, seminar texts, reprints or excerpts of any other advertisement,
sales literature or other promotional material, or published article),
educational or training materials or other communications distributed or made
generally available to some or all agents or employees.
ARTICLE VII. Indemnification
7.1 Indemnification by the Insurer
7.1(a) The Insurer agrees to indemnify and hold harmless the
Fund, the Distributor, the Adviser, and each of their Directors, Trustees,
officers, employees and agents, and any affiliated person of the Fund,
Distributor or Adviser within the meaning of Section 2(a)(3) of the 1940 Act
(collectively, the "Indemnified Parties" for purposes of this Section 7.1)
against any and all losses, claims, damages, liabilities (including amounts
paid in settlement with the written consent of the Insurer) or litigation
expenses (including reasonable legal and other expenses), to which the
Indemnified Parties may become subject under any statute or regulation, at
common law or otherwise, insofar as such losses, claims, damages, liabilities
or litigation expenses are related to the sale or acquisition of the Fund's
shares or the Variable Contracts issued by the Insurer and:
(i) arise out of or are based upon any untrue statement or
alleged untrue statement of any material fact contained in the
registration statement or prospectus (which shall include the
portions of an offering memorandum that contain information
regarding the Fund, Distributor or Adviser) for the Variable
Contracts issued by the Insurer or sales literature or other
promotional material for such Variable Contracts (or any
amendment or supplement to any of the foregoing), or arise out of
or are based upon the omission or the alleged omission to state
therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, provided
that this agreement to indemnify shall not apply as to any
Indemnified Party if such statement or omission or such alleged
statement or omission was made in reliance upon and in conformity
with information furnished to the Insurer by or on behalf of the
Fund for use in the registration statement or prospectus for the
Variable Contracts issued by the Insurer or sales literature or
other promotional material (or any amendment or supplement) or
otherwise for use in connection with the sale of such Variable
Contracts or Fund shares; or
(ii) arise out of or as a result of any statement or
representation (other than statements or representations
contained in the registration statement, prospectus or sales
literature or other promotional material of the Fund not supplied
by the Insurer or persons under its control) or wrongful conduct
of the Insurer or any of its affiliates, employees or agents with
respect to the sale or distribution of the Variable Contracts
issued by the Insurer or the Fund shares; or
(iii) arise out of any untrue statement or alleged untrue
statement of a material fact contained in a registration
statement, prospectus, or sales literature or other promotional
material of the Fund or any amendment thereof or supplement
thereto or the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make
the statements therein not misleading if such a statement or
omission was made in reliance upon information furnished by or on
behalf of the Insurer; or
(iv) arise out of or result from any material breach of any
representation and/or warranty made by the Insurer in this
Agreement or arise out of or result from any other material
breach of this Agreement by the Insurer;
except to the extent provided in Sections 7.1(b) and 7.1(c) hereof.
7.1(b) The Insurer shall not be liable under this indemnification
provision with respect to any losses, claims, damages, liabilities or
litigation expenses to which an Indemnified Party would otherwise be subject
by reason of willful misfeasance, bad faith, or gross negligence in the
performance of the Indemnified Party's duties or by reason of the
Indemnified Party's reckless disregard of obligations or duties under this
Agreement.
7.1(c) The Insurer shall not be liable under this indemnification
provision with respect to any claim made against an Indemnified Party unless
such Party shall have notified the Insurer in writing within a reasonable
time after the summons or other first legal process giving information of
the nature of the claim shall have been served upon such Indemnified Party
(or after such Party shall have received notice of such service on any
designated agent), but failure to notify the Insurer of any such claim shall
not relieve the Insurer from any liability which it may have to the
Indemnified Party against whom such action is brought otherwise than on
account of this indemnification provision. In case any such action is
brought against the Indemnified Parties, the Insurer shall be entitled to
participate, at its own expense, in the defense of such action. The Insurer
also shall be entitled to assume the defense thereof, with counsel
satisfactory to the party named in the action. After notice from the
Insurer to such party of the Insurer's election to assume the defense
thereof, the Indemnified Party shall bear the fees and expenses of any
additional counsel retained by it, and the Insurer will not be liable to
such party under this Agreement for any legal or other expenses subsequently
incurred by such party independently in connection with the defense thereof
other than reasonable costs of investigation. If the Insurer assumes the
defense or representation of an Indemnified Party, the Insurer shall not
consent or agree to any settlement without the prior approval of the
Indemnified Party.
7.1(d) The Indemnified Parties shall promptly notify the Insurer
of the commencement of any litigation or proceedings against them in
connection with the issuance or sale of the Fund shares or the Variable
Contracts issued by the Insurer or the operation of the Fund.
7.2 Indemnification By the Distributor
7.2(a) The Distributor agrees to indemnify and hold harmless the
Fund, the Adviser, the Insurer, and the Insurer's affiliated principal
underwriter of the Variable Contracts, and each of their trustees,
directors, officers, employees, and agents, and any affiliated person of the
Insurer, Fund or Adviser within the meaning of Section 2(a)(3) of the 1940
Act (collectively, the "Indemnified Parties" for purposes of this Section
7.2) against any and all losses, claims, damages, liabilities (including
amounts paid in settlement with the written consent of the Distributor) or
litigation expenses (including reasonable legal and other expenses) to which
the Indemnified Parties may become subject under any statute or regulation,
at common law or otherwise, insofar as such losses, claims, damages,
liabilities or litigation expenses are related to the sale or acquisition of
the Fund's shares or the Variable Contracts issued by the Insurer and:
(i) arise out of or are based upon any untrue statement or
alleged untrue statement of any material fact contained in the
registration statement or prospectus or sales literature or other
promotional material of the Fund (or any amendment or supplement
to any of the foregoing), or arise out of or are based upon the
omission or the alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements
therein not misleading, provided that this agreement to indemnify
shall not apply as to any Indemnified Party if such statement or
omission or such alleged statement or omission was made in
reliance upon and in conformity with information furnished to the
Distributor or the Fund or the designee of either by or on behalf
of the Insurer for use in the registration statement or
prospectus for the Fund or in sales literature or other
promotional material (or any amendment or supplement) or
otherwise for use in the registration statement or prospectus for
the Fund or in sales literature or other promotional material (or
any amendment or supplement) or otherwise for use in connection
with the sale of the Variable Contracts issued by the Insurer or
Fund shares; or
(ii) arise out of or as a result of any statement or
representations (other than statements or representations
contained in the registration statement, prospectus or sales
literature or other promotional material for the Variable
Contracts not supplied by the Distributor or any employees or
agents thereof) or wrongful conduct of the Fund or Distributor,
or the affiliates, employees, or agents of the Fund or the
Distributor with respect to the sale or distribution of the
Variable Contracts issued by the Insurer or Fund shares; or
(iii) arise out of any untrue statement or alleged untrue
statement of a material fact contained in a registration
statement, prospectus, or sales literature or other promotional
material covering the Variable Contracts issued by the Insurer,
or any amendment thereof or supplement thereto, or the omission
or alleged omission to state therein a material fact required to
be stated therein or necessary to make the statement or
statements therein not misleading, if such statement or omission
was made in reliance upon information furnished to the Insurer by
or on behalf of the Fund; or
(iv) arise out of or result from any material breach of any
representation and/or warranty made by the Distributor in this
Agreement or arise out of or result from any other material
breach of this Agreement by the Distributor;
except to the extent provided in Sections 7.2(b) and 7.2(c) hereof.
7.2(b) The Distributor shall not be liable under this
indemnification provision with respect to any losses, claims, damages,
liabilities or litigation expenses to which an Indemnified Party would
otherwise be subject by reason of willful misfeasance, bad faith, or gross
negligence in the performance of the Indemnified Party's duties or by reason
of the Indemnified Party's reckless disregard of obligations or duties under
this Agreement.
7.2(c) The Distributor shall not be liable under this
indemnification provision with respect to any claim made against an
Indemnified Party unless such Party shall have notified the Distributor in
writing within a reasonable time after the summons or other first legal
process giving information of the nature of the claim shall have been served
upon such Indemnified Party (or after such Party shall have received notice
of such service on any designated agent), but failure to notify the
Distributor of any such claim shall not relieve the Distributor from any
liability which it may have to the Indemnified Party against whom such action
is brought otherwise than on account of this indemnification provision. In
case any such action is brought against the Indemnified Parties, the
Distributor will be entitled to participate, at is own expense, in the
defense thereof. The Distributor also shall be entitled to assume the
defense thereof, with counsel satisfactory to the party named in the action.
After notice from the Distributor to such party of the Distributor's election
to assume the defense thereof, the Indemnified Party shall bear the fees and
expenses of any additional counsel retained by it, and the Distributor will
not be liable to such party under this Agreement for any legal or other
expense subsequently incurred by such party independently in connection with
the defense thereof other than reasonable costs of investigation. If the
Distributor assumes the defense or representation of an Indemnified Party,
the Distributor shall not consent or agree to any settlement without the
prior approval of the Indemnified Party.
7.2(d) The Indemnified Parties shall promptly notify the
Distributor of the commencement of any litigation or proceedings against them
in connection with the issuance or sale of the Variable Contracts issued by
the Insurer or the operation of the Separate Accounts.
7.3 Indemnification by the Fund
7.3(a) The Fund agrees to indemnify and hold harmless the
Insurer, the Insurer's affiliated principal underwriter of the Variable
Contracts, and each of their trustees, directors, officers, employees, and
agents, and any "affiliated person" of the Insurer within the meaning of
Section 2(a)(3) of the 1940 Act (collectively, the "Indemnified Parties" for
purposes of this Section 7.3) against any and all losses, claims, damages,
liabilities (including amounts paid in settlement with the written consent of
the Fund) or litigation expenses (including reasonable legal and other
expenses) to which the Indemnified Parties may become subject under any
statute or regulation, at common law or otherwise, insofar as such losses,
claims, damages, liabilities or litigation expenses are related to the sale
or acquisition of the Fund's shares or the Variable Contracts issued by the
Insurer and:
(i) arise out of or are based upon any untrue statement or
alleged untrue statement of any material fact contained in the
registration statement or prospectus or sales literature or other
promotional material of the Fund (or any amendment or supplement
to any of the foregoing), or arise out of or are based upon the
omission or the alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements
therein not misleading, provided that this agreement to indemnify
shall not apply as to any Indemnified Party if such statement or
omission or such alleged statement or omission was made in
reliance upon and in conformity with information furnished to the
Distributor or the Fund or the designee of either by or on behalf
of the Insurer for use in the registration statement or
prospectus for the Fund or in sales literature or other
promotional material (or any amendment or supplement) or
otherwise for use in connection with the sale of the Variable
Contracts issued by the Insurer or Fund shares; or
(ii) arise out of or as a result of any statement or
representation (other than statements or representations
contained in the registration statement, prospectus or sales
literature or other promotional material for the Variable
Contracts not supplied by the Distributor or any employees or
agents thereof) or wrongful conduct of the Fund, or the
affiliates, employees, or agents of the Fund, with respect to the
sale or distribution of the Variable Contracts issued by the
Insurer or Fund shares; or
(iii) arise out of any untrue statement or alleged untrue
statement of a material fact contained in a registration
statement, prospectus or sales literature or other promotional
material covering the Variable Contracts issued by the Insurer,
or any amendment thereof or supplement thereto, or the omission
or alleged omission to state therein a material fact required to
be stated therein or necessary to make the statement or
statements therein not misleading, if such statement or omission
was made in reliance upon information furnished to the Insurer by
or on behalf of the Fund; or
(iv) arise out of or result from any material breach of any
representation and/or warranty made by the Fund in this Agreement
or arise out of or result from any other material breach of this
Agreement by the Fund;
except to the extent provided in Sections 7.3(b) and 7.3(c) hereof.
7.3(b) The Fund shall not be liable under this indemnification
provision with respect to any losses, claims, damages, liabilities or
litigation expenses to which an Indemnified Party would otherwise be subject
by reason of willful misfeasance, bad faith, or gross negligence in the
performance of the Indemnified Party's duties or by reason of the Indemnified
Party's reckless disregard of obligations or duties under this Agreement or
to the Insurer.
7.3(c) The Fund shall not be liable under this indemnification
provision with respect to any claim made against an Indemnified Party unless
such party shall have notified the Fund in writing within a reasonable time
after the summons or other first legal process giving information of the
nature of the claim shall have been served upon such Indemnified Party (or
after such Party shall have received notice of such service on any designated
agent), but failure to notify the Fund of any such claim shall not relieve
the Fund from any liability which it may have to the Indemnified Party
against whom such action is brought otherwise than on account of this
indemnification provision. In case any such action is brought against the
Indemnified Parties, the Fund will be entitled to participate, at its own
expense, in the defense thereof. The Fund also shall be entitled to assume
the defense thereof, with counsel satisfactory to the party named in the
action. After notice from the Fund to such party of the Fund's election to
assume the defense thereof, the Indemnified Party shall bear the fees and
expenses of any additional counsel retained by it, and the Fund will not be
liable to such party under this Agreement for any legal or other expenses
subsequently incurred by such party independently in connection with the
defense thereof other than reasonable costs of investigation. If the Fund
assumes the defense or representation of an Indemnified Party, the Fund shall
not consent or agree to any settlement without the prior approval of the
Indemnified Party.
7.3(d) The Insurer shall promptly notify the Fund of the
commencement of any litigation or proceedings against it or any of its
officers of directors in connection with the issuance or sale of the Variable
Contracts issued by the Insurer or the sale of the Fund's shares.
7.4 Indemnification By the Adviser
7.4(a) The Adviser agrees to indemnify and hold harmless the
Fund, the Distributor, the Insurer, and the Insurer's affiliated principal
underwriter of the Variable Contracts, and each of their trustees,
directors, officers, employees, and agents, and any affiliated person of the
Insurer, Fund or Distributor within the meaning of Section 2(a)(3) of the
1940 Act (collectively, the "Indemnified Parties" for purposes of this
Section 7.4) against any and all losses, claims, damages, liabilities
(including amounts paid in settlement with the written consent of the
Adviser) or litigation expenses (including reasonable legal and other
expenses) to which the Indemnified Parties may become subject under any
statute or regulation, at common law or otherwise, insofar as such losses,
claims, damages, liabilities or litigation expenses are related to the sale
or acquisition of the Fund's shares or the Variable Contracts issued by the
Insurer and:
(i) arise out of or are based upon any untrue statement or
alleged untrue statement of any material fact provided by the
Adviser and contained in the registration statement or prospectus
or sales literature or other promotional material of the Fund (or
any amendment or supplement to any of the foregoing), or arise
out of or are based upon the omission or the alleged omission to
state therein a material fact about the Adviser required to be
stated therein or necessary to make the statements therein not
misleading, provided that this agreement to indemnify shall not
apply as to any Indemnified Party if such statement or omission
or such alleged statement or omission was made in reliance upon
and in conformity with information furnished to the Adviser or
the Fund or the designee of either by or on behalf of the Insurer
for use in the registration statement or prospectus for the Fund
or in sales literature or other promotional material (or any
amendment or supplement) or otherwise for use in the registration
statement or prospectus for the Fund or in sales literature or
other promotional material (or any amendment or supplement) or
otherwise for use in connection with the sale of the Variable
Contracts issued by the Insurer or Fund shares; or
(ii) arise out of or as a result of any statement or
representations (other than statements or representations
contained in the registration statement, prospectus or sales
literature or other promotional material for the Variable
Contracts not supplied by the Adviser or any employees or agents
thereof) or wrongful conduct of the Adviser, or the affiliates,
employees, or agents of the Adviser with respect to the sale or
distribution of the Variable Contracts issued by the Insurer or
Fund shares; or
(iii) arise out of any untrue statement or alleged untrue
statement of a material fact contained in a registration
statement, prospectus, or sales literature or other promotional
material covering the Variable Contracts issued by the Insurer,
or any amendment thereof or supplement thereto, or the omission
or alleged omission to state therein a material fact required to
be stated therein or necessary to make the statement or
statements therein not misleading, if such statement or omission
was made in reliance upon information furnished by or on behalf
of the Adviser; or
(iv) arise out of or result from any material breach of any
representation and/or warranty made by the Adviser in this
Agreement or arise out of or result from any other material
breach of this Agreement by the Adviser;
except to the extent provided in Sections 7.4(b) and 7.4(c) hereof.
7.4(b) The Adviser shall not be liable under this indemnification
provision with respect to any losses, claims, damages, liabilities or
litigation expenses to which an Indemnified Party would otherwise be subject
by reason of willful misfeasance, bad faith, or gross negligence in the
performance of the Indemnified Party's duties or by reason of the Indemnified
Party's reckless disregard of obligations or duties under this Agreement or
to the Insurer.
7.4(c) The Adviser shall not be liable under this indemnification
provision with respect to any claim made against an Indemnified Party unless
such Party shall have notified the Adviser in writing within a reasonable
time after the summons or other first legal process giving information of the
nature of the claim shall have been served upon such Indemnified Party (or
after such Party shall have received notice of such service on any designated
agent), but failure to notify the Adviser of any such claim shall not relieve
the Adviser from any liability which it may have to the Indemnified Party
against whom such action is brought otherwise than on account of this
indemnification provision. In case any such action is brought against the
Indemnified Parties, the Adviser will be entitled to participate, at is own
expense, in the defense thereof. The Adviser also shall be entitled to
assume the defense thereof, with counsel satisfactory to the party named in
the action. After notice from the Adviser to such party of the Adviser's
election to assume the defense thereof, the Indemnified Party shall bear the
fees and expenses of any additional counsel retained by it, and the Adviser
will not be liable to such party under this Agreement for any legal or other
expense subsequently incurred by such party independently in connection with
the defense thereof other than reasonable costs of investigation. If the
Adviser assumes the defense or representation of an Indemnified Party, the
Adviser shall not consent or agree to any settlement without the prior
approval of the Indemnified Party.
7.4(d) The Indemnified Parties shall promptly notify the Adviser
of the commencement of any litigation or proceedings against them in
connection with the issuance or sale of the Variable Contracts issued by the
Insurer or the operation of the Separate Accounts.
ARTICLE VIII. Applicable Law
8.1 This Agreement shall be construed and the provisions hereof
interpreted under and in accordance with the laws of the State of New York.
8.2 This Agreement shall be subject to the provisions of the 1933,
1934, and 1940 Acts, and the rules and regulations and rulings thereunder,
including such exemptions from those statutes, rules and regulations as the
SEC may grant (including, but not limited to, any Mixed and Shared Funding
Exemptive Order), and the terms hereof shall be interpreted and construed in
accordance therewith.
8.3 This Agreement shall be construed and the provisions hereof
interpreted under and in accordance with the Code.
ARTICLE IX. Termination
9.1 This Agreement shall terminate:
(a) at the option of any party upon 180 days advance written
notice to the other parties; or
(b) at the option of the Insurer if shares of the Portfolios are
not reasonably available to meet the requirements of the Variable Contracts
issued by the Insurer, as determined by the Insurer, and upon prompt notice
by the Insurer to the other parties; or
(c) at the option of the Fund or the Distributor upon institution
of formal proceedings against the Insurer or its agent by the NASD, the SEC,
or any state securities or insurance department or any other regulatory body
regarding the Insurer's duties under this Agreement or related to the sale of
the Variable Contracts issued by the Insurer, the operation of the Separate
Accounts, or the purchase of the Fund shares; or
(d) at the option of the Insurer upon institution of formal
proceedings against the Fund, the Adviser or the Distributor by the NASD, the
SEC, or any state securities or insurance department or any other regulatory
body; or
(e) upon requisite vote of the Variable Contract Owners having an
interest in the Separate Accounts (or any subaccounts thereof) to substitute
the shares of another investment company for the corresponding shares of the
Fund or a Portfolio in accordance with the terms of the Variable Contracts
for which those shares had been selected or serve as the underlying
investment media; or
(f) in the event any of the shares of a Portfolio 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 the underlying
investment media of the Variable Contracts issued or to be issued by the
Insurer; or
(g) by any party to the Agreement upon a determination by a
majority of the Trustees of the Fund, or a majority of its disinterested
Trustees, that an irreconcilable conflict, as described in Article IV hereof,
exists; or
(h) at the option of the Insurer if the Fund or a Portfolio fails
to meet the requirements under Subchapter M of the Code for qualification as
a Regulated Investment Company specified in Section 3.2 hereof or the
diversification requirements specified in Section 3.3 hereof.
9.2 Each party to this Agreement shall promptly notify the other
parties to the Agreement of the institution against such party of any such
formal proceedings as described in Sections 9.1(c) and (d) hereof. The
Insurer shall give 60 days prior written notice to the Fund of the date of
any proposed vote of Variable Contract Owners to replace the Fund's shares as
described in Section 9.1(e) hereof.
9.3 Except as necessary to implement Variable Contract Owner
initiated transactions, or as required by state insurance laws or
regulations, the Insurer shall not redeem Fund shares attributable to the
Variable Contracts issued by the Insurer (as opposed to Fund shares
attributable to the Insurer's assets held in the Separate Accounts), and the
Insurer shall not prevent Variable Contract Owners from allocating payments
to a Portfolio, until 60 days after the Insurer shall have notified the Fund
or Distributor of its intention to do so.
9.4 Notwithstanding any termination of this Agreement, the Fund and
the Distributor shall at the option of the Insurer continue to make available
additional shares of the Fund pursuant to the terms and conditions of this
Agreement, for all Variable Contracts in effect on the effective date of
termination of this Agreement (hereinafter referred to as "Existing
Contracts"). Specifically, without limitation, based upon instructions from
the owners of the Existing Contracts, the Separate Accounts shall be
permitted to reallocate investments in the Portfolios of the Fund and redeem
investments in the Portfolios, and shall be permitted to invest in the
Portfolios in the event that owners of the Existing Contracts make additional
purchase payments under the Existing Contracts. If this Agreement
terminates, the parties agree that Sections 3.10, 7.1, 7.2, 7.3, 7.4, 8.1,
8.2, and 11.7 and, to the extent that all or a portion of the assets of the
Separate Accounts continue to be invested in the Fund or any Portfolio of the
Fund, Articles I, II, and IV and Sections 5.5 and 5.6 will remain in effect
after termination.
ARTICLE X. Notices
Any notice shall be sufficiently given when sent by registered or
certified mail or by facsimile duly delivered with confirmation of receipt to
the other party at the address of such party set forth below or at such other
address as such party may from time to time specify in writing to the other
party.
If to the Fund:
Huntington VA Funds
c/o The Huntington National Bank
00 Xxxxx Xxxx Xxxxxx
Xxxxxxxx, Xxxx 00000
Attn.: Xxx Xxxxxxx, President
Fax: 000-000-0000
Phone: 000-000-0000
With a copy to:
Xxxxxx Xxxxxxxxxx, Esq.
Ropes & Xxxx
One Metro Center
000 00xx Xx., X.X., Xxxxx 000
Xxxxxxxxxx, XX 00000
Fax: (000) 000-0000
Phone: (000) 000-0000
If to the Distributor:
Edgewood Services, Inc.
0000 Xxxxxxxxx Xxxxx
Xxxxxxxxxx, Xxxxxxxxxxxx 00000-0000
Attn.: Secretary
Fax: (412)
Phone: (412)
If to the Insurer:
Nationwide Life Insurance Company
Nationwide Life and Annuity Company
Xxx Xxxxxxxxxx Xxxxx, 0-00-X0
Xxxxxxxx, Xxxx 00000
Attn: Securities Officer
Fax: (000) 000-0000
Phone: (000) 000-0000 or (000) 000-0000
If to the Adviser:
Huntington Asset Advisors, Inc.
00 Xxxxx Xxxx Xxxxxx
Xxxxxxxx, Xxxx 00000
Attn.: Xxxxx Xxxxxxx, Chief Investment Officer
Fax: 000-000-0000
Phone: 000-000-0000
With a copy to:
Xxxxxx Xxxxxxxxxx, Esq.
Ropes & Xxxx
One Metro Center
000 00xx Xx., X.X., Xxxxx 000
Xxxxxxxxxx, XX 00000
Fax: (000) 000-0000
Phone: (000) 000-0000
ARTICLE XI: Miscellaneous
11.1 The Fund and the Insurer agree that if and to the extent Rule
6e-2 or Rule 6e-3(T) under the 1940 Act is amended or if Rule 6e-3 is adopted
in final form, to the extent applicable, the Fund and the Insurer shall each
take such steps as may be necessary to comply with the Rule as amended or
adopted in final form.
11.2 A copy of the Fund's Certificate of Trust is on file with the
Secretary of the Commonwealth of Massachusetts and notice is hereby given
that any agreements that are executed on behalf of the Fund by any Trustee or
officer of the Fund are executed in his or her capacity as Trustee or officer
and not individually. The obligations of this Agreement shall only be
binding upon the assets and property of the Fund and shall not be binding
upon any Trustee, officer or shareholder of the Fund individually.
11.3 Nothing in this Agreement shall impede the Fund's Trustees or
shareholders of the shares of the Fund's Portfolios from exercising any of
the rights provided to such Trustees or shareholders in the Fund's Agreement
and Declaration of Trust, as amended, a copy of which will be provided to the
Insurer upon request.
11.4 Administrative services to Variable Contract Owners shall be the
responsibility of Insurer as set forth in Exhibit D. Insurer, on behalf of
its separate accounts will be the sole shareholder of record of Fund shares.
Funds shall pay or cause the Adviser to pay Insurer an amount computed
pursuant to Exhibit E.
11.5(a) It is understood that the names "Edgewood," "Huntington VA
Funds" or any derivative thereof or logo associated with those names (the
"Marks") are the valuable property, respectively, of the Distributor and the
Funds, respectively, (and their affiliates), and that the Insurer has the
right to use such names (or derivatives or logos) only so long as this
Agreement is in effect and the Distributor or an affiliate of the Distributor
continues to serve as the principal underwriter of the Fund. Upon
termination of this Agreement the Insurer shall forthwith cease to use the
Marks. Insurer agrees that it shall not use the Marks in a manner that
disparages or degrades the business or reputation of the Distributor, the
Fund, or any of their affiliates, or that infringes, dilutes, or otherwise
violates the Marks. Upon request, Insurer agrees to provide appropriate
attribution of the use of the Marks (e.g., through the use of "TM" or (R)
symbols, and appropriate notice regarding reservation of rights).
11.5(b) It is understood that the names "Huntington," "Huntington
Asset Advisors, Inc." or any derivative thereof or logo associated with those
names (the "Huntington Marks") are the valuable property of the Adviser (and
its affiliates), and that the Insurer has the right to use such names (or
derivatives or logos) only so long as this Agreement is in effect and the
Adviser or an affiliate of the Adviser continues to serve as the investment
adviser of the Fund. Upon termination of this Agreement the Insurer shall
forthwith cease to use the Huntington Marks. Insurer agrees that it shall
not use the Huntington Marks in a manner that disparages or degrades the
business or reputation of the Adviser, the Fund, or any of their affiliates,
or that infringes, dilutes, or otherwise violates the Huntington Marks. Upon
request, Insurer agrees to provide appropriate attribution of the use of the
Huntington Marks (e.g., through the use of "TM" or (R) symbols, and appropriate
notice regarding reservation of rights).
11.6 It is understood that the name "Nationwide" or any derivative
thereof or logo associated with that name (the "Nationwide Marks") is the
valuable property of the Insurer and its affiliates, and that the Fund,
Distributor and Adviser have the right to use such name (or derivative or
logo) only so long as this Agreement is in effect. Upon termination of this
Agreement the Fund, Distributor and Adviser shall forthwith cease to use the
Nationwide Marks. Fund, Distributor and Adviser agree that it shall not use
the Nationwide Marks in a manner that disparages or degrades the business or
reputation of the Insurer or any of their affiliates, or that infringes,
dilutes, or otherwise violates the Nationwide Marks. Upon request, Fund,
Distributor and Adviser agree to provide appropriate attribution of the use
of the Nationwide Marks (e.g., through the use of "TM" or (R) symbols, and
appropriate notice regarding reservation of rights).
11.7 The parties agree to keep confidential all information,
documentation and/or data related to this Agreement, except as may be
necessary to perform services under this Agreement, as required by law, a
court of competent jurisdiction or other governing regulatory body, or as
otherwise may be agreed to in writing by the parties. Each party agrees not
to use, disclose or distribute to others any consumer non-public personal
information related to this Agreement, except as necessary to perform the
terms of this Agreement or as permitted or required by law. This provision
shall survive the termination of this Agreement.
11.8 Should Fund, Distributor or Adviser desire to no longer have a
Fund available in a variable contract, Fund, Distributor or Adviser shall be
responsible for any and all expenses incurred as a result of removing such
Fund as an available investment option under the Contract. Should Insurer
desire to no longer have a Fund available in a variable contract, Insurer
shall be responsible for any and all expenses incurred as a result of
removing such Fund as an available investment option under the Contract.
Should a removal of a Fund as an available investment option be mutually
desired by the parties, the parties agree to equally (or in such other
proportion as they may mutually agree) share any expenses incurred as a
result of removing such Fund as an available investment option. Insurer,
Fund, Distributor and Adviser agree to provide reasonable advance notice of
the election to remove a Fund as an available investment option in order to
permit the parties to file documentation as may be required under applicable
law.
11.9 The captions in this Agreement are included for convenience of
reference only and in no way define or delineate any of the provisions hereof
or otherwise affect their construction or effect.
11.10 This Agreement may be executed simultaneously in two or more
counterparts, each of which taken together shall constitute one and the same
instrument.
11.11 If any provision 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.
11.12 No party to this Agreement may assign the Agreement except with
the written consent of the other parties to the Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed as of the day and year first above written.
EDGEWOOD SERVICES, INC.
By: /s/ Xxxxxxx X. Xxxxx, Xx.
---------------------------------
Name: Xxxxxxx X. Xxxxx, Xx.
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Title: Vice President
HUNTINGTON VA FUNDS
By: /s/ Xxxxxx X. Xxxxxxx
Name: Xxxxxx X. Xxxxxxx
Title: Vice President
NATIONWIDE LIFE INSURANCE COMPANY
NATIONWIDE LIFE AND ANNUITY INSURANCE COMPANY
By: /s/ Xxxxxxx X. Xxxxxx
Name: Xxxxxxx X. Xxxxxx
Title: VP, Investment Management Relationships
HUNTINGTON ASSET ADVISORS, INC.
By: /s/ B. Xxxxxxxx Xxxxxxx
Name: B. Xxxxxxxx Xxxxxxx
Title: President
EXHIBIT A
Separate Accounts
Nationwide Variable Account
Nationwide Variable Account-II
Nationwide Variable Account-3
Nationwide Variable Account-4
Nationwide Variable Account-5
Nationwide Variable Account-6
Nationwide Variable Account -7
Nationwide Variable Account-8
Nationwide Variable Account-9
Nationwide Variable Account-10
Nationwide Variable Account-11
Nationwide Variable Account -12
Nationwide Variable Account-13
Multi-Flex Variable Account
Nationwide VA Separate Account-A
Nationwide VA Separate Account-B
Nationwide VA Separate Account-C
Nationwide VA Separate Account-D
Nationwide VLI Separate Account
Nationwide VLI Separate Account-2
Nationwide VLI Separate Account-3
Nationwide VLI Separate Account-4
Nationwide VLI Separate Account-5
Nationwide VLI Separate Account-6
Nationwide VL Separate Account
Nationwide VL Separate Account-A
Nationwide VL Separate Account-B
Nationwide VL Separate Account-C
Nationwide VL Separate Account-D
Nationwide DC Variable Account
Nationwide DC Variable Account-II
NACo Variable Account
Nationwide Governmental Plans Variable Account
Nationwide Governmental Plans Variable Account-II
Nationwide Qualified Plans Variable Account
Nationwide Private Placement Variable Account
Ohio DC Variable Account
EXHIBIT B
HUNTINGTON VA FUNDS
Huntington VA Income Equity Fund
Huntington VA Growth Fund
Huntington VA Dividend Capture Fund
Huntington VA Mid Corp. America
Huntington VA New Economy Fund
Huntington VA Rotating Markets Fund
Huntington VA International Equity Fund
Huntington VA Macro 100 Fund
Huntington VA Mortgage Securities Fund
Huntington VA Situs Small Cap Fund
EXHIBIT C
Subject to the terms and conditions of this Agreement, Insurer shall be
appointed to, and agrees to act, as a limited agent of Fund for the sole
purpose of receiving instructions from authorized parties as defined by the
Variable Contracts for the purchase and redemption of Fund shares prior to
the close of regular trading each Business Day. A "Business Day" is defined
in Section 1.1 of the Agreement. Except as particularly stated in this
paragraph, Insurer shall have no authority to act on behalf of Fund or to
incur any cost or liability on its behalf.
Until such time as Fund and Insurer are able to utilize the National
Securities Clearing Corporation ("NSCC") Defined Contribution Clearing and
Settlement ("DCC&S") Fund/SERV system: Fund will use its best efforts to
provide to Insurer or its designated agent closing net asset value, change in
net asset value, dividend or daily accrual rate information and capital gain
information by 7:00 p.m. Eastern Time each Business Day. Insurer or its
agent shall use this data to calculate unit values. Unit values shall be
used to process the same Business Day's contract transactions. Orders
derived from, and in amounts equal to, instructions received by Insurer prior
to the Close of Trading on the New York Stock Exchange on any Business Day
("Day 1") shall be transmitted without modification (except for netting or
aggregating such orders) to Fund by 9:00 A.M. Eastern Time on the next
Business Day. Such trades will be effected at the net asset value of each
Fund's shares calculated as of the Close of Trading on Day 1. Fund will not
accept any order made on a conditional basis or subject to any delay or
contingency. Insurer shall only place purchase orders for shares of Funds on
behalf of its customers whose addresses recorded on Insurer' books are in a
state or other jurisdiction in which the Funds are registered or qualified
for sale, or are exempt from registration or qualification as confirmed in
writing by Fund.
Until such time as Fund and Insurer are able to utilize the DCC&S Fund/SERV
system, each party shall, transmit any instructions or confirmations via
facsimile, and, as soon as practicable after a party's receipt of an
instruction or confirmation, such party shall verify its receipt of such
instruction or confirmation via telephone, and in the absence of such
verification such a party to whom an instruction or confirmation is sent
shall not be liable for any failure to act in accordance with such
instruction or confirmation, and the sending party may not claim that such an
instruction or confirmation was received by the other. Each party shall
notify the other of any errors, omissions or interruptions in, or delay or
unavailability as promptly as possible.
a) For those purchase orders not transmitted via the DCC&S Fund/SERV
system, Insurer shall complete payment to Fund or its designated agent
in federal funds no later than 1:00 P.M. Eastern Time on the Business
Day following the day on which the instructions are treated as having
been received by Fund pursuant to this Agreement.
b) For those redemption orders not transmitted via the DCC&S
Fund/SERV system, Fund or its designated agent shall initiate payment
in federal funds no later than 3:00 P.M. Eastern Time on the Business
Day following the day on which the instructions are treated as having
been received by Fund pursuant to this Agreement.
At such time as Fund and Insurer are able to transmit information via the
NSCC's DCC&S Fund/SERV System:
a) Orders derived from, and in amounts equal to, instructions
received by Insurer prior to the Close of Trading on Day 1 shall be
transmitted without modification (except for netting and aggregation of
such orders) via the NSCC's DCC&S Fund/SERV system to Fund no later
than 5:00 A.M. Eastern Time on the Next Business Day. Such trades will
be effected at the net asset value of each Fund's shares calculated as
of the Close of Trading on Day 1.
b) Fund and Insurer mutually agree there may be instances when
orders received prior to the Close of Trading on the previous Business
Day shall be transmitted to Fund via facsimile no later than 9:00 A.M.
Eastern Time on the next Business Day rather than through the DCC&S
Fund/SERV system. In such instances, such orders, which shall only
include orders received prior to the Close of Trading on the previous
Business Day, shall be transmitted to Fund via facsimile no later than
9:00 A.M. Eastern Time on the next Business Day.
c) With respect to purchase and redemption orders received by Fund on any
Business Day for any Fund, within the time limits set forth in this
Agreement, settlement shall occur consistent with the requirements of
DCC&S Fund/SERV system.
At such time as Fund and Insurer are able to transmit information via the
DCC&S Fund/SERV system: Fund or its designated agent shall send to Insurer,
via the DCC&S Fund/SERV system, verification of net purchase or redemption
orders or notification of the rejection of such orders ("Confirmations ") on
each Business Day for which Insurer has transmitted such orders. Such
confirmations shall include the total number of shares of each Fund held by
Insurer following such net purchase or redemption. Fund, or its designated
agent, shall use its best efforts to submit in a timely manner, such
confirmations to the DCC&S Fund/SERV system in order for Insurer to receive
such confirmations no later than 11:00 A.M. Eastern Time the next Business
Day. Fund or its designated agent will transmit to Insurer via DCC&S
NETWORKING system those Networking activity files reflecting account
activity. In addition, within five (5) Business Days after the end of each
month, Fund or its affiliate will make available to Insurer a statement of
account which shall confirm all transactions made during that particular
month in the account.
DOCUMENTS AND OTHER MATERIALS
DOCUMENTS PROVIDED BY INSURER
Insurer agrees to provide Fund, upon written request, any reports indicating
the number of shareholders that hold interests in the Funds and such other
information (including books and records) that Fund may reasonably request or
as may be necessary or advisable to enable it to comply with any law,
regulation or order.
DOCUMENTS PROVIDED BY FUND
Within five (5) Business Days after the end of each calendar month, Fund,
Distributor, or Adviser shall make available to Insurer, or its designee, a
monthly statement of account, which shall confirm all transactions made
during that particular month.
Fund, Distributor, or Adviser shall promptly provide Insurer, or cause
Insurer to be provided with, a reasonable quantity of the Funds'
prospectuses, Statements of Additional Information and any supplements
thereto.
EXHIBIT D
Services Provided by Insurer
Pursuant to the Agreement, Insurer shall perform all administrative and
shareholder services with respect to the Variable Contracts and plans,
including but not limited to, the following:
1. Maintaining separate records for each Variable Contract owner and each
plan, which shall reflect the Fund shares purchased and redeemed and Fund
share balances of such Variable Contract owners and plans. Insurer will
maintain accounts with each Fund on behalf of Variable Contract owners and
plans, and such account shall be in the name of Insurer (or its nominee)
as the record owner of shares owned by such Variable Contract owners and
plans.
2. Disbursing or crediting to contract owners and plans all proceeds of
redemptions of shares of the Funds and all dividends and other
distributions not reinvested in shares of the Funds.
3. Preparing and transmitting to Variable Contract owners and plans, as
required by law, periodic statements showing the total number of shares
owned as of the statement closing date, purchases and redemptions of Fund
shares during the period covered by the statement and the dividends and
other distributions paid during the statement period (whether paid in cash
or reinvested in Fund shares), and such other information as may be
required, from time to time, by Variable Contract owners and plans.
4. Supporting and responding to service inquires from Variable Contract
owners and plans.
5. Maintaining and preserving all records required by law to be maintained
and preserved in connection with providing the services for Variable
Contract owners and plans.
6. Generating written confirmations and quarterly statements to Variable
Contract owners and plan participants.
7. Distributing to Variable Contract owners and plans, to the extent
required by applicable law, Funds' prospectuses, proxy materials, periodic
fund reports to shareholders and other materials that the Funds are
required by law or otherwise to provide to their shareholders or
prospective shareholders.
8. Transmitting purchase and redemption orders to the Funds on behalf of
the Variable Contract owners and plans.
EXHIBIT E
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Funds Basis Points Per Annum
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Huntington VA Income Equity Fund 25 bps
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Huntington VA Growth Fund 25 bps
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Huntington VA Dividend Capture Fund 25 bps
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Huntington VA Mid Corp. America 25 bps
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Huntington VA New Economy Fund 25 bps
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Huntington VA Rotating Markets Fund 25 bps
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Huntington VA International Equity Fund 25 bps
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Huntington VA Macro 100 Fund 25 bps
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Huntington VA Mortgage Securities Fund 25 bps
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Huntington VA Situs Small Cap Fund 25 bps
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