Fund Participation Agreement
This Fund Participation Agreement ("Agreement"), dated as of the 30th day of
June, 1999 is made by and between Nationwide Life Insurance Company and/or
Nationwide Life and Annuity Insurance Company (separately or collectively
"Nationwide") on behalf of the Nationwide separate accounts identified on
Exhibit A which is attached hereto, as may be amended from time to time
("Variable Accounts"), The Victory Variable Insurance Funds, an unincorporated
business trust organized under the laws of the state of Delaware, on behalf of
the mutual funds listed on Exhibit A (the "Funds"), Key Asset Management Inc.
("Key") and BISYS Fund Services Limited Partnership ("BISYS"), which serve
respectively as adviser and distributor to the Funds.
WHEREAS, the variable life insurance policies and/or variable annuity contracts
(collectively, the "Contracts") issued by Nationwide allow for the allocation of
net amounts received by Nationwide to separate sub-accounts of the Variable
Accounts for investment in shares of the Funds and other similar funds; and
WHEREAS, selection of a particular sub-account (corresponding to a particular
Fund) is made by the contract owner; or, in the case of certain group Contracts,
by participants in various types of retirement plans which have purchased such
group Contracts, and such Contract owners and/or participants may reallocate
their investment options among the sub-accounts of the Variable Accounts in
accordance with the terms of the Variable Accounts in accordance with the terms
of the Contracts; and
WHEREAS, The parties mutually desire the inclusion of the Funds as underlying
investment media for the Contracts;
NOW THEREFORE, the parties, in consideration of the promises and
undertakings described herein, agree as follows:
1. Nationwide represents and warrants that the Variable Accounts have been
established and are in good standing under Ohio Law; and the Variable
Accounts have been registered as unit investment trusts under the
Investment Company Act of 1940 (the "1940 Act") or are exempt from
registration pursuant to section 3(c)(11) of the 1940 Act;
2. Each party recognizes that the services provided for under this Agreement
are not exclusive and that the same skill will be used in performing
services in similar contexts. Nationwide will use its best efforts to give
equal emphasis and promotion to shares of the Funds as is given to other
underlying investments of the Variable Accounts.
3. Subject to the terms and conditions of this Agreement, Nationwide shall be
appointed to, and agrees, to act as a limited agent of BISYS for the sole
purpose of receiving instructions for the purchase and redemption of Fund
shares (from Contract owners or participants making investment allocation
decisions under the Contracts) prior to the close of regular trading each
Business Day. "Business Day" shall mean any day on which the New York
Stock Exchange is open for trading and on which the Funds calculate their
net asset value as set forth in the Funds' most recent Prospectuses and
Statements of Additional Information. Except as particularly stated in
this paragraph, Nationwide shall have no authority to act on behalf of
BISYS or to incur any cost or liability on its behalf.
BISYS will use its reasonable best efforts to provide closing net asset
values, changes in net asset values, dividend or daily accrual rate
information and capital gain information by 6:00 p.m. Eastern Time each
Business Day to Nationwide. Nationwide shall use this data to
calculate unit xxxxx. Unit values shall be used to process that same
Business Day's Variable Account transactions. Orders for purchases or
redemptions shall be placed with BISYS or its specified agent no later
than 9:30 a.m. of the following Business Day. Orders for shares of Funds
shall be accepted and executed at the time they are received by BISYS and
at the net asset value price determined as of the close of trading on the
previous Business Day. BISYS or the Transfer Agent will not accept any
order made on a conditional basis or subject to any delay or contingency.
Nationwide shall only place purchase orders for shares of Funds on behalf
of its customers whose addresses recorded on Nationwide's 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 BISYS.
BISYS will execute the orders at the net asset value as determined as of
the close of trading on the prior Business Day. BISYS agrees to initiate
wire transfers of federal funds to Nationwide with respect to the
aggregate redemptions from the Funds by 2:00 p.m. Eastern Time, on the
Business Day following the price date for such redemptions; provided,
however, that if one or more Funds have determined to settle redemption
transactions on a delayed basis (more than one business day, but in no
event more than seven calendar days after the price date, unless otherwise
permitted by an order of the Securiites and Exchange Commission under
Section 22(3) of the 1940 Act), BISYS shall be permitted to delay sending
redemption proceeds to Nationwide by wire transfer by the same number of
days that the applicable Funds are delaying sending redemption proceeds to
their shareholders.
Nationwide shall remit the purchase price of each purchase order in
accordance with written procedures as provided to Nationwide.
Payment for net purchases shall be wired to a custodial account designated
by Key and payment for net redemptions will be wired to an account
designated by Nationwide. Dividends and capital gain distributions shall
be reinvested in additional Fund shares at net asset value.
Notwithstanding the above, BISYS shall not be held responsible for
providing Nationwide with ex-date net asset values, changes in net asset
values or dividend or capital gain information when the New York Stock
Exchange is closed, when an emergency exists making the valuation of net
asset not reasonably practicable or during any period when the Securities
and Exchange Commission ("SEC") has by order permitted the suspension of
pricing shares for the protection of shareholders.
Nationwide agrees to provide Key and/or BISYS, upon request, written
reports indicating the number of shareholders that hold interests in the
Funds and such other information (including books and records) that Key
and/or BISYS may reasonably request or as may be necessary or advisable to
enable it to comply with any law, regulation or order.
4. All expenses incident to the performance under this Agreement by Key, the
Funds and BISYS shall be paid by Key, the Funds or BISYS, respectively.
BISYS shall promptly provide Nationwide, or cause Nationwide to be
provided with, a reasonable quantity of the Funds' Prospectuses,
Statements of Additional Information and any supplements.
All expenses incident to the performance by Nationwide under this
Agreement shall be paid by Nationwide.-
5. The parties represent that by December 1, 1999, they will have tested
their internal systems and determined that the systems are year 2000
compliant, in accordance with any regulatory requirements relating
thereto. Each party shall notify the other upon having a
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reasonable basis for believing that such systems will not comply with
applicable regulatory requirements relating to date-related data
processing in the year 2000 and beyond.
6. The Funds, Key and BISYS represent that the Funds are currently qualified
as regulated investment companies under Subchapter M of the Internal
Revenue Code of 1986 (the "Code"), as amended, and that the Funds shall
make every effort to maintain such qualification. The Funds or BISYS shall
promptly notify Nationwide upon having a reasonable basis for believing
that the Funds have ceased to so qualify, or that they may not qualify as
such in the future.
Key represents that the Funds currently comply with the diversification
requirements pursuant to Section 817(h) of the Code and Section 1.817-5(b)
of the Federal Tax Regulations and that the Funds will make every effort
to maintain the Funds' compliance with such diversification requirements,
unless the Funds are otherwise exempt from section 817(h) and/or except as
otherwise disclosed in each Fund's prospectus. Key will notify Nationwide
promptly upon having a reasonable basis for believing that the Funds have
ceased to so qualify, or that the Funds might not so qualify in the
future. Unless otherwise exempt, Key shall provide to Nationwide a
statement indicating compliance with Section 817(h) and a schedule of
investment holdings, to be received by Nationwide no later than
twenty-five (25) days following the end of each calendar quarter.
Nationwide represents that the Contracts are currently treated as annuity
contracts or life insurance policies, whichever is appropriate under
applicable provisions of the Code, and that it shall make every effort to
maintain such treatment. Nationwide will promptly notify the Funds, Key
and BISYS upon having a reasonable basis for believing that the Contracts
have ceased to be treated as annuity contracts or life insurance policies,
or that the Contracts may not be so treated in the future.
Unless a Fund is exempt from the requirements of section 817(h),
Nationwide represents that each Variable Account is a "segregated asset
account" and that interests in each Variable Account are offered
exclusively through the purchase of a "variable contract", within the
meaning of such terms pursuant to section 1.817-5(f)(2) of the Federal Tax
Regulations, that it shall make every effort to continue to meet such
definitional requirements, and that it shall notify the Funds, Key and
BISYS immediately upon having a reasonable basis for believing that such
requirements have ceased to be met or that they may not be met in the
future.
7. Within eight (8) to ten (10) Business Days after the end of each calendar
month, BISYS shall provide Nationwide a monthly statement of account,
which shall confirm all transactions made during that particular month in
the Variable Accounts.
8. Each party agrees to inform the other of the existence of, or any
potential for, any material conflicts of interest between the parties and
any possible implications of the same.
It is agreed that if it is determined by a majority of the members of the
Boards of Trustees of the Funds, or a majority of the Funds' disinterested
trustees, that a material conflict exists caused by Nationwide, Nationwide
shall, at its own expense, take whatever steps necessary to remedy or
eliminate such material conflict.
It is agreed that if it is determined by Nationwide that a material
conflict exists caused by Key and/or BISYS, Key or BISYS shall, at its own
expense, take whatever steps necessary to remedy or eliminate such
material conflict.
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9. This Agreement shall terminate as to the sale and issuance of new
Contracts:
(a) at the option of Nationwide or the Funds upon at least 60 days
advance written notice to the other;
(b) at any time, upon the Funds election, if the Funds determine that
liquidation of the Funds is in the best interest of the Funds and
their beneficial owners. Reasonable advance notice of election to
liquidate shall be furnished by the Funds to permit the substitution
of fund shares with the shares of another investment company
pursuant to SEC regulation;
(c) if the Contracts are not treated as annuity contracts or life
insurance policies by the applicable regulators or under applicable
rules or regulations;
(d) if the Variable Accounts are not deemed "segregated asset accounts"
by the applicable regulators or under applicable rules or
regulations;
(e) at the option of Nationwide, if Fund shares are not available for
any reason to meet the requirements of Contracts as determined by
Nationwide. Reasonable advance notice of election to terminate (and
time to cure) shall be furnished by Nationwide;
(f) at the option of Nationwide or the Funds, upon institution of
relevant formal proceedings against the broker-dealer(s) marketing
the Contracts, the Variable Accounts, Nationwide or the Funds by the
NASD, the IRS, the Department of Labor, the SEC, state insurance
departments or any other regulatory body;
(g) upon a decision by Nationwide, in accordance with regulations of the
SEC, to substitute such Fund shares with the shares of another
investment company for Contracts for which the Fund shares have been
selected to serve as the underlying investment medium. Nationwide
shall give at least 60 days written notice to the Funds of any
proposal to substitute Fund shares;
(h) upon assignment of this Agreement as defined under the 1940 Act,
unless such assignment is made with the written consent of each
other party. A reorganization of Key shall not be considered an
assignment under this Agreement so long as primary management of the
Funds does not change and Key (or its successor) remains a direct or
indirect subsidiary of KeyCorp; and
(i) in the event Fund shares are not registered, issued or sold pursuant
to Federal law, or such law precludes the use of Fund shares as an
underlying investment medium for contracts 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.
11. Notwithstanding any termination of this Agreement for any reason, the
terms and conditions of this Agreement shall remain in full force and
effect with respect to this Agreement for so long as there are Variable
Account assets invested in the Funds.
12. Each notice required by this Agreement shall be given orally and confirmed
in writing to:
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Nationwide Life Insurance Company
Nationwide Life and Annuity Insurance Company
Xxx Xxxxxxxxxx Xxxxx 0-00-X0
Xxxxxxxx, Xxxx 00000
Attention: Senior Vice President - Life Company Operations
Key Asset Management Inc.
000 Xxxxxx Xxxxxx
Xxxxxxxxx, Xxxx 00000
Attention: Xxxxxxxx X. Xxxxxx
BISYS Fund Services Limited Partnership
0000 Xxxxxxxx Xxxx
Xxxxxxxx, XX
Attention: General Counsel
With a copy to:
Nationwide Life Insurance Company
Nationwide Life and Annuity Insurance Company
Xxx Xxxxxxxxxx Xxxxx 0-00-X0
Xxxxxxxx, Xxxx 00000
Attention: Compliance Manager - Securities
Any party may change its address by notifying the other parties in
writing.
13. So long as, and to the extent that, the SEC continues to interpret the
1940 Act to require pass-through voting privileges for variable contract
owners, Nationwide shall distribute all proxy material furnished by the
Funds (provided that such material is received by Nationwide 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 such 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 Contract owners, provided that such proportional
voting is not prohibited by the Contract owner's related plan or trust
document. Nationwide and its agents will in no way recommend action in
connection with or oppose or interfere with the solicitation of proxies
for the Fund shares held for the benefit of such Contract owners.
14. (a) Nationwide agrees to reimburse and/or indemnify and hold
harmless the Funds, Key and BISYS and each of their directors,
officers, employees, agents and each person, if any, who controls
the Funds, Key or BISYS within the meaning of the Securities Act of
1933 (the "1933 Act") (collectively, "Affiliated Party") against any
losses, claims, damages or liabilities ("Losses") to which the
Funds, Key or BISYS or any such Affiliated Party may become subject,
under the 1933 Act or otherwise, insofar as such Losses (or actions
in respect thereof) arise out of, or are based upon, but not limited
to:
(i) any untrue statement or alleged untrue statement of any
material fact contained in information furnished by
Nationwide;
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(ii) the omission, or the alleged omission, in the Registration
Statements or Prospectuses of the Variable Accounts or sales
literature or any amendments thereto, of a material fact
required to be stated therein or necessary to make the
statements therein not misleading;
(iii) conduct, statements or presentations of Nationwide or its
agents involved in advising Contract owners in the selection
of sub-accounts, with respect to the sale and distribution of
Contracts for which Fund shares are an underlying investment;
(iv) the failure of Nationwide to provide the services and furnish
the materials under the terms of this Agreement;
(v) a material breach of this Agreement or of any of the
representations contained herein; or
(vi) any failure to register the Contracts or the Variable Accounts
under federal or state securities laws, state insurance laws
or to otherwise comply with such laws, rules, regulations or
orders.
Provided however, that Nationwide shall not be liable in any such case to
the extent any such statement, omission or representation or such alleged
statement, alleged omission or alleged representation was made in reliance
upon and in conformity with written information furnished to Nationwide by
or on behalf of the Funds, Key or BISYS specifically for use therein.
Nationwide shall reimburse any legal or other expenses reasonably incurred
by the Funds, Key or BISYS or any Affiliated Party in connection with
investigating or defending any such Losses, provided, however, that
Nationwide shall have prior approval of the use of counsel or the
expenditure of fees.
This indemnity agreement shall be in addition to any liability which
Nationwide may otherwise have.
(b) The Funds and BISYS agree to indemnify and hold harmless Nationwide
and each of its directors, officers, employees, agents and each
person who controls Nationwide within the meaning of the 1933 Act
(collectively "Nationwide Affiliated Party") against any Losses to
which Nationwide or any such Nationwide Affiliated Party may become
subject under the 1933 Act or otherwise, insofar as such Losses (or
actions in respect thereof) arise out of or are based upon, but not
limited to:
(i) any untrue statement or alleged untrue statement of any
material fact contained in any information furnished by the
Funds or BISYS, including but not limited to, the Registration
Statements, Prospectuses, or Statements of Additional
Information or sales literature of the Funds;
(ii) the omission, or the alleged omission, in the Registration
Statements, Prospectuses or Statements of Additional
Information of the Funds or sales literature or any amendments
thereto, of a material fact required to be stated therein or
necessary to make the statements therein not misleading;
(iii) the failure of BISYS to provide the services and furnish the
materials under the terms of this Agreement;
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(iv) a material breach of this Agreement or of any of the
representations contained herein; or
(v) any failure to register the Funds under federal or state
securities laws or to otherwise comply with such laws, rules,
regulations or orders.
Provided however, that neither the Funds nor BISYS shall be liable in any
such case to the extent that any such loss, claim, damage or liability
arises out of, or is based upon, an act or omission of Nationwide or
untrue statement or omission or alleged omission made in conformity with
written information furnished to the Funds or BISYS by Nationwide
specifically for use therein.
The Funds or BISYS shall reimburse any legal or other expenses reasonably
incurred by Nationwide or any Nationwide Affiliated Party in connection
with investigating or defending any such Losses, provided, however, that
the Funds or BISYS shall have prior approval of the use of counsel or the
expenditure of fees.
This indemnity agreement will be in addition to any liability which the
Funds may otherwise have.
(c) Key agrees to indemnify and hold harmless Nationwide and each of its
directors, officers, employees, agents and each person who controls
Nationwide within the meaning of the 1933 Act (collectively
"Nationwide Affiliated Party") against any Losses to which
Nationwide or any such Nationwide Affiliated Party may become
subject under the 1933 Act or otherwise, insofar as such Losses (or
actions in respect thereof) arise out of or are based upon, but not
limited to:
(i) any untrue statement or alleged untrue statement of any
material fact contained in any information furnished by Key,
including but not limited to, information in the Registration
Statements, Prospectuses, or Statements of Additional
Information or sales literature of the Funds;
(ii) the omission, or the alleged omission, in the Registration
Statements, Prospectuses or Statements of Additional
Information of the Funds or sales literature or any amendments
thereto, of a material fact relating to Key and required to be
stated therein or necessary to make the statements therein not
misleading;
(iii) Key's failure to keep the Funds fully diversified as required
by the applicable provisions of the Code and the applicable
regulations promulgated thereunder;
(iv) the failure of Key to provide the services and furnish the
materials under the terms of this Agreement; or
(v) a material breach by Key of this Agreement or of any of the
representations contained herein.
Provided, however, that Key shall not be liable in any such case to
the extent that any such loss, claim, damage or liability arises out of,
or is based upon, an act or omission of Nationwide or untrue statement or
omission or alleged omission made in conformity with written information
furnished to Key, the Funds or BISYS by Nationwide specifically for use
therein.
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Key shall reimburse any legal or other expenses reasonably incurred
by Nationwide or any Nationwide Affiliated Party in connection with
investigating or defending any such Losses, provided, however, that Key
shall have prior approval of the use of counsel or the expenditure of
fees.
This indemnity agreement will be in addition to any liability which
Key may otherwise have.
(d) Each party shall promptly notify the other parties in writing of any
situation which presents or appears to involve a claim which may be
the subject of indemnification under this Agreement and the
indemnifying party shall have the option to defend against any such
claim. In the event the indemnifying party so elects, it shall
notify the indemnified party and shall assume the defense of such
claim, and the indemnified party shall cooperate fully with the
indemnifying party, at the indemnifying party's expense, in the
defense of such claim. However, the choice of counsel by one party
shall be subject to the other party's approval. Notwithstanding the
foregoing, the indemnified party shall be entitled to participate in
the defense of such claim at its own expense through counsel of its
own choosing. Neither party shall admit to wrong-doing nor make any
compromise in any action or proceeding which may result in a finding
of wrongdoing by the other party without the other party's prior
written consent. Any notice given by the indemnifying party to an
indemnified party or participation in or control of the litigation
of any such claim by the indemnifying party shall in no event be
deemed to be an admission by the indemnifying party of culpability,
and the indemnifying party shall be free to contest liability among
the parties with respect to the claim.
15. The forbearance or purposeful or gross neglect of any party to insist upon
strict compliance by another party with any of the provisions of this
Agreement, whether continuing or not, or to declare a forfeiture or
termination against the other parties, shall not be construed as a waiver
of any of the rights or privileges of any party hereunder. No waiver of
any right or privilege of any party arising from any default or failure of
performance by any party shall affect the rights or privileges of the
other parties in the event of a further default or failure of performance.
16. (a) BISYS will provide to Nationwide at least one (1) complete copy
of all SEC registration statements, Fund Prospectuses, reports, any
preliminary and final proxy material, applications for exemptions,
requests for no-action letters and all amendments to any of the
above, that relate to the Fund or its Shares, contemporaneously with
the filing of such documents with the SEC or other regulatory
authorities.
(b) BISYS will provide to Nationwide copies of all Fund Prospectuses
and printed copies of all Statements of Additional Information,
proxy materials, periodic reports to shareholders and other
materials required by law to be sent to Contract owners who have
allocated any Contract value to a Fund. The Fund will provide such
copies to Nationwide in a timely manner so as to enable Nationwide
to distribute such materials within the time required by law to be
furnished to Participants.
(c) BISYS will provide to Nationwide or its designated agent at
least one (1) complete copy of each piece of sales literature or
other promotional material in which Nationwide or any of its
respective affiliates is named, or that refers to the Contracts, at
least ten (10) Business Days prior to its use, or such shorter
period as the parties hereto may from time to time agree upon. No
such material shall be used if Nationwide or its
8
designated agent reasonably objects to such use within ten (10)
Business Days after receipt of such material, or such shorter period
as the Parties hereto may from time to time agree upon.
(d) The Funds, Key and BISYS or any of their affiliates will not
give any information or make any representations or statements on
behalf of or concerning Nationwide or the Contracts, except with the
express written permission of Nationwide, other than the information
or representations contained in: (i) the registration statement,
including each Variable Account Prospectus contained therein,
relating to the Contracts, as such registration statement and
Variable Account Prospectus may be amended from time to time; (ii)
published reports for the Contracts that are in the public domain
and approved by Nationwide for distribution; or (iii) sales
literature or other promotional material approved by Nationwide or
its affiliates.
(e) BISYS shall adopt and implement procedures reasonably designed
to ensure that information concerning Nationwide and its respective
affiliates, that is intended for use only by brokers or agents
selling the Contracts (i.e. information that is not intended for
distribution to the public)("Broker Only Materials"), is so used,
and neither Nationwide nor any of its respective affiliates shall be
liable for any losses, damages or expenses relating to the improper
use of such Broker Only Materials.
(f) For purposes of this Section, the phrase "sales literature or
other promotional material " includes, but is not limited to:
advertisements (such as material published or designed for use in
newspapers, magazines, other periodicals, radio, television,
telephone or tape recording, videotape display, signs or billboards,
motion pictures or other public media) (i.e., any written
communication distributed or made generally available to customers
or the public including brochures, circulars, research reports,
market letters, form letters, seminar texts, reprints or excerpts of
any other advertisement, sales literature or published articles);
educational or training materials or other communications
distributed or made generally available to some or all agents or
employees; registration statements, prospectuses, statements of
additional information, shareholder reports and proxy materials; and
any other material constituting sales literature or advertising
under the NASD rules, the 1933 Act or the 0000 Xxx.
17. (a) Nationwide will provide to the Funds and BISYS at least one (1)
complete copy of all SEC registration statements, Variable Account
Prospectuses, reports, any preliminary and final proxy material,
applications for exemptions, requests for no-action letters and all
amendments to any of the above, that relate to the Fund or its
Shares, contemporaneously with the filing of such documents with the
SEC or other regulatory authorities.
(b) Nationwide will provide to the Funds and BISYS copies of all
Variable Account Prospectuses, and copies of all Statements of
Additional Information, periodic reports to shareholders and other
materials required by law to be sent to Contract owners who have
allocated any Contract value to a Fund.
(c) Nationwide will provide to the Funds and BISYS or their
designated agent at least one (1) complete copy of each piece of
sales literature or other promotional material in which the Fund or
any of its respective affiliates is named, or that refers to the
Funds, at least ten (10) Business Days prior to its use, or such
shorter period as the parties hereto may from time to time agree
upon. No such material shall be used if either the Funds or BISYS or
their designated agents reasonably object to such use
9
within ten (10) Business Days after receipt of such material, or
such shorter period as the parties hereto may from time to time
agree upon.
(d) Neither Nationwide nor any of its affiliates will give any
information or make any representations or statements on behalf of
or concerning a Fund, except with the express written permission of
the Fund, other than the information or representations contained
in: (i) the registration statement, including each Fund Prospectus
contained therein, as such registration statement and Fund
Prospectus may be amended from time to time; (ii) published reports
for the Funds that are in the public domain and approved by the Fund
or its designated agent for distribution; or (iii) sales literature
or other promotional material approved by the Fund or its
affiliates.
(e) Nationwide shall adopt and implement procedures reasonably
designed to ensure that information concerning the Funds and their
respective affiliates, that is intended for use only by brokers or
agents selling the Contracts (i.e., information that is not intended
for distribution to the public) ("Broker Only Materials"), is so
used, and neither the Funds nor any of their respective affiliates
shall be liable for any losses, damages or expenses relating to the
improper use of such Broker Only Materials.
(f) For purposes of this Section, the phrase "sales literature or
other promotional material " includes, but is not limited to:
advertisements (such as material published or designed for use in
newspapers, magazines, other periodicals, radio, television,
telephone or tape recording, videotape display, signs or billboards,
motion pictures or other public media) (i.e., any written
communication distributed or made generally available to customers
or the public including brochures, circulars, research reports,
market letters, form letters, seminar texts, reprints or excerpts of
any other advertisement, sales literature or published articles);
educational or training materials or other communications
distributed or made generally available to some or all agents or
employees; registration statements, prospectuses, statements of
additional information, shareholder reports and proxy materials; and
any other material constituting sales literature or advertising
under the NASD rules, the 1933 Act or the 1940 Act.
18. This Agreement shall be construed and the provisions hereof interpreted
under and in accordance with the laws of Delaware without respect to its
choice of law provisions, and in accordance with the 1940 Act. In the case
of any conflict, the 1940 Act shall control.
19. 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
its legal, valid and binding obligation, enforceable against it in
accordance with its terms. Except as particularly set forth herein, no
party assumes any responsibility thereunder, and will not be liable to any
of the other parties for any damage, loss of data, delay or any other loss
whatsoever caused by events beyond their reasonable control.
20. Nationwide acknowledges that the identity of the Funds', Key's and BISYS's
(and their affiliates' and/or subsidiaries') customers and all information
maintained about those customers constitute the valuable property of the
Funds; Key and BISYS. Nationwide agrees that, should it come into contact
or possession of any such information (including, but not limited to,
lists or compilations of the identity of such customers), Nationwide shall
hold such information or property in confidence and shall not use,
disclose or distribute any such information or property except with prior
written consent of the Funds; Key or BISYS or as required by law or
judicial process.
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The Funds, Key and BISYS acknowledge that the identity of Nationwide's
(and its affiliates' and/or subsidiaries') customers and all information
maintained about those customers constitute the valuable property of
Nationwide. The Funds, Key and BISYS agree that, should they come into
contact or possession of any such information (including, but not limited
to, lists or compilations of the identity of such customers), they shall
hold such information or property in confidence and shall not use,
disclose or distribute any such information or property except with
Nationwide's prior written consent or as required by law or judicial
process.
This section shall survive the expiration or termination of this
Agreement.
21. Nothing in this Agreement shall be deemed to create a partnership or joint
venture by and among the parties hereto.
22. Except to amend Exhibit A, or as otherwise provided in this Agreement,
this Agreement may not be amended or modified except by a written
amendment executed by each of the parties.
23. 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 LIFE INSURANCE COMPANY
AND NATIONWIDE LIFE AND ANNUITY
INSURANCE COMPANY
/s/ Xxxxxx X. Xxxx
---------------------------------
By: Xxxxxx X. Xxxx
Title: Vice President
Office of Product and Market Compliance
KEY ASSET MANAGEMENT INC.
/s/ Xxxxxxxx X. Xxxxxx
---------------------------------
By: Xxxxxxxx X. Xxxxxx
Title: Senior Managing Director
BISYS FUND SERVICES LIMITED PARTNERSHIP
/s/ Xxxxxxx X. Xxxxx
---------------------------------
By: Xxxxxxx X. Xxxxx
Title: Executive Vice President
THE VICTORY VARIABLE INSURANCE FUNDS
/s/ H. Xxxxx Xxxxx
---------------------------------
By: H. Xxxxx Xxxxx
Title: Vice President
11
EXHIBIT A
This Exhibit corresponds to the Fund Participation Agreement dated June 30,1999.
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Variable Accounts of Corresponding Corresponding Funds
Nationwide Nationwide Contracts
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Nationwide Variable Modified Single The Victory Variable Insurance
Account - 9 Deferred Premium Funds
Variable Annuity o Investment Quality Bond Fund
Contracts (The Best of - Class A
America(R) - o Diversified Stock Fund -
America's Choice) Class A
o Small Company Value Fund -
Class A
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