GENERAL AGENT AGREEMENT
THIS AGREEMENT, effective this 24 day of May, 2001 is made by and among
Nationwide Life and Annuity Insurance Company, Nationwide Life Insurance
Company, (collectively, "Nationwide"), and Xxxxxxx, Xxx & Xxxxxxx Securities,
Inc. ("Agency") and ("Broker/Dealer").
Nationwide hereby appoints Broker/Dealer and Agency (collectively, "General
Agent") as General Agent with the rights, powers, duties and liabilities set
forth herein General Agent hereby accepts the appointment.
General Agent acknowledges, understands and agrees that although Nationwide
Life Insurance Company ("NWL") and Nationwide Life and Annuity Insurance
Company ("NWLAIC") are collectively referred to herein as "Nationwide", NWL
and NWLAIC are separate corporate entities, and that the rights and obligations
of each under this Agreement are to be exclusively determined on the basis of
which of the two entities (NWL or NWLAIC) is the issuing company of the product
(s) specified in Exhibit A, and being sold pursuant to this Agreement
IN CONSIDERATION OF THE MUTUAL PROMISES HEREIN MADE, THE PARTIES AGREE AS
FOLLOWS:
1.Scope. This Agreement shall supersede all prior agreements between Nationwide
and General Agent and between NWL and Broker/Dealer. All of the insurance or
annuity products sold under this Agreement shall be referred to as "Contract(s)"
except when particular provisions relate solely to variable contracts required
to be registered under the Securities act of 1933 ("1933 Act") and/or the
Investment Company Act of 1940 ("1940 Act') and such contracts shall be referred
to as "Variable Contracts". The Contracts which may be sold under this
Agreement are listed in the Compensation Schedules which are included in
Exhibit A. These Compensation Schedules may be amended upon Nationwide's
written notice to General Agent.
In consideration of the services to be performed hereunder, Nationwide agrees
to pay General Agent compensation. in accordance with the Exhibits to this
Agreement, as may be amended from time to time, based on purchase payments due
and received by Nationwide on Contracts issued upon applications submitted
either directly or through registered representatives and agents, on or after
the date of this Agreement.
2. Authority. Agency and Broker/Dealer are hereby authorized, through their
individual agents ("Agents"), representatives or duly licensed affiliated
agencies who are duly licensed and registered as required by law, to solicit
and procure applications for the Contracts in accordance with the terms and
conditions of this Agreement. and are authorized in connection therewith:
a. to collect purchase payments on Contracts for which applications are
submitted;
b. when requested and as directed by Nationwide to deliver Contracts after the
terms and conditions governing such delivery are completed, provided that no
such delivery of a Contract shall be deemed to constitute a warranty by General
Agent that such terms and conditions have been complied with;
c. to perform any other act related to Contracts that is authorized in
writing by Nationwide and is permissible under the law; and
d. General Agent will pay all fees required to obtain and/or maintain any
licenses or registlations required by state or federal for General Agent and
agents of General Agent. Nationwide will pay the fees in connection with the
initial appointment with Nationwide of agents of General Agent. Any subsequent
appointment fees will be the responsibility of the General Agent or as mutually
agreed upon with Nationwide.
3. Right to Sell; Regulatory Approvals.
a. General Agent is authorized to sell the Contracts set forth in the
Compensation Schedule (Exhibit A) as now and hereafter attached to this
Agreement. The Compensation Schedule is hereby incorporated by reference.
b. Except as disclosed to General Agent in writing, Nationwide represents
and warrants that it has the authority to issue Contracts in the states where
the General Agent is authorized to conduct business. Nationwide agrees to notify
General Agent promptly of any change in such authority.
General Agent agrees that it will solicit applications for Nationwide only in
those states in which such Contracts are approved.
c. General Agent will not solicit applications in any state unless the Agent
signing the application has been properly licensed by the appropriate
regulatory agency in that state, which may include registrations as a
registered representative of Broker/Dealer if Variable Contracts are being
sold. As a licensed appointee of Nationwide, General Agent will comply with
the statutory and regulatory obligations related to the solicitation and
procurement of applications for Contracts.
d. If General Agent engages in sales of the Contracts on the premises of or
in cooperation with financial institutions (including banks, savings and loan
institutions, or credit unions), General Agent shall, as required by applicable
law, maintain separation of its business from the business of such financial
institution, including separation of records. General Agent shall also conduct
its business at all times so as not to lead to confusion between the business
conducted by General Agent and the business conducted by the financial
institution.
The parties to the Agreement hereby agree to abide by, observe, and otherwise
conduct the business contemplated under the Agreement in a manner consistent
with the Guidelines set forth in the Interagency Statement on Retail Sales
of Non-Deposit Investment Products, issued jointly by the Board of Governors
of the Federal Reserve System, the Federal Deposit Insurance Corporation, the
Office of the Comptroller of the Currency, and the Office of Thrift
Supervision on February 15, 1994, or any modifications or interpretations
thereof.
4. Agent Supervision
a. Before an Agent is permitted to solicit and procure applications for the
Contracts, General Agent and Agent shall have entered into an agreement
pursuant to which such Agent will be appointed as an agent of General Agent
and in which Agent will agree that Agent's selling activities relating to the
Contracts will be under the supervision and control of General Agent. The
Agent's right to continue to sell the Contracts is subject to Agent's
continued compliance with such agreement.
b. If an Agent fails or refuses to submit to supervision of General Agent in
accordance with this Agreement or fails to meet the rules and standards imposed
by General Agent, General Agent shall immediately notify such Agent that such
Agent is no longer authorized to sell the Contracts and shall take whatever
additional action may be necessary to terminate the sales activities of such
Agent relating to the contracts including immediate notification to Nationwide
of such termination.
c. In the event that General Agent regards itself as exempt from the
licensing requirements of a state insurance authority, then General Agent
hereby warrants and guarantees that it shall exercise supervisory control over
the training and conduct of its Agents in a manner consistent with state
insurance requirements with respect to fair, accurate and good faith
representations of product information in the solicitation process, with due
regard to the financial status of individual consumers and the appropriateness
of the Contract as an investment for such individual consumers. Any failure in
this regard, by any Agent of General Agent, shall require General Agent to
immediately terminate such Agent's ability to sell the Contracts and to
notify Nationwide of such termination. In addition, General Agent will
ensure that its Agents comply with all applicable state insurance requirements
and have obtained and maintain any security licenses required by the state
insurance authorities.
5. Sale of Variable Contracts.
a. General Agent agrees that each Agent who sells Variable Contracts will
be a registered representative of Broken-Dealer (for purposes of this section,
"Registered Representative")with the National Association of Securities Dealers
Inc.( the "NASD") before the Agent engages in the offer and sale of Variable
Contracts.
Nationwide represents and warrants to Broker/Dealer that all prospectuses and
other material, which Nationwide makes available to Broker/Dealer will comply
in all respects with any and all applicable federal and state securities laws.
h. Broker/Dealer agrees to allow Registered Representatives to become agent
of record for the Variable Contracts in order to make variable contract
exchanges for their customers and will provide Nationwide with properly
executed, limited Powers of Attorney on a form acceptable to Nationwide.
6. Independent Contractor.
General Agent is free to exercise its own judgment as to the persons from whom
it will solicit applications for Contracts as well as the time, manner and
place of solicitation, and Nationwide will not unreasonably interfere with
its activity or manner of performance under this Agreement as an independent
contractor.
Nothing contained in this Agreement shall create, or shall be construed to
create, the relationship of an employer and employee between Nationwide and
General Agent.
7. Collection of Purchase Payments.
All Contract purchase payments on applications procured by or through General
Agent which General Agent may collect are collected on behalf of Nationwide.
All purchase payments shall be in check or wire transfer. All such monies
received by General Agent shall be collected and transmitted promptly to
Nationwide in a manner agreed to by both General Agent and Nationwide
8. Limitations on Authority. Unless otherwise authorized by Nationwide in
writing pursuant to section _ General Agent shall have no authority on behalf
of Nationwide to:
a. make, alter or discharge any Contract,
b. Incur any indebtedness or liability, expend or contract for the
expenditure of funds of Nationwide,
c. extend the time for payment of any purchase payment, bind Nationwide
to the reinstatement of any terminated Contract, or accept notes for payment
of purchase payments,
d. waive or modify any terms, conditions or limitations. of any Contract,
e. adjust or settle any claim or commit Nationwide with respect thereto
except as provided in Section 12 c.,
f. enter into legal proceedings in connection with any matter pertaining to
Nationwide's business without the prior written consent of Nationwide unless
General Agent is named in such proceedings or General Agent could be subject
to paying all or a part of any judgment. General Agent must immediately give
Nationwide written notification of the legal proceeding. Where General Agent
is either named or may be subject to paying all or a portion of any judgment,
General Agent may retain counsel of its choice,
g. use the registered marks of Nationwide without receiving prior written
approval of Nationwide,
h. represent products of Nationwide except as reflected in the prospectus,
i. advertise or publish any matter or thing concerning Nationwide or the
Contracts without the prior written permission of Nationwide, except as
provided in Section 13,a.,
j. open any bank account or trust account on behalf of, for the benefit of,
or containing the name Nationwide,
k. directly or indirectly cause or endeavor to cause any General Agent or
their Agents to terminate or alter their association with Nationwide, or will
not advise or encourage any Nationwide Contract owner to relinquish, surrender
replace or lapse their Nationwide contract unless such action is in the best
interest of the Contract Owner as reasonably determined by the General Agent,
l. do not perform any note thing other than expressly authorized herein.
9. Agents.
a. General Agent shall select Agents subject to the provisions of this
Agreement; however, Nationwide, shall have the sole discretion to appoint the
selected Agents. General Agent shall notify Nationwide promptly, in writing,
upon the giving or receipt of any notice of termination of an Agent. General
Agent will provide Nationwide with any documentation necessary for the
appointment of the Agents. Nationwide reserves the right to terminate the
appointment of any Agent in its sole discretion. Nationwide will promptly
notify the General Agent of the termination of the appointment of any Agent.
b. At all times during which an Agent is appointed by Nationwide to sell
Contracts, General Agent shall ensure that each Agent has obtained and
maintained all applicable licenses in accordance with applicable state and
federal laws and regulations. General Agent shall provide Nationwide on
request evidence of applicable insurance licenses of General Agent's Agents.
c. General Agent maintains the responsibility to ensure its Agents comply with
the terms of the Agreement.
10. Compensation.
Agents, either directly to General Agent or, as necessary to meet legal
requirements, to the licensed General Agent affiliate or other affiliated
entity which is permitted to receive such compensation under Ohio law. General
Agent represents and warrants that it or its affiliated entity has the
necessary relationship with the Agents based upon which such affiliated entity
is permitted to receive compensation under applicable state insurance law.
General Agent hereby warrants that all necessary contractual arrangements are
in place to enable Nationwide to pay General Agent, or any of its affiliates,
for business produced by Agents in the jurisdiction in which they held licenses.
General Agent shall pay all compensation due to Agents or any other person
with respect to the Contracts, and no such Agent or other person shall
have any claim against Nationwide on account of the sale or service of any
Contract. Nationwide shall have no obligation to make compensation payments
except as provided above. If Nationwide permits the General Agent to retain
compensation before remitting purchase payments, then the Net Compensation
Addendum shall specify that authority. Should Nationwide pay General Agent
for premiums later returned or credited to the customer or any other
overpayment to General Agent, Nationwide shall have, in addition to all other
creditor rights, the right to deduct such overpayment from any current or
future compensation due General Agent.
c. All trail commissions, if any, shall be paid by Nationwide to General
Agent with respect to all Contracts sold by Agents on or before the date of
termination of this Agreement. In the event Nationwide receives notification
to transfer a Contract paying trail commissions to a new General Agent, all
subsequent trail commissions as of the effective date of the transfer will be
paid to the new General Agent of record. This paragraph shall not be in
derogation of any right of offset or other remedy Nationwide may have on
monies owed by General Agent or by the new General Agent of record. General
Agent agrees to maintain any or all federal or state license and appointment
including any applicable renewal fees required in order to receive trail
commissions from Nationwide.
d. Nationwide, with reasonable prior written notice to General Agent, may
change the rate of compensation due on any Contracts sold by Agents after
notification of such rate change. The rate change shall apply to all subsequent
premiums or contributions to Contracts.
e. Notwithstanding any other provisions of this Agreement Nationwide shall
not be obligated to pay any compensation which would be in violation of the
applicable laws, rules or regulations of any jurisdiction.
11. Segregated Bank Account.
All purchase payments received by General Agent on behalf of Nationwide,
including purchase payments received by General Agent from Agents, shall
be held in a segregated bank account and shall be forwarded to Nationwide
in accordance with mutually agreed upon instructions.
12. Indemnification.
a. Nationwide agrees to indemnify and hold General Agent harmless from
any and all losses, claims, damages, liabilities or expenses to which General
Agent may become subject under any statute, regulation, common law or
otherwise, insofar as such losses, claims, damages, liabilities or expenses
relate directly to the sale of the Contracts and arise as a direct consequence
of:
1) any material misrepresentation or omission, or alleged misrepresentation
or omission, contained in the registration statement, prospectuses or the
Contracts;
2) any failure by Nationwide or its employees, whether negligent or
intentional, to perform the duties and discharge the obligations contemplated
in this Agreement: and
3) any fraudulent, unauthorized or wrongful act or omission by Nationwide or
its employees.
b. General Agent agrees to indemnify and hold Nationwide harmless from any
and all losses, claims, damages, liabilities or expenses to which Nationwide
may become subject under any statute, regulation, common law or otherwise,
insofar as such losses, claims, damages, liabilities or expenses related
directly to the sale of the Contracts and arise as a direct consequence of:
1) any material misrepresentation or omission, or alleged misrepresentation
or omission involving the sales contained within this Agreement provided that
such misrepresentations or omissions are not attributable to any failure by
Nationwide.
2) any failure by General Agent or its employees or Agents, whether
negligent or intentional, to perform the duties and discharge the obligations
contemplated in this agreement; and
3) any fraudulent, unauthorized or wrongful act or omission by General
Agent or its employees or Agents.
C. In the event that Nationwide is compelled or agrees to pay any amount in
the settlement of any claim, judgment, arbitration or similar action and, in
conjunction therewith, General Agent voluntarily agrees to reimburse
Nationwide, either partially or totally, Nationwide may deduct the amount of
the reimbursement from any sales compensation subsequently payable to General
Agent. Nothing herein shall obligate General Agent to provide any such
voluntary reimbursement,
d. Neither Nationwide or General Agent shall be liable, as the indemnifying
party pursuant to Sections 12a and 12b, if the losses, claims, damages,
liabilities or legal expenses incurred by the indemnified party arise out of
the indemnified party's willful misfeasance, bad faith, or gross negligence in
the performance of its duties, or through the reckless disregard of the
indemnified party's duties under this Agreement.
e. Nationwide and General Agent will promptly notify each other of the
commencement of any litigation or proceedings, or the assertion of any claim
or any material inquiries related to the duties set forth in the Agreement.
f. This indemnification shall be in addition to any other course of action
Nationwide or General Agent may have.
13. Agreements.
a. All advertising material and sales promotional material published by
General Agent or its Agents that specifically name Nationwide or reference the
Contracts shall be and remain the sole and exclusive property of General Agent
and shall be used solely and exclusively by General Agent and its Agents. Such
material shall be submitted to Nationwide for its approval prior to its use by
General Agent or Agents. Nationwide shall provide its approval in writing.
Such material shall not be used by Nationwide or its other agents without prior
written consent of General Agent.
b. Nationwide and General Agent shall preserve all contracts, records,
books, and accounts on all transactions arising out of this Agreement, and
shall preserve and hold all documents, correspondence and records relating
to Contracts which come into its possession or under its control. All such
books or accounts, documents, correspondence and records of each party
pertaining to or used by it in connection with its operations hereunder shall
belong to it, and at all times shall be open to inspection by any officer or
duly authorized representative of the other party.
c. In the course of normal customer servicing of existing Contracts or if
required by law, Nationwide may contact by mail or otherwise any client,
account executive, or employee of General Agent or other individual acting in
a similar capacity if deemed appropriate by Nationwide.
d. Each party agrees to promptly notify the others in writing of any
customer complaint or notice of regulatory investigation it receives which
may involve the others.
e. Each party represents and warrants that the entering into and performance
of this Agreement does not and will not conflict with or cause a breach of any
other agreement to which any of them is a party.
f. Each party represents and warrants that it has full power and authority
to enter into this Agreement and to carry out its duties and obligations
hereunder.
14. Termination.
a. Each party may terminate this Agreement for cause at any time, without
prior written notice, If another party (1) fails to comply with the laws or
regulations of any state or other governmental agency or body having
jurisdiction over the sale of insurance or securities, (2) misappropriates
any money or property belonging to another party, (3) subjects an other party
to any actual or potential liability due to misfeasance, malfeasance, or
nonfeasance, (4) commits any fraud upon another party, (5) has an assignment
for the benefit of creditors, (6) incurs bankruptcy, or (7) commits a material
breach of this Agreement.
b. This Agreement may be terminated by a party upon 30 days' written notice
to the other parties.
15.
Privacy/Confidentiality of Information.
a. General Agent acknowledges that it has read, and will conform to,
Nationwide's Privacy Statement (Exhibit B), which may be updated from time to
time, and that failure to conform with Nationwide's Privacy Statement is a
material breach of this Agreement constituting irreparable harm.
b. General Agent agrees to comply with all laws, rules, regulations and
ordinances relating to privacy, confidentiality, security, data security and
the handling of customer information which may from time to time be
established.
c. General Agent and Nationwide agree not to disclose or use any consumer
nonpublic personal information (including nonpublic personal financial
information and nonpublic personal health information), which may be supplied
to Nationwide by General Agent or to General Agent by Nationwide, in
performance under this Agreement other than (I) to carry out the purposes for
which it was provided the information, and (ii) to use or disclose it as
otherwise permitted or required by law.
d. Each of the parties warrants to the other that it shall not disclose to
any person any proprietary information which it may acquire in the performance
of this Agreement: nor shall it use such proprietary information for any
purposes other than to fulfill its contractual obligations under this
Agreement
e. This section shall survive and continue in full force and effect
notwithstanding the expiration or termination of the Agreement.
16.
Miscellaneous Provisions.
a. General Agent may assign or pledge any rights under this Agreement with
Nationwide's prior written consent.
b. The forbearance or neglect of Nationwide, Broker/Dealer or Agency to
insist upon strict compliance by a party, with any of the provisions of this
Agreement, whether continuing or not, or to declare a forfeiture of termination
against that party, shall not be construed as a waiver of any of the rights or
privileges of the parties. No waiver of any right or privilege of Nationwide,
Broker/Dealer or Agency arising from any default or failure of performance by
a party shall affect the rights or privileges of the other parties in the event
of a further default or failure of performance.
c. Communications sent pursuant to provisions of this item shall be in
writing and shall be delivered personally or sent by U.S. mail or commercial
courier:
If to Nationwide:
Nationwide Life Insurance
Company and/or
Nationwide Life and Annuity
Insurance Company
Xxx Xxxxxxxxxx Xxxxx
Xxxxxxxx, XX 00000
Attn: Associate Vice President,
Individual Annuity Operations
If to General Agent:
(Broker/Dealer and Agency)
Xxxxxxx, Xxx & Xxxxxxx Securities, Inc.
0000 xxxxx Xxxxx Xxxxx
Xxxxxxxx, XX 00000
Any party may change its address by so notifying the other parties in writing.
Any notice shall be deemed given only upon receipt by the party to be notified.
d. Except as otherwise provided in this Agreement, this Agreement may not be
amended or modified except by a written Agreement executed by the parties.
e. This Agreement (including Amendments and Compensation Schedules)
constitutes the entire agreement between the parties and supersedes all prior
agreements, understandings and arrangements, oral and written, between the
parties with respect to the subject mailer hereto
f. This Agreement shall be binding upon the parties and their respective
successors and assigns.
g This Agreement shall be governed and construed in accordance with the
laws of the State of Ohio.
h. In case any provision in this Agreement shall be invalid, illegal or
unenforceable, the validity, legality and enforceability of the remaining
provisions shall not be affected or impaired.
i. The paragraph headings are for reference purposes only end shall not be
deemed to be a part of this Agreement or to affect the meaning or interpretation
of the Agreement.
j. This Agreement may be executed in any number of counterparts, each of
which shall be deemed to be an original instrument and all of which together
shall be deemed to be one and the same instrument.
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the
date first above written.
XXXXXXX, XXX & XXXXXXX
SECURITIES, INC.
(General Agent)
by:
/s/ Xxxxxx X. xxXxxxx
President
NATIONWIDE LIFE INSURANCE
COMPANY
NATIONWIDE LIFE AND ANNUITY
INSURANCE COMPANY
By:
/s/
Title: AVP
Addendum to the
General Agent Agreement
Single Compensation Payment
Effective date 05/24/01
This Is an addendum to the General Agent Agreement among Nationwide Life
Insurance Company, Nationwide Life and Annuity Insurance Company and Cardinal
Capital Management, Inc. ("General Agent"),
Nationwide will send a single compensation payment to General Agent in a
mutually acceptable manner. Such compensation payment shall be net of
chargebacks and any other charges owed by General Agent. Nationwide will
provide General Agent with Compensation Statements providing descriptions
of the compensation earned by agent. General Agent represents and warrants
that it has all necessary contractual arrangements in place to receive such
payment on behalf of the individual entitles and agents, that it will forward
all commissions to the properly licensed and appointed insurance agencies
and/or agents, and that it will comply with applicable law in its handling
of such commissions.
Notwithstanding any other provisions to this General Agent Agreement,
Nationwide shall not be obligated to pay any compensation which would be in
violation of applicable laws, rules or regulations of any jurisdiction.
Nationwide reserves the right to terminate this arrangement at its discretion
with proper notice to all parties. All of the other provisions of the existing
General Agent Agreement, as amended, shall remain in effect.
XXXXXXX, XXX & XXXXXXX SECURITIES, INC.
(General Agent)
By:
/s/Xxxxxx X. XxXxxxx
President
NATIONWIDE LIFE INSURANCE
COMPANY
NATIONWIDE LIFE AND ANNUITY
INSURANCE COMPANY
By:
/s/
Title; Associate Vice President
