JANUS ASPEN SERIES FUND PARTICIPATION AGREEMENT
FUND
PARTICIPATION AGREEMENT
THIS
AGREEMENT is made this 31st day of December, 1999, between JANUS ASPEN SERIES,
an open-end management investment company organized as a Delaware business
trust
(the “Trust”), NATIONWIDE LIFE INSURANCE COMPANY and NATIONWIDE LIFE AND ANNUITY
INSURANCE COMPANY, life insurance companies organized under the laws of the
State of Ohio (“Nationwide”), on their own behalf and on behalf of each
segregated asset accounts of Nationwide set forth on Schedule A, as may be
amended from time to time (the “Accounts”).
WITNESSETH:
WHEREAS,
the Trust has registered with the Securities and Exchange Commission as an
open-end management investment company under the Investment Company Act of
1940,
as amended (the “1940 Act”), and the beneficial interest in the Trust is divided
into several series of shares, such series representing an interested in a
particular managed portfolio of securities and other assets (the “Portfolios”);
and
WHEREAS,
the Trust has registered the offer and sale of two classes of shares designated
as Service Shares and Institutional Shares (collectively, the “Shares”) of the
Portfolios under the Securities Act of 1933, as amended (the “1933 Act”);
and
WHEREAS,
the Trust desires to act as an investment vehicle for separate accounts
established for variable life insurance policies and variable annuity contracts
to be offered by insurance companies that have entered into participation
agreements with the Trust (the “Participating Insurance Companies”);
and
WHEREAS,
the Trust has received an order from the Securities and Exchange Commission
granting Participating Insurance Companies and their 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 Trust to be sold to and held by variable
annuity and variable life insurance separate accounts of both affiliated and
unaffiliated life insurance companies and certain qualified pension and
retirement plans (the “Exemptive Order”); and
WHEREAS,
Nationwide has registered or will register (unless registration is not required
under applicable law) certain variable life insurance policies and/or variable
annuity contracts under the 1933 Act (the “Contracts”); and
WHEREAS,
Nationwide has registered or will register each Account as a unit investment
trust under the 1940 Act; and
WHEREAS,
Nationwide desires to utilize the Shares of one or more Portfolios as an
investment vehicle of the Accounts;
NOW,
THEREFORE, in consideration of their mutual promises, the parties agree as
follows:
ARTICLE
I
Sale
of Trust Shares
1.1 The
Trust shall make Shares of its Portfolios available to the Accounts at the
net
asset value next computed after receipt of such purchase order by the Trust
(or
its agent), as established in accordance with the provisions of the then current
prospectus of the Trust. Shares of a particular Portfolio of the
Trust shall be ordered in such quantities and at such times as determined by
Nationwide to be necessary to meet the requirements of the
Contracts. The Trustees of the Trust (the “Trustees”) 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 their fiduciary duties under federal and
any applicable state laws, necessary in the best interests of the shareholders
of such Portfolio.
1.2 The
Trust will redeem any full or fractional Shares of any Portfolio when requested
by Nationwide on behalf of an Account at the net asset value next computed
after
receipt by the Trust (or its agent) of the request for redemption, as
established in accordance with the provisions of the then current prospectus
of
the Trust. The Trust shall make payment for such shares in the manner
established from time to time by the Trust, but in no event shall payment be
delayed for a greater period than is permitted by the 0000 Xxx.
1.3 For
the purposes of Sections 1.1 and 1.2, the Trust hereby appoints Nationwide
as
its agent for the limited purpose of receiving and accepting purchase and
redemption orders resulting from investment in and payments under the
Contracts. Receipt by Nationwide shall constitute receipt by the
Trust provided that i) such orders are received by Nationwide in good order
prior to the time the net asset value of each Portfolio is priced in accordance
with its prospectus and ii) the Trust receives notice of such orders by 10:00
a.m. New York time on the next following Business Day. “Business Day”
shall mean any day on which the New York Stock Exchange is open for trading
and
on which the Trust calculates its net asset value pursuant to the rules of
the
Securities and Exchange Commission.
1.4 Purchase
orders that are transmitted to the Trust in accordance with Section 1.3 shall
be
paid for no later than 12:00 noon New York time on the same Business Day that
the Trust receives notice of the order. Payments shall be made in
federal funds transmitted by wire.
1.5 Issuance
and transfer of the Trust’s Shares will be by the book entry
only. Stock certificates will not be issued to Nationwide or the
Accounts. Shares ordered from the Trust will be recorded in the
appropriate title for each Account or the appropriate subaccount of each
Account.
1.6 The
Trust shall furnish prompt notice to Nationwide of any income dividends or
capital gain distributions payable on the Trust’s Shares. Nationwide
hereby elects to receive all such income dividends and capital gain
distributions as are payable on a Portfolio’s Shares in additional Shares of
that Portfolio. The Trust shall notify Nationwide of the number of
Shares so issued as payment of such dividends and distributions.
1.7 The
Trust shall make the net asset value per Share for each Portfolio available
to
Nationwide on a daily basis 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 6:00 p.m. New York time.
1.8 The
Trust agrees that its Shares will be sold only to Participating Insurance
Companies and their separate accounts and to certain qualified pension and
retirement plans to the extent permitted by the Exemptive Order. No
Shares of any Portfolio will be sold directly to the general
public. Nationwide agrees that Trust Shares will be used only for the
purposes of funding the Contracts and Accounts listed in Schedule A, as amended
from time to time.
1.9 The
Trust agrees that all Participating Insurance Companies shall have the
obligations and responsibilities regarding pass-through voting and conflicts
of
interest corresponding to those contained in Section 2.8 and Article IV of
this
Agreement.
1.10 Within
five (5) Business Days after the end of each calendar month, the Trust shall
mail to Nationwide a monthly statement of account, which shall confirm all
transactions made during that particular month in the Accounts.
ARTICLE
II
Obligations
of the Parties
2.1 The
Trust shall prepare and be responsible for filing with the Securities and
Exchange Commission and any state regulators requiring such filing all
shareholder reports, notices, proxy materials (or similar materials such as
voting instruction solicitation materials), prospectuses and statements of
additional information of the Trust. The Trust shall bear the costs
of registration and qualification of its shares, preparation and filing of
the
documents listed in this Section 2.1 and all taxes to which an issuer is subject
on the issuance and transfer of its shares.
2.2 The
Trust shall provide Nationwide (at Nationwide’s expense) with as many copies of
the Trust’s Shares’ current prospectus, annual report, semi-annual report and
other shareholder communications, including any amendments or supplements to
any
of the foregoing, as Nationwide shall reasonably request. The Trust
shall provide Nationwide with a copy of the Shares’ statement of additional
information in a form suitable for duplication by Nationwide. The
Trust (at its expense) shall provide Nationwide with copies of any
Trust-sponsored proxy materials in such quantity as Nationwide shall reasonably
required for distribution to Contract owners.
2.3 (a) Nationwide
shall bear the costs of printing and distributing the Trust’s Shares’
prospectus, statement of additional information, shareholder reports and other
shareholder communications to owners of and applicants for policies for which
Shares of the Trust are serving or are to serve as an investment
vehicle. Nationwide shall bear the costs of distributing proxy
materials (or similar materials such as voting solicitation instructions) to
Contract owners. Nationwide assumes sole responsibility for ensuring
that such materials are delivered to Contract owners in accordance with
applicable federal and state securities laws, provided that all such materials
are provided to Nationwide in a timely manner.
(b) If
Nationwide elects to include any materials provided by the Trust, specifically
prospectuses, SAIs, shareholder reports and proxy materials, on its web site
or
in any other computer or electronic format, Nationwide assumes sole
responsibility for maintaining such materials in the form provided by the Trust
and for promptly replacing such materials with all updates provided by the
Trust.
2.4 Nationwide
agrees and acknowledges that the Trust’s adviser, Janus Capital Corporation
(“Janus Capital”), is the sole owner of the name and xxxx “Xxxxx” and that all
use of any designation comprised in whole or part of Janus (a “Xxxxx Xxxx”)
under this Agreement shall inure to the benefit of Janus
Capital. Except as provided in Section 2.5, Nationwide shall not use
any Xxxxx Xxxx on its own behalf or on behalf of the Accounts or Contracts
in
any registration statement, advertisement, sales literature or other materials
relating to the Accounts or Contracts without the prior written consent of
Janus
Capital. Upon termination of this Agreement for any reason,
Nationwide shall cease all use of any Xxxxx Xxxx(s) as soon as reasonably
practicable.
2.5 The
Trust agrees and acknowledges that “The Best of America” logo is a federally
registered service xxxx of Nationwide Life Insurance Company; “Nationwide,”
“Nationwide Life,” “Nationwide Insurance Enterprise” and the N-and eagle logo
are federally registered service marks of Nationwide Mutual Insurance
Company. The Nationwide frame is a service xxxx of Nationwide Mutual
Insurance Company. The Trust shall not xxx any of the service marks
listed in this provision on its own behalf without the written consent of
Nationwide. Upon termination of this Agreement for any reason, the
Trust shall cease all use of any Nationwide service marks as soon as reasonably
practicable.
2.6 Nationwide
acknowledges that the identity of Janus’ (and its affiliates and/or
subsidiaries’) customers and all information maintained about those customers
constitute the valuable property of Janus. Nationwide agrees that,
should it come into contact or possession of any such information (including,
but not limited to, lists or compilations of the identify 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 Janus’
prior written consent or as required by law or judicial process.
2.7 Janus
acknowledges 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. Janus agrees that,
should it come into contact or possession of any such information (including,
but not limited to, lists or compilations of such customers), Janus shall hold
such information or property in confidence and shall not xxx, disclose or
distribute any such information or property except with Nationwide’s prior
written consent or as required by law or judicial process.
Sections
2.6 and 2.7 shall survive the expiration or termination of this
Agreement.
2.8 Nationwide
shall furnish, or cause to be furnished, to the Trust or its designee, a copy
of
each Contract prospectus or statement of additional information in which the
Trust or its investment advisor is named prior to the filing of such document
with the Securities and Exchange Commission. Nationwide shall
furnish, or shall cause to be furnished, to the Trust or its designee, each
piece of sales literature or other promotional material in which the Trust
or
its investment advisor is named, at least fifteen Business Days prior to its
use. No such material shall be used if the Trust or its designee
reasonably objects to such use within fifteen Business Days after receipt of
such material.
2.9 Nationwide
shall not give any information or make any representations or statements on
behalf of the Trust or concerning the Trust or its investment advisor in
connection with the sale of the Contracts other than information or
representations contained in and accurately derived from the registration
statement or prospectus for the Trust Shares (as such registration statement
and
prospectus may be amended or supplemented from time to time), reports of the
Trust, Trust-sponsored proxy statements, or in sales literature or other
promotional material approved by the Trust or its designee, except as required
by legal process or regulatory authorities or with the written permission of
the
Trust or its designee.
2.10 The
Trust shall not give any information or make any representations or statements
on behalf of Nationwide or concerning Nationwide, the Accounts or the Contracts
other than information or representations contained in and accurately derived
from the registration statement or prospectus for the Contracts (as such
registration statement and prospectus may be amended or supplemented from time
to time), or in materials approved by Nationwide for distribution including
sales literature or other promotional materials, except as required by legal
process or regulatory authorities or with the written permission of
Nationwide.
2.11 So
long as, and to the extent that the Securities and Exchange Commission
interprets the 1940 Act to required pass-through voting privileges for variable
policy owners, Nationwide will provide pass-through voting privileges to owners
of policies whose cash values are invested, through the Accounts, in shares
of
the Trust. The Trust shall require all Participating Insurance
Companies to calculate voting privileges in the same manner and Nationwide
shall
be responsible for assuring that the Accounts calculate voting privileges in
the
manner established by the Trust. With respect to each Account,
Nationwide will vote Shares of the Trust held by the Account and for which
no
timely voting instructions from policy owners are received, as well as Shares
it
owns that are held by that Account, in the same proportion as those Shares
for
which voting instructions are received. Nationwide and its agents
will in no way recommend or oppose or interfere with the solicitation of proxies
for Trust shares held by Contract owners without the prior written consent
of
the Trust, which consent may be withheld in the Trust’s sole
discretion.
2.12 Nationwide
shall notify the Trust of any applicable state insurance laws that restrict
the
Portfolios’ investments or otherwise affect the operation of the Trust and shall
notify the Trust of any changes in such laws.
ARTICLE
III
Representations
and Warranties
3.1 Nationwide
represents and warrants that it is an insurance company duly organized and
in
good standing under the laws of the State of Ohio and that it has legally and
validly established each Account as a segregated asset account under such law
on
the date set forth in Schedule A.
3.2 Nationwide
represents and warrants that each Account has been registered or, prior to
any
issuance or sale of the Contracts, will be registered as a unit investment
trust
in accordance with the provisions of the 1940 Act, unless otherwise exempt
from
Section 3(c)(11) thereof.
3.3 Nationwide
represents and warrants that the Contracts or interests in the Accounts (1)
are
or, prior to issuance, will be registered as securities under the 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 1933
Act. Nationwide further represents and warrants that the Contracts
will be issued and sold in compliance in all material respects with all
applicable federal and states laws; and the sale of the Contracts shall comply
in all material respects with state insurance suitability
requirements.
3.4 Each
party represents and warrants to the other that it anticipates that any of
its
trading systems that interact with the other via any form of automated feed
prior to, during and after the calendar year 2000 will recognize accurate
century data, and user interfaces and operation environments will comply with
Year 2000 application standards.
3.5 The
Trust represents and warrants that it is duly organized and validly existing
under the laws of the State of Delaware.
3.6 The
Trust represents and warrants that the Trust Shares offered and sold pursuant
to
this Agreement will be registered under the 1933 Act and the Trust shall be
registered under the 1940 Act prior to any issuance of sale of such
Shares. The Trust shall amend its registration statement under the
1933 Act and the 1940 Act from time to time as required in order to affect
the
continuous offering of its Shares. The Trust shall register and
qualify its Shares for sale in accordance with the laws of the various states
only if and to the extent deemed advisable by the Trust.
3.7 The
Trust represents and warrants that the investments of each Portfolio will comply
with the diversification requirements set forth in Section 817(h) of the
Internal Revenue Code of 1986, as amended, and the rules and regulations
thereunder.
ARTICLE
IV
Potential
Conflicts
4.1 The
parties acknowledge that the Trust’s Shares may be made available for investment
to other Participating Insurance Companies. In such event, the
Trustees will monitor the Trust for the existence of any material irreconcilable
conflict between the interests of the contract owners of all Participating
Insurance Companies. An irreconcilable material 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 interpretative 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 are being managed; (e) a difference in voting instructions given
by variable annuity contract and variable life insurance contract owners: of
(f)
a decision by an insurer to disregard the voting instructions of contract
owners. The Trustees shall promptly inform Nationwide if they
determine that an irreconcilable material conflict exists and the implications
thereof.
4.2 Nationwide
agrees to promptly report any potential or existing conflicts of which it is
aware to the Trustees. Nationwide will assist the Trustees in
carrying out their responsibilities under the Exemptive Order by providing
the
Trustees with all information reasonably necessary for the Trustees to consider
any issues raised including, but not limited to, information as to a decision
by
Nationwide to disregard Contract owner voting instructions.
4.3 If
it is determined by a majority of the Trustees, or a majority of its
disinterested Trustees, that a material irreconcilable conflict exists that
affects the interests of Contract owners, Nationwide shall, in cooperation
with
other Participating Insurance Companies whose contract owners are also affected,
at its expense and to the extent reasonably practicable (as determined by the
Trustees) take whatever steps are necessary to remedy or eliminate the
irreconcilable material conflict, which steps could include: (a) withdrawing
the
assets allocable to some or all of the Accounts from the Trust or any Portfolio
and reinvesting such assets in a different investment medium, including (but
not
limited to) another Portfolio of the Trust, or submitting the question of
whether or not such segregation should be implemented to a vote of all affected
Contract owners and, as appropriate, segregating the assets of any appropriate
group (i.e., annuity contract owners, life insurance contract owners, or
variable contract owners of one or more Participating Insurance Companies)
that
votes in favor of such segregation, or offering to the affected Contract owners
the option of making such a change; and (b) establishing a new registered
management investment company or managed separate account.
4.4 If
a material irreconcilable conflict arises because of a decision by Nationwide
to
disregard Contract owner voting instructions and that decision represents a
minority position or would preclude a majority vote, Nationwide may be required,
at the Trust’s election, to withdraw the affected Account’s investment in the
Trust and terminate this Agreement with respect to such Account; 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. Any such withdrawal and
termination must take place within six (6) months after the Trust gives written
notice that this provision is being implemented. Until the end of
such six (6) month period, the Trust shall continue to accept and implement
orders by Nationwide for the purchase and redemption of shares of the
Trust.
4.5 If
a material irreconcilable conflict arises because a particular state insurance
regulator’s decision applicable to Nationwide conflicts with the majority of
other state regulators, and such conflict cannot be remedied in a timely manner,
then Nationwide will withdraw the affected Account’s investment in the Trust and
terminate this Agreement with respect to such Account within six (6) months
after the Trustees inform Nationwide in writing that it has determined that
such
decision has created an irreconcilable material conflict; 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. Until the end of such six (6) month
period, the Trust shall continue to accept and implement orders by Nationwide
for the purchase and redemption of shares of the Trust.
4.6 For
purposes of Section 4.3 through 4.6 of this Agreement, a majority of the
disinterested Trustees shall determine whether any proposes action adequately
remedies any irreconcilable material conflict, but in no event will Nationwide
be required to establish a new funding medium for the Contracts if an offer
to
do so has been declined by vote of a majority of Contract owners materially
adversely affected by the irreconcilable material conflict. In the
event that the Trustees determine that any proposed action does not adequately
remedy any irreconcilable material conflict, then Nationwide will withdraw
the
Account’s investment in the Trust (pending SEC approval) and terminate this
Agreement within six (6) months after the Trustees inform Nationwide in writing
of the foregoing determination; provided, however, that such withdrawal and
termination shall be limited to the extent required by any such material
irreconcilable conflict as determined by a majority of the disinterested
Trustees.
4.7 Nationwide
shall at least annually submit to the Trustees such reports, materials or data
as the Trustees may reasonably request so that the Trustees may fully carry
out
the duties imposed upon them by the Exemptive Order, and said reports, materials
and data shall be submitted more frequently if deemed appropriate by the
Trustees.
4.8 If
and to the extent that Rule 6e-2 and Rule 6e-3(T) are amended, or Rule 6e-3
is
adopted, to provide exemptive relief from any provision of the 1940 Act or
the
rules promulgated thereunder with respect to mixed or shared funding (as defined
in the Exemptive Order) on terms and conditions materially different from those
contained in the Exemptive Order, then the Trust and/or the Participating
Insurance Companies, as appropriate, shall take such steps as may be necessary
to comply with Rules 6e-2 and 6e-3(T), as amended, and Rule 6e-3, as adopted,
to
the extent such rules are applicable.
ARTICLE
V
Indemnification
5.1 Indemnification
By Nationwide. Nationwide agrees to indemnify and hold harmless
the Trust and each of its Trustees, officers, employees and agents and each
person, if any, who controls the Trust within the meaning of Section 15 of
the
1933 Act (collectively, the “Indemnified Parties” for purposes of this Article
V) against any and all losses, claims, damages, liabilities (including amounts
paid in settlement with the written consent of Nationwide) or expenses
(including the reasonable costs of investigating or defending any alleged loss,
claim, damage, liability or expense and reasonable legal counsel fees incurred
in connection therein) (collectively, “Losses”), to which the Indemnified
Parties may become subject under any statute or regulation, or at common law
or
otherwise, insofar as such Losses:
(a) arise
out of or are based upon any untrue statements or alleged untrue statements
of
any material fact contained in a registration statement or prospectus for the
Contracts or in the Contracts themselves or in sales literature generated or
approved by Nationwide on behalf of the Contracts or Accounts (or any amendment
or supplement to any of the foregoing) (collectively, “Company Documents” for
the purposes of this Article V), 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 indemnity shall not apply as to any Indemnified Party if such
statement or omission or such alleged statement or omission was made in reliance
upon or was accurately derived from written information furnished to Nationwide
by or on behalf of the Trust for use in Company Documents or otherwise for
use
in connection with the sale of the Contracts or Trust Shares; or
(b) arise
out of or result from statements or representations (other than statements
or
representations contained in and accurately derived from Trust Documents as
defined in Section 5.2(a)) or wrongful conduct of Nationwide or persons under
its control, with respect to the sale or acquisition of the Contracts or Trust
Shares; or
(c) arise
out of or result from any untrue statement or alleged untrue statement of a
material fact contained in Trust Documents as defined in Section 5.2(a) 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 statement or omission was made in reliance upon or accurately derived
from
written information furnished to the Trust by or on behalf of Nationwide;
or
(d) arise
out of or result from any failure by Nationwide to provide the services or
furnish the materials required under the terms of this Agreement;
or
(e) arise
out of or result from any material breach of any representation and/or warranty
made by Nationwide in this Agreement or arise out of or result from any other
material breach of this Agreement by Nationwide.
5.2 Indemnification
By the Trust. The Trust agrees to indemnify and hold harmless
Nationwide and each of its directors, officers, employees and agents and each
person, if any, who controls Nationwide within the meaning of Section 15 of
the
1933 Act (collectively, the “Indemnified Parties” for purposes of this Article
V) against any and all losses, claims, damages, liabilities (including amounts
paid in settlement with the written consent of the Trust) or expenses (including
the reasonable costs of investigating or defending any alleged loss, claim,
damage, liability or expense and reasonable legal counsel fees incurred in
connection therewith) (collectively, “Losses”), to which the Indemnified Parties
may become subject under any statute or regulation, or at common law or
otherwise, insofar as such Losses:
(a) arise
out of or are based upon any untrue statements or alleged untrue statements
of
any material fact contained in the registration statement or prospectus for
the
Trust (or any amendment or supplement thereto), (collectively, “Trust Documents”
for the purposes of this Article V), 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 indemnity 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 was accurately derived from written information furnished to the Trust
by or on behalf of Nationwide for use in Trust Documents or otherwise for use
in
connection with the sale of the Contracts or Trust Shares; or
(b) arise
out of or result from statements or representations (other than statements
or
representations contained in and accurately derived from Nationwide Documents)
or wrongful conduct of the Trust or persons under its control, with respect
to
the sale or acquisition of the Contracts or Trust Shares; or
(c) arise
out of or result from any untrue statement or alleged untrue statement of a
material fact contained in Nationwide Documents 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 statement or
omission was made in reliance upon and accurately derived from written
information furnished to Nationwide by or on behalf of the Trust;
or
(d) arise
out of or result from any failure by the Trust to provide the services or
furnish the materials required under the terms of this Agreement;
or
(e) arise
out of or result from any material breach of representation and/or warranty
made
by the Trust in this Agreement or arise out of or result from any other material
breach of this Agreement by the Trust.
5.3 Neither
Nationwide nor the Trust shall be liable under the indemnification provisions
of
Sections 5.1 or 5.2, as applicable, with respect to any Losses incurred or
assessed against an Indemnified Party that arise from such Indemnified Party’s
willful misfeasance, bad faith or negligence in the performance of such
Indemnified Party’s duties or by reasons of such Indemnified Party’s reckless
disregard of obligations or duties under this Agreement.
5.4 Neither
Nationwide nor the Trust shall be liable under the indemnification provisions
of
Sections 5.1 or 5.2, as applicable, with respect to any claim made against
an
Indemnified Party unless such Indemnified Party shall have notified the other
party in writing within a reasonable time after the summons, or other first
written notification, giving information of the nature of the claim shall have
been served upon or otherwise received by such Indemnified Party (or after
such
Indemnified Party shall have received notice of service upon or other
notification to any designated agent), but failure to notify the party against
whom indemnification is sought of any such claim shall not relive that party
from any liability which it may have to the Indemnified party in the absence
of
Sections 5.1 and 5.2.
5.5 In
case any such action is brought against the Indemnified Parties, the
indemnifying party shall be entitled to participate, at its own expense, in
the
defense of such action. The indemnifying party also shall be entitled
to assume the defense thereof, with counsel reasonably satisfactory to the
party
named in the action. After notice from the indemnifying party to the
Indemnified Party of an election to assume such defense, the Indemnified Party
shall bear the fees and expenses of any additional counsel retained by it,
and
the indemnifying party will not be liable to the Indemnified 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.
ARTICLE
VI
Termination
6.1 This
Agreement may be terminated by either party for any reason by ninety (90) days
advance written notice delivered to the other party.
6.2 Notwithstanding
any termination of this Agreement, the Trust shall, at the option of Nationwide,
continue to make available additional shares of the Trust (or any Portfolio)
pursuant to the terms and conditions of this Agreement for all Contracts in
effect on the effective date of termination of this Agreement, provided that
Nationwide continues to pay the costs set forth in Section 2.3.
6.3 The
provisions of Article V shall survive the termination of this Agreement, and
the
provisions of Article IV and Section 2.8 shall survive the termination of this
Agreement, as long as the Shares of the Trust are held on behalf of Contract
owners in accordance with Section 6.2.
ARTICLE
VII
Notices
Any
notice shall be sufficiently given
when sent by registered or certified mail 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
Trust:
000
Xxxxxxxx Xxxxxx
Xxxxxx,
Xxxxxxxx 00000
Attention:
General Counsel
If
to
Nationwide:
Xxx
Xxxxxxxxxx Xxxxx 0-00-00
Xxxxxxxx,
Xxxx 00000
Attention: Vice
President – Office of Product and Market Compliance
With
a
copy to:
Xxx
Xxxxxxxxxx Xxxxx 0-00-X0
Xxxxxxxx,
Xxxx 00000
Attention: Compliance
Manager – Securities Filings
ARTICLE
VIII
Miscellaneous
8.1 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.
8.2 This
Agreement may be executed simultaneously in two or more counterparts, each
of
which taken together shall constitute one and the same instrument.
8.3 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.
8.4 This
Agreement shall be construed and the provisions hereof interpreted under and
in
accordance with the laws of the State of Colorado.
8.5 The
parties of this Agreement acknowledge and agree that all liabilities of the
Trust arising, directly or indirectly, under this Agreement, of any and every
nature whatsoever, shall be satisfied solely out of the assets of the Trust
and
that no Trustee, officer, agent or holder of shares of beneficial interest
of
the Trust shall be personally liable for any such liabilities.
8.6 Each
party shall cooperate with each other party and all appropriate governmental
authorities (including without limitation the Securities and Exchange
Commission, the National Association of Securities Dealers, Inc., 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.
8.7 The
rights, remedies and obligations contained in this Agreement are cumulative
and
are in addition to any and all rights, remedies and obligations, at law or
in
equity, which the parties hereto are entitled to under state and federal
laws.
8.8 The
parties of this Agreement acknowledge and agree that this Agreement shall not
be
exclusive in any respect.
8.9 Neither
this Agreement nor any rights or obligations hereunder may be assigned by either
party without the prior written approval of the other party.
8.10 No
provisions of this Agreement may be amended or modified in any manner except
by
a written agreement properly authorized and executed by both
parties.
8.11 Nothing
in this Agreement shall be deemed to create a partnership or joint venture
by
and among the parties hereto.
8.12 This
Agreement supersedes the Fund Participation Agreement dated November 3, 1997,
between the parties.
IN
WITNESS WHEREOF, the parties have caused their duly authorized officers to
execute this Participation Agreement as of the date and year first above
written.
By:
Name: Xxxxxx
X.
Xxxx
Title: Assistant
Vice President
NATIONWIDE
LIFE
INSURANCE
COMPANY
and NATIONWIDE LIFE
AND
ANNUITY
INSURANCE
COMPANY
By:
Name:
Xxxxxxx
X.
Xxxxx
Title: Senior
Vice
President – Sales – Financial Services
Schedule
A
Separate
Accounts and Portfolios Available In Such Separate
Accounts
Name
of Separate Account
|
Janus
Funds
|
Nationwide
MultiFlex Variable Account
|
-
Janus Aspen Series International Growth Portfolio (Institutional
Shares)
|
Nationwide
Variable Account – 9
|
-
Janus Aspen Series Service Shares Capital Appreciation
Portfolio
-
Janus Aspen Series Service Shares International Growth
Portfolio
-
Janus Aspen Series Service Shares Global Technology
Portfolio
|
Nationwide
Variable Account – 10
|
-
Janus Aspen Series Service Shares Capital Appreciation
Portfolio
-
Janus Aspen Series Service Shares International Growth
Portfolio
-
Janus Aspen Series Service Shares Global Technology
Portfolio
|
Nationwide
VLI Separate Account – 4
|
-
Janus Aspen Series Service Shares Capital Appreciation
Portfolio
-
Janus Aspen Series Service Shares International Growth
Portfolio
-
Janus Aspen Series Service Shares Global Technology
Portfolio
|
Nationwide
VL Separate Account – C
|
-
Janus Aspen Series Service Shares Capital Appreciation
Portfolio
-
Janus Aspen Series Service Shares International Growth
Portfolio
-
Janus Aspen Series Service Shares Global Technology
Portfolio
|
Private
Placement Separate Account
|
-
Janus Aspen Series Service Shares Capital Appreciation
Portfolio
-
Janus Aspen Series Service Shares International Growth
Portfolio
-
Janus Aspen Series Service Shares Global Technology
Portfolio
|
December
1, 1999
VIA
FEDERAL EXPRESS
Xxxxxxx
Xxxxxx, Esq.
Compliance
Manager
Nationwide
Life Insurance Company
Xxx
Xxxxxxxxxx Xxxxx, 00-00-X0
Xxxxxxxx,
XX 00000
Dear
Xx.
Xxxxxx:
Enclosed
for your files are fully executed copies of the Fund Participation Agreement,
Distribution and Shareholder Services Agreement and side letter Services
Agreement between Nationwide and Janus, regarding Janus Aspen Series Service
Shares. We have retained an original of each agreement for our
files.
As
we
discussed, the registration statement for Janus Aspen Series Service Shares
is
not expected to become effective with the SEC until December 31,
1999. Thus, these agreements should not be considered an offer to
sell or contract to sell the Service Shares until such registration statement
is
effective. If, for some reason, the registration statement should not
become effective, these agreements will not take effect. Please
acknowledge your agreement and consent of this understanding by signing the
acknowledgement below.
Sincerely,
Xxxxxx
X.
Xxxx
Associate
Counsel
Acknowledged
and Agreed to:
By:
Name:
[Xxxxxxx Xxxxxx]
Title: Vice
President – Nationwide Financial
cc:
Xxxxx
Xxxxx
Xxxx
Xxxxxxxx
Xxxx
Xxxx
Xxxxx
Xxxxxxx (w/o enc.)