Exhibit (h)(16)
SERVICING AGREEMENT DATED AS OF SEPTEMBER 1, 2002 BY AND BETWEEN
ONE GROUP INVESTMENT TRUST AND NATIONWIDE LIFE AND ANNUITY
INSURANCE COMPANY
SERVICING AGREEMENT
THIS AGREEMENT is made as of the 1st day of September, 2002 by and between
One Group(R) Investment Trust, a Massachusetts business trust (the "Trust") and
Nationwide Life and Annuity Insurance Company (the "Company").
WHEREAS, the Company and the Trust intend to enter into a Fund
Participation Agreement ("Participation Agreement") in order for certain
separate accounts of the Company ("Separate Accounts") to purchase shares
("Shares") of the Portfolios of the Trust (each, a "Portfolio": collectively,
the "Portfolios"). The Portfolios will serve as investment vehicles under
certain variable contracts offered by the Company as listed in Appendix A, which
may be amended from time to time ("Variable Contracts").
WHEREAS, the Trust recognizes that the Company will perform certain
administrative services valuable to the Portfolios in the course of soliciting
applications for the Variable Contracts and in servicing owners of the Variable
Contracts.
NOW, THEREFORE, the parties agree as follows:
Section 1. The Company agrees to provide administrative services
("Services") with respect to the Portfolios listed on Appendix A attached hereto
as such Appendix may be amended from time to time. Services provided may include
some or all of the following: (i) teleservicing support in connection with the
Portfolios; (ii) facilitation of delivery of current prospectuses, reports,
notices, proxies and proxy statements and other informational materials; (iii)
facilitation of the tabulation of Variable Contract owners' votes in the event
of a meeting of Portfolio shareholders; (iv) providing information relating to
the Variable Contracts and Share balances under such Variable Contracts to the
Trust as may be reasonably requested; (v) provision of communication support
services including providing information about the Portfolios and answering
questions concerning the Portfolios, including questions respecting Variable
Contract owners' interests in one or more Portfolios; (vi) administration of
funds transfers, dollar cost averaging, asset allocation, portfolio rebalancing,
earnings sweep, and pre-authorized deposits and withdrawals involving the
Portfolios; and (vii) provisions of such other services as may be agreed upon
from time to time.
Section 2. The Company will provide such office space and equipment,
telephone facilities and personnel (which may be any part of the space,
equipment and facilities currently used in the Company's business, or any
personnel employed by the Company) as may be reasonably necessary or beneficial
in order to provide the aforementioned services to customers.
Section 3. Neither the Company nor any of its officers, employees or
agents are authorized to make any representations concerning the Portfolio of
their Shares except those contained in the Trust's then-current prospectus or
then-current Statement of Additional Information for such shares or in such
supplemental literature or advertising as may be authorized by the Portfolios in
writing.
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Section 4. For all purposes of this Agreement, the Company will be deemed
to be an independent contractor, and will have no authority to act as limited
agent for the Portfolios in any matter or in any respect. By written acceptance
of this Agreement, the Company agrees to and does release, indemnify and hold
the Portfolios harmless from and against any and all direct or indirect
liabilities or losses resulting from requests, directions, actions or inactions
of or by the Company or its officers, employees or agents regarding its
responsibilities hereunder. The Company and its employees will, upon request, be
available during normal business hours to consult with the Portfolios or their
designees concerning the performance of the Company's responsibilities under
this Agreement.
Section 5. In consideration for the services and facilities provided by
the Company hereunder, the Portfolios will pay to the Company, and the Company
will accept as full payment therefore, a fee at the annual rate designated in
Appendix A of the average daily net assets of a Portfolio's Shares owned
beneficially by the Company's customers from time to time for which the Company
provides services hereunder, which fee will be computed daily and payable
monthly. Further, the Portfolios may, in their discretion and without notice,
suspend or withdraw the sale of such Shares, including the sale of such Shares
to the Company for the account of any customer(s).
Section 6. Any person authorized to direct the disposition of monies paid
or payable by the Portfolios pursuant to this Agreement will provide to the
Board of Trustees of the Trust, and the Trustees will review, at least
quarterly, a written report of the amounts so expended and the entities to whom
such expenditures were made. In addition, the Company will furnish the
Portfolios or their designees with such information as the Portfolios or their
designees may reasonably request (including, without limitation, periodic
certifications confirming the provision to customers of some or all of the
services described herein), and will otherwise cooperate with the Portfolios and
their designees (including, without limitation, any auditors designed by the
Portfolios), in connection with the preparation of reports to the Portfolios'
Board of Trustees concerning this Agreement and the monies paid or payable by
the Portfolios pursuant hereto, as well as any other reports or filings that may
be required by law.
Section 7. Both parties may enter into other similar Servicing Agreements
with any other person or persons without the other's consent.
Section 8. By the Company's written acceptance of this Agreement, the
Company represents, warrants and agrees that: (i) in no event will any of the
services provided by the Company hereunder be primarily intended to result in
the sale of any shares issued by the Trust; (ii) the compensation payable to the
Company hereunder, together with any other compensation the Company receives
from customers for services contemplated by this Agreement, will to the extent
required by law, be disclosed to the Company customers, and will not be
excessive or unreasonable under the laws and instruments governing the Company's
relationships with the Company's customers; and (iii) if the Company is subject
to the provisions of the Xxxxx-Xxxxxxxx Act and other laws governing, among
other things, the conduct of activities by federally chartered and supervised
banks and other affiliated banking organizations, the Company will perform only
those activities which are consistent with the Company's statutory and
regulatory
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obligations and will act solely as agent for, upon the order of, and for the
account of, the Company's customers.
Section 9. This Agreement will become effective on the date a fully
executed copy of this Agreement is received by the Portfolios or their designee.
This Agreement may be terminated at any time, without the payment of any penalty
with respect to the Portfolios by the vote of a majority of the members of the
Board of Trustees and who have no direct or indirect financial interest in the
operation of the Services Plan or in any related agreements to the Services Plan
("Disinterested Trustees") or by a majority of the outstanding voting securities
of the Portfolios on not more than sixty (60) days written notice to the parties
to this Agreement, or upon material breach of this Agreement or by either party
on not more than ninety (90) days written notice to the other party.
Section 10. All notices and other communications to either party hereto
will be duly given if mailed, telegraphed, telexed or transmitted by similar
telecommunications device to the appropriate address shown below:
One Group Investment Trust
0000 Xxxxxxx Xxxxxxx, Xxxxx 0-X/X/X, XX0-0000
Xxxxxxxx, Xxxx 00000
Attn: President
Nationwide Life and Annuity Insurance Company
Xxx Xxxxxxxxxx Xxxxx 00-00-X0
Xxxxxxxx, XX 00000
Attn: Director, Securities Registration
Section 11. This Agreement will be construed in accordance with the laws of
the State of Ohio and is assignable upon written consent by all the parties
hereto. Amendments will be made only upon written consent by both parties and
subject to the approval of the Board of Trustees of the Trust when applicable.
Section 12. This Agreement, or form thereof, has been approved by vote of a
majority of (i) the Board of Trustees and (ii) the disinterested Trustees, cast
in person at a meeting called for the purpose of voting on such approval.
Section 13. The names "One Group(R) Investment Trust" and `Trustees of One
Group(R) Investment Trust" refer respectively to the Trust created and the
Trustees, as trustees but not individually or personally, acting from time to
time under a Declaration of Trust dated June 7, 1993 to which reference is
hereby made and a copy of which is on file at the office of the Secretary of the
Commonwealth of Massachusetts and elsewhere as required by law, and to any and
all amendments thereto so filed or hereafter filed. The obligations of `One
Group Investment Trust' entered into in the name or on behalf thereof by any of
the Trustees, representatives or agents are made not individually, but in such
capacities, and are not binding upon any of the Trustees, shareholders or
representatives of the Trust personally, but bind only the assets of the
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Trust, and all persons dealing with any series of shares of the Trust must look
solely to the assets of the Trust belonging to such series for the enforcement
of any claims against the Trust.
ONE GROUP INVESTMENT TRUST NATIONWIDE LIFE AND ANNUITY
INSURANCE COMPANY
By: /s/ Xxxx X. Xxxxxx By: /s/
----------------------------- -----------------------------------
Its: President Its: Vice President - Investment
----------------------------
Management Relationships
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Appendix A
Portfolios
One Group Investment Trust Mid Cap Growth Portfolio
One Group Investment Trust Mid Cap Value Portfolio
Servicing Fees
For each Portfolio: 0.25% of the average daily net assets of Shares of the
Portfolio held by Separate Accounts for the Variable Contracts' owners.
Variable Contracts
Nationwide Life and Annuity Insurance Company Future Corporate Variable
Universal Life
Nationwide Life and Annuity Insurance Company Private Client Corporate Variable
Universal Life
Agreed to this 1st day of September, 2002.
ONE GROUP INVESTMENT TRUST NATIONWIDE LIFE AND ANNUITY
INSURANCE COMPANY
By: /s/ Xxxx X. Xxxxxx By: /s/
-----------------------------------
Its: President Its: Vice President - Investment
Management Relationships
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