PARTICIPATION AGREEMENT Among and NATIONWIDE FINANCIAL SERVICES, INC.
Among
▇.
▇▇▇▇ PRICE EQUITY SERIES, INC.,
▇.
▇▇▇▇ PRICE INTERNATIONAL SERIES, INC.,
▇.
▇▇▇▇ PRICE FIXED INCOME SERIES, INC.,
▇.
▇▇▇▇ PRICE INVESTMENT SERVICES, INC.,
and
NATIONWIDE
FINANCIAL SERVICES, INC.
THIS
AGREEMENT, made and entered into as of this 1st day of
October, 2002 by and among Nationwide Financial Services, Inc. on
behalf of its subsidiary life insurance companies (hereinafter, the "Company"),
and on behalf of each separate account of the Company set forth on Schedule
A
hereto as may be amended from time to time (each account hereinafter referred
to
as the "Account"), and the undersigned funds, each, a corporation organized
under the laws of Maryland (each hereinafter referred to as the "Fund") and
▇.
▇▇▇▇ Price Investment Services, Inc. (hereinafter the "Underwriter"), a Maryland
corporation. All references to the term “Company” in this Agreement
shall include the subsidiary life insurance companies, set forth in Schedule
A
hereto, and all representations, warranties, and other provisions of this
Agreement relating to the rights, remedies, obligations, and duties of the
Company shall also be deemed to include its subsidiary life insurance
companies.
WHEREAS,
the Fund engages in business as an open-end management investment company and
is
or will be available to act as the investment vehicle for separate accounts
established for variable life insurance and variable annuity contracts (the
"Variable Insurance Products") to be offered by insurance companies which have
entered into participation agreements with the Fund and Underwriter (hereinafter
"Participating Insurance Companies"); and
WHEREAS,
the beneficial interest in the Fund is divided into several series of shares,
each designated a "Portfolio" and representing the interest in a particular
managed portfolio of securities and other assets; and
WHEREAS,
the Fund has obtained an order from the Securities and Exchange Commission
("SEC") granting Participating Insurance Companies and variable annuity and
variable life insurance separate accounts exemptions from the provisions of
sections 9(a), 13(a), 15(a), and 15(b) of the Investment Company Act of 1940,
as
amended, (hereinafter the "1940 Act") and Rules 6e-2(b)(15) and 6e-3(T) (b)(15)
thereunder, to the extent necessary to permit shares of the Fund to be sold
to
and held by variable annuity and variable life insurance separate accounts
of
both affiliated and unaffiliated life insurance companies (hereinafter the
"Shared Funding Exemptive Order"); and
WHEREAS,
the Fund is registered as an open-end management investment company under the
1940 Act and shares of the Portfolios are registered under the Securities Act
of
1933, as amended (hereinafter the "1933 Act"); and
WHEREAS,
certain of such Funds have issued multiple classes of shares for the purpose
of
paying the Company for its distribution expenses pursuant to the a plan under
Rule 12b-1 under the 1940 Act; and
WHEREAS,
▇. ▇▇▇▇ Price Associates, Inc. and ▇. ▇▇▇▇ Price International,
Inc. (each hereinafter referred to as the "Adviser") are each duly
registered as an investment adviser under the Investment Advisers Act of 1940,
as amended, and any applicable state securities laws; and
WHEREAS,
the Company has registered or will register certain variable life insurance
or
variable annuity contracts supported wholly or partially by the Account (the
"Contracts") under the 1933 Act, unless otherwise exempt; and
WHEREAS,
the Account is duly established and maintained as a separate account,
established by resolution of the Board of Directors of the Company, to set
aside
and invest assets attributable to the aforesaid Contracts; and
WHEREAS,
the Company has registered or will register the Account as a unit investment
trust under the 1940 Act unless exempt from registration based on Section
3(c)(1) or 3(c)(7) of the 1940 Act, or any other applicable exemption;
and
WHEREAS,
the Underwriter is registered as a broker dealer with the SEC under the
Securities Exchange Act of 1934, as amended (hereinafter the "1934 Act"), and
is
a member in good standing of the National Association of Securities Dealers,
Inc. (hereinafter "NASD"); and
WHEREAS,
to the extent permitted by applicable insurance laws and regulations, the
Company intends to purchase shares in the Portfolios listed in Schedule B
hereto, as it may be amended from time to time by mutual written agreement
(the
"Designated Portfolios") on behalf of the Account to fund the aforesaid
Contracts, and the Underwriter is authorized to sell such shares to unit
investment trusts such as the Account at net asset value;
NOW,
THEREFORE, in consideration of their mutual promises, the Company, the Fund
and
the Underwriter agree as follows:
ARTICLE
I. Sale of Fund Shares
1.1 The
Underwriter agrees to sell to the Company those shares of the Designated
Portfolios which the Account orders, executing such orders on a daily basis
at
the net asset value next computed after receipt by the Fund or its designee
of
the order for the shares of the Designated Portfolios.
1.2 The
Fund agrees to make shares of the Designated Portfolios available for purchase
at the applicable net asset value per share by the Company and the Account
on
those days on which the Fund calculates its net asset value pursuant to rules
of
the SEC, and the Fund shall use its best efforts to calculate such net asset
value on each day which the New York Stock Exchange is open for
trading. Notwithstanding the foregoing, the Board of Directors of the
Fund (hereinafter the "Board") may refuse to sell shares of any Designated
Portfolio to any person, or suspend or terminate the offering of shares of
any
Designated Portfolio if such action is required by law or by regulatory
authorities having jurisdiction, or is, in the sole discretion of the Board
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 Designated Portfolio.
1.3 The
Fund and the Underwriter agree that shares of the Fund will be sold only to
Participating Insurance Companies and their separate accounts. No
shares of any Designated Portfolios will be sold to the general
public. The Fund and the Underwriter will not sell Fund shares to any
insurance company or separate account unless an agreement containing provisions
substantially the same as Articles I, III and VII of this Agreement is in effect
to govern such sales.
1.4 The
Fund agrees to redeem, on the Company's request, any full or fractional shares
of the Designated Portfolios held by the Company, executing such requests on
a
daily basis at the net asset value next computed after receipt by the Fund
or
its designee of the request for redemption, except that the Fund reserves the
right to suspend the right of redemption or postpone the date of payment or
satisfaction upon redemption consistent with Section 22(e) of the 1940 Act
and
any sales thereunder, and in accordance with the procedures and policies of
the
Fund as described in the then current prospectus.
1.5 For
purposes of Sections 1.1 and 1.4, the Company shall be the designee of the
Fund
for receipt of purchase and redemption orders from the Account, and receipt
by
such designee shall constitute receipt by the Fund; provided that the Company
receives the order by 4:00 p.m. Baltimore time and the Fund receives notice
of
such order by 9:30 a.m. Baltimore 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 Fund calculates its net asset
value pursuant to the rules of the SEC.
1.6 The
Company agrees to purchase and redeem the shares of each Designated Portfolio
offered by the then current prospectus of the Fund and in accordance with the
provisions of such prospectus.
1.7 The
Company shall pay for Fund shares one Business Day after receipt of an order
to
purchase Fund shares is made in accordance with the provisions of Section 1.5
hereof. Payment shall be in federal funds transmitted by wire by 3:00
p.m. Baltimore time. If payment in Federal Funds for any purchase is
not initiated by the Company so that it is received by the Fund after 3:00
p.m.
Baltimore time on such Business Day, the Company shall promptly, upon the Fund's
request, reimburse the Fund for any reasonable charges, costs, fees, interest
or
other expenses incurred by the Fund in connection with any advances to, or
borrowings or overdrafts by, the Fund, or any similar expenses incurred by
the
Fund, as a result of portfolio transactions effected by the Fund based upon
such
purchase request. For purposes of Section 2.8 and 2.9 hereof, upon
receipt by the Fund of the federal funds so wired, such funds shall cease to
be
the responsibility of the Company and shall become the responsibility of the
Fund.
1.8 Issuance
and transfer of the Fund's shares will be by book entry only. Stock
certificates will not be issued to the Company or any Account. Shares
ordered from the Fund will be recorded in an appropriate title for each Account
or the appropriate subaccount of each Account.
1.9 The
Fund shall furnish same day notice (by wire or telephone, followed by written
confirmation) to the Company of any income, dividends or capital gain
distributions payable on the Designated Portfolios' shares. The
Company hereby elects to receive all such income, dividends, and capital gain
distributions as are payable on Designated Portfolio shares in additional shares
of that Portfolio. The Company reserves the right to revoke this
election and to receive all such income dividends and capital gain distributions
in cash. The Fund shall notify the Company of the number of shares so
issued as payment of such dividends and distributions.
1.10 The
Fund shall make the net asset value per share for each Designated Portfolio
available to the Company on a daily basis as soon as reasonably practical after
the net asset value per share is calculated (normally by 6:30 p.m. Baltimore
time) and shall use its best efforts to make such net asset value per share
available by 7 p.m. Baltimore time. If the net asset value is
materially incorrect through no fault of the Company, the Company on behalf
of
each Account, shall be entitled to an adjustment to the number of shares
purchased or redeemed to reflect the correct net asset value in accordance
with
Fund procedures. Any material error in the net asset value shall be
reported to the Company promptly upon discovery. Any administrative
or other costs or losses incurred for correcting underlying Contract owner
accounts shall be at Company’s expense.
1.11 The
Parties hereto acknowledge that the arrangement contemplated by this Agreement
is not exclusive; the Fund's shares may be sold to other insurance companies
(subject to Section 1.3 and Article VI hereof) and the cash value of the
Contracts may be invested in other investment companies.
ARTICLE
II. Representations and Warranties
2.1 The
Company represents and warrants that the Contracts are or will be registered
under the 1933 Act unless otherwise exempt; that the Contracts will be issued
and sold in compliance in all material respects with all applicable federal
and
state insurance laws. The Company further represents and warrants
that its insurance companies are duly organized and in good standing under
applicable law and that it has legally and validly established the Account
prior
to any issuance or sale thereof as a separate account under applicable state
insurance laws and has registered or, prior to any issuance or sale of the
Contracts, will register the Account as a unit investment trust in accordance
with the provisions of the 1940 Act, unless otherwise exempt to serve as a
segregated investment account for the Contracts.
2.2 The
Fund represents and warrants that Fund shares sold pursuant to this Agreement
shall be registered under the 1933 Act, duly authorized for issuance and sold
in
compliance with all applicable federal and state securities laws and that the
Fund is and shall remain registered under the ▇▇▇▇ ▇▇▇. The Fund
shall amend the Registration Statement for its shares under the 1933 Act and
the
1940 Act from time to time as required in order to effect the continuous
offering of its shares. The Fund shall register and qualify the
shares for sale in accordance with the laws of the various states only if and
to
the extent deemed advisable by the Fund or the Underwriter.
2.3 The
▇. ▇▇▇▇ Price Equity Series, Inc. (the “Equity Fund”) currently is authorized to
issue a class of shares with respect to which the Equity Fund has adopted a
plan
for purposes of paying for distribution services under Rule 12b-1 of the 1940
Act. To the extent that another Fund decides to finance distribution
expenses pursuant to Rule 12b-1, the Fund will undertake to have the Board,
a
majority of whom are not interested persons of the Fund, formulate and approve
any plan pursuant to Rule 12b-1 under the 1940 Act to finance distribution
expenses.
2.4 The
Fund makes no representations as to whether any aspect of its operations,
including but not limited to, investment policies, fees and expenses, complies
with the insurance and other applicable laws of the various states, except
that
the Fund represents that the Fund's investment policies, fees and expenses
are
and shall at all times remain in compliance with applicable state laws to the
extent required to perform this Agreement.
2.5 The
Fund represents that it is lawfully organized and validly existing under the
laws of the State of Maryland and that it does and will comply in all material
respects with the 1940 Act.
2.6 The
Underwriter represents and warrants that it is a member in good standing of
the
NASD and is registered as a broker-dealer with the SEC. The
Underwriter further represents that it will sell and distribute the Fund shares
in accordance with applicable state and federal securities laws.
2.7 The
Underwriter represents and warrants that the Adviser is and shall remain duly
registered under all applicable federal and state securities laws and that
the
Adviser shall perform its obligations for the Fund in compliance in all material
respects with applicable state and federal securities laws.
2.8 The
Fund and the Underwriter represent and warrant that all of their directors,
officers, employees, investment advisers, and other individuals or entities
dealing with the money and/or securities of the Fund are and shall continue
to
be at all times covered by a blanket fidelity bond or similar coverage for
the
benefit of the Fund in an amount not less than the minimum coverage as required
currently by Rule 17g-1 of the 1940 Act or related provisions as may be
promulgated from time to time. The aforesaid bond shall include
coverage for larceny and embezzlement and shall be issued by a reputable bonding
company.
2.9 The
Company represents and warrants that all of its directors, officers, employees,
and other individuals/entities employed or controlled by the Company dealing
with the money and/or securities of the Fund are covered by a blanket fidelity
bond or similar coverage in an amount not less than $5 million. The
aforesaid bond includes coverage for larceny and embezzlement and is issued
by a
reputable bonding company. The Company agrees that any amounts
received under such bond in connection with claims that arise from the
arrangements described in this Agreement will be held by the Company for the
benefit of the Fund. The Company agrees to make all reasonable
efforts to see that this bond or another bond containing these provisions is
always in effect, and agrees to notify the Fund and the Underwriter in the
event
that such coverage no longer applies.
ARTICLE
III. Prospectuses, Statements of Additional Information, and Proxy
Statements; Voting
3.1 The
Underwriter shall provide the Company (at the Fund’s expense) with as many
copies of the Fund's current prospectus (describing only the Designated
Portfolios listed on Schedule B) as the Company may reasonably request for
mailing to existing Contract owners. If requested by the Company in
lieu thereof, the Fund shall provide such documentation (including a final
copy
of the new prospectus as set in type or on a diskette, at the Fund's expense)
and other assistance as is reasonably necessary in order for the Company once
each year (or more frequently if the prospectus for the Fund is amended) to
have
the prospectus for the Contracts and the Fund's prospectus printed together
in
one document (the reasonable, pro rata printing expenses associated with such
printing for existing Contract owners to be at the Fund’s
expense). The Fund shall also be responsible for the costs of
distributing the Fund’s prospectus to existing Contract owners.
3.2 The
Fund's prospectus shall state that the current Statement of Additional
Information ("SAI") for the Fund is available from the Company (or, in the
Fund's discretion, from the Fund), and the Underwriter (or the Fund), at its
expense, shall print, or otherwise reproduce, and provide sufficient copies
of
such SAI free of charge to the Company for itself, and for any owner of a
Contract who requests such SAI. The Company shall send an SAI to any
such Contract owner within 3 business days of the receipt of a
request.
3.3 The
Fund, at its expense, shall provide the Company with copies of its proxy
material, reports to shareholders, and other communications to shareholders
in
such quantity as the Company shall reasonably require for distributing to
Contract owners in the Fund. The Underwriter (at the Company's
expense) shall provide the Company with copies of the Fund's annual and
semi-annual reports to shareholders in such quantity as the Company shall
reasonably request for use in connection with offering the Variable Contracts
issued by the Company. If requested by the Company in lieu thereof,
the Underwriter shall provide such documentation (which may include a final
copy
of the Fund's annual and semi-annual reports as set in type or on diskette)
and
other assistance as is reasonably necessary in order for the Company (at the
Company's expense) to print such shareholder communications for distribution
to
Contract owners. The Company shall send a copy of the Fund’s annual
or semi-annual report within 3 business days of the receipt of a request by
a
Contract owner.
3.4 The
Company shall:
(i) solicit
voting instructions from Contract owners;
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(ii)
|
vote
the Fund shares in accordance with instructions received from Contract
owners; and
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(iii)
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vote
Fund shares for which no instructions have been received in the same
proportion as Fund shares of such Designated Portfolio for which
instructions have been received,
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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 or to the extent
otherwise required by law. The Company reserves the right to vote
Fund shares held in any separate account in its own right, to the extent
permitted by law.
3.5 Participating
Insurance Companies shall be responsible for assuring that each of their
separate accounts participating in a Designated Portfolio calculates voting
privileges as required by the Shared Funding Exemptive Order and consistent
with
any reasonable standards that the Fund may adopt.
3.6 The
Fund will comply with all provisions of the 1940 Act requiring voting by
shareholders, and in particular the Fund will either provide for annual meetings
or comply with Section 16(c) of the 1940 Act (although the Fund is not one
of
the trusts described in Section 16(c) of that Act) as well as with Sections
16(a) and, if and when applicable, 16(b). Further, the Fund will act
in accordance with the SEC's interpretation of the requirements of Section
16(a)
with respect to periodic elections of directors or trustees and with whatever
rules the SEC may promulgate with respect thereto.
ARTICLE
IV. Sales Material and Information
4.1 The
Company shall furnish, or shall cause to be furnished, to the Fund or its
designee, each piece of sales literature or other promotional material that
the
Company or its designee develops or uses and in which the Fund (or a Portfolio
thereof) or the Adviser or the Underwriter is discussed, at least ten calendar
days prior to its use. No such material shall be used if the Fund or
its designee reasonably object to such use within ten calendar days after
receipt of such material. The Fund or its designee reserves the right
to reasonably object to the continued use of such material, and no such material
shall be used if the Fund or its designee so object.
4.2 The
Company shall not give any information or make any representations or statements
on behalf of the Fund or concerning the Fund in connection with the sale of
the
Contracts other than the information or representations contained in the
registration statement or prospectus or SAI for the Fund shares, as such
registration statement and prospectus or SAI may be amended or supplemented
from
time to time, or in reports or proxy statements for the Fund, or in sales
literature or other promotional material approved by the Fund or its designee
or
by the Underwriter, except with the permission of the Fund or the Underwriter
or
the designee of either.
4.3 The
Fund, Underwriter, or its designee shall furnish, or shall cause to be
furnished, to the Company or its designee, each piece of sales literature or
other promotional material in which the Company, and/or its Account, is
discussed at least ten calendar days prior to its use. No such
material shall be used if the Company or its designee reasonably objects to
such
use within ten calendar days after receipt of such material. The
Company or its designee reserves the right to reasonably object to the continued
use of such material and no such material shall be used if the Company so
objects.
4.4. The
Fund and the Underwriter shall not give any information or make any
representations on behalf of the Company or concerning the Company, the Account,
or the Contracts other than the information or representations contained in
a
registration statement, prospectus, or SAI for the Contracts, as such
registration statement, prospectus or SAI may be amended or supplemented from
time to time, or in published reports for the Account which are in the public
domain or approved by the Company for distribution to Contract owners, or in
sales literature or other promotional material approved by the Company or its
designee, except with the permission of the Company.
4.5 The
Fund will provide to the Company, upon the Company’s written request, at least
one complete copy of all registration statements, prospectuses, SAIs, reports,
proxy statements, sales literature and other promotional materials, applications
for exemptions, requests for no action letters, and all amendments to any of
the
above, that relate to the Fund or its shares.
4.6 The
Company will provide to the Fund, upon written request of the Fund, at least
one
complete copy of all registration statements, prospectuses, SAIs, reports,
solicitations for voting instructions, sales literature and other promotional
materials, applications for exemptions, requests for no-action letters, and
all
amendments to any of the above, that relate to the Contracts or the Account
that
include the Funds, within a reasonable time after the filing of such document(s)
with the SEC or other regulatory authorities.
4.7 For
purposes of this Article IV, the phrase "sales literature and other promotional
materials" includes, but is not limited to, any of the following that discuss
to
the Fund or any affiliate of the Fund: advertisements (such as
material published, or designed for use in, a newspaper, magazine, or other
periodical, radio, television, telephone or tape recording, videotape display,
signs or billboards, motion pictures, or other public media), sales literature
(i.e., any written communication distributed or made generally available
to customers or the public, including brochures, circulars, reports, market
letters, form letters, seminar texts, reprints or excerpts of any other
advertisement, sales literature, or published article), educational or training
materials or other communications distributed or made generally available
to the public.
ARTICLE
V. Fees and Expenses
5.1 The
Underwriter shall pay a fee to the Company or to the underwriter for the
Contracts pursuant to Rule 12b-1 to finance distribution expenses as set forth
in the Letter Agreement entered into between Nationwide Investment Services
Corporation and ▇. ▇▇▇▇ Price Investment Services, Inc. dated October 1,
2002.
5.2 All
expenses incident to performance by the Fund under this Agreement shall be
paid
by the Fund, except as otherwise provided herein. The Fund shall see
to it that all its shares are registered and authorized for issuance in
accordance with applicable federal law and, if and to the extent deemed
advisable by the Fund, in accordance with applicable state laws prior to their
sale. The Fund shall bear the expenses for the cost of registration
and qualification of the Fund's shares, preparation and filing of the Fund's
prospectus and registration statement, proxy materials and reports, setting
the
prospectus in type, setting in type and printing the proxy materials and reports
to shareholders (including the costs of printing a prospectus that constitutes
an annual report), the preparation of all statements and notices required by
any
federal or state law, and all taxes on the issuance or transfer of the Fund's
shares.
5.3 The
Company shall bear the expenses of printing the Fund's prospectus (in accordance
with 3.1) and of distributing the Fund's prospectus and reports to prospective
Contract owners.
ARTICLE
VI. Diversification and Qualification
6.1 The
Fund will invest the assets of each Designated Portfolio in such a manner as
to
ensure that the Contracts will be treated as annuity, endowment, or life
insurance contracts, whichever is appropriate, under the Internal Revenue Code
of 1986, as amended (the “Code”) and the regulations issued thereunder (or any
successor provisions). Without limiting the scope of the foregoing,
each Designated Portfolio of the Fund will comply with Section 817(h) of the
Code and Treasury Regulation '1.817-5,
and any Treasury interpretations thereof, relating to the diversification
requirements for variable annuity, endowment, or life insurance contracts,
and
any amendments or other modifications or successor provisions to such Section
or
Regulations. In the event of a breach of this Article VI by the Fund,
it will take all reasonable steps (a) to notify the Company of such breach
and
(b) to adequately diversify the Fund so as to achieve compliance within the
grace period afforded by Regulation 817.5.
6.2 The
Fund represents that each Designated Portfolio is or will be qualified as a
Regulated Investment Company under Subchapter M of the Code, and that it will
make every effort to maintain such qualification (under Subchapter M or any
successor or similar provisions) and that it will notify the Company immediately
upon having a reasonable basis for believing that it has ceased to so qualify
or
that it might not so qualify in the future.
6.3 The
Company represents that the Contracts are designed to be treated as life
insurance, endowment contracts, or annuity insurance contracts, under applicable
provisions of the Code, and that it will make every effort to maintain such
treatment, and that it will notify the Fund and the Underwriter immediately
upon
having a reasonable basis for believing the Contracts have ceased to be so
treated or that they might not be so treated in the future. The
Company agrees that any prospectus offering a contract that is a "modified
endowment contract" as that term is defined in Section 7702A of the Code (or
any
successor or similar provision), shall identify such contract as a modified
endowment contract.
ARTICLE
VII. Potential Conflicts.
7.1 The
Board will monitor the Fund for the existence of any material irreconcilable
conflict between the interests of the contract owners of all separate accounts
investing in the Fund. 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; or (f) a decision by an insurer to disregard the voting
instructions of contract owners. The Board shall promptly inform the
Company if it determines that an irreconcilable material conflict exists and
the
implications thereof.
7.2. The
Company will report any potential or existing conflicts of which it is aware
to
the Board. The Company will assist the Board in carrying out its
responsibilities under the Shared Funding Exemptive Order, by providing the
Board with all information reasonably necessary for the Board to consider any
issues raised. This includes, but is not limited to, an obligation by
the Company to inform the Board whenever Contract owner voting instructions
are
disregarded.
7.3 If
it is determined by a majority of the Board, or a majority of its disinterested
members, that a material irreconcilable conflict exists, the Company and other
Participating Insurance Companies shall, at their expense and to the extent
reasonably practicable (as determined by a majority of the disinterested Board
members), take whatever steps are necessary to remedy or eliminate the
irreconcilable material conflict, up to and including: (1),
withdrawing the assets allocable to some or all of the separate accounts from
the Fund or any Portfolio and reinvesting such assets in a different investment
medium, including (but not limited to) another Portfolio of the Fund, or
submitting the question whether 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 (2),
establishing a new separate account.
7.4 If
a material irreconcilable conflict arises because of a decision by the Company
to disregard contract owner voting instructions and that decision represents
a
minority position or would preclude a majority vote, the Company may be
required, at the Fund's election, to withdraw the affected Account's investment
in the Fund 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 members of the Board. Any such
withdrawal and termination must take place within six (6) months after the
Fund
gives written notice that this provision is being implemented, and until the
end
of that six month period the Fund shall continue to accept and implement orders
by the Company for the purchase (and redemption) of shares of the
Fund.
7.5 If
a material irreconcilable conflict arises because a particular state insurance
regulator's decision applicable to the Company conflicts with the majority
of
other state regulators, then the Company will withdraw the affected Account's
investment in the Fund and terminate this Agreement with respect to such Account
within six months after the Board informs the Company 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 members of the Board. Until the
end of the foregoing six month period, the Fund shall continue to accept and
implement orders by the Company for the purchase (and redemption) of shares
of
the Fund.
7.6 For
purposes of Section 7.3 through 7.6 of this Agreement, a majority of the
disinterested members of the Board shall determine whether any proposed action
adequately remedies any irreconcilable material conflict, but in no event will
the Fund be required to establish a new funding medium for the
Contracts. The Company shall not be required by Section 7.3 to
establish a new funding medium for the Contract 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 Board
determines that any proposed action does not adequately remedy any
irreconcilable material conflict, then the Company will withdraw the Account's
investment in the Fund and terminate this Agreement within six (6) months after
the Board informs the Company 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 members of the Board.
7.7 If
and to the extent 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 Shared Funding Exemptive Order) on terms and conditions materially
different from those contained in the Shared Funding Exemptive Order, then
(a)
the Fund 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;
and
(b) Sections 3.4, 3.5, 3.6, 7.1., 7.2, 7.3, 7.4, and 7.5 of this Agreement
shall
continue in effect only to the extent that terms and conditions substantially
identical to such Sections are contained in such Rule(s) as so amended or
adopted.
ARTICLE
VIII. Indemnification
8.1 Indemnification
By the Company
8.1(a). The
Company agrees to indemnify and hold harmless the Fund and the Underwriter
and
each of their officers and directors and each person, if any, who controls
the
Fund or the Underwriter within the meaning of Section 15 of the 1933 Act
(collectively, the "Indemnified Parties" for purposes of this Section 8.1)
against any and all losses, claims, damages, liabilities (including amounts
paid
in settlement with the written consent of the Company) or litigation (including
reasonable legal and other expenses), to which the Indemnified Parties may
become subject under any statute or regulation, at common law or otherwise,
insofar as such losses, claims, damages, liabilities or expenses (or actions
in
respect thereof) or settlements are related to the sale or acquisition of the
Fund's shares or the Contracts and:
|
|
(i)
|
arise
out of or are based upon any untrue statements or alleged untrue
statements of any material fact contained in the Registration Statement,
prospectus, or statement of additional information (”SAI“)
for the Contracts or contained in the Contracts or sales literature
or
other promotional material for the Contracts (or any amendment or
supplement to any of the foregoing), or arise out of or are based
upon the
omission or the alleged omission to state therein a material fact
required
to be stated therein or necessary to make the statements therein
not
misleading, provided that this agreement to indemnify shall not apply
as
to any Indemnified Party if such statement or omission or such alleged
statement or omission was made in reliance upon and in conformity
with
information furnished to the Company by or on behalf of the Fund
for use
in the Registration Statement, prospectus or SAI for the Contracts
or in
the Contracts or sales literature or other promotional material (or
any
amendment or supplement) or otherwise for use in connection with
the sale
of the Contracts or Fund shares; or
|
|
|
(ii)
|
arise
out of or as a result of untrue statements or misrepresentations
(other
than misstatements or misrepresentations contained in the Registration
Statement, prospectus or sales literature or other promotional material
of
the Fund not supplied by the Company or persons under its control)
or
wrongful conduct of the Company or persons under its authorization
or
control, with respect to the sale or distribution of the Contracts
or Fund
Shares; or
|
|
|
(iii)
|
arise
out of any untrue statement or alleged untrue statement of a material
fact
contained in a Registration Statement, prospectus, SAI, or sales
literature or other promotional material of the Fund or any amendment
thereof or supplement thereto or the omission or alleged omission
to state
therein a material fact required to be stated therein or necessary
to make
the statements therein not misleading if such a statement or omission
was
made in reliance upon information furnished to the Fund by or on
behalf of
the Company; or
|
|
|
(iv)
|
arise
as a result of any material failure by the Company to provide the
services
and furnish the materials under the terms of this Agreement (including
a
failure, whether unintentional or in good faith or otherwise, to
comply
with the qualification requirements specified in Article VI of this
Agreement); or
|
|
|
(v)
|
arise
out of or result from any material breach of any representation and/or
warranty made by the Company in this Agreement or arise out of or
result
from any other material breach of this Agreement by the
Company,
|
as
limited by and in accordance with the provisions of Sections 8.1(b) and 8.1(c)
hereof.
8.1(b). The
Company shall not be liable under this indemnification provision with respect
to
any losses, claims, damages, liabilities or litigation to which an Indemnified
Party would otherwise be subject by reason of such Indemnified Party's willful
misfeasance, bad faith, or gross negligence in the performance of such
Indemnified Party's duties or by reason of such Indemnified Party's reckless
disregard of its obligations or duties under this Agreement.
8.1(c). The
Company shall not be liable under this indemnification provision with respect
to
any claim made against an Indemnified Party unless such Indemnified Party shall
have notified the Company in writing within a reasonable time after the summons
or other first legal process giving information of the nature of the claim
shall
have been served upon such Indemnified Party (or after such Indemnified Party
shall have received notice of such service on any designated
agent). In case any such action is brought against an Indemnified
Party, the Company shall be entitled to participate, at its own expense, in
the
defense of such action. The Company also shall be entitled to assume
the defense thereof, with counsel satisfactory to the party named in the action
and to settle the claim at its own expense; provided, however, that no such
settlement shall, without the Indemnified Parties' written consent, include
any
factual stipulation referring to the Indemnified Parties or their
conduct. After notice from the Company to such party of the Company's
election to assume the defense thereof, the Indemnified Party shall bear the
fees and expenses of any additional counsel retained by it, and the Company
will
not be liable to such party under this Agreement for any legal or other expenses
subsequently incurred by such party independently in connection with the defense
thereof other than reasonable costs of investigation.
8.1(d). The
Indemnified Parties will promptly notify the Company of the commencement of
any
litigation or proceedings against them in connection with the issuance or sale
of the Fund Shares or the Contracts or the operation of the Fund.
8.2 Indemnification
by the Underwriter
8.2(a). The
Underwriter agrees to indemnify and hold harmless the Company and each of it
directors and officers and each person, if any, who controls the Company within
the meaning of Section 15 of the 1933 Act (collectively, the "Indemnified
Parties" for purposes of this Section 8.2) against any and all losses, claims,
damages, liabilities (including amounts paid in settlement with the written
consent of the Underwriter) or litigation (including reasonable legal and other
expenses) to which the Indemnified Parties may become subject under any statute
or regulation, at common law or otherwise, insofar as such losses, claims,
damages, liabilities or expenses (or actions in respect thereof) or settlements
are related to the sale or acquisition of the Fund's shares or the Contracts;
and
|
|
(i)
|
arise
out of or are based upon any untrue statement or alleged untrue statement
of any material fact contained in the Registration Statement or prospectus
or SAI or sales literature or other promotional material of the Fund
(or
any amendment or supplement to any of the foregoing), or arise out
of or
are based upon the omission or the alleged omission to state therein
a
material fact required to be stated therein or necessary to make
the
statements therein not misleading, provided that this agreement to
indemnify shall not apply as to any
|
|
|
Indemnified
Party if such statement or omission or such alleged statement or
omission
was made in reliance upon and in conformity with information furnished
to
the Underwriter or Fund by or on behalf of the Company for use in
the
Registration Statement or prospectus for the Fund or in sales literature
or other promotional material (or any amendment or supplement) or
otherwise for use in connection with the sale of the Contracts or
Fund
shares; or
|
|
|
(ii)
|
arise
out of or as a result of untrue statements or misrepresentations
(other
than misstatements or misrepresentations contained in the Registration
Statement, prospectus or sales literature or other promotional material
for the Contracts not supplied by the Underwriter or persons under
its
control) or wrongful conduct of the Fund or Underwriter or persons
under
their control, with respect to the sale or distribution of the Contracts
or Fund shares; or
|
|
|
(iii)
|
arise
out of any untrue statement or alleged untrue statement of a material
fact
contained in a Registration Statement, prospectus, SAI, or sales
literature or other promotional material of the Contracts, or any
amendment thereof or supplement thereto, or the omission or alleged
omission to state therein a material fact required to be stated therein
or
necessary to make the statement or statements therein not misleading,
if
such statement or omission was made in reliance upon information
furnished
to the Company by or on behalf of the Fund;
or
|
|
|
(iv)
|
arise
as a result of any material failure by the Fund to provide the services
and furnish the materials under the terms of this Agreement (including
a
failure, whether unintentional or in good faith or otherwise, to
comply
with the diversification and other qualification requirements specified
in
Article VI of this Agreement); or
|
|
|
(v)
|
arise
out of or result from any material breach of any representation and/or
warranty made by the Underwriter in this Agreement or arise out of
or
result from any other material breach of this Agreement by the
Underwriter;
|
as
limited by and in accordance with the provisions of Sections 8.2(b) and 8.2(c)
hereof.
8.2(b). The
Underwriter shall not be liable under this indemnification provision with
respect to any losses, claims, damages, liabilities or litigation to which
an
Indemnified Party would otherwise be subject by reason of such Indemnified
Party's willful misfeasance, bad faith, or gross negligence in the performance
or such Indemnified Party's duties or by reason of such Indemnified Party's
reckless disregard of obligations and duties under this Agreement or to the
Company or the Account, whichever is applicable.
8.2(c). The
Underwriter shall not be liable under this indemnification provision with
respect to any claim made against an Indemnified Party unless such Indemnified
Party shall have notified the Underwriter in writing within a reasonable time
after the summons or other first legal process giving information of the nature
of the claim shall have been served upon such Indemnified Party (or after such
Indemnified Party shall have received notice of such service on any designated
agent). In case any such action is brought against the Indemnified
Party, the Underwriter will be entitled to participate, at its own expense,
in
the defense thereof. The Underwriter also shall be entitled to assume
the defense thereof, with counsel satisfactory to the party named in the action
and to settle the claim at its own expense; provided, however, that no such
settlement shall, without the Indemnified Parties' written consent, include
any
factual stipulation referring to the Indemnified Parties or their
conduct. After notice from the Underwriter to such party of the
Underwriter's election to assume the defense thereof, the Indemnified Party
shall bear the fees and expenses of any additional counsel retained by it,
and
the Underwriter will not be liable to such party under this Agreement for any
legal or other expenses subsequently incurred by such party independently in
connection with the defense thereof other than reasonable costs of
investigation.
8.2(d). The
Indemnified Parties will promptly notify the Underwriter of the commencement
of
any litigation or proceedings against it or any of its officers or directors
in
connection with the issuance or sale of the Contracts or the operation of the
Account.
|
8.3
|
Indemnification
By the Fund
|
8.3(a). The
Fund agrees to indemnify and hold harmless the Company and each of its directors
and officers and each person, if any, who controls the Company within the
meaning of Section 15 of the 1933 Act (collectively, the "Indemnified Parties"
for purposes of this Section 8.3) against any and all losses, claims, expenses,
damages, liabilities (including amounts paid in settlement with the written
consent of the Fund) or litigation (including reasonable legal and other
expenses) to which the Indemnified Parties may be required to pay or may become
subject under any statute or regulation, at common law or otherwise, insofar
as
such losses, claims, expenses, damages, liabilities or expenses (or actions
in
respect thereof) or settlements, are related to the operations of the Fund
and:
|
|
(i)
|
arise
as a result of any material failure by the Fund to provide the services
and furnish the materials under the terms of this Agreement (including
a
failure, whether unintentional or in good faith or otherwise, to
comply
with the diversification and other qualification requirements specified
in
Article VI of this Agreement); or
|
|
|
(ii)
|
arise
out of or result from any material breach of any representation and/or
warranty made by the Fund in this Agreement or arise out of or result
from
any other material breach of this Agreement by the
Fund;
|
as
limited by and in accordance with the provisions of Sections 8.3(b) and 8.3(c)
hereof.
8.3(b). The
Fund shall not be liable under this indemnification provision with respect
to
any losses, claims, damages, liabilities or litigation to which an Indemnified
Party would otherwise be subject by reason of such Indemnified Party's willful
misfeasance, bad faith, or gross negligence in the performance of such
Indemnified Party's duties or by reason of such Indemnified Party's reckless
disregard of obligations and duties under this Agreement or to the Company,
the
Underwriter or the Account, whichever is applicable.
8.3(c). The
Fund shall not be liable under this indemnification provision with respect
to
any claim made against an Indemnified Party unless such Indemnified Party shall
have notified the Fund in writing within a reasonable time after the summons
or
other first legal process giving information of the nature of the claim shall
have been served upon such Indemnified Party (or after such indemnified Party
shall have received notice of such service on any designated
agent). In case any such action is brought against the Indemnified
Parties, the Fund will be entitled to participate, at its own expense, in the
defense thereof. The Fund also shall be entitled to assume the
expense thereof, with counsel satisfactory to the party named in the action
and
to settle the claim at its own expense; provided, however, that no such
settlement shall, without the Indemnified Parties' written consent, include
any
factual stipulation referring to the Indemnified Parties or their
conduct. After notice from the Fund to such party of the Fund's
election to assume the defense thereof, the Indemnified Party shall bear the
fees and expenses of any additional counsel retained by it, and the Fund will
not be liable to such party under this Agreement for any legal or other expenses
subsequently incurred by such party independently in connection with the defense
thereof other than reasonable costs of investigation.
8.3(d). The
Company and the Underwriter agree promptly to notify the Fund of the
commencement of any litigation or proceeding against it or any of its respective
officers or directors in connection with the Agreement, the issuance or sale
of
the Contracts, the operation of the Account, or the sale or acquisition of
shares of the Fund.
ARTICLE
IX. Applicable Law
9.1 This
Agreement shall be construed and the provisions hereof interpreted under and
in
accordance with the laws of the State of Maryland.
9.2 This
Agreement shall be subject to the provisions of the 1933, 1934 and 1940 Acts,
and the rules and regulations and rulings thereunder, including such exemptions
from those statutes, rules and regulations as the SEC may grant (including,
but
not limited to, any Shared Funding Exemptive Order) and the terms hereof shall
be interpreted and construed in accordance therewith.
ARTICLE
X. Termination
10.1 This
Agreement shall continue in full force and effect until the first to occur
of:
|
|
(a)
|
termination
by any party, for any reason with respect to some or all Designated
Portfolios, by six (6) months' advance written notice delivered to
the
other parties; or
|
|
|
(b)
|
termination
by the Company by written notice to the Fund and the Underwriter
with
respect to any Designated Portfolio based upon the Company's determination
that shares of the Fund are not reasonably available to meet the
requirements of the Contracts; or
|
|
(c)
|
termination
by the Company by written notice to the Fund and the Underwriter
in the
event any of the Designated Portfolio's shares are not registered,
issued
or sold in accordance with applicable state and/or federal law or
such law
precludes the use of such shares as the underlying investment media
of the
Contracts issued or to be issued by the Company;
or
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|
(d)
|
termination
by the Company upon a decision by the Company, in accordance with
the 1940
Act and applicable regulations, to substitute any Portfolios with
the
shares of another investment company for the Contracts. The
Company shall give at least 60 days written notice to the Fund of
any
proposal to substitute Portfolios;
or
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|
|
(e)
|
termination
by the Fund or Underwriter in the event that formal administrative
proceedings are instituted against the Company by the NASD, the SEC,
the
Insurance Commissioner or like official of any state or any other
regulatory body regarding the Company's duties under this Agreement
or
related to the sale of the Contracts, the operation of any Account,
or the
purchase of the Fund shares; provided, however, that the Fund or
Underwriter determines in its sole judgment exercised in good faith,
that
any such administrative proceedings will have a material adverse
effect
upon the ability of the Company to perform its obligations under
this
Agreement; or
|
|
|
(f)
|
termination
by the Company in the event that formal administrative proceedings
are
instituted against the Fund or Underwriter by the NASD, the SEC,
or any
state securities or insurance department or any other regulatory
body;
provided, however, that the Company determines in its sole judgment
exercised in good faith, that any such administrative proceedings
will
have a material adverse effect upon the ability of the Fund or Underwriter
to perform its obligations under this Agreement;
or
|
|
|
(g)
|
termination
by the Company by written notice to the Fund and the Underwriter
with
respect to any Designated Portfolio in the event that such Designated
Portfolio ceases to qualify as a Regulated Investment Company under
Subchapter M or fails to comply with the Section 817(h) diversification
requirements specified in Article VI hereof, or if the Company reasonably
believes that such Designated Portfolio may fail to so qualify or
comply;
or
|
|
|
(h)
|
termination
by the Fund or Underwriter by written notice to the Company in the
event
that the Contracts fail to meet the qualifications specified in Section
6.3 hereof; or if the Fund or Underwriter reasonably believes that
such
Contracts may fail to so qualify;
or
|
|
|
(i)
|
termination
by either the Fund or the Underwriter by written notice to the Company,
if
either one or both of the Fund or the Underwriter respectively, shall
determine, in their sole judgment exercised in good faith, that the
Company has suffered a material adverse change in its business,
operations, financial condition, or prospects since the date of this
Agreement or is the subject of material adverse publicity;
or
|
|
|
(j)
|
termination
by the Company by written notice to the Fund and the Underwriter,
if the
Company shall determine, in its sole judgment exercised in good faith,
that the Fund or the Underwriter has suffered a material adverse
change in
its business, operations, financial condition or prospects since
the date
of this Agreement or is the subject of material adverse
publicity.
|
10.2 Effect
of Termination. Notwithstanding any termination of this
Agreement, the Fund and the Underwriter shall, at the option of the Company,
continue to make available additional shares of the Fund pursuant to the terms
and conditions of this Agreement, for all Contracts in effect on the effective
date of termination of this Agreement (hereinafter referred to as "Existing
Contracts"). Specifically, the owners of the Existing Contracts may
be permitted to reallocate investments in the Fund, redeem investments in the
Fund and/or invest in the Fund upon the making of additional purchase payments
under the Existing Contracts. The parties agree that this Section
10.2 shall not apply to any termination under Article VII and the effect of
such
Article VII termination shall be governed by Article VII of this
Agreement. The parties further agree that this Section 10.2 shall not
apply to any termination under Section 10.1(g) and (h) of this
Agreement.
10.3 The
Company shall not redeem Fund shares attributable to the Contracts except (i)
as
necessary to implement Contract owner initiated or approved transactions, (ii)
as required by state and/or federal laws or regulations or judicial or other
legal precedent of general application (hereinafter referred to as a “Legally
Required Redemption”), or (iii) pursuant to the terms of a substitution order
issued by the SEC pursuant to Section 26(c) of the 1940 Act. Upon
request, the Company will promptly furnish to the Fund and the Underwriter
the
opinion of counsel for the Company (which counsel shall be reasonably
satisfactory to the Fund and the Underwriter) to the effect that any redemption
pursuant to clause (ii) above is a Legally Required
Redemption. Furthermore, except in cases where permitted under the
terms of the Contracts, the Company shall not prevent Contract owners from
allocating payments to a Portfolio that was otherwise available under the
Contracts without first giving the Fund or the Underwriter 60 days notice of
its
intention to do so.
10.4 Notwithstanding
any termination of this Agreement, each party's obligation under Article VIII
to
indemnify the other parties shall survive.
ARTICLE
XI. 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
Fund:
▇.
▇▇▇▇
Price Associates, Inc.
▇▇▇
▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇
▇. ▇▇▇▇▇▇▇, Esq.
If
to the
Company:
Nationwide
Financial Services, Inc.
▇▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇-▇▇-▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
Attention: Securities
Officer
with
a
copy to:
NFS
▇▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇-▇▇-▇▇
▇▇▇▇▇▇▇▇,
▇▇▇▇ ▇▇▇▇▇
Attention: Vice
President – Investment and Advisory Services
If
to
Underwriter:
▇.
▇▇▇▇
Price Investment Services
▇▇▇
▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇
▇. ▇▇▇▇▇▇▇, Esq.
ARTICLE
XII. Miscellaneous
12.1 All
references herein to the Fund are to each of the undersigned Funds as if this
agreement were between such individual Fund and the Underwriter and the
Company. All references herein to the Adviser relate solely to the
Adviser of such individual Fund, as appropriate. All persons dealing
with a Fund must look solely to the property of such Fund, and in the case
of a
series company, the respective Designated Portfolio listed on Schedule A hereto
as though such Designated Portfolio had separately contracted with the Company
and the Underwriter for the enforcement of any claims against the
Fund. The parties agree that neither the Board, officers, agents or
shareholders assume any personal liability or responsibility for obligations
entered into by or on behalf of the Fund.
12.2 Should
the removal of a Fund from a Contract be desired by the Company for any reason,
the Company shall bear the reasonable expenses incurred as a result of removing
such Fund. Should the removal of a Fund from a Contract be necessary
solely as a result of a Fund-specific event such as a liquidation, dissolution,
merger, or a similar transaction in which the Fund shares will no longer be
offered to investors on other than a temporary basis, the Fund shall bear the
reasonable expenses incurred as a result of removing such
Fund. Should the removal of Fund from a Contract be mutually desired
by the parties, the parties agree to share any actual postage expenses incurred
as a result of removing such Fund. The parties agree to provide
reasonable advanced notice of their election to remove a Fund. The
Underwriter and the Fund acknowledge that the Company may need to seek the
approval of the Securities and Exchange Commission under Section 26(c) of the
1940 Act for any fund substitutions.
12.3 Subject
to the requirements of legal process and regulatory authority, each party hereto
shall treat as confidential the names and addresses of the owners of the
Contracts and all information reasonably identified as confidential in writing
by any other party hereto and, except as permitted by this Agreement, shall
not
disclose, disseminate or utilize such names and addresses and other confidential
information without the express written consent of the affected party until
such
time as such information may come into the public domain.
12.4 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.
12.5 This
Agreement may be executed simultaneously in two or more counterparts, each
of
which taken together shall constitute one and the same instrument.
12.6 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.
12.7 Each
party hereto shall cooperate with each other party and all appropriate
governmental authorities (including without limitation the SEC, the NASD, and
state insurance regulators) and shall provide such information to each other
as
requested by such authorities and 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.
12.8 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.
12.9 This
Agreement or any of the rights and obligations hereunder may not be assigned
by
any party without the prior written consent of all parties hereto.
12.10 The
Company shall furnish or cause to be furnished, upon written request of the
Fund, to the Fund or its designee copies of the following reports:
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|
(a)
|
the
Company’s annual statement (prepared under statutory accounting
principles) and annual report (prepared under generally accepted
accounting principles (“GAAP”), if any), as soon as practical and in any
event within 90 days after the end of each fiscal
year.
|
|
(b)
|
the
Company’s quarterly statements (statutory) (and GAAP, if any), as soon as
practical and in any event within 45 days after the end of each quarterly
period.
|
IN
WITNESS WHEREOF, each of the parties hereto has caused this Agreement to be
executed in its name and on its behalf by its duly authorized representative
and
its seal to be hereunder affixed hereto as of the date specified
below.
COMPANY: NATIONWIDE
FINANCIAL SERVICES, INC.
By
its
authorized officer
By:____________________________________________
[▇▇▇▇▇▇▇
▇. ▇▇▇▇▇▇]
Title:____________[Senior
Vice President]______________
Date:
_____________[4/1/03]__________________________
FUND: ▇.
▇▇▇▇ PRICE EQUITY SERIES, INC.
By
its
authorized officer
By:
____________________________________________
[▇▇▇▇▇
▇.
▇▇▇▇▇▇▇]
Title: Vice
President____________________
Date:
____________[3/25/03]__________________________
FUND: ▇.
▇▇▇▇ PRICE INTERNATIONAL
SERIES,
INC.
By
its
authorized officer
By:
____________________________________________
[▇▇▇▇▇
▇.
▇▇▇▇▇▇▇]
Title:
Vice
President___________________
Date:_______________[3/25/03]________________________
FUND: ▇.
▇▇▇▇ PRICE FIXED INCOME
SERIES,
INC.
By
its
authorized officer
By:____________________________________________
[▇▇▇▇▇
▇.
▇▇▇▇▇▇▇]
Title: Vice
President___________________
Date:
_____________[3/25/03]_______________________
UNDERWRITER: ▇.
▇▇▇▇ PRICE INVESTMENT SERVICES, INC.
By
its
authorized officer
By:
_____________________________________________
[▇▇▇▇▇
▇.
▇▇▇▇▇▇▇]
Title: Vice
President_____________________
Date:_____________[3/25/03]__________________________
SCHEDULE
A
Subsidiary
Life Insurance Companies
Nationwide
Life Insurance Company
Nationwide
Life and Annuity Insurance Company
Nationwide
Life Insurance Company of America
Nationwide
Life and Annuity Company of America
Separate
Accounts
Nationwide
Variable Account
Nationwide
Variable Account-II
Nationwide
Variable Account-3
Nationwide
Variable Account-4
Nationwide
Variable Account-5
Nationwide
Variable Account-6
Nationwide
Variable Account 7
Nationwide
Variable Account-8
Nationwide
Variable Account-9
Nationwide
Variable Account-10
Nationwide
Variable Account-11
Nationwide
Variable Account-12
Nationwide
Variable Account-13
Nationwide
Variable Account-14
Nationwide
Variable Account-15
Nationwide
Variable Account-16
Nationwide
Variable Account-17
Multi-Flex
Variable Account
Nationwide
VA Separate Account-A
Nationwide
VA Separate Account-B
Nationwide
VA Separate Account-C
Nationwide
VA Separate Account-D
Nationwide
VLI Separate Account
Nationwide
VLI Separate Account-2
Nationwide
VLI Separate Account-3
Nationwide
VLI Separate Account-4
Nationwide
VLI Separate Account-5
Nationwide
VL Separate Account
Nationwide
VL Separate Account-A
Nationwide
VL Separate Account-B
Nationwide
VL Separate Account-C
Nationwide
VL Separate Account-D
Nationwide
Private Placement Variable Account
Nationwide
Provident VA Separate Account 1
Nationwide Provident
VA Separate Account A
Nationwide
Provident VLI Separate Account 1
Nationwide
Provident VLI Separate Account A
SCHEDULE
B
PORTFOLIOS
Blue
Chip Growth Portfolio
Blue
Chip Growth
Portfolio-II
Equity
Income Portfolio
Equity
Income
Portfolio-II
Equity
Index 500 Portfolio
Health
Science Portfolio
Health
Science
Portfolio-II
International
Stock Portfolio
Limited-Term
Bond Portfolio
Mid-Cap
Growth Portfolio
Mid-Cap
Growth
Portfolio-II
New
America Growth Portfolio
Prime
Reserve Portfolio
Personal
Strategy Balanced Portfolio
Lgl1635\VIP
Funds\VIP II\Nationwide-PA 3 14 2003
AMENDMENT
TO PARTICIPATION AGREEMENT
AMENDED
AGREEMENT effective the 13th day of
June, 2006 among ▇. ▇▇▇▇ Price Equity Series, Inc., ▇. ▇▇▇▇ Price International
Series, Inc., ▇. ▇▇▇▇ Price Fixed Income Series, Inc., (each “Fund”,
collectively as “Funds”) ▇. ▇▇▇▇ Price Investment Services, Inc.
("Underwriter"), and Nationwide Financial Services, Inc.
("Company").
WITNESSETH:
WHEREAS,
Funds, Underwriter and Company entered into a Participation Agreement
effective the 1st day of
October,
2002 and that Agreement is being amended herein.
WHEREAS,
Schedule B will be amended to add the "▇. ▇▇▇▇ Price Limited-Term Bond
Portfolio-II.”
IN
WITNESS WHEREOF, the parties hereto have executed and delivered this Amended
Agreement as of the date first above written.
COMPANY:
NATIONWIDE FINANCIAL SERVICES, INC.
By
its
authorized officer
______________________
By: ▇▇▇▇▇
▇. ▇▇▇▇▇▇
Title: [Attorney-in-Fact]
Date: 6-14-06
FUND:
▇. ▇▇▇▇ PRICE EQUITY SERIES, INC.
By
its
authorized officer
____________________________________
By: [▇▇▇▇▇
▇. ▇▇▇▇▇▇▇]
Title:
Date:
FUND:
▇. ▇▇▇▇ PRICE INTERNATIONAL SERIES,
INC.
By
its
authorized officer
____________________________________
By: [▇▇▇▇▇
▇. ▇▇▇▇▇▇▇]
Title:
Date:
FUND:
▇. ▇▇▇▇ PRICE FIXED INCOME SERIESINC.
By
its
authorized officer
____________________________________
By: [▇▇▇▇▇
▇. ▇▇▇▇▇▇▇]
Title:
Date:
UNDERWRITER:
▇. ▇▇▇▇ PRICE INVESTMENT SERVICES,
INC.
By
its
authorized officer
________________________
By: [▇▇▇▇▇
▇▇▇▇▇▇]
Title:
[Vice President]
Date:
[6/20/06]
SCHEDULE
B
PORTFOLIOS
Blue
Chip Growth Portfolio
Blue
Chip Growth Portfolio-II
Equity
Income Portfolio
Equity
Income Portfolio-II
Equity
Index 500 Portfolio
Health
Science Portfolio
Health
Science Portfolio-II
International
Stock Portfolio
Limited-Term
Bond Portfolio
Limited-Term
Bond Portfolio-II
Mid-Cap
Growth Portfolio
Mid-Cap
Growth Portfolio-II
New
America Growth Portfolio
Prime
Reserve Portfolio
Personal
Strategy Balanced Portfolio