FUND PARTICIPATION AGREEMENT
This
AGREEMENT
is made
on this 1st day
of June, 2002, by and among Nationwide Life Insurance Company and Nationwide
Life and Annuity Insurance Company (collectively, the “Insurer”), stock life
insurance companies domiciled in Ohio, on their behalf and on behalf of the
separate accounts of the Insurer listed on Exhibit A to this
Agreement (the “Separate Accounts”); the variable annuity portfolios
of Vision Group of Funds (the “Fund” or “Funds”), a Delaware business trust;
M&T Asset management, a department of Manufacturers and Traders Trust
Company (the “Adviser”); and Federated Securities Corp. (the “Distributor”), a
Pennsylvania corporation.
W
I T N E S S E T H
WHEREAS,
the Fund is
registered with the Securities and Exchange Commission (“SEC”) as an open-end
management investment company under the investment Company Act of 1940 (“1940
Act”) and the Fund is authorized to issue separate classes of shares of
beneficial interest (“shares”), each representing an interest in a separate
portfolio of assets known as the “portfolio” and each portfolio has its own
investment objective, policies, and limitations; andWHEREAS,
the Fund has engaged the Adviser, an investment adviser registered under
the
Investment Advisers Act of 1940 (“Advisers Act”), to provide investment advisory
services, including managing the Fund pursuant to applicable diversification
requirements of the Internal Revenue Code of 1986, as amended
(“Code”);
WHEREAS,
the Fund is
available to offer shares of one or more of its portfolios to separate accounts
of insurance companies that fund variable annuity contracts (“Variable
Contracts”) and to serve as an investment medium for Variable Contracts offered
by insurance
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companies
that have entered into participation agreements substantially similar to
this
agreement (“Participating Insurance Companies”), and the Fund may be made
available in the future to offer shares of one or more of its portfolios
to
separate accounts of insurance companies that fund variable life insurance
policies (at which time such policies would also be “Variable Contracts”
hereunder), subject to receipt of any required relief pursuant to an exemptive
order from the 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 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 life insurance companies that may or may not
be
affiliated with one another (hereinafter the “Mixed and Shared Funding Exemptive
Order”); and
WHEREAS,
The fund is
currently comprised of twenty-one separate portfolios, three of which are
designed to fund Variable Contracts, and may establish other similar portfolios
in the future; and
WHEREAS,
the
Distributor is registered as a broker-dealer with the SEC under the Securities
Exchange Act of 1934 (“1934” Act), and is a member in good standing of the
National Association of Securities Dealers, Inc. (“NASD”); and
WHEREAS,
to the extent
permitted by applicable insurance laws and regulations, the Insurer wishes
to
purchase shares of one or more of the Fund’s portfolios on behalf of its
Separate Accounts to serve as an investment medium for Variable Contracts
funded
by the Separate Accounts, and the Distributor is authorized to sell shares
of
the Fund’s portfolios;
NOW,
THEREFORE, in
consideration of the foregoing and the mutual promises and covenants hereinafter
set forth, the parties hereby agree as follows:
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ARTICLE
I. Sale
of Fund Shares
1.1
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The
Distributor agrees to sell to the Insurer those shares of the portfolios
offered and made available by the Fund and identified on Exhibit
B
(Portfolios”) that the Insurer orders on behalf of its Separate Accounts,
and agrees to execute such orders on each day on which the Fund
calculates
its net asset value pursuant to the rules of the SEC and as described
in
the Fund’s registration statement (“Business Day”) at the net asset value
next computed after receipt and acceptance by the Fund or its agent
of the
order for the shares of the Fund.
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1.2 The
Fund agrees to make available on each Business Day shares of the Portfolios
for
purchase at the applicable net asset value per share by the Insurer on behalf
of
its Separate Accounts; provided however, that the Board of Trustees of the
Fund
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 the Trustees’
fiduciary duties under applicable law, necessary in the best interests of
the
shareholders of any Portfolio.
1.3 The
Fund and the Distributor agree that shares of the Portfolios of the Fund
will be
sold only to Participating Insurance Companies, their separate accounts,
and
other persons consistent with each Portfolio being adequately diversified
pursuant to Section 817(h) of the Code, and the regulations
thereunder. No shares of any Portfolio will be sold directly to the
general public to the extent not permitted by applicable tax law.
1.4 The
fund and the Distributor will not sell shares of the Portfolios to any insurance
company or separate account unless an agreement containing provisions
substantially the same as the provisions in Article IV of this Agreement
is in
effect to govern such sales.
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1.5 Upon
receipt of a request for redemption in proper form from the Insurer, the
Fund
agrees to redeem any full or fractional shares of the Portfolios held by
the
Insurer, ordinarily executing such requests on each Business Day at the net
asset value next computed after receipt and acceptance by the Fund or its
agent
of the request for redemption, except that the Fund reserves the right to
suspend the right of redemption, consistent with Section 22(e) of the 1940
Act
and any rules thereunder. Such redemption shall be paid consistent
with applicable rules of the SEC and procedures and policies of the Fund
as
described in the current registration statement.
1.6 For
purposes of Sections 1.2 and 1.5, the Insurer shall be the agent of the Fund
for
the limited purpose of receiving and accepting purchase and redemption orders
from each Separate Account, and receipt of such orders by the close of regular
treading on the New York Stock Exchange (generally 4:00 p.m. Eastern time)
by
the Insurer shall be deemed to be receipt by the Fund for purposes of Rule
22c-1
of the 1940 Act; provided that the Insurer will use its best efforts to provide
notice of such orders to the Fund on the next following Business Day by 9:00
a.m. Eastern time on such day. Insurer agrees to submit such orders
electronically through secured trading systems as described on Exhibit C
to this
Agreement or, if it is unable to submit orders electronically, Insurer shall
submit such orders through manual transmissions using the procedures described
in Exhibit C to this Agreement.
1.7 The
Insurer agrees to purchase and redeem the shares of each Portfolio in accordance
with the provisions of the current prospectus for the Fund.
1.8 Unless
otherwise specified in Exhibit C, the Insurer shall pay for shares of the
Portfolio on the next Business Day after it places an order to purchase shares
of the Portfolio, and payment shall be in federal funds transmitted by
wire.
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1.9 Issuance
and transfer of shares of the Portfolios will be by book entry only unless
otherwise agreed by the Fund. Stock certificates will not be issued
to the insurer or the Separate Accounts unless otherwise agreed by the
Fund. Shares ordered from the Fund will be recorded in an appropriate
title for the Separate Accounts or the appropriate subaccounts of the Separate
Accounts.
1.10 Unless
otherwise specified in Exhibit C, the Fund shall furnish same day notice
(by
wire or telephone, followed by written confirmation) to the Insurer of any
income dividends or capital gain distributions payable on the shares of the
Portfolios. The Insurer hereby elects to reinvest in the Portfolio
all such dividends and distributions as are payable on a Portfolio’s shares and
to receive such dividends and distributions in additional shares of that
Portfolio. The Insurer reserves the right to revoke this election in
writing and to receive all such dividends and distributions in
cash. The Fund or its agent shall notify the Insurer of the number of
shares so issued as payment of such dividends and distributions.
1.11 Unless
otherwise specified in Exhibit C, the Fund shall instruct its recordkeeping
agent to advise the Insurer on each Business Day of the net asset value per
share for each Portfolio 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 7:00 p.m. Eastern time.
ARTICLE
II. Representations
and Warranties
2.1 The
Insurer represents and warrants that it is an insurance company duly organized
and in good standing under applicable law and that it is taxed as an insurance
company under Subchapter L of the Code.
2.2 The
Insurer represents and warrants that it has legally and validly established
each
of the Separate Accounts as a separate account under the Ohio Revised Code,
and
that each of
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the
Separate Accounts is a validly existing separate account under applicable
federal and state law.
2.3 The
Insurer represents and warrants that the Variable Contracts issued by the
Insurer or interests in the Separate Accounts under such Variable Contracts
(1)
are or, prior to issuance, will be registered as securities under the Securities
Act of 1933 (“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
0000 Xxx.
2.4 The
Insurer represents and warrants that each of the Separate Accounts (1) has
been
registered as a unit investment trust in accordance with the provisions of
the
1940 Act or, alternatively, (2) has not been registered in proper reliance
upon
an exclusion from registration under the 0000 Xxx.
2.5 The
Insurer represents that the Variable Contracts issued by the Insurer are
currently treated as annuity contracts or life insurance policies (which
may
include modified endowment contracts), whichever is appropriate, under
applicable provisions of the Code.
2.6 The
Fund represents and warrants that it is duly organized as a business trust
under
the laws of the State of Delaware, and is in good standing under applicable
law.
2.7 The
Fund represents and warrants that the shares of the Portfolios are duly
authorized for issuance in accordance with applicable law and that the Fund
is
registered as an open-end management investment company under the 0000
Xxx.
2.8 The
Adviser represents and warrants that the Portfolios currently comply, and
will
continue to comply, with the diversification provisions of Section 817(h)
of the
Code and the
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regulations
issued thereunder relating to the diversification requirements for variable
life
insurance policies and variable annuity contracts.
2.9 The
Distributor represents and warrants that it is a member in good standing
of the
NASD and is registered as a broker-dealer with the SEC.
2.10 The
adviser represents and warrants that it is an investment adviser registered
under the Advisers Act as a department of a bank duly organized and in good
standing under applicable law.
ARTICLE
III. General
Duties
3.1 The
Fund shall take all such actions as are necessary to permit the sale of the
shares of each Portfolio to the Separate Accounts, including maintaining
its
registration as an investment company under the 1940 Act, and registering
the
shares of the Portfolios sold to the Separate Accounts under the 1933 Act
for so
long as required by applicable law. The Fund shall amend its
Registration Statement filed with the SEC under the 1933 Act and the 1940
Act
from time to time as required in order to effect the continuous offering
of the
shares of the Portfolios. The Fund shall register and qualify the
shares for sale in accordance with the laws of the various states to the
extent
deemed necessary by the Fund or the Distributor.
3.2 The
Fund shall may ever effort to maintain qualification of each Portfolio as
a
Regulated Investment Company under Subchapter M of the Code (or any successor
or
similar provision) and shall notify the Insurer immediately upon having a
reasonable basis for believing that a Portfolio has ceased to so qualify
or that
it might not so qualify in the future.
3.3 The
Fund and Adviser shall make every effort to ensure that each Portfolio complies
with the diversification provisions of Section 817(h) of the Code and the
regulations issued thereunder relating to the diversification requirements
for
variable life insurance policies
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and
variable annuity contracts and any prospective amendments or other modifications
to Section 817 or regulations thereunder, and shall notify the Insurer
immediately upon having a reasonable basis for believing that any Portfolio
has
ceased to comply. The Fund shall make every effort to remedy any
Portfolio’s failure to comply with Section 817(h) of the Code and regulations
thereunder within the time frame set forth by Section 817(h) and the regulations
thereunder.
3.4 The
Insurer shall take all such actions as are necessary under applicable federal
and state law to permit the sale of the Variable Contracts issued by the
Insurer, including registering each Separate Account as an investment company
to
the extent required under the 1940 Act, and registering the Variable Contracts
or interests in the Separate Accounts under the Variable Contracts to the
extent
required under the 1933 Act, and obtaining all necessary approvals to offer
the
Variable Contracts from state insurance commissioners.
3.5 The
insurer shall make every effort to maintain the treatment of the Variable
Contracts issued by the Insurer as annuity contracts or life insurance policies,
whichever is appropriate, under applicable provisions of the Code, and shall
notify the Fund and the Distributor immediately upon having a reasonable
basis
for believing that such Variable Contracts have ceased to be so treated or
that
they might not be so treated in the future. In that regard, the
Insurer shall make every effort to remedy any Variable Contract’s failure to be
treated as annuity contracts or life insurance policies, as appropriate,
under
applicable provisions of the Code, including Section 72 and regulations
thereunder within the required time frames.
3.6 The
Insurer or its agents shall offer and sell the Variable Contracts issued
by the
Insurer in accordance with applicable provisions of the 1933 Act, the 1934
Act,
the 1940 Act, the NASD Rules of Fair Practice, and state insurance law
respecting the offering of variable life insurance policies and variable
annuity
contracts.
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3.7 The
Distributor shall sell and distribute the shares of the Portfolios of the
Fund
in accordance with the applicable provisions of the 1933 Act, the 1934 Act,
and
1940 Act, and NASD Rules of Fair Practice, and state law.
3.8 During
such time as the Fund engages in activities that require a Mixed and Shared
Funding Exemptive Order, a majority of the Board of Trustees of the Fund
shall
consist of persons who are not “interested persons” of the Fund (“disinterested
Trustees”), as defined by Section 2(a)(19) of the 1940 Act and the rules
thereunder, and as modified by any applicable orders of the SEC, except that
if
this provision of this Section 3.8 is not met my reason of death,
disqualification, or bona fide resignation of any Trustee or Trustees, then
the
operation of this provision shall be suspended (a) for a period of 45 days
if
the vacancy or vacancies may be filled by the Fund’s Board; (b) for a period of
60 days if a vote of shareholders is required to fill the vacancy or vacancies;
or (c) for such longer period as the SEC may prescribe by rule or order upon
application.
3.9 Provided
it is consistent with their fiduciaries duties, the Insurer and its agents
will
not in any way recommend any proposal in opposition to, or oppose or interfere
with, any proposal submitted by the Fund at a meeting of owners of Variable
Contracts or shareholders of the Fund, and will in no way recommend any proposal
in opposition to, or oppose or interfere with, the solicitation of proxies
by
the Fund of shares held by Contract Owners, without the prior written consent
of
the Fund.
3.10 Each
party hereto shall cooperate with each other party and all appropriate
governmental authorities having jurisdiction (including, without limitation,
the
SEC, the NASD, and state insurance regulators) and shall permit such authorities
reasonable access to its books
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and
records in connection with any investigation or inquiry relating to this
Agreement or the transactions contemplated hereby.
ARTICLE
IV. Potential
Conflicts
4.1 If
and during the time that the Fund engages in activities that require a Mixed
and
Shared Funding Exemptive Order, the parties shall comply with the conditions
in
this Article IV.
4.2 The
Fund’s Board of Trustees shall monitor the Fund for the existence of any
material irreconcilable conflict (1) between the interests of owners of variable
annuity contracts and variable life insurance policies, and (2) between the
interests of owners of Variable Contracts (“Variable Contract Owners”) issued by
different Participating Life Insurance Companies that invest in the
Fund. A material irreconcilable 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 interpretive 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 of the Fund are being managed; (e) a difference in voting instructions
given by variable annuity and variable life insurance contract owners; or
(f) a
decision by a Participating Insurance Company to disregard the voting
instructions of Variable Contract Owners.
4.3 The
Insurer agrees that it shall report any potential or existing conflicts of
which
it is aware to the Fund’s Board of Trustees. The Insurer will be
responsible for assisting the Board of Trustees of the Fund in carrying out
its
responsibilities under the Mixed and Shared Funding Exemptive Order, or,
if the
Fund is engaged in mixed funding or shared funding in reliance on Rule 6e-2,
6e-3(T), or any other regulation under the 1940 Act, the Insurer will be
responsible
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for
assisting the Board of Trustees of the Fund in carrying out its responsibilities
under such regulation, 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 Insurer to inform the Board whenever
Variable Contract Owner voting instructions are disregarded. The
Insurer shall carry out its responsibility under this Section 4.3 with a
view
only to the interests of the Variable Contract Owners.
4.4 The
Insurer agrees that in the event that it is determined by a majority of the
Board of Trustees of the Fund or a majority of the Fund’s disinterested Trustees
that a material irreconcilable conflict exists, the Insurer shall, at its
expense and the extent reasonably practicable (as determined by a majority
of
the disinterested Trustees of the Board of the Fund), 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 another portfolio of the Fund, or
submitting the question as to whether such segregation should be implemented
to
a vote of all affected Variable Contract Owners and, as appropriate, segregating
the assets of any appropriate group (i.e., annuity contract owners or
life insurance contract owners of contracts issued by one or more Participating
Insurance Companies), the votes in favor of such segregation, or offering
to the
affected Variable Contract Owners the option of making such a change; and
(2)
establishing a new registered investment company or separate
account. If a material irreconcilable conflict arises because of the
Insurer’s decision to disregard Variable Contract Owners’ voting instructions
and that decision represents a minority position or would preclude a majority
vote, the Insurer shall be required, at the Fund’s election, to withdraw the
Separate Accounts’ investment in the Fund, provided, however,
that
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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, and no charge or penalty will be imposed as a result
of
such withdrawal. These responsibilities shall be carried out with a
view only to the interests of the Variable Contract Owners. A
majority of the disinterested Trustees of the Fund shall determine whether
or
not any proposed action adequately remedies any material irreconcilable
conflict, but in no event will the Fund or its investment advisor or the
Distributor be required to establish a new funding medium for any Variable
Contract. The Insurer shall not be required by this Section 4.4 to
establish a new funding medium for any Variable Contract if any offer to
do so
has been declined by vote of a majority of Variable Contract Owners materially
adversely affected by the material irreconcilable conflict.
4.5 The
Insurer, at least annually, shall submit to the Fund’s Board of Trustees such
reports, materials, or data as the Board reasonably may request so that the
Trustees of the Fund may fully carry out the obligations imposed upon the
Board
by the conditions contained in the application for the Mixed and Shared Funding
Exemptive Order and said reports, materials, and data shall be submitted
more
frequently if deemed appropriate by the Board.
4.6 All
reports of potential or existing conflicts received by the Fund’s Board of
Trustees, and all Board action with regard to determining the existence of
a
conflict, notifying Participating Insurance Companies of a conflict, and
determining whether any proposed action adequately remedies a conflict, shall
be
properly recorded in the minutes of the Board of Trustees of the Fund or
other
appropriate records, and such minutes or other records shall be made available
to the SEC upon request.
4.7 The
Board of Trustees of the Fund shall promptly notify the Insurer in writing
of
its determination of the existence of an irreconcilable material conflict
and
its implications.
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ARTICLE
V. Prospectuses
and Proxy Statements: Voting
5.1 The
Insurer shall deliver such prospectuses, proxy statements and periodic reports
of the Fund to the owners of Variable Contracts issued by the Insurer as
required to be distributed to such Variable Contract Owners under applicable
federal or state law. Such delivery may be accomplished through
electronic means subject to the standards prescribed by the SEC.
5.2 The
Distributor shall provide the Insurer with as many copies of the current
prospectus of the Fund as the Insurer may reasonably request. If
requested by the Insurer in lieu thereof, the Fund shall provide such
documentation (including a final copy of the Fund’s prospectus as set in type or
in camera-ready copy and/or in electronic form) and other assistance as is
reasonably necessary in order for the Insurer to produce in printed and/or
electronic form either a stand-alone document or in a combined document together
with the current prospectus for the Variable Contracts issued by the Insurer
and
the current prospectus for the Fund, or a document combining the Fund prospectus
with prospectuses of other funds in which the Variable Contracts may be
invested. The Fund shall bear the proportionate expense of printing
copies of its current prospectus that will be distributed to existing Variable
Contract Owners (whether in a stand-alone document or in combined document),
and
the Insurer shall bear the expense of printing copies of the Fund’s prospectus
that are used in connection with offering the Variable Contracts issued by
the
Insurer.
5.3 The
Fund and the Distributor shall provide, at the Fund’s expense, such copies of
the Fund’s current Statement of Additional Information (“SAI”) as may reasonably
be requested, to the Insurer and to any owner of a Variable Contract issued
by
the Insurer who requests such
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SAI. Such
delivery may be accomplished through electronic means subject to the standards
prescribed by the SEC.
5.4 The
Fund, at its expense, shall provide the Insurer with copies of its proxy
statements, periodic reports to shareholders, and other communications to
shareholders in such quantity as the Insurer shall reasonably require for
purposes of distributing to owners of Variable Contracts issued by the
Insurer. The Fund, at the Insurer’s expense, shall provide the
Insurer with copies of its periodic reports to shareholders and other
communications to shareholders in such quantify as the Insurer shall reasonably
request for use in connection with offering the Variable Contracts issued
by the
Insurer. If requested by the Insurer in lieu thereof, the Fund shall
provide such documentation (including a final copy of the Fund’s proxy
statements, periodic reports to shareholders, and other communications to
shareholders, as set in type or in camera-ready copy or in electronic form)
and
other assistance as reasonably necessary in order for the Insurer to print
or
electronically deliver such shareholder communications for distribution to
owners of Variable Contracts issued by the Insurer.
5.5 For
so long as the SEC interprets the 1940 Act to require pass-through voting
by
Participating Insurance Companies whose Separate Accounts are registered
as
investment companies under the 1940 Act, the Insurer shall vote shares of
each
Portfolio of the Fund held in a Separate Account or a subaccount thereof,
whether or not registered under the 1940 Act, at regular and special meetings
of
the Fund in accordance with instructions timely received by the Insurer (or
its
designated agent) from owners of Variable Contracts funded by such Separate
Account or subaccount thereof having a voting interest in the
Portfolio. The Insurer shall vote shares of a Portfolio of the Fund
held in a Separate Account or a subaccount thereof that are attributable
to the
Variable Contracts as to which no timely instructions are received, as well
as
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shares
held in such Separate Account or subaccount thereof that are not attributable
to
the Variable Contracts and owned beneficially by the Insurer (resulting from
charges against the Variable Contracts or otherwise), in the same proportion
as
the votes cast by owners of the Variable Contracts funded by that Separate
Account or subaccount thereof having a voting interest in the Portfolio from
whom instructions have been timely received. The Insurer shall vote
shares of each Portfolio of the Fund held in each separate account, if any,
in
the same proportion as the votes cast with respect to shares of the Portfolio
held in all Separate Accounts of the Insurer or subaccounts thereof, in the
aggregate.
5.6 If
and during the time as the Fund engages in activities that require a Mixed
and
Shared Funding Exemptive Order, the Fund shall disclose in its prospectus
that
(1) the Fund is intended to be a funding vehicle for variable annuity and
variable life insurance contacts offered by various insurance companies,
(2)
material irreconcilable conflicts possibly may arise, and (3) the Board of
Trustees of the Fund will monitor events in order to identify the existence
of
any material irreconcilable conflicts and to determine what action, if any,
should be taken in response to any such conflict. The Fund hereby
notifies the Insurer that prospectus disclosure may be appropriate regarding
potential risks of offering shares of the Fund to separate accounts funding
both
variable annuity contracts and variable life insurance policies and to separate
accounts funding Variable Contracts of unaffiliated life insurance
companies.
ARTICLE
VI. Sales
and Material and Information
6.1 Unless
the parties mutually agree to alternative time frames, the Insurer shall
furnish, or shall cause to be furnished, to the Fund or its designee, each
piece
of sales literature or other promotional material in which the Fund (or any
Portfolio thereof), the Adviser or the Distributor is names at least 15 days
prior to the anticipated use of such material, and no such
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sales
literature or other promotional material shall be sued unless the Fund, the
Adviser and the Distributor or their designee approve the material or do
not
respond with comments on the material within 10 days from receipt of the
material.
6.1(a) The
Fund and the Adviser hereby consent to the establishment by the Insurer of
a
link between the World Wide Web internet site of the Fund (whether it be
the
Fund’s website or the Adviser’s website containing information about the Fund)
and the World Wide Web internet site of the Insurer (each, a “Web
Site”). Such link may be established for the purpose of facilitating
access to information made available on the Funds’ Web Site, including the
Fund’s prospectus, as may be amended from time to time. Any such link
shall be displayed on the Insurer’s Web Site in equal prominence with any other
link or links that the Insurer may provide to the Web Sites of other underlying
investment companies that serve as investments for the Insurer’s Variable
Contracts. The establishment of such link shall not relieve the
Insurer of its responsibility for the delivery of the prospectuses, proxy
statement, or periodic reports of the Fund as provided in Section 5.1
hereof. The consent provided hereby shall terminate upon the
termination of this Agreement as provided for in Article VI
hereof. The text contained on the Insurer’s Web Site related to such
link shall be subject to Article VI hereof, including, without limitation,
the
requirement that the Insurer provide such text to the Fund for prior review
in
accordance with Section 6.1 hereof.
6.2 The
Insurer agrees that neither it nor any of its affiliates or agents shall
give
any information or make any representations or statements on behalf of the
Fund
and Adviser or concerning the Fund and Adviser other than the information
or
representations contained in the Registration Statement or prospectus for
the
Fund shares, as such registration statement and prospectus may be amended
or
supplemented from time to time, or in reports or proxy
statements
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for
the
Fund, or in sales literature or other promotional material approved by the
Fund
or its designee and by the Distributor or its designee, except with the
permission of the Fund or its designee and the Distributor or its
designee.
6.3 Unless
the parties mutually agree to alternative time frames, the Fund, the Adviser
and
the Distributor or their designee shall furnish to the Insurer or its designee,
each piece of sales literature or other promotional material in which the
Insurer or its Separate Accounts are named at least 15 days prior to the
anticipated use of such material, and no such material shall be sued unless
the
Insurer or its designee approves the material or does not respond with comments
on the material within 10 days from receipt of the material.
6.4 The
Fund, the Adviser and the Distributor agree that each and the affiliates
and
agents of each shall not give any information or make any representations
on
behalf of the Insurer or its affiliates, or concerning the Insurer or its
affiliates, the Separate Accounts, or the Variable Contracts issued by the
Insurer, other than the information or representations contained in a
registration statement or prospectus for such Variable Contracts, as such
registration statement and prospectus may be amended or supplemented from
time
to time, or in reports for the Separate Accounts or prepared for distribution
to
owners of such Variable Contracts, or in sales literature or other promotional
material approved by the Insurer or its designee, except with the permission
of
the Insurer or its designee.
6.5 The
Fund will provide to the Insurer at least one complete copy of any Mixed
and
Shared Funding Exemptive Order, notice and exemptive application, and any
amendments thereto, all prospectuses, Statements of Additional Information,
reports, proxy statements and other voting solicitation materials, and all
amendments and supplements to any of the above, that
Page
relate
to
the Fund or its shares, promptly after the filing of such document with the
SEC
or other regulatory authorities.
6.6 The
insurer will provide to the Fund all prospectuses (which shall include the
portions of an offering memorandum that contains information regarding the
Fund,
Distributor or Adviser if the Variable Contracts issued by the Insurer or
interests therein are not registered under the 1933 Act), Statements of
Additional Information, reports, solicitations for voting instructions relating
to the Fund, and all amendments or supplements to any of the above that relate
to the Variable Contracts issued by the Insurer or the Separate Accounts
which
utilize the Fund as an underlying investment medium, promptly after filing
of
such document with the SEC or other regulatory authority.
6.7 For
purposes of this Agreement, the phrase “sales literature or other promotional
material” includes, but is not limited to, 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, computerized media, Web site or other public
media), sales literature or other promotional material (i.e. any written
communication distributed or made generally available to customers or the
public, including brochures, circulars, information provided on a Web site,
research reports, market letters, form letters, seminar texts, reprints or
excerpts of any other advertisement, sales literature or other promotional
material, or published article), educational or training materials or other
communications distributed or made generally available to some or all agents
or
employees.
ARTICLE
VII. Indemnification
7.1 Indemnification
by the Insurer
Page
7.1(a) The
Insurer agrees to indemnify and hold harmless the Fund, the Distributor,
the
Adviser, and each of their Directors, Trustees, officers, employees and agents,
and any affiliated person of the Fund, Distributor or Adviser within the
meaning
of Section 2(a)(3) of the 1940 Act (collectively, the “Indemnified Parties”
for purposes of this Section 7.1) against any and all losses, claims, damages,
liabilities (including amounts paid in settlement with the written consent
of
the Insurer) or litigation expenses (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 litigation expenses are related to the sale or
acquisition of the Fund’s shares or the Variable Contracts issued by the Insurer
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 (which
shall
include the portions of an offering memorandum that contain information
regarding the Fund, Distributor or Adviser) for the Variable Contracts issued
by
the Insurer or sales literature or other promotional material for such Variable
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 Insurer by or on behalf of the Fund for use
in the
registration statement or prospectus for the Variable Contracts issued by
the
Insurer or sales literature or other promotional material (or any amendment
or
supplement) or otherwise for use in connection with the sale of such Variable
Contracts or Fund shares; or
(ii)
arise out of or as a result of any statement or representation (other than
statements or representations contained in the registration statement,
prospectus or sales literature or other promotional material of the Fund
not
supplied by the Insurer or persons under its control) or wrongful conduct
of the
Insurer or any of its affiliates, employees or agents with respect to the
sale
or distribution of the Variable Contracts issued by the insurer or the Fund
shares; or
(iii)
arise out of any untrue statement or alleged untrue statement of a material
fact
contained in a registration statement, prospectus, or sales literature or
other
promotional material of the Fund or any amendment thereof or supplement thereto
or the omission or
Page
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 by or on
behalf of the Insurer; or
(iv)
arise out of or result from any material breach of any representation and/or
warranty made by the Insurer in this Agreement or arise out of or result
from
any other material breach of this Agreement by the Insurer;
except
to
the extent provided in Sections 7.1(b) and 7.1(c) hereof.
7.1(b) The
Insurer shall not be liable under this indemnification provision with respect
to
any losses, claims, damages, liabilities or litigation expenses to which
an
Indemnified Party would otherwise be subject by reason of willful misfeasance,
bad faith, or gross negligence in the performance of the Indemnified Party’s
duties or by reason of the Indemnified Party’s reckless disregard of obligations
or duties under this Agreement.
7.1(c) The
Insurer shall not be liable under this indemnification provision with respect
to
any claim made against an Indemnified Party unless such Party shall have
notified the Insurer 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 serviced upon such Indemnified Party (or after such party shall
have
received notice of such service on any designated agent), but failure to
notify
the Insurer of any such claim shall not relieve the Insurer from any liability
which it may have to the Indemnified Party against whom such action is brought
otherwise than on account of this indemnification provision. In case
any such action is brought against the Indemnified Parties, the Insurer shall
be
entitled to participate, at its own expense, in the defense of such
action. The Insurer also shall be entitled to assume the defense
thereof, with counsel satisfactory to the party named in the
action. After notice from the Insurer to such party of the Insurer’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 Insurer
will
not be liable to such party under this
Page
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. If the Insurer assumes the defense or
representation of an Indemnified Party, the Insurer shall not consent or
agree
to any settlement without the prior approval of the Indemnified
Party.
7.1(d) The
Indemnified Parties shall promptly notify the Insurer of the commencement
of any
litigation or proceedings against them in connection with the issuance or
sale
of the Fund shares or the Variable Contracts issued by the Insurer or the
operation of the Fund.
7.2 Indemnification
By the Distributor
7.2(a) The
Distributor agrees to indemnify and hold harmless the Fund, the Adviser,
the
Insurer, and the Insurer’s affiliated principal underwriter of the Variable
Contracts, and each of their trustees, directors, officer, employees, and
agents, and any affiliated person of the Insurer, Fund or Adviser within
the
meaning of Section 2(a)(3) of the 1940 Act (collectively, the “Indemnified
Parties” for the purposes of this Section 7.2) against any and all losses,
claims, damages, liabilities (including amounts paid in settlement with the
written consent of the Distributor) or litigation expenses (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 litigation expenses are related to
the
sale or acquisition of the Fund’s shares of the Variable Contracts issued by the
Insurer 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 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
Page
the
Distributor or the Fund or the designee of either by or on behalf of
the Insurer 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 such Variable
Contracts or Fund shares; or
(ii)
arise out of or as a result of any statement or representation (other than
statements or representations contained in the registration statement,
prospectus or sales literature or other promotional material for the Variable
Contracts not supplied by the Distributor or any employees or agents thereof)
or
wrongful conduct of the Fund or Distributor, or the affiliates, employees
or
agents of the fund or the Distributor with respect to the sale or distribution
of the Variable Contracts issued by the Insurer or the Fund shares;
or
(iii)
arise out of any untrue statement or alleged untrue statement of a material
fact
contained in a registration statement, prospectus, or sales literature or
other
promotional material covering the Variable Contracts issued by the Insurer,
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 Insurer by or on
behalf of the Fund; or
(iv)
arise out of or result from any material breach of any representation and/or
warranty made by the Distributor in this Agreement or arise out of or result
from any other material breach of this Agreement by the
Distributor;
except
to
the extent provided in Sections 7.2(b) and 7.2(c) hereof.
7.2(b) The
Distributor shall not be liable under this indemnification provision with
respect to any losses, claims, damages, liabilities or litigation expenses
to
which an Indemnified Party would otherwise be subject by reason of willful
misfeasance, bad faith or gross negligence in the performance of the Indemnified
Party’s duties or by reason of the Indemnified Party’s reckless disregard of
obligations or duties under this Agreement.
7.2(c) The
Distributor shall not be liable under this indemnification provision with
respect to any claim made against an Indemnified Party unless such Party
shall
have notified the Distributor 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 serviced upon such Indemnified Party (or after such
Party
shall have received notice of such service on any
Page
designated
agent), but failure to notify the Distributor of any such claim shall not
relieve the Distributor from any liability which it may have to the Indemnified
Party against whom such action is brought otherwise than on account of this
indemnification provision. In case any such action is brought against
the Indemnified Parties, the Distributor shall be entitled to participate,
at
its own expense, in the defense thereof. The Distributor also shall
be entitled to assume the defense thereof, with counsel satisfactory to the
party named in the action. After notice from the Distributor to such
party of the Distributor’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 Distributor 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. If the Distributor assumes the defense or
representation of an Indemnified Party, the Distributor shall not consent
or
agree to any settlement without the prior approval of the Indemnified
Party.
7.2(d) The
Indemnified Parties shall promptly notify the Distributor of the commencement
of
any litigation or proceedings against them in connection with the issuance
or
sale of the Fund shares or the Variable Contracts issued by the Insurer or
the
operation of the Separate Accounts.
7.3 Indemnification
by the Fund
7.3(a) The
Fund agrees to indemnify and hold harmless the Insurer, the Insurer’s affiliated
principal underwriter of the Variable Contracts, and each of their trustees,
directors, officers, employees, and agents, and any “affiliated person: of the
Insurer within the meaning of Section 2(a)(3) of the 1940 Act (collectively,
the
“Indemnified Parties” for the purposes of this Section 7.3) against any and all
losses, claims, damages, liabilities (including amounts paid in
Page
settlement
with the written consent of the Fund) or litigation expenses (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 litigation expenses are related
to
the sale or acquisition of the Fund’s shares of the Variable Contracts issued by
the Insurer 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 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
Distributor or the Fund or the designee of either by or on behalf of
the Insurer 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 such Variable
Contracts issued by the Insurer or Fund shares; or
(ii)
arise out of or as a result of any statement or representation (other than
statements or representations contained in the registration statement,
prospectus or sales literature or other promotional material for the Variable
Contracts not supplied by the Distributor or any employees or agents thereof)
or
wrongful conduct of the Fund, or the affiliates, employees or agents of the
Fund
with respect to the sale or distribution of the Variable Contracts issued
by the
Insurer or the Fund shares; or
(iii)
arise out of any untrue statement or alleged untrue statement of a material
fact
contained in a registration statement, prospectus, or sales literature or
other
promotional material covering the Variable Contracts issued by the Insurer,
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 a statement
or
omission was made in reliance upon information furnished to the Insurer by
or on
behalf of the Fund; or
(iv)
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;
except
to
the extent provided in Sections 7.3(b) and 7.3(c) hereof.
Page
7.3(b) The
Fund shall not be liable under this indemnification provision with respect
to
any losses, claims, damages, liabilities or litigation expenses to which
an
Indemnified Party would otherwise be subject by reason of willful misfeasance,
bad faith or gross negligence in the performance of the Indemnified Party’s
duties or by reason of the Indemnified Party’s reckless disregard of obligations
or duties under this Agreement or to the Insurer.
7.3(c) The
Fund shall not be liable under this indemnification provision with respect
to
any claim made against an Indemnified Party unless such 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 Party shall have received
notice of such service on any designated agent), but failure to notify the
Fund
of any such claim shall not relieve the Fund from any liability which it
may
have to the Indemnified Party against whom such action is brought otherwise
than
on account of this indemnification provision. 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 defense thereof, with counsel satisfactory
to the party named in the action. 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. If the Fund assumes the defense or representation of
an Indemnified Party, the Fund shall not consent or agree to any settlement
without the prior approval of the Indemnified Party.
Page
7.3(d) The
Insurer shall promptly notify the Fund of the commencement of any litigation
or
proceedings against them in connection with the issuance or sale of the Variable
Contracts issued by the Insurer or the sale of the Fund’s shares.
7.4 Indemnification
by the Adviser
7.4(a) The
Adviser agrees to indemnify and hold harmless the Fund, the Distributor,
the
Insurer, and the Insurer’s affiliated principal underwriter of the Variable
Contracts, and each of their trustees, directors, officers, employees, and
agents, and any “affiliated person” of the Insurer, Fund or Distributor within
the meaning of Section 2(a)(3) of the 1940 Act (collectively, the “Indemnified
Parties” for the purposes of this Section 7.4) against any and all losses,
claims, damages, liabilities (including amounts paid in settlement with the
written consent of the Adviser) or litigation expenses (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 litigation expenses are related to
the
sale or acquisition of the Fund’s shares of the Variable Contracts issued by the
Insurer and:
(i)
arise
out of or are based upon any untrue statement or alleged untrue statement
of any
material fact provided by the Adviser and contained in the registration
statement or prospectus 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 about the Adviser 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 Adviser or the Fund or the designee
of either by or on behalf of the Insurer 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 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 Variable Contracts issued by the Insurer
or
Fund shares; or
(ii)
arise out of or as a result of any statement or representation (other than
statements or representations contained in the registration statement,
prospectus or sales
Page
literature
or other promotional material for the Variable Contracts not supplied by
the
Adviser or any employees or agents thereof) or wrongful conduct of the Adviser,
or the affiliates, employees or agents of the Adviser with respect to the
sale
or distribution of the Variable Contracts issued by the Insurer or the Fund
shares; or
(iii)
arise out of any untrue statement or alleged untrue statement of a material
fact
contained in a registration statement, prospectus, or sales literature or
other
promotional material covering the Variable Contracts issued by the Insurer,
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 a statement
or
omission was made in reliance upon information furnished by or behalf of
the
Adviser; or
(iv)
arise out of or result from any material breach of any representation and/or
warranty made by the Adviser in this Agreement or arise out of or result
from
any other material breach of this Agreement by the Adviser;
except
to
the extent provided in Sections 7.4(b) and 7.4(c) hereof.
7.4(b) The
Adviser shall not be liable under this indemnification provision with respect
to
any losses, claims, damages, liabilities or litigation expenses to which
an
Indemnified Party would otherwise be subject by reason of willful misfeasance,
bad faith or gross negligence in the performance of the Indemnified Party’s
duties or by reason of the Indemnified Party’s reckless disregard of obligations
or duties under this Agreement or to the Insurer.
7.4(c) The
Adviser shall not be liable under this indemnification provision with respect
to
any claim made against an Indemnified Party unless such Party shall have
notified the Adviser 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 Party shall have
received notice of such service on any designated agent), but failure to
notify
the Adviser of any such claim shall not relieve the Adviser from any liability
which it may have to the Indemnified Party against whom such action is brought
otherwise than on account of this indemnification provision. In case
any such action is brought against the Indemnified Parties, the Adviser will
be
entitled to participate, at its own expense, in the defense
Page
thereof. The
Adviser also shall be entitled to assume the defense thereof, with counsel
satisfactory to the party named in the action. After notice from the
Adviser to such party of the Adviser’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 Adviser 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. If the Adviser assumes the defense or
representation of an Indemnified Party, the Adviser shall not consent or
agree
to any settlement without the prior approval of the Indemnified
Party.
7.3(d) The
Indemnified Parties shall promptly notify the Adviser of the commencement
of any
litigation or proceedings against them in connection with the issuance or
sale
of the Variable Contracts issued by the Insurer or the operation of the Separate
Accounts.
ARTICLE
VIII. Applicable
Law
8.1 This
agreement shall be construed and the provisions hereof interpreted under
and in
accordance with the laws of the State of New York.
8.2 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 Mixed and Shared Funding Exemptive Order),
and the terms hereof shall be interpreted and construed in accordance
therewith.
ARTICLE
IX. Termination
9.1 This
Agreement shall terminate:
Page
(a)
at the option of any party upon 180
days advance written notice to the other parties; or
(b)
at the option of the Insurer if
shares of the Portfolios are not reasonably available to meet the requirements
of the Variable Contracts issued by the Insurer, as determined by the Insurer,
and upon prompt notice by the Insurer to the other parties; or
(c)
at the option of the Fund or the
Distributor upon institution of formal proceedings against the Insurer or
its
agent by the NASD, the SEC, or any state securities or insurance department
or
any other regulatory body regarding the Insurer’s duties under this Agreement or
related to the sale of the Variable Contracts issued by the Insurer, the
operation of the Separate Accounts, or the purchase of the Fund shares;
or
(d)
at the option of the Insurer upon
institution of formal proceedings against the Fund, the Adviser or the
Distributor by the NASD, the SEC, or any state securities or insurance
department or any other regulatory body; or
(e)
upon requisite vote of the Variable
Contract Owners having an interest in the Separate Accounts (or any subaccounts
thereof) to substitute the shares of another investment company for the
corresponding shares of the Fund or a Portfolio in accordance with the terms
of
the Variable Contracts fro which those shares had been selected or serve
as the
underlying investment media; or
(f)
in the event of any of the shares
of a Portfolio 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 Variable Contracts issued or to be issued
by
the Insurer; or
Page
(g)
by any party to the Agreement upon
a determination by a majority of the Trustees of the Fund, or a majority
of its
disinterested Trustees, that an irreconcilable conflict, as described in
Article
IV hereof, exists; or
(h)
at the option of the Insurer if the
Fund or Portfolio fails to meet the requirements under Subchapter M of the
Code
for qualification as a Regulated Investment Company specified in Section
3.2
hereof or the diversification requirements specified in Section 3.3
hereof.
9.2 Each
party to this Agreement shall promptly notify the other parties to the Agreement
of the institution against such party of any such formal proceedings as
described in Sections 9.1(c) and (d) hereof. The Insurer shall give
60 days prior written notice to the Fund of the date of any proposed vote
of
Variable Contract Owners to replace the Fund’s shares as described in Section
9.1(e) hereof.
9.3 Except
as necessary to implement Variable Contract Owner initiated transactions,
or as
required by state insurance laws or regulations, the Insurer shall not redeem
Fund shares attributable to the Variable Contracts issued by the Insurer
(as
opposed to Fund shares attributable to the Insurer’s assets held in the Separate
Accounts), and the Insurer shall not prevent Variable Contract Owners from
allocating payments to a Portfolio, until 60 days after the Insurer shall
have
notified the Fund or Distributor of its intention to do so.
9.4 Notwithstanding
any termination of this Agreement, the Fund and the Distributor shall at
the
option of the Insurer continue to make available additional shares of the
Fund
pursuant t the terms and conditions of this Agreement, for all Variable
Contracts in effect on the effective date of termination of this Agreement
(hereinafter referred to as “Existing Contracts”). Specifically,
without limitation, based upon instructions from the owners of the
Existing
Page
Contracts,
the Separate Accounts shall be permitted to reallocate investments in the
Portfolios of the Fund and redeem investments in the Portfolios, and shall
be
permitted to invest in the Portfolios in the event that owners of the Existing
Contracts make additional purchase payments under the Existing
Contracts. If this Agreement terminates, the parties agree that
Sections 3.10, 7.1, 7.2, 7.3, 7.4, 8.1, 8.2 and 11.7 and, to the extent that
all
or a portion of the assets of the Separate Accounts continue to be invested
in
the Fund or any Portfolio of the Fund, Articles I, II, and IV and Sections
5.5
and 5.6 will remain in effect after termination.
ARTICLE
X. Notices
Any
notice shall be sufficiently given
when sent by registered or certified mail or by facsimile duly delivered
with
confirmation of receipt 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:
Vision
Group of Funds
0000
Xxxxxxxxx Xxxxx
Xxxxxxxxxx,
Xxxxxxxxxxxx 00000-0000
Attn: Secretary
Fax: (000)
000-0000
Phone: (000)
000-0000
If
to the Distributor:
Federated
Securities Corp.
Federated
Investors Tower
0000
Xxxxxxx Xxxxxx
Xxxxxxxxxx,
Xxxxxxxxxxxx 00000-0000
Attn: Secretary
Fax: (000)
000-0000
Phone: (000)
000-0000
Page
If
to the Insurer:
Nationwide
Life Insurance
Company
Nationwide
Life and Annuity
Company
Xxx
Xxxxxxxxxx Xxxxx,
0-00-X0
Xxxxxxxx,
Xxxx 00000
Attn: Securities
Officer
Fax: (000)
000-0000
Phone: (000)
000-0000 or
(000) 000-0000
If
to the Adviser:
M&T
Asset management, a department
of
Manufacturers
and Traders Trust
Company
One
M&T Xxxx Xxxxx
Xxxxxxx,
Xxx
Xxxx 00000
Attn: Chief
Investment
Officer
Fax: (000)
000-0000
Phone: (000)
000-0000
ARTICLE
XI. Miscellaneous
11.1 The
Fund and the Insurer agree that if and to the extent Rule 6e-2 or Rule 6e-3(T)
under the 1940 Act is amended or if Rule 6e-3 is adopted in final form, to
the
extent applicable, the Fund and the Insurer shall each take such steps as
may be
necessary to comply with the Rule as amended or adopted in final
form.
11.2 A
copy of the Fund’s Certificate of Trust is on file with the Secretary of the
State of Delaware and notice is hereby given that any agreements that are
executed on behalf of the Fund by any Trustee or officer of the Fund are
executed in his or her capacity as Trustee or officer and not
individually. The obligations of this Agreement shall only be binding
upon assets and property of the Fund and shall not be binding upon any Trustee,
officer or shareholder of the Fund individually.
Page
11.3 Nothing
in this Agreement shall impede the Fund’s Trustees or shareholders of the shares
of the Fund’s Portfolios from exercising any of the rights provided to such
Trustees or shareholders in the Fund’s Agreement and Declaration of the Trust,
as amended, a copy of which will be provided to the Insurer upon
request.
11.4 Administrative
services to Variable Contract Owners shall be the responsibility of Insurer
as
set forth in Exhibit D. Insurer, on behalf of its separate accounts
will be the sole shareholder of record of Fund shares. Distributor of
the Fund agrees to pay Insurer an amount computed pursuant to Exhibit
E.
11.5(a) It
is understood that the names “Federated”, “Vision Group of Funds” or any
derivative thereof or logo associated with those names (the “Marks”) are the
valuable property, respectively, of the Distributor and the Funds (and their
affiliates), and that the Insurer has the right to use such names (or
derivatives or logos) only so long as this Agreement is in effect and the
Distributor or an affiliate of the Distributor continues to serves as the
principal underwriter of the Fund. Upon termination of this Agreement
the Insurer shall forthwith cease to use the Marks. Insurer agrees
that it shall not use the Marks in a manner that disparages or degrades the
business or reputation of the Distributor, the Fund, or any of their affiliates,
or that infringes, dilutes, or otherwise violates the Marks. Upon
request, the Insurer agrees to provide appropriate attribution of the use
of the
Marks (e.g., through the use of “TM” or ® symbols, and appropriate notice
regarding reservation of rights).
11.5(b) It
is understood that the names “M&T”, “Manufacturers & Traders Trust
Company” or any derivative thereof or logo associated with those names (the
“M&T Marks”) are the valuable property, respectively, of the Manufacturers
& Traders Trust Company (and their affiliates), and that the Insurer has the
right to use such names (or derivatives or logos) only so
Page
long
as
this Agreement is in effect and the Adviser or an affiliate of the Adviser
continues to serves as the investment adviser of the Fund. Upon
termination of this Agreement the Insurer shall forthwith cease to use the
M&T Marks. Insurer agrees that it shall not use the M&T Marks
in a manner that disparages or degrades the business or reputation of the
Adviser, the Fund, or any of their affiliates, or that infringes, dilutes,
or
otherwise violates the M&T Marks. Upon request, the Insurer
agrees to provide appropriate attribution of the use of the M&T Marks (e.g.,
through the use of “TM” or ® symbols, and appropriate notice regarding
reservation of rights).
11.6 It
is understood that the name “Nationwide” or any derivative thereof or logo
associated with that name (the “Nationwide Marks”) is the valuable property of
the Insurer and its affiliates, and the Fund, Distributor and Adviser have
the
right to use such name (or derivative or logo) only so long as this Agreement
is
in effect. Upon termination of this Agreement the Fund, Distributor
and Adviser shall forthwith cease to use the Nationwide Marks. Fund,
Distributor and Adviser agree that it shall not xxx the Nationwide Marks
in a
manner that disparages or degrades the business or reputation of the Insurer
or
any of their affiliates, or that infringes, dilutes, or otherwise violates
the
Nationwide Marks. Upon request, Fund, Distributor and Adviser agree
to provide appropriate attribution of the use of the Nationwide Marks (e.g.,
through the use of “TM” or ® symbols, and appropriate notice regarding
reservation of rights).
11.7 The
parties agree to keep confidential all information, documentation and/or
data
related to this Agreement, except as may be necessary to perform services
under
this Agreement, as required by law, a court of competent jurisdiction or
other
governing regulatory body, or as otherwise may be agreed to in writing by
the
parties. Each party agrees not to use, disclose or distribute to
others any consumer non-public personal information related to this
Agreement,
Page
except
as
necessary to perform the terms of this Agreement or as permitted or required
by
law. This provision shall survive the termination of this
Agreement.
11.8 Should
Fund, Distributor or Adviser desire to no longer have a Fund available in
a
variable contract, Fund, Distributor or Adviser shall be responsible for
any and
all expenses incurred as a result of removing such Fund as an available
investment option under the Contract. Should Insurer desire to no
longer have a Fund available in a variable contract, Insurer shall be
responsible for any and all expenses incurred as a result of removing such
Fund
as an available investment option under the Contract. Should a
removal of a Fund as an available investment option be mutually desired by
the
parties, the parties agree to equally (or in such other proportion as they
may
mutually agree) share any expenses incurred as a result of removing such
Fund as
an available investment option. Insurer, Fund, Distributor and
Adviser agree to provide reasonable advance notice of the election to remove
a
Fund as an available investment option inn order to permit the parties to
file
documentation as may be required under applicable law.
11.9 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.
11.10 This
Agreement may be executed simultaneously in two or more counterparts, each
of
which taken together shall constitute one and the same instrument.
11.11 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.
11.12 No
party to this Agreement may assign the Agreement except with the written
consent
of the other parties to the Agreement.
Page
IN
WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the day and year first above written.
FEDERATED
SECURITIES CORP.
By:
_____________________________
Name:
Title: Vice
President
VISION
GROUP OF FUNDS
By:
______________________________
Name:
Title: Vice
President
NATIONWIDE
LIFE INSURANCE COMPANY
NATIONWIDE
LIFE AND ANNUITY INSURANCE COMPANY
By:
_______________________________
Name:
Title: VP,
Investment Management Relationships
MANUFACTURERS
AND TRADERS TRUST COMPANY,
on
behalf of M&T ASSET MANAGEMENT department
By:
________________________________
Name:
Title: Sr.
Vice President/CIO
Page
EXHIBIT
A
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
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
VLI Separate Account – 6
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
DC Variable Account
Nationwide
DC Variable Account - II
NACo
Variable Account
Nationwide
Governmental Plans Variable Account
Nationwide
Governmental Plans Variable Account - II
Nationwide
Qualified Plans Variable Account
Nationwide
Private Placement Variable Account
Ohio
DC
Variable Account
Page
EXHIBIT
B
VISION
GROUP OF FUNDS
Vision
Large Cap Value Fund II
Vision
Large Cap Growth Fund II
Vision
Managed Allocation Fund – Moderate Growth II
Page
EXHIBIT
C
Subject
to the terms and conditions of this Agreement, Insurer shall be appointed
to,
and agrees to act, as a limited agent of Fund for the sole purpose of receiving
instruction from authorized parties as defined by the Variable Contracts
for the
purchase and redemption of Fund shares prior to the close of regular trading
each Business Day. A “Business Day” is defined in Section 1.1 of the
Agreement. Except as particularly stated in this paragraph, Insurer
shall have no authority to act on behalf of Fund or to incur any cost or
liability on its behalf.
Until
such time as Fund and Insurer are able to utilize the National Securities
Clearing Corporation (“NSCC”) Defined Contribution Clearing and Settlement
(“DCC&S”) Fund/SERV system: Fund will use its best efforts to
provide to Insurer or its designated agent closing net asset value, change
in
net asset value, dividend or daily accrual rate information and capital gain
information by 7:00 p.m. Eastern Time each Business Day. Insurer or
its agent shall use this data to calculate unit values. Unit values
shall be used to process the same Business Day’s contract
transactions. Orders derived from, and in amounts equal to,
instructions received by Insurer prior to the Close of Trading on the New
York
Stock Exchange on any Business Day (Day 1”) shall be transmitted without
modification (except for netting or aggregating such orders) to Fund by 9:00
A.M. Eastern Time on the next Business Day. Such trades will be
effected at the net asset value of each Fund’s shares calculated as of the Close
of Trading on Day 1. Fund will not accept any order made on a
conditional basis or subject to any delay or contingency. Insurer
shall only place purchase orders for shares of Funds on behalf of its customers
whose addresses recorded on Insurer’s books are in a state or other jurisdiction
in which the Funds are registered or qualified for sale, or are exempt from
registration or qualification as confirmed in writing by Fund
Until
such times as Fund and Insurer are able to utilize the DCC&S Fund/SERV
system, each party shall, as soon as practicable after its receipt of an
instruction or confirmation transmitted, verify its receipt of such instruction
or confirmation, and in the absence of such verification such a party to
whom an
instruction or confirmation is sent shall not be liable for any failure to
act
in accordance with any such instruction or confirmation, and the sending
party
may not claim that such an instruction or confirmation was received by the
other. Each party shall notify the other of any errors, omissions, or
interruptions in, or delay or unavailability as promptly as
possible.
a) For
those purchase orders not transmitted via the DCC&S Fund/SERV system,Insurer
shall complete payment to Fund or its designated agent in federal funds nolater
than 1:00 P.M. on the Business Day following the day on which the instructions
are treated as having been received by Fund pursuant to this
Agreement.
b) For
those redemption orders not transmitted via the DCC&S Fund/SERV system,Fund
or its designated agent shall initiate payment in federal funds no later
than1:00 P.M. on the Business Day following the day on which the instructions
are treated as having been received by Fund pursuant to this
Agreement.
Page
At
such
time as Fund and Insurer are able to transmit information via the NSCC’s
DCC&S Fund/SERV system:
a) Orders
derived from, and in amounts equal to, instructions received by Insurerprior
to
the Close of Trading on Day 1 shall be transmitted without modification(except
for netting and aggregation of such orders) via the NSCC’s DCC&S Fund/SERV
system to Fund no later than 5:00 A.M. Eastern Time on the Next Business
Day. Such trades will be effected at the net asset value of each
Fund’s shares calculated as of the Close of Trading on Day 1.
b) Fund
and Insurer shall mutually agree there may be instances when orders shallbe
transmitted to Fund via facsimile no later than 9:00 A.M. rather than throughthe
DCC&S Fund/SERV system. In such instances, such orders shall be
transmitted to Fund via facsimile no later than 9:00 A.M. Eastern Time on
the
next Business Day.
c) With
respect to purchase and redemption orders received by Fun on any BusinessDay
for
any Fund, within the time limits set forth in this Agreement, settlementshall
occur consistent with the requirements of DCC&S Fund/SERV
system.
At
such
time as Fund and Insurer are able to transmit information via the DCC&S
Fund/SERV system: Fund or its designated agent shall send to Insurer,
via the DCC&S Fund/SERV system, verification of net purchase or redemption
orders or notification of the rejection of such orders (“Confirmations”) on each
Business Day for which Insurer has transmitted such orders. Such
confirmations shall include the total number of shares of each Fund held
by
Insurer following such net purchase or redemption. Fund, or its
designated agent, shall submit in a timely manner, such confirmations to
the
DCC&S Fund/SERV system in order for Insurer to receive such confirmations no
later than 11:00 A.M. Eastern Time the next Business Day. Fund or its
designated agent will transmit to Insurer via DCC&S NETWORKING system those
Networking activity files reflecting account activity. In addition,
with five (5) Business Days after the end of each month, Fund or its affiliate
will end Insurer a statement of account which shall confirm all transactions
made during that particular month in the account.
DOCUMENTS
AND OTHER MATERIALS
DOCUMENTS
PROVIDED BY INSURER
Insurer
agrees to provide Fund, upon written request, any reports indicating the
number
of shareholders that hold interests in the Funds and such other information
(including books and records) that Fund may reasonably request or as may
be
necessary or advisable to enable it to comply with any law, regulation or
order.
Page
DOCUMENTS
PROVIDED BY FUND
Within
five (5) Business Days after the end of each calendar month, Fund, Distributor,
or Adviser shall provide Insurer, or its designee, a monthly statement of
account, which shall confirm all transactions made during that particular
month.
Fund,
Distributor, or Adviser shall promptly provide Insurer, or cause Insurer
to be
provided with, a reasonable quantity of the Funds’ prospectuses, Statements of
Additional Information and any supplements thereto.
Page
EXHIBIT
D
Services
Provided by Insurer
Pursuant
to the Agreement, Insurer shall perform all administrative and shareholders
services with respect to the Variable Contracts and plans, including but
not
limited to, the following:
1. Maintaining
separate records for each Variable Contract owner and each plan, which
shallreflect the Fund shares purchased and redeemed and Fund share balances
of
such VariableContract owners and plans. Insurer will maintain
accounts with each Fund on behalf of Variable Contract owners and plans,
and
such account shall be in the name of Insurer (or its nominee) as the record
owner of shares owned by such Variable Contract owners and plans.
2. Disbursing
or crediting to contract owners and plans all proceeds of redemptions of
sharesof the Funds and all dividends and other distribution not reinvested
in
shares of the Funds.
3. Preparing
and transmitting to Variable Contract owners and plans, as required by
law,periodic statements showing the total number of shares owned as of the
statement closingdate, purchases and redemptions of Fund shares during the
period covered by the statement and the dividends and other distributions
paid
during the statement period (whether paid in cash or reinvested in Fund shares),
and such other information as may be required, from time to time, by Variable
Contract owners and plans.
4. Supporting
and responding to service inquiries for Variable Contract owners and
plans.
5. Maintaining
and preserving all records required by law to be maintained and preserved
inconnection with providing the services for Variable Contract owners and
plans.
6. Generating
written confirmations and quarterly statements to Variable Contract owners
andplan participants.
7. Distributing
to Variable Contract owners and plans, to the extent required by applicable
law,Funds’ prospectuses, proxy materials, periodic fund reports to shareholders
and othermaterials that the Funds are required by law or otherwise to provide
to
their shareholders or prospective shareholders.
8. Transmitting
purchase and redemption orders to the Funds on behalf of the VariableContract
owners and plans.
Page
EXHIBIT
E
Funds
|
Basis
Points Per Annum
|
Vision
Large Cap Growth Fund II
|
__
bps
|
Vision
Large Cap Value Fund II
|
__
bps
|
Vision
Managed Allocation Fund –
Moderate
Growth II
|
__
bps
|
Page
ASSIGNMENT
AND CONSENT
THIS
ASSIGNMENT AND
CONSENT is entered into by each of the undersigned as of the dates set
forth below.
WHEREAS,
Federated
Securities Corp. (“FSC”); Nationwide Life Insurance Company and Nationwide Life
and Annuity Insurance Company; Vision Group of Funds; and M&T Asset
Management each entered into a Fund Participation Agreement dated June 1,
2002
(the “Agreement”);
WHEREAS,
on August 15,
2003, Edgewood Services, Inc. (“ESI”) succeeded FSC as distributor of Vision
Group of Funds;
WHEREAS,
on August 15,
2003, Vision Group of Funds was renamed MTB Group of Funds;
WHEREAS,
on August 22,
2003, the investment advisory business of M&T Asset Management was
restructured and assumed by MTB Investment Advisors, Inc.
(“MTBIA”);
WHEREAS,
FSC desires
to assign its rights, duties, and responsibilities under the Agreement to
ESI,
and ESI desires to accept the assignment of the Agreement from FSC;
and
WHEREAS,
M&T Asset
Management desires to assign its rights, duties and responsibilities under
the
Agreement to MTBIA, and MTBIA desires to accept the assignment from M&T
Asset Management:
KNOW
ALL MEN BY THESE
PRESENTS:
In
consideration of the sum of
___________ ($_____) and other good and valuable consideration, FSC does
hereby
assign all its rights, interests, and responsibilities under the Agreement
described above to ESI, and ESI does hereby accept such assignment, effective
August 15, 2003 (the “FSC Assignment”).
In
consideration of the sum of
___________ ($_____) and other good and valuable consideration, M&T Asset
management does hereby assign all its rights, interests, and responsibilities
under the Agreement described above to MTBIA, and MTBIA does hereby accept
such
assignment, effective August 22, 2003 (the “M&T Asset Management
Assignment”).
Each
party to this Assignment and
Consent does hereby consent to the FSC Assignment and the M&T Asset
Management Assignment.
Page
IN
WITNESS WHEREOF,
the parties hereto have cause this Assignment and Consent to be executed
by
their authorized representatives as of August 15, 2003 with respect t the
FSC
Assignment, and as of August 22, 2203, with respect to the M&T Asset
Management Assignment.
FEDERATED
SECURITIES
CORP. EDGEWOOD
SERVICES, INC.
By:______________________________ By:_____________________________
Name: Name:
Title: Vice
President Title: Vice
President
M&T
ASSET MANAGEMENT, a
department
of Manufacturers and Traders
Trust
Company MTB
INVESTMENT ADVISORS, INC.
By:______________________________ By:_______________________________
Name: Name:
Title: Senior
Vice President &
CIO Title: President
and CIO
NATIONWIDE
LIFE INSURANCE
COMPANY
NATIONWIDE
LIFE AND ANNUITY
INSURANCE
COMPANY MTB
GROUP OF FUNDS
By:_______________________________ By:________________________________
Name: Name:
Title: V.P.
– Investment & Advisory
Services Title: Vice
President
Page
EXHIBIT
B
(as
revised on 8/22/03)
MTB
GROUP OF FUNDS
(formerly: Vision
Group of Funds)
MTB
Large
Cap Growth Fund II
(formerly: Vision
Large Cap Growth Fund II)
MTB
Large
Cap Value Fund II
(formerly: Vision
Large Cap Value Fund II)
MTB
Managed Allocation Fund: Moderate Growth II
(formerly: Vision
Managed Allocation Fund: Moderate Growth II)
Page
EXHIBIT
E
(as
revised on 8/22/03)
Funds
|
Basis
Points Per Annum
|
MTB
Large Cap Growth Fun II
(formerly: Vision
Large Cap Growth Fund II)
|
__
bps
|
MTB
Large Cap Value Fund II
(formerly: Vision
Large Cap Value Fund II)
|
__
bps
|
MTB
Managed Allocation Fund – Moderate Growth II
(formerly: Vision
Managed Allocation Fund – Moderate Growth II)
|
__
bps
|
Page