AMENDED AND RESTATED PARTICIPATION AGREEMENT AMONG MFS VARIABLE INSURANCE TRUST, NATIONWIDE LIFE INSURANCE COMPANY, NATIONWIDE LIFE AND ANNUITY INSURANCE COMPANY, NATIONWIDE LIFE INSURANCE COMPANY OF AMERICA, NATIONWIDE LIFE AND ANNUITY INSURANCE...
AMENDED
AND RESTATED
AMONG
MFS
VARIABLE INSURANCE TRUST,
NATIONWIDE
LIFE INSURANCE COMPANY,
NATIONWIDE
LIFE AND ANNUITY INSURANCE COMPANY,
NATIONWIDE
LIFE INSURANCE COMPANY OF AMERICA,
NATIONWIDE
LIFE AND ANNUITY INSURANCE COMPANY OF AMERICA
AND
MASSACHUSETTS
FINANCIAL SERVICES COMPANY
THIS
AMENDED AND RESTATED PARTICIPATION
AGREEMENT, made and entered into this [1] day of February 2003, by and
among MFS VARIABLE INSURANCE TRUST, a Massachusetts business trust (the
"Trust"), NATIONWIDE LIFE INSURANCE COMPANY, a stock life corporation,
NATIONWIDE LIFE AND ANNUITY INSURANCE COMPANY, a stock life corporation,
NATIONWIDE LIFE INSURANCE COMPANY OF AMERICA a stock life corporation,NATIONWIDE
LIFE AND ANNUITY INSURANCE COMPANY,OF AMERICA a stock life corporation (each
such company being referred to as a “Company,” all references to the “Company”
contained herein shall be deemed to be references to each such company,
severally and not jointly), on the Company’s own behalf and on behalf of each of
the segregated asset accounts of the Company set forth in Schedule A hereto,
as
may be amended from time to time (the "Accounts"), and MASSACHUSETTS FINANCIAL
SERVICES COMPANY, a Delaware corporation ("MFS").
WHEREAS,
the Trust is registered as an
open-end management investment company under the Investment Company Act of
1940,
as amended (the "1940 Act"), and its shares are registered or will be registered
under the Securities Act of 1933, as amended (the "1933 Act");
WHEREAS,
shares of beneficial interest
of the Trust are divided into several series of shares, each representing the
interests in a particular managed pool of securities and other
assets;
WHEREAS,
certain series of shares of
the Trust are divided into two separate share classes, an Initial Class and
a
Service Class, and the Trust on behalf of the Service Class has adopted a Rule
12b-1 plan under the 1940 Act pursuant to which the Service Class pays a
distribution fee;
WHEREAS,
the series of shares of the
Trust (each, a "Portfolio," and, collectively, the "Portfolios") and the classes
of shares of those Portfolios (the “Shares”) offered by the Trust to the Company
and the Accounts are set forth on Schedule A attached hereto;
WHEREAS,
MFS is duly registered as an
investment adviser under the Investment Advisers Act of 1940, as amended, and
any applicable state securities law, and is the Trust's investment
adviser;
WHEREAS,
the Company will issue certain
variable annuity and/or variable life insurance contracts (individually, the
"Contract" or, collectively, the "Contracts") which, if required by applicable
law, will be registered under the 1933 Act;
WHEREAS,
the Accounts are duly
organized, validly existing segregated asset accounts, established by resolution
of the Board of Directors of the Company, to set aside and invest assets
attributable to the aforesaid variable annuity and/or variable life insurance
contracts that are allocated to the Accounts (the Contracts and the Accounts
covered by this Agreement, and each corresponding Portfolio covered by this
Agreement in which the Accounts invest, is specified in Schedule A attached
hereto as may be modified from time to time);
WHEREAS,
the Company has registered or
will register the Accounts as unit investment trusts under the 1940 Act (unless
exempt therefrom);
WHEREAS,
MFS Fund Distributors, Inc.
(the "Underwriter") is registered as a broker-dealer with the Securities and
Exchange Commission (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. (the "NASD");
WHEREAS,
the Company is the underwriter
for the individual variable annuity and the variable life contracts, is
registered as a broker-dealer with the SEC under the 1934 Act and is a member
in
good standing of the NASD; and
WHEREAS,
to the extent permitted by
applicable insurance laws and regulations, the Company intends to purchase
the
Shares of the Portfolios as specified in Schedule A attached hereto (the
"Shares") on behalf of the Accounts to fund the Contracts, and the Trust intends
to sell such Shares to the Accounts at net asset value;
NOW,
THEREFORE, in consideration of
their mutual promises, the Trust, MFS, and the Company agree as
follows:
ARTICLE
I. SALE OF TRUST SHARES
1.1. The
Trust agrees to sell to the Company those Shares which the Accounts order (based
on orders placed by Contract holders on that Business Day, as defined below)
and
which are available for purchase by such Accounts, executing such orders on
a
daily basis at the net asset value next computed after receipt by the Trust
or
its designee of the order for the Shares. For purposes of this
Section 1.1, the Company shall be the designee of the Trust for receipt of
such
orders from Contract owners and receipt by such designee shall constitute
receipt by the Trust; provided that the Trust receives notice of such
orders by 9:30 a.m. New York time on the next following Business
Day. "Business Day" shall mean any day on which the New York Stock
Exchange, Inc. (the "NYSE") is open for trading and on which the Trust
calculates its net asset value pursuant to the rules of the SEC.
1.2. The
Trust agrees to make the Shares available indefinitely for purchase at the
applicable net asset value per share by the Company and the Accounts on those
days on which the Trust calculates its net asset value pursuant to rules of
the
SEC and the Trust shall calculate such net asset value on each day which the
NYSE is open for trading. Notwithstanding the foregoing, the Board of
Trustees of the Trust (the "Board") may refuse to sell any Shares to the Company
and the Accounts, or suspend or terminate the offering of the Shares 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
its
fiduciary duties under federal and any applicable state laws, necessary in
the
best interest of the Shareholders of such Portfolio.
1.3. The
Trust and MFS agree that the Shares will be sold only to insurance companies
which have entered into participation agreements with the Trust and MFS (the
"Participating Insurance Companies") and their separate accounts, qualified
pension and retirement plans and MFS or its affiliates. The Trust and MFS will
not sell Trust shares to any insurance company or separate account unless an
agreement containing provisions substantially the same as Articles III and
VII
of this Agreement is in effect to govern such sales. The Company will not resell
the Shares except to the Trust or its agents.
1.4. The
Trust agrees to redeem for cash, on the Company's request, any full or
fractional Shares held by the Accounts (based on orders placed by Contract
holders on that Business Day), executing such requests on a daily basis at
the
net asset value next computed after receipt by the Trust or its designee of
the
request for redemption. For purposes of this Section 1.4, the Company
shall be the designee of the Trust for receipt of requests for redemption from
Contract owners and receipt by such designee shall constitute receipt by the
Trust; provided that the Trust receives notice of such request for redemption
by
9:30 a.m. New York time on the next following Business Day.
1.5. Each
purchase, redemption and exchange order placed by the Company shall be placed
separately for each Portfolio and shall not be netted with respect to any
Portfolio. However, with respect to payment of the purchase price by
the Company and of redemption proceeds by the Trust, the Company and the Trust
shall net purchase and redemption orders with respect to each Portfolio and
shall transmit one net payment for all of the Portfolios in accordance with
Section 1.6 hereof.
1.6. In
the event of net purchases, the Company shall pay for the Shares by 2:00 p.m.
New York time on the next Business Day after an order to purchase the Shares
is
made in accordance with the provisions of Section 1.1. hereof. In the
event of net redemptions, the Trust shall pay the redemption proceeds by 2:00
p.m. New York time on the next Business Day after an order to redeem the shares
is made in accordance with the provisions of Section 1.4. hereof. All
such payments shall be in federal funds transmitted by wire.
1.7. Issuance
and transfer of the Shares will be by book entry only. Stock
certificates will not be issued to the Company or the Accounts. The
Shares ordered from the Trust will be recorded in an appropriate title for
the
Accounts or the appropriate subaccounts of the Accounts.
1.8. The
Trust shall furnish same day notice (by wire or telephone followed by written
confirmation) to the Company of any dividends or capital gain distributions
payable on the Shares. The Company hereby elects to receive all such
dividends and distributions as are payable on a Portfolio's Shares in additional
Shares of that Portfolio. The Trust shall notify the Company of the
number of Shares so issued as payment of such dividends and
distributions. Dividends and capital gains distributions shall be
reinvested in additional shares at pay-date net asset value.
1.9. The
Trust or its custodian shall make the net asset value per share for each
Portfolio available to the Company on each Business Day as soon as reasonably
practical after the net asset value per share is calculated and shall use its
best efforts to make such net asset value per share available by 6:30 p.m.
New
York time. In the event that the Trust is unable to meet the 6:30
p.m. time stated herein, it shall provide additional time for the Company to
place orders for the purchase and redemption of Shares. Such
additional time shall be equal to the additional time which the Trust takes
to
make the net asset value available to the Company. If the Trust
provides materially incorrect share net asset value information, the Trust
shall
make an adjustment to the number of shares purchased or redeemed for the
Accounts to reflect the correct net asset value per share. Any
material error in the calculation or reporting of net asset value per share,
dividend or capital gains information shall be reported promptly upon discovery
to the Company. The Trust shall send to the Company within five
business days after the end of each month separate statements for each Account
showing all transactions made in that Account over the immediately preceding
month.
ARTICLE
II.CERTAIN REPRESENTATIONS, WARRANTIES AND
COVENANTS
2.1. The
Company represents and warrants that the Contracts are or will be registered
under the 1933 Act or are exempt from or not subject to registration thereunder,
and that the Contracts will be issued, sold, and distributed in compliance
in
all material respects with all applicable state and federal laws, including
without limitation the 1933 Act, the Securities Exchange Act of 1934, as amended
(the "1934 Act"), and the 1940 Act. The Company further represents
and warrants that it is an insurance company duly organized and in good standing
under applicable law and that it has legally and validly established the Account
as a segregated asset account under applicable law and has registered or, prior
to any issuance or sale of the Contracts, will register the Accounts as unit
investment trusts in accordance with the provisions of the 1940 Act
(unless exempt therefrom) to serve as segregated investment accounts for the
Contracts, and that it will maintain such registration for so long as any
Contracts are outstanding. The Company shall amend the registration
statements under the 1933 Act for the Contracts and the registration statements
under the 1940 Act for the Accounts from time to time as required in order
to
effect the continuous offering of the Contracts or as may otherwise be required
by applicable law. The Company shall register and qualify the
Contracts for sales accordance with the securities laws of the various states
only if and to the extent deemed necessary by the Company.
2.2. The
Company represents and warrants that the Contracts are currently and at the
time
of issuance will be treated as life insurance, endowment or annuity contract
under applicable provisions of the Internal Revenue Code of 1986, as amended
(the "Code"), that it will maintain such treatment and that it will notify
the
Trust or MFS immediately upon having a reasonable basis for believing that
the
Contracts have ceased to be so treated or that they might not be so treated
in
the future.
2.3. The
Company represents and warrants that it is a member in good standing
of the NASD and is a registered broker-dealer with the SEC. The
Company represents and warrants that it will sell and distribute such Contracts
in accordance in all material respects with all applicable state and federal
securities laws, including without limitation the 1933 Act, the 1934 Act, and
the ▇▇▇▇ ▇▇▇.
2.4. The
Trust and MFS represent and warrant that the Shares sold pursuant to this
Agreement shall be registered under the 1933 Act, duly authorized for issuance
and sold in compliance with the laws of The Commonwealth of Massachusetts and
all applicable federal and state securities laws and that the Trust is and
shall
remain registered under the 1940 Act. The Trust 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 Trust shall register and qualify the Shares for sale in
accordance with the laws of the various states only if and to the extent deemed
necessary by the Trust.
2.5. MFS
represents and warrants that the Underwriter is a member in good standing of
the
NASD and is registered as a broker-dealer with the SEC. The Trust and
MFS represent that the Trust and the Underwriter will sell and distribute the
Shares in accordance in all material respects with all applicable state and
federal securities laws, including without limitation the 1933 Act, the 1934
Act, and the ▇▇▇▇ ▇▇▇.
2.6. The
Trust represents that it is lawfully organized and validly existing under the
laws of The Commonwealth of Massachusetts and that it does and will comply
in
all material respects with the 1940 Act and any applicable regulations
thereunder.
2.7. MFS
represents and warrants that it is and shall remain duly registered under all
applicable federal securities laws and that it shall perform its obligations
for
the Trust in compliance in all material respects with any applicable federal
securities laws and with the securities laws of The Commonwealth of
Massachusetts. MFS represents and warrants that it is not subject to
state securities laws other than the securities laws of The Commonwealth of
Massachusetts and that it is exempt from registration as an investment adviser
under the securities laws of The Commonwealth of Massachusetts.
2.8. No
less frequently than annually, the Company shall submit to the Board such
reports, material or data as the Board may reasonably request so that it may
carry out fully the obligations imposed upon it by the conditions contained
in
the exemptive application pursuant to which the SEC has granted exemptive relief
to permit mixed and shared funding (the "Mixed and Shared Funding Exemptive
Order").
ARTICLE
III. PROSPECTUS AND PROXY STATEMENTS;
VOTING
3.1. At
least annually, the Trust or its designee shall provide the Company, free of
charge, with as many copies of the current prospectus (describing only the
Portfolios listed in Schedule A hereto) for the Shares as the Company may
reasonably request for distribution to existing Contract owners whose Contracts
are funded by such Shares. The Trust or its designee shall provide
the Company, at the Company's expense, with as many copies of the current
prospectus for the Shares as the Company may reasonably request for distribution
to prospective purchasers of Contracts. If requested by the Company
in lieu thereof, the Trust or its designee shall provide such documentation
(including a "camera ready" copy of the new prospectus as set in type or, at
the
request of the Company, as a diskette in the form sent to the financial printer)
and other assistance as is reasonably necessary in order for the parties hereto
once each year (or more frequently if the prospectus for the Shares is
supplemented or amended) to have the prospectus for the Contracts and the
prospectus for the Shares printed together in one document; the expenses of
such
printing to be apportioned between (a) the Company and (b) the Trust or its
designee in proportion to the number of pages of the Contract and Shares'
prospectuses, taking account of other relevant factors affecting the expense
of
printing, such as covers, columns, graphs and charts; the Trust or its designee
to bear the cost of printing the Shares' prospectus portion of such document
for
distribution to owners of existing Contracts funded by the Shares and the
Company to bear the expenses of printing the portion of such document relating
to the Accounts; provided, however, that the Company shall bear all
printing expenses of such combined documents where used for distribution to
prospective purchasers or to owners of existing Contracts not funded by the
Shares. In the event that the Company requests that the Trust or its
designee provides the Trust's prospectus in a "camera ready" or diskette format,
the Trust shall be responsible for providing the prospectus in the format in
which it or MFS is accustomed to formatting prospectuses and shall bear the
expense of providing the prospectus in such format (e.g., typesetting
expenses), and the Company shall bear the expense of adjusting or changing
the
format to conform with any of its prospectuses.
3.2. The
prospectus for the Shares shall state that the statement of additional
information for the Shares is available from the Trust or its
designee. The Trust or its designee, at its expense, shall print and
provide such statement of additional information to the Company (or a master
of
such statement suitable for duplication by the Company) for distribution to
any
owner of a Contract funded by the Shares. The Trust or its designee,
at the Company's expense, shall print and provide such statement to the Company
(or a master of such statement suitable for duplication by the Company) for
distribution to a prospective purchaser who requests such statement or to an
owner of a Contract not funded by the Shares.
3.3. The
Trust or its designee shall provide the Company free of charge copies, if and
to
the extent applicable to the Shares, of the Trust's proxy materials, reports
to
Shareholders and other communications to Shareholders in such quantity as the
Company shall reasonably require for distribution to Contract
owners.
3.4. Notwithstanding
the provisions of Sections 3.1, 3.2, and 3.3 above, or of Article V below,
the
Company shall pay the expense of printing or providing documents to the extent
such cost is considered a distribution expense. Distribution expenses
would include by way of illustration, but are not limited to, the printing
of
the Shares' prospectus or prospectuses for distribution to prospective
purchasers or to owners of existing Contracts not funded by such
Shares.
3.5. The
Trust hereby notifies the Company that it may be appropriate to include in
the
prospectus pursuant to which a Contract is offered disclosure regarding the
potential risks of mixed and shared funding.
3.6. If
and to the extent required by law, the Company shall:
(a) solicit
voting instructions from Contract owners;
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(b)
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vote
the Shares in accordance with instructions received from Contract
owners;
and
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(c)
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vote
the Shares for which no instructions have been received in the same
proportion as the Shares of such Portfolio for which instructions
have
been received from Contract owners;
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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. The
Company will in no way recommend action in connection with or oppose or
interfere with the solicitation of proxies for the Shares held for such Contract
owners. The Company reserves the right to vote shares held in any
segregated asset account in its own right, to the extent permitted by
law. Participating Insurance Companies shall be responsible for
assuring that each of their separate accounts holding Shares calculates voting
privileges in the manner required by the Mixed and Shared Funding Exemptive
Order. The Trust and MFS will notify the Company of any changes of
interpretations or amendments to the Mixed and Shared Funding Exemptive
Order.
ARTICLE
IV. SALES MATERIAL AND INFORMATION
4.1. The
Company shall furnish, or shall cause to be furnished, to the Trust or its
designee, each piece of sales literature or other promotional material in which
the Trust, MFS, any other investment adviser to the Trust, or any affiliate
of
MFS are named, at least three (3) Business Days prior to its use. No
such material shall be used if the Trust, MFS, or their respective designees
reasonably objects to such use within three (3) Business Days after receipt
of
such material.
4.2. The
Company shall not give any information or make any representations or statement
on behalf of the Trust, MFS, any other investment adviser to the Trust, or
any
affiliate of MFS or concerning the Trust or any other such entity in connection
with the sale of the Contracts other than the information or representations
contained in the registration statement, prospectus or statement of additional
information for the Shares, as such registration statement, prospectus and
statement of additional information may be amended or supplemented from time
to
time, or in reports or proxy statements for the Trust, or in sales literature
or
other promotional material approved by the Trust, MFS or their respective
designees, except with the permission of the Trust, MFS or their respective
designees. The Trust, MFS or their respective designees each agrees
to respond to any request for approval on a prompt and timely
basis. The Company shall adopt and implement procedures reasonably
designed to ensure that information concerning the Trust, MFS or any of their
affiliates which is intended for use only by brokers or agents selling the
Contracts (i.e., information that is not intended for distribution to
Contract holders or prospective Contract holders) is so used, and neither the
Trust, MFS nor any of their affiliates shall be liable for any losses, damages
or expenses relating to the improper use of such broker only
materials.
4.3. The
Trust 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 the Accounts is named, at least three
(3)
Business Days prior to its use. No such material shall be used if the
Company or its designee reasonably objects to such use within three (3) Business
Days after receipt of such material.
4.4. The
Trust and MFS shall not give, and agree that the Underwriter shall not give,
any
information or make any representations on behalf of the Company or concerning
the Company, the Accounts, or the Contracts in connection with the sale of
the
Contracts other than the information or representations contained in a
registration statement, prospectus, or statement of additional information
for
the Contracts, as such registration statement, prospectus and statement of
additional information may be amended or supplemented from time to time, or
in
reports for the Accounts, or in sales literature or other promotional material
approved by the Company or its designee, except with the permission of the
Company. The Company or its designee agrees to respond to any request
for approval on a prompt and timely basis. The Trust and MFS may not alter
any
material so provided by the Company or its designee (including, without
limitation, presenting or delivering such material in a different medium, e.g.,
electronic or internet) without the prior written consent of the
Company. The parties hereto agree that this Section 4.4. is
neither intended to designate nor otherwise imply that MFS is an underwriter
or
distributor of the Contracts.
4.5. The
Company and the Trust (or its designee in lieu of the Company or the Trust,
as
appropriate) will each provide to the other at least one complete copy of all
registration statements, prospectuses, statements of additional information,
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 Contracts, or to the Trust or its
Shares, prior to or contemporaneously with the filing of such document with
the
SEC or other regulatory authorities. The Company and the Trust shall
also each promptly inform the other or the results of any examination by the
SEC
(or other regulatory authorities) that relates to the Contracts, the Trust
or
its Shares, and the party that was the subject of the examination shall provide
the other party with a copy of relevant portions of any "deficiency letter"
or
other correspondence or written report regarding any such
examination.
4.6. No
party shall use any other party’s names, logos, trademarks or service marks,
whether registered or unregistered, without the prior written consent of such
other party, or after written consent therefor has been revoked, provided that
separate consent is not required under this Section 4.6 to the extent that
consent to use a party’s name, logo, trademark or service ▇▇▇▇ in connection
with a particular piece of advertising or sales literature has previously been
giving by a party under Sections 4.2 and 4.4 of this Agreement. The
Company shall not use in advertising, publicly or otherwise the name of the
Trust, MFS or any of their affiliates nor any trade name, trademark, trade
device, servicemark, symbol or any abbreviation, contraction or simulation
thereof of the Trust, MFS, or their affiliates without the prior written consent
of the Trust or MFS in each instance. The Trust and MFS shall not use
in advertising, publicly or otherwise the name of the Company or any of its
affiliates nor any trade name, trademark, trade device, servicemark, symbol
or
any abbreviation, contraction or simulation thereof of the Company or its
affiliates without the prior written consent of the Company in each
instance.
4.7. The
Trust and MFS will provide the Company with as much notice as is reasonably
practicable of any proxy solicitation for any Portfolio, and of any material
change in the Trust's registration statement, particularly any change resulting
in change to the registration statement or prospectus or statement of additional
information for any Account. The Trust and MFS will cooperate with
the Company so as to enable the Company to solicit proxies from Contract owners
or to make changes to its prospectus, statement of additional information or
registration statement, in an orderly manner. The Trust and MFS will
make reasonable efforts to attempt to have changes affecting Contract
prospectuses become effective simultaneously with the annual updates for such
prospectuses.
4.8. For
purpose of this Article IV and Article VIII, 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, or other public media), and sales
literature (such as brochures, circulars, reprints or excerpts or any other
advertisement, sales literature, or published articles), distributed or made
generally available to customers or the public, educational or training
materials or communications distributed or made generally available to some
or
all agents or employees.
ARTICLE
V.FEES AND EXPENSES
5.1. The
Trust shall pay no fee or other compensation to the Company under this
Agreement, and the Company shall pay no fee or other compensation to the Trust,
except that, to the extent the Trust or any Portfolio has adopted and
implemented a plan pursuant to Rule 12b-1 under the 1940 Act to finance
distribution and for Shareholder servicing expenses, then the Trust may make
payments to the Company or to the underwriter for the Contracts in accordance
with such plan. Each party, however, shall, in accordance with the
allocation of expenses specified in Articles III and V hereof, reimburse other
parties for expense initially paid by one party but allocated to another party.
In addition, nothing herein shall prevent the parties hereto from otherwise
agreeing to perform, and arranging for appropriate compensation for, other
services relating to the Trust and/or to the Accounts.
5.2. The
Trust or its designee shall bear the expenses for the cost of registration
and
qualification of the Shares under all applicable federal and state laws,
including preparation and filing of the Trust's registration statement, and
payment of filing fees and registration fees; preparation and filing of the
Trust's proxy materials and reports to Shareholders; setting in type and
printing its prospectus and statement of additional information (to the extent
provided by and as determined in accordance with Article III above); setting
in
type and printing the proxy materials and reports to Shareholders (to the extent
provided by and as determined in accordance with Article III above); the
preparation of all statements and notices required of the Trust by any federal
or state law with respect to its Shares; all taxes on the issuance or transfer
of the Shares; and the costs of distributing the Trust's prospectuses and proxy
materials to owners of Contracts funded by the Shares and any expenses permitted
to be paid or assumed by the Trust pursuant to a plan, if any, under Rule 12b-1
under the 1940 Act. The Trust shall not bear any expenses of
marketing the Contracts.
5.3. The
Company shall bear the expenses of distributing the Shares' prospectus or
prospectuses in connection with new sales of the Contracts and of distributing
the Trust's Shareholder reports and proxy materials to Contract
owners. The Company shall bear all expenses associated with the
registration, qualification, and filing of the Contracts under applicable
federal securities and state insurance laws; the cost of preparing, printing
and
distributing the Contract prospectus and statement of additional information;
and the cost of preparing, printing and distributing annual individual account
statements for Contract owners as required by state insurance laws.
5.4 MFS
will monthly reimburse the Company certain of the administrative costs and
expenses incurred by the Company as a result of operations necessitated by
the
beneficial ownership by Policy owners of shares of the Portfolios of the Trust,
equal to ___% per annum of the aggregate net assets of the Trust attributable
to
variable life or variable annuity contracts offered by the Company or its
affiliates. In no event shall such fee be paid by the Trust, its
shareholders or by the Policy holders.
ARTICLE
VI.DIVERSIFICATION AND RELATED
LIMITATIONS
6.1. The
Trust and MFS represent and warrant that they will use their best efforts to
ensure that each Portfolio will meet the diversification requirements of Section
851 of the Code (“Section 851 Diversification Requirements”) and Section
817(h)(1) of the Code and Treas. Reg. 1.817-5 relating to the diversification
requirements for variable annuity, endowment, or life insurance contracts
(“Section 817(h)(1) Diversification Requirements”), as they may be amended from
time to time (and any revenue rulings, revenue procedures, notices, and other
published announcements of the Internal Revenue Service interpreting these
sections) (collectively, “Diversification Requirements”). In the
event that any Portfolio is not so diversified at the end of any applicable
quarter, the Trust and MFS will make every effort to adequately diversify the
Portfolio so as to achieve compliance within the grace periods afforded by
Treas. Reg. 1.817-5 and Section 851(d) of the Code (the “Grace
Periods”). In the event that any Portfolio is not so diversified at
the end of any applicable Grace Period, the Trust or MFS will promptly notify
the Company of such non-diversification, such notification to be provided in
no
event later than 20 days after the end of the applicable Grace
Period.
6.2. The
Trust or MFS shall provide the Company with, at the sole option of the Trust
or
MFS, either (a) a report of independent auditors verifying compliance by each
Portfolio with the Section 851 Diversification Requirements as of the end of
the
immediately preceding fiscal quarter and with the Section 817(h)(1)
Diversification Requirements as of the end of the immediately preceding calendar
quarter or as of the end of any applicable Grace Period (if the Grace Period
is
used to seek to achieve compliance), such report to be provided within 20 days
after the end of the applicable quarter or any applicable Grace Period (if
the
Grace Period is used to seek to achieve compliance) or (b) a list of portfolio
holdings of each Portfolio as of the end of the immediately preceding fiscal
and
calendar quarter or the end of any applicable Grace Period (if the Grace Period
is used to seek to achieve compliance), such list to be provided within 20
days
after the end of the applicable quarter or any applicable Grace Period (if
the
Grace Period is used to seek to achieve compliance).
ARTICLE
VII.POTENTIAL MATERIAL CONFLICTS
7.1. The
Trust agrees that the Board, constituted with a majority of disinterested
trustees, will monitor each Portfolio of the Trust for the existence of any
material irreconcilable conflict between the interests of the variable annuity
contract owners and the variable life insurance contract owners of the Company
and/or affiliated companies ("contract owners") investing in the
Trust. The Board shall have the sole authority to determine if a
material irreconcilable conflict exists, and such determination shall be binding
on the Company only if approved in the form of a resolution by a majority of
the
Board, or a majority of the disinterested trustees of the Board. The Board
will
give prompt notice of any such determination to the Company.
7.2. The
Company agrees that it will be responsible for assisting the Board in carrying
out its responsibilities under the conditions set forth in the Trust's exemptive
application pursuant to which the SEC has granted the Mixed and Shared Funding
Exemptive Order by providing the Board, as it may reasonably request, with
all
information necessary for the Board to consider any issues raised and agrees
that it will be responsible for promptly reporting any potential or existing
conflicts of which it is aware to the Board including, but not limited to,
an
obligation by the Company to inform the Board whenever contract owner voting
instructions are disregard. The Company also agrees that, if a
material irreconcilable conflict arises, it will at is own cost remedy such
conflict up to and including (a) withdrawing the assets allocable to some or
all
of the Accounts from the Trust or any Portfolio and reinvesting such assets
in a
different investment medium, including (but not limited to) another Portfolio
of
the Trust, or submitting to a vote of all affected contract owners whether
to
withdraw assets from the Trust or any Portfolio and reinvesting such assets
in a
different investment medium and, as appropriate, segregating the assets
attributable to any appropriate group of contract owners that votes in favor
of
such segregation, or offering to any of the affected contract owners the option
of segregating the assets attributable to their Contracts, and (b) establishing
a new registered management investment company and segregating the assets
underlying the Contracts, unless a majority of Contract owners materially
adversely affected by the conflict have voted to decline the offer to establish
a new registered management investment company.
7.3. A
majority of the disinterested trustees of the Board shall determine whether
any
proposed action by the Company adequately remedies any material irreconcilable
conflict. In the event that the Board determines that any proposed action does
not adequately remedy any material irreconcilable conflict, the Company will
withdraw from investment in the Trust each of the Accounts designated by the
disinterested trustees 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 to remedy any such material irreconcilable
conflict as determined by a majority of the disinterested trustees of the
Board.
7.4. If
and to the extent that Rule 6e-2 and Rule 6e-3(T) are amended, or Rule 6e-3
is
adopted, to provide exemptive relief from any provision of the 1940 Act or
the
rules promulgated thereunder with respect to mixed or shares funding (as defined
in the Mixed and Shared Funding Exemptive Order) on terms and conditions
materially different from those contained in the Mixed Shared Funding Exemptive
Order, then (a) the Trust and/or the Participating Insurance Companies, as
appropriate, shall take such steps as may be necessary to comply with Rule
6e-2
and 6e-3(T), as amended, and Rule 6e-3, as adopted, to the extent such rules
are
applicable; and (b) Sections 3.5, 3.6, 7.1, 7.2, 7.3 and 7.4 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
The
Company agrees to indemnify and
hold harmless the Trust, MFS, any affiliates of MFS, and each of their
respective directors/trustees, officers and each person, if any, who controls
the Trust or MFS within the meaning of Section 15 of the 1933 Act, and any
agents or employees of the foregoing (each an "Indemnified Party," or
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 expenses
(including reasonable counsel fees) to which an Indemnified Party may
become subject under any statute, 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 Shares or the Contracts and:
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(a)
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arise
out of or are based upon any untrue statement or alleged untrue statement
of any material fact contained in the registration statement, prospectus
or statement of additional information 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 commission 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
reasonable reliance upon and in conformity with information furnished
to
the Company or its designee by or on behalf of the Trust or MFS for
use in
the registration statement, prospectus or statement of additional
information 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 Shares;
or
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(b)
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arise
out of or as a result of statements or representations (other than
statements or representations contained in the registration statement,
prospectus, statement of additional information or sales literature
or
other promotional material of the Trust not supplied by the Company
or
this designee, or persons under its control and on which the Company
has
reasonably relied) or wrongful conduct of the Company or persons
under its
control, with respect to the sale or distribution of the Contracts
or
Shares; or
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(c)
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arise
out of any untrue statement or alleged untrue statement of a material
fact
contained in the registration statement, prospectus, statement of
additional information, or sales literature or other promotional
literature of the Trust, 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 Trust by or on behalf
of the
Company; or
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(d)
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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;
or
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(e)
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arise
as a result of any failure by the Company to provide the services
and
furnish the materials under the terms of this
Agreement;
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as
limited by and in accordance with the provisions of this Article
VIII.
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8.2. Indemnification
by the Trust
The
Trust 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,
and any agents or employees of the foregoing (each an "Indemnified Party,"
or
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 Trust) or expenses (including
reasonable counsel fees) to which any Indemnified Party may become subject
under
any statute, 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 Shares or the Contracts
and:
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(a)
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arise
out of or are based upon any untrue statement or alleged untrue statement
of any material fact contained in the registration statement, prospectus,
statement of additional information or sales literature or other
promotional material of the Trust (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 statement 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 reasonable reliance upon and in conformity
with
information furnished to the Trust, MFS, the Underwriter or their
respective designees by or on behalf of the Company for use in the
registration statement, prospectus or statement of additional information
for the Trust or in sales literature or other promotional material
for the
Trust (or any amendment or supplement) or otherwise for use in connection
with the sale of the Contracts or Shares;
or
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(b)
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arise
out of or as a result of statements or representations (other than
statement or representations contained in the registration statement,
prospectus, statement of additional information or sales literature
or
other promotional material for the Contracts not supplied by the
Trust,
MFS, the Underwriter or any of their respective designees or persons
under
their respective control and on which any such entity has reasonably
relied) or wrongful conduct of the Trust or persons under its control,
with respect to the sale or distribution of the Contracts or Shares;
or
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(c)
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arise
out of or result from any material breach of any representation and/or
warranty made by the Trust in this Agreement (including a failure,
whether
unintentional or in good faith or otherwise, to comply with the
diversification requirements specified in Article VI of this Agreement)
or
arise out of or result from any other material breach of this Agreement
by
the Trust; or
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(d)
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arise
out of or result from the materially incorrect or untimely calculation
or
reporting of the daily net asset value per share or dividend or capital
gain distribution rate; or
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(e)
|
arise
as a result of any failure by the Trust to provide the services and
furnish the materials under the terms of the
Agreement;
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as
limited by and in accordance with the provisions of this Article
VIII.
8.3. In
no event shall the Trust be liable under the indemnification provisions
contained in this Agreement to any individual or entity, including without
limitation, the Company, or any Participating Insurance Company or any Contract
holder, with respect to any losses, claims, damages, liabilities or expenses
that arise out of or result from (i) a breach of any representation, warranty,
and/or covenant made by the Company hereunder or by any Participating Insurance
Company under an agreement containing substantially similar representations,
warranties and covenants; (ii) the failure by the Company or any Participating
Insurance Company to maintain its segregated asset account (which invests in
any
Portfolio) as a legally and validly established segregated asset account under
applicable state law and as a duly registered unit investment trust under the
provisions of the 1940 Act (unless exempt therefrom); or (iii) the failure
by
the Company or any Participating Insurance Company to maintain its variable
annuity and/or variable life insurance contracts (with respect to which any
Portfolio serves as an underlying funding vehicle) as life insurance, endowment
or annuity contracts under applicable provisions of the Code.
8.4. Neither
the Company nor the Trust shall be liable under the indemnification provisions
contained in this Agreement with respect to any losses, claims, damages,
liabilities or expenses to which an Indemnified Party would otherwise be subject
by reason of such Indemnified Party's willful misfeasance, willful misconduct,
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.
8.5. Promptly
after receipt by an Indemnified Party under this Section 8.5. of commencement
of
action, such Indemnified Party will, if a claim in respect thereof is to be
made
against the indemnifying party under this section, notify the indemnifying
party
of the commencement thereof; but the omission so to notify the indemnifying
party will not relieve it from any liability which it may have to any
Indemnified Party otherwise than under this section. In case any such
action is brought against any Indemnified Party, and it notified the
indemnifying party of the commencement thereof, the indemnifying party will
be
entitled to participate therein and, to the extent that it may wish, assume
the
defense thereof, with counsel satisfactory to such Indemnified
Party. After notice from the indemnifying party of its intention to
assume the defense of an action, the Indemnified Party shall bear the expenses
of any additional counsel obtained by it, and the indemnifying party shall
not
be liable to such Indemnified Party under this section for any legal or other
expenses subsequently incurred by such Indemnified Party in connection with
the
defense thereof other than reasonable costs of investigation.
8.6. Each
of the parties agrees promptly to notify the other parties of the commencement
of any litigation or proceeding against it or any of its respective officers,
directors, trustees, employees or 1933 Act control persons in connection with
the Agreement, the issuance or sale of the Contracts, the operation of the
Accounts, or the sale or acquisition of Shares.
8.7. A
successor by law of the parties to this Agreement shall be entitled to the
benefits of the indemnification contained in this Article VIII. The
indemnification provisions contained in this Article VIII shall survive any
termination of this Agreement.
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 Commonwealth of Massachusetts.
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 and the terms
hereof shall be interpreted and construed in accordance therewith.
ARTICLE
X. NOTICE OF FORMAL PROCEEDINGS
The
Trust, MFS, and the Company agree
that each such party shall promptly notify the other parties to this Agreement,
in writing, of the institution of any formal proceedings brought against such
party or its designees by the NASD, the SEC, or any insurance department or
any
other regulatory body regarding such party's duties under this Agreement or
related to the sale of the Contracts, the operation of the Accounts, or the
purchase of the Shares.
ARTICLE
XI. TERMINATION
11.1. This
Agreement shall terminate with respect to the Accounts, or one, some, or all
Portfolios:
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(a)
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at
the option of any party upon six (6) months' advance written notice
to the
other parties; or
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(b)
|
at
the option of the Company to the extent that the Shares of Portfolios
are
not reasonably available to meet the requirements of the Contracts
or are
not "appropriate funding vehicles" for the Contracts, as reasonably
determined by the Company. Without limiting the generality of
the foregoing, the Shares of a Portfolio would not be "appropriate
funding
vehicles" if, for example, such Shares did not meet the diversification
or
other requirements referred to in Article VI hereof; or if the Company
would be permitted to disregard Contract owner voting instructions
pursuant to Rule 6e-2 or 6e-3(T) under the 1940 Act. Prompt
notice of the election to terminate for such cause and an explanation
of
such cause shall be furnished to the Trust by the Company;
or
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(c)
|
at
the option of the Trust or MFS upon institution of formal proceedings
against the Company by the NASD, the SEC, or any insurance department
or
any other regulatory body regarding the Company's duties under this
Agreement or related to the sale of the Contracts, the operation
of the
Accounts, or the purchase of the Shares;
or
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(d)
|
at
the option of the Company upon institution of formal proceedings
against
the Trust by the NASD, the SEC, or any state securities or insurance
department or any other regulatory body regarding the Trust's or
MFS'
duties under this Agreement or related to the sale of the Shares;
or
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(e)
|
at
the option of the Company, the Trust or MFS upon receipt of any necessary
regulatory approvals and/or the vote of the Contract owners having
an
interest in the Accounts (or any subaccounts) to substitute the shares
of
another investment company for the corresponding Portfolio Shares
in
accordance with the terms of the Contracts for which those Portfolio
Shares had been selected to serve as the underlying investment
media. The Company will give thirty (30) days’ prior written
notice to the Trust of the Date of any proposed vote or other action
taken
to replace the Shares; or
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(f)
|
termination
by either the Trust or MFS by written notice to the Company, if either
one
or both of the Trust or MFS 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
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(g)
|
termination
by the Company by written notice to the Trust and MFS, if the Company
shall determine, in its sole judgment exercised in good faith, that
the
Trust or MFS has suffered a material adverse change in this business,
operations, financial condition or prospects since the date of this
Agreement or is the subject of material adverse publicity;
or
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(h)
|
at
the option of any party to this Agreement, upon another party's material
breach of any provision of this Agreement;
or
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(i)
|
upon
assignment of this Agreement, unless made with the written consent
of the
parties hereto.
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11.2. The
notice shall specify the Portfolio or Portfolios, Contracts and, if applicable,
the Accounts as to which the Agreement is to be terminated.
11.3. It
is understood and agreed that the right of any party hereto to terminate this
Agreement pursuant to Section 11.1(a) may be exercised for cause or for no
cause.
11.4. Except
as necessary to implement Contract owner initiated transactions, or as required
by state insurance laws or regulations, the Company shall not redeem the Shares
attributable to the Contracts (as opposed to the Shares attributable to the
Company's assets held in the Accounts), and the Company shall not prevent
Contract owners from allocating payments to a Portfolio that was otherwise
available under the Contracts, until thirty (30) days after the Company shall
have notified the Trust of its intention to do so.
11.5. Notwithstanding
any termination of this Agreement, the Trust and MFS shall, at the option of
the
Company, continue to make available additional shares of the Portfolios pursuant
to the terms and conditions of this Agreement, for all Contracts in effect
on
the effective date of termination of this Agreement (the "Existing Contracts"),
except as otherwise provided under Article VII of this
Agreement. Specifically, without limitation, the owners of the
Existing Contracts shall be permitted to transfer or reallocate investment
under
the Contracts, redeem investments in any Portfolio and/or invest in the Trust
upon the making of additional purchase payments under the Existing
Contracts.
ARTICLE
XII. NOTICES
Any
notice shall be sufficiently given
when sent by registered or certified mail to the other party at the address
of
such party set forth below or at such other address as such party may from
time
to time specify in writing to the other party.
If
to the Trust:
MFS
Variable Insurance
Trust
▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇
▇. ▇▇▇▇▇,
Secretary
If
to the Company:
Nationwide
Life Insurance
Company
▇▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇;
▇▇-▇▇-▇▇
▇▇▇▇▇▇▇▇,
▇▇▇▇ ▇▇▇▇▇
Attn:
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Nationwide
Life and Annuity Insurance
Company
▇▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇;
▇▇-▇▇-▇▇
▇▇▇▇▇▇▇▇,
▇▇▇▇ ▇▇▇▇▇
Attn:
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
If
to MFS:
Massachusetts
Financial Services
Company
▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇
▇. ▇▇▇▇▇,
General Counsel
ARTICLE
XIII.
MISCELLANEOUS
13.1. Subject
to the requirement 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 or as
otherwise required by applicable law or regulation, 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 it may come into the public domain.
13.2. 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.
13.3. This
Agreement may be executed simultaneously in one or more counterparts, each
of
which taken together shall constitute one and the same instrument.
13.4. 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.
13.5. The
Schedule attached hereto, as modified from time to time, is incorporated herein
by reference and is part of this Agreement.
13.6. Each
party hereto shall cooperate with each other party in connection with inquiries
by appropriate governmental authorities (including without limitation the SEC,
the NASD, and state insurance regulators) relating to this Agreement or the
transactions contemplated hereby.
13.7. The
rights, remedies and obligations contained in this Agreement are cumulative
and
are in addition to any and all rights, remedies and obligations, at law or
in
equity, which the parties hereto are entitled to under state and federal
laws.
13.8. A
copy of the Trust's Declaration of Trust is on file with the Secretary of State
of The Commonwealth of Massachusetts. The Company acknowledges that
the obligations of or arising out of this instrument are not binding upon any
of
the Trust's trustees, officers, employees, agents or shareholders individually,
but are binding solely upon the assets and property of the Trust in accordance
with its proportionate interest hereunder. The Company further
acknowledges that the assets and liabilities of each Portfolio are separate
and
distinct and that the obligations of or arising out of this instrument are
binding solely upon the assets or property of the Portfolio on whose behalf
the
Trust has executed this instrument. The Company also agrees that the
obligations of each Portfolio hereunder shall be several and not joint, in
accordance with its proportionate interest hereunder, and the Company agrees
not
to proceed against any Portfolio for the obligations of another
Portfolio.
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 above.
NATIONWIDE
LIFE INSURANCE COMPANY
By
its
authorized officer,
By:
[▇▇▇▇▇▇▇
▇. ▇▇▇▇▇▇]
Title:
NATIONWIDE
LIFE AND ANNUITY INSURANCE COMPANY
By
its
authorized officer,
By:
Title:
MFS
VARIABLE INSURANCE TRUST, on behalf of the Portfolios
By
its
authorized officer and not individually,
By:
▇▇▇▇▇
▇.
▇▇▇▇▇▇▇▇▇, ▇▇.
Assistant
Secretary
MASSACHUSETTS
FINANCIAL SERVICES COMPANY
By
its
authorized officer,
By:
▇▇▇▇▇▇▇
▇. Cvan
Senior
Vice President
As
of ____________, 2003
SCHEDULE
A
Nationwide
Affilaites and Subsidiaries, Accounts
and
Portfolios Subject to the Particpation Agreement
Portfolios
MFS
Variable Insurance Portfolios- Initial Class (___ bps)
MFS
Variable Insurance Portfolios- Service Class (___ bps + ___ bps
12b-1)
Affiliates
and Subsidiaries
Nationwide
Life Insurance Company
Nationwide
Life Insurance Company of America
Nationwide
Life and Annuity Insurance Company
Nationwide
Trust Company, FSB
Nationwide
Retirement Solutions, Inc.
National
Deferred Compensation, Inc.
Accounts
Nationwide
Provident VA Separate Account 1
Nationwide Provident
VA Separate Account A
Nationwide
Provident VLI Separate Account 1
Nationwide
Provident VLI Separate Account A
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
MFS
INVESTMENT MANAGEMENT
▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
August
31, 2006
▇▇.
▇▇▇▇▇
▇▇▇▇▇▇
Nationwide
Life Insurance Co
▇▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇-▇▇-▇▇
▇▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇-▇▇▇▇
Dear
▇▇.
▇▇▇▇▇ ▇▇▇▇▇▇:
The
purpose of this letter is to amend the Participation Agreement among
Massachusetts Financial Services Company (“MFS”), MFS Variable Insurance Trust
(“VIT”) and each of the insurance companies listed on the attached Appendix
(each, a “Company”), made and entered into as of the date listed on the Appendix
(each, an “Agreement”). The amendment will enable VIT to sell its
shares to additional qualified parties, including insurance dedicated
funds-of-funds operated by certain insurance companies
(“Funds-of-Funds”).
The
Agreement currently permits VIT shares to be sold only to insurance companies
and their separate accounts and qualified pension and retirement plans (as
well
as MFS and its affiliates). MFS and VIT intend to amend the Agreement
to allow sales of VIT shares to any other person or plan to the extent such
sales would not cause any Participating Insurance Company to violate the
diversification requirements of Section 817(h) of the Internal Revenue Code
of
1986, as amended. Such an amendment would be sufficiently broad to
permit sales of VIT shares to Funds-of-Funds. As such, Article I, Section 1.3
of
the Agreement is amended to read as follows:
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1.3
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The
Trust and MFS agree that the Shares will be sold only to insurance
companies which have entered into participation agreements with the
Trust
and MFS (the “Participating Insurance Companies”) and their separate
accounts, qualified pension and retirement plans, MFS or its affiliates,
and any other person or plan permitted to hold shares of the Trust
pursuant to Treasury Regulation 1.817-5 without impairing the ability
of the Company, on behalf of its separate accounts, to consider the
investments underlying the Shares as constituting investments of
the
separate accounts for the purpose of satisfying the diversification
requirements of Section 817(h). The Trust and MFS will not sell Trust
shares to any insurance company or separate account unless an agreement
containing provisions substantially the same as Articles III and
VII of
this Agreement is in effect to govern such sales. The Company
will not resell the Shares except to the Trust or its
agents.
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Except
as
modified and amended above, each Agreement is hereby ratified and confirmed
in
full force and effect accordance with its terms. All capitalized
terms not defined in this letter shall have the meanings ascribed to them in
the
Agreement.
Please
indicate your acceptance of this amendment by having the enclosed copies of
this
letter signed where indicated below by an appropriate officer of each Company
and return an executed copy at your earliest convenience.
Should
you have any questions regarding this amendment, please contact ▇▇▇▇ ▇▇▇▇▇▇▇,
Vice President–Business Support & Development, at 617.954.5594 or ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, Counsel, at 617.954.5843.
Very
truly yours,
MASSACHUSETTS
FINANCIAL SERVICES COMPANY
By
its authorized
officer,
▇▇▇▇▇▇
▇.
▇▇▇▇▇▇▇
President
and Chief Executive Officer
MFS
VARIABLE INSURANCE
TRUST
on
behalf of the Portfolios
By
its authorized officer and not
individually,
▇▇▇▇▇
▇. ▇▇▇▇▇▇, Assistant
Secretary
Accepted
by:
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NATIONWIDE
LIFE AND ANNUITY INSURANCE COMPANY
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NATIONWIDE
LIFE INSURANCE COMPANY
|
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By:
Name: E.
▇▇▇▇ ▇▇▇▇▇▇
Title: Assistant
Treasurer
|
By:
Name: E.
▇▇▇▇ ▇▇▇▇▇▇
Title: Assistant
Treasurer
|
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NATIONWIDE
LIFE AND ANNUITY INSURANCE COMPANY OF AMERICA
|
NATIONWIDE
LIFE INSURANCE COMPANY OF AMERICA
|
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By:
Name: E.
▇▇▇▇ ▇▇▇▇▇▇
Title: Assistant
Treasurer
|
By:
Name: E.
▇▇▇▇ ▇▇▇▇▇▇
Title: Assistant
Treasurer
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APPENDIX
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Name
of Participating Insurance Company
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Date
of Participation Agreement
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Nationwide
Life and Annuity Insurance Company
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February
1, 2003
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Nationwide
Life Insurance Company
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February
1, 2003
|
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Nationwide
Life and Annuity Insurance Company of America
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February
1, 2003
|
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Nationwide
Life Insurance Company of America
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February
1, 2003
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