PARTICIPATION AGREEMENT Among NATIONWIDE LIFE INSURANCE COMPANY, NATIONWIDE LIFE AND ANNUITY INSURANCE COMPANY PIMCO VARIABLE INSURANCE TRUST, and PIMCO FUNDS DISTRIBUTORS LLC
Among
NATIONWIDE
LIFE INSURANCE COMPANY,
NATIONWIDE
LIFE AND ANNUITY INSURANCE COMPANY
PIMCO
VARIABLE INSURANCE TRUST,
and
PIMCO
FUNDS DISTRIBUTORS LLC
THIS
AGREEMENT, dated as of the 28th day of March, 2002, by and among Nationwide
Life
Insurance Company, Nationwide Life and Annuity Insurance Company , (collectively
the "Company"), an Ohio life insurance company, on its own behalf and on
behalf
of each separate account of the Company set forth on Schedule A hereto as
may be
amended from time to time (each account hereinafter referred to as the
"Account"), PIMCO Variable Insurance Trust (the "Fund"), a Delaware business
trust, and PIMCO Funds Distributors LLC (the "Underwriter"), a Delaware limited
liability company.
WHEREAS,
the Fund engages in business as an open-end management investment company
and is
available to act as the investment vehicle for separate accounts established
for
variable life insurance and variable annuity contracts (the "Variable Insurance
Products") to be offered by insurance companies which have entered into
participation agreements with the Fund and Underwriter ("Participating Insurance
Companies");
WHEREAS,
the shares of beneficial interest of the Fund are divided into several series
of
shares, each designated a "Portfolio" and representing the interest in a
particular managed portfolio of securities and other assets;
WHEREAS,
the Fund has obtained an order from the Securities and Exchange Commission
(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 Investment Company Act of 1940,
as
amended, (the "1940 Act") and Rules 6e-2(b)(15) and 6e-3(T)(b)(15) thereunder,
if and to the extent necessary to permit shares of the Fund to be sold to
and
held by variable annuity and variable life insurance separate accounts of
both
affiliated and unaffiliated life insurance companies (the "Mixed and Shared
Funding Exemptive Order");
WHEREAS,
the Fund is registered as an open-end management investment company under
the
1940 Act and shares of the Portfolios are registered under the Securities
Act of
1933, as amended (the "1933 Act");
WHEREAS,
Pacific Investment Management Company (the "Adviser"), which serves as
investment adviser to the Fund, is duly registered as an investment adviser
under the federal Investment Advisers Act of 1940, as amended;
WHEREAS,
the Company has issued or will issue certain variable life insurance and/or
variable annuity contracts supported wholly or partially by the Account (the
"Contracts").
WHEREAS,
the Account is duly established and maintained as a separate account, duly
established by the Company, on the date shown for such Account on Schedule
A
hereto, to set aside and invest assets attributable to the aforesaid
Contracts;
WHEREAS,
the Underwriter, which serves as distributor to the Fund, is registered as
a
broker dealer with the SEC under the Securities Exchange Act of 1934, as
amended
(the "1934 Act"), and is a member in good standing of the National Association
of Securities Dealers, Inc. (the "NASD"); and
WHEREAS,
to the extent permitted by applicable insurance laws and regulations, the
Company intends to purchase Administrative Class shares in
the Portfolios listed in Schedule A hereto, as it may be amended from time
to
time by mutual written agreement (the "Designated Portfolios") on behalf
of the
Account to fund the aforesaid Contracts, and the Underwriter is authorized
to
sell such shares to the Account at net asset value;
NOW,
THEREFORE, in consideration of their mutual promises, the Company, the Fund
and
the Underwriter agree as follows:
ARTICLE
I. Sale of Fund Shares
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1.1. The
Fund
has granted to the Underwriter exclusive authority to distribute the Fund's
shares, and has agreed to instruct, and has so instructed, the Underwriter
to
make available to the Company for purchase on behalf of the Account Fund
shares
of those Designated Portfolios selected by the Underwriter. Pursuant
to such authority and instructions, and subject to Article X hereof, the
Underwriter agrees to make available to the Company for purchase on behalf
of
the Account, shares of those Designated Portfolios listed on Schedule A to
this
Agreement, such purchases to be effected at net asset value in accordance
with
Section 1.3 of this Agreement. Notwithstanding the foregoing, (i)
Fund series (other than those listed on Schedule A) in existence now or that
may
be established in the future will be made available to the Company only as
the
Underwriter may so provide, and (ii) the Board of Trustees of the Fund (the
"Board") may suspend or terminate the offering of Fund shares of any Designated
Portfolio or class thereof, if such action is required by law or by regulatory
authorities having jurisdiction or if, 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, suspension or termination is necessary in the best
interests of the shareholders of such Designated Portfolio.
1.2. The
Fund
shall redeem, at the Company's request, any full or fractional Designated
Portfolio shares held by the Company on behalf of the Account, such redemptions
to be effected at net asset value in accordance with Section 1.3 of this
Agreement. Notwithstanding the foregoing, (i) the Company shall not
redeem Fund shares attributable to Contract owners except in the circumstances
permitted in Section 10.3 of this Agreement, and (ii) the Fund may delay
redemption of Fund shares of any Designated Portfolio to the extent permitted
by
the 1940 Act, and any rules, regulations or orders thereunder.
1.3. Purchase
and Redemption Procedures
(a) The
Fund
hereby appoints the Company as an agent of the Fund for the limited purpose
of
receiving purchase and redemption requests on behalf of the Account for shares
of those Designated Portfolios made available hereunder, based on allocations
of
amounts to the Account or subaccounts thereof under the Contracts and other
transactions relating to the Contracts or the Account. Receipt of any
such request (or relevant transactional information therefor) on any day
the New
York Stock Exchange is open for trading and on which the Fund calculates
its net
asset value pursuant to the rules of the SEC (a "Business Day") by the Company
as such limited agent of the Fund prior to the time that the Fund ordinarily
calculates its net asset value as described from time to time in the Fund
Prospectus (which as of the date of execution of this Agreement is 4:00 p.m.
Eastern Time) shall constitute receipt by the Fund on that same Business
Day,
provided that the Fund receives notice of such request by 9:00 a.m. Eastern
Time
on the next following Business Day.
(b) The
Company shall pay for shares of each Designated Portfolio on the same day
that
it notifies the Fund of a purchase request for such shares. Payment
for Designated Portfolio shares shall be made in federal funds transmitted
to
the Fund by wire to be received by the Fund by 4:00 p.m. Eastern Time on
the day
the Fund is notified of the purchase request for Designated Portfolio shares
(unless the Fund determines and so advises the Company that sufficient proceeds
are available from redemption of shares of other Designated Portfolios effected
pursuant to redemption requests tendered by the Company on behalf of the
Account). If federal funds are not received on time, such funds will
be invested, and Designated Portfolio shares purchased thereby will be issued,
as soon as practicable and the Company shall promptly, upon the Fund's request,
reimburse the Fund for any charges, costs, fees, interest or other expenses
incurred by the Fund in connection with any advances to, or borrowing or
overdrafts by, the Fund, or any similar expenses incurred by the Fund, as
a
result of portfolio transactions effected by the Fund based upon such purchase
request. Upon receipt of federal funds so wired, such funds shall
cease to be the responsibility of the Company and shall become the
responsibility of the Fund.
(c) Payment
for Designated Portfolio shares redeemed by the Account or the Company shall
be
made in federal funds transmitted by wire to the Company or any other designated
person on the next Business Day after the Fund is properly notified of the
redemption order of such shares (unless redemption proceeds are to be applied
to
the purchase of shares of other Designated Portfolios in accordance with
Section
1.3(b) of this Agreement), except that the Fund reserves the right to delay
payment of redemption proceeds to the extent permitted under Section 22(e)
of
the 1940 Act and any Rules thereunder, and in accordance with the procedures
and
policies of the Fund as described in the then current prospectus. The
Fund shall not bear any responsibility whatsoever for the proper disbursement
or
crediting of redemption proceeds by the Company; the Company alone shall
be
responsible for such action.
1.4. The
Fund
shall use its best efforts to make the net asset value per share for each
Designated Portfolio available to the Company by 7:00 p.m. Eastern Time each
Business Day, and in any event, as soon as reasonably practicable after the
net
asset value per share for such Designated Portfolio is calculated, and shall
calculate such net asset value in accordance with the Fund's
Prospectus. Neither the Fund, any Designated Portfolio, the
Underwriter, nor any of their affiliates shall be liable for any information
provided to the Company pursuant to this Agreement which information is based
on
incorrect information supplied by the Company or any other Participating
Insurance Company to the Fund or the Underwriter.
1.5. The
Fund
shall furnish notice (by wire or telephone followed by written confirmation)
to
the Company as soon as reasonably practicable of any income dividends or
capital
gain distributions payable on any Designated Portfolio shares. The
Company, on its behalf and on behalf of the Account, hereby elects to receive
all such dividends and distributions as are payable on any Designated Portfolio
shares in the form of additional shares of that Designated
Portfolio. The Company reserves the right, on its behalf and on
behalf of the Account, to revoke this election and to receive all such dividends
and capital gain distributions in cash. The Fund shall notify the
Company promptly of the number of Designated Portfolio shares so issued as
payment of such dividends and distributions.
1.6. Issuance
and transfer of Fund shares shall be by book entry only. Stock
certificates will not be issued to the Company or the
Account. Purchase and redemption orders for Fund shares shall be
recorded in an appropriate ledger for the Account or the appropriate subaccount
of the Account.
1.7. (a) The
parties hereto acknowledge that the arrangement contemplated by this Agreement
is not exclusive; the Fund's shares may be sold to other insurance companies
(subject to Section 1.8 hereof) and the cash value of the Contracts may be
invested in other investment companies, provided, however, that until this
Agreement is terminated pursuant to Article X, the Company shall promote
the
Designated Portfolios on a similar basis as other funding vehicles available
under the Contracts.
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(b) The
Company shall not, without prior notice to the Underwriter (unless otherwise
required by applicable law), take any action to operate the Account as a
management investment company under the 1940 Act.
(c) The
Company shall not, without prior notice to the Underwriter (unless otherwise
required by applicable law), induce Contract owners to change or modify the
Fund
or change the Fund's distributor or investment adviser.
(d) The
Company shall not, without prior notice to the Fund, induce Contract owners
to
vote on any matter submitted for consideration by the shareholders of the
Fund
in a manner other than as recommended by the Board of Trustees of the
Fund.
1.8. The
Underwriter and the Fund shall sell Fund shares only to Participating Insurance
Companies and their separate accounts that communicate to the Underwriter
and
the Fund that they qualify to purchase shares of the Fund under Section 817(h)
of the Internal Revenue Code of 1986, as amended (the "Code") and the
regulations thereunder without impairing the ability of the Account to consider
the portfolio investments of the Fund as constituting investments of the
Account
for the purpose of satisfying the diversification requirements of Section
817(h). The Underwriter and the Fund shall not sell Fund shares to
any insurance company or separate account unless an agreement complying with
Article VI of this Agreement is in effect to govern such sales, to the extent
required. The Company hereby represents and warrants that it and the
Account offer insurance products that are subject to Section 817(h) of the
Code
and regulations thereunder.
ARTICLE
II. Representations and Warranties
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2.1. The
Company represents and warrants that the Contracts (a) are, or prior to issuance
will be, registered under the 1933 Act, or (b) are not registered because
they
are properly exempt from registration under the 1933 Act or will be offered
exclusively in transactions that are properly exempt from registration under
the
1933 Act. The Company further represents and warrants that the
Contracts will be issued in compliance in all material respects with all
applicable federal securities and state securities and insurance laws and
that
the sale of the Contracts shall comply in all material respects with state
insurance requirements. The Company further represents and warrants
that it is an insurance company duly organized and in good standing under
applicable law, that it has legally and validly established the Account prior
to
any issuance or sale thereof as a separate account under Ohio
insurance laws, and that it (a) has registered or, prior
to any
issuance or sale of the Contracts, will register the Account as a unit
investment trust in accordance with the provisions of the 1940 Act to serve
as a
segregated investment account for the Contracts, or alternatively (b) has
not
registered the Account in proper reliance upon an exclusion from registration
under the 1940 Act. The Company shall register and qualify the
Contracts or interests therein as securities in accordance with the laws
of the
various states only if and to the extent deemed advisable by the
Company.
2.2. The
Fund
represents and warrants that Fund shares sold pursuant to this Agreement
shall
be registered under the 1933 Act, duly authorized for issuance and sold in
compliance with applicable state and federal securities laws and that the
Fund
is and shall remain registered under the ▇▇▇▇ ▇▇▇. The Fund shall
amend the registration statement for its shares under the 1933 Act and the
1940
Act from time to time as required in order to effect the continuous offering
of
its shares. The Fund shall register and qualify the shares for sale
in accordance with the laws of the various states only if and to the extent
deemed advisable by the Fund or the Underwriter.
2.3. The
Fund
may make payments to finance distribution expenses pursuant to Rule 12b-1
under
the 1940 Act. Prior to financing distribution expenses pursuant to
Rule 12b-1, the Fund will have the Board, a majority of whom are not interested
persons of the Fund, formulate and approve a plan pursuant to Rule 12b-1
under
the 1940 Act to finance distribution expenses.
2.4. The
Fund
represents that it is lawfully organized and validly existing under the laws
of
the State of Delaware and that it does and will comply in all material respects
with the 1940 Act.
2.5. The
Underwriter represents and warrants that it is a member in good standing
of the
NASD and is registered as a broker-dealer with the SEC. The
Underwriter further represents that it will sell and distribute the Fund
shares
in accordance with any applicable state and federal securities
laws.
2.6. The
Fund
and the Underwriter represent and warrant that all of their trustees/directors,
officers, employees, investment advisers, and other individuals or entities
dealing with the money and/or securities of the Fund are and shall continue
to
be at all times covered by a blanket fidelity bond or similar coverage for
the
benefit of the Fund in an amount not less than the minimum coverage as required
currently by Rule 17g-1 of the 1940 Act or related provisions as may be
promulgated from time to time. The aforesaid bond shall include
coverage for larceny and embezzlement and shall be issued by a reputable
bonding
company.
2.7. The
Company represents and warrants that all of its directors, officers, employees,
and other individuals/entities employed or controlled by the Company dealing
with the money and/or securities of the Account are covered by a blanket
fidelity bond or similar coverage for the benefit of the Account, in an amount
not less than $5 million. The aforesaid bond includes coverage for
larceny and embezzlement and is issued by a reputable bonding
company. The Company agrees to hold for the benefit of the Fund and
to pay to the Fund any amounts lost from larceny, embezzlement or other events
covered by the aforesaid bond to the extent such amounts properly belong
to the
Fund pursuant to the terms of this Agreement. The Company agrees to
make all reasonable efforts to see that this bond or another bond containing
these provisions is always in effect, and agrees to notify the Fund and the
Underwriter in the event that such coverage no longer applies.
ARTICLE
III. Prospectuses and Proxy Statements; Voting
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3.1. The
Underwriter shall provide the Company with as many copies of the Fund's current
prospectus (describing only the Designated Portfolios listed on Schedule
A) as
the Company may reasonably request. The Fund shall bear the expense
of printing copies of the current prospectus for the Contracts that will
be
distributed to existing Contract owners, and the Company shall bear the expense
of printing copies of the Fund's prospectus that are used in connection with
offering the Contracts to prospective Contract owners. If requested
by the Company in lieu thereof, the Fund shall provide such documentation
(including a final copy of the new prospectus on diskette at the Fund's expense)
and other assistance as is reasonably necessary in order for the Company
once
each year (or more frequently if the prospectus for the Fund is amended)
to have
the prospectus for the Contracts and the Fund's prospectus printed together
in
one document. The calculation for costs to the Fund associated with
the printing of a combined prospectus shall be a weighted average factoring
in
the number of contracts with assets allocated to the Fund’s respective
portfolio(s) and the actual number of pages in that portfolio’s
prospectus.
3.2. The
Fund's prospectus shall state that the current Statement of Additional
Information ("SAI") for the Fund is available, and the Underwriter (or the
Fund), at its expense, shall provide a reasonable number of copies of such
SAI
free of charge to the Company for itself and for any owner of a Contract
who
requests such SAI.
3.3. The
Fund
shall provide the Company with information regarding the Fund’s expenses, which
information may include a table of fees and related narrative disclosure
for use
in any prospectus or other descriptive document relating to a Contract. The
Company shall provide prior written notice of any proposed modification of
such
information, which notice will describe in detail the manner in which the
Company proposes to modify the information, and agrees that it may not modify
such information in any way without the prior consent of the Fund.
3.4. The
Fund,
at its expense, shall provide the Company with copies of its proxy material,
reports to shareholders, and other communications to shareholders in such
quantity as the Company shall reasonably require for distributing to Contract
owners.
3.5. The
Company shall:
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(i)
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solicit
voting instructions from Contract
owners;
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(ii)
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vote
the Fund shares in accordance with instructions received from Contract
owners; and
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(iii)
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vote
Fund shares for which no instructions have been received in the
same
proportion as Fund shares of such portfolio for which instructions
have
been received,
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so
long
as and to the extent that the SEC continues to interpret the 1940 Act to
require
pass-through voting privileges for variable contract owners or to the extent
otherwise required by law. The Company will vote Fund shares held in
any separate account in the same proportion as Fund shares of such portfolio
for
which voting instructions have been received from Contract owners, to the
extent
permitted by law.
3.6 Participating
Insurance Companies shall be responsible for assuring that each of their
separate accounts participating in a Designated Portfolio calculates voting
privileges as required by the Shared Funding Exemptive Order and consistent
with
any reasonable standards that the Fund may adopt and provide in
writing.
ARTICLE
IV. Sales Material and Information
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4.1. The
Company shall furnish, or shall cause to be furnished, to the Fund or its
designee, each piece of sales literature or other promotional material that
the
Company develops and in which the Fund (or a Designated Portfolio thereof)
or
the Adviser or the Underwriter is named. No such material shall be
used until approved by the Fund or its designee, and the Fund will use its
best
efforts for it or its designee to review such sales literature or promotional
material within ten Business Days after receipt of such material. The
Fund or its designee reserves the right to reasonably object to the continued
use of any such sales literature or other promotional material in which the
Fund
(or a Designated Portfolio thereof) or the Adviser or the Underwriter is
named,
and no such material shall be used if the Fund or its designee so
object.
4.2. The
Company shall not give any information or make any representations or statements
on behalf of the Fund or concerning the Fund or the Adviser or the Underwriter
in connection with the sale of the Contracts other than the information or
representations contained in the registration statement or prospectus or
SAI for
the Fund shares, as such registration statement and prospectus or SAI may
be
amended or supplemented from time to time, or in reports or proxy statements
for
the Fund, or in sales literature or other promotional material approved by
the
Fund or its designee or by the Underwriter, except with the permission of
the
Fund or the Underwriter or the designee of either.
4.3. The
Fund
and the Underwriter, or their designee, shall furnish, or cause to be furnished,
to the Company, each piece of sales literature or other promotional material
that it develops and in which the Company, and/or its Account, is
named. No such material shall be used until approved by the Company,
and the Company will use its best efforts to review such sales literature
or
promotional material within ten Business Days after receipt of such
material. The Company reserves the right to reasonably object to the
continued use of any such sales literature or other promotional material
in
which the Company and/or its Account is named, and no such material shall
be
used if the Company so objects.
4.4. The
Fund
and the Underwriter shall not give any information or make any representations
on behalf of the Company or concerning the Company, the Account, or the
Contracts other than the information or representations contained in a
registration statement, prospectus (which shall include the relevant potions
of
an offering memorandum, if any, if the Contracts issued by the Company or
interests therein are not registered under the 1933 Act), or SAI for the
Contracts, as such registration statement, prospectus, or SAI may be amended
or
supplemented from time to time, or in published reports for the Account which
are in the public domain or approved by the Company for distribution to Contract
owners, or in sales literature or other promotional material approved by
the
Company or its designee, except with the permission of the Company.
4.5. The
Fund
will provide to the Company at least one complete copy of all registration
statements, prospectuses, SAIs, reports, proxy statements, sales literature
and
other promotional materials, applications for exemptions, requests for no-action
letters, and all amendments to any of the above, that relate to the Fund
or its
shares, promptly after the filing of such document(s) with the SEC or other
regulatory authorities.
4.6. The
Company will provide to the Fund at least one complete copy of all registration
statements, prospectuses (which shall include the relevant portions of an
offering memorandum, if any, if the Contracts issued by the Company or interests
therein are not registered under the 1933 Act), SAIs, reports, solicitations
for
voting instructions, sales literature and other promotional materials,
applications for exemptions, requests for no-action letters, and all amendments
to any of the above, that relate to the Contracts or the Account, promptly
after
the filing of such document(s) with the SEC or other regulatory
authorities. The Company shall provide to the Fund and the
Underwriter any complaints received from the Contract owners pertaining to
the
Fund or the Designated Portfolio.
4.7. The
Fund
will provide the Company with as much notice as is reasonably practicable,
but
with at least 10 business days prior notice, of any proxy solicitation for
any
Designated Portfolio, and of any material change in the Fund's registration
statement, particularly any change resulting in a change to the registration
statement or prospectus for any Account. The Fund will work with the
Company so as to enable the Company to solicit proxies from Contract owners,
or
to make changes to its prospectus or registration statement, in an orderly
manner. The Fund 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
purposes of this Article IV, the phrase "sales literature and other promotional
materials" includes, but is not limited to, any of the following that refer
to
the Fund or any affiliate of the Fund: advertisements (such as
material published, or designed for use in, a newspaper, magazine, or other
periodical, radio, television, telephone or tape recording, videotape display,
signs or billboards, motion pictures, or other public media), sales literature
(i.e., any written communication distributed or made generally available
to customers or the public, including brochures, circulars, reports, market
letters, form letters, seminar texts, reprints or excerpts of any other
advertisement, sales literature, or published article), educational or training
materials or other communications distributed or made generally available
to
some or all agents or employees, and registration statements, prospectuses,
SAIs, shareholder reports, proxy materials, and any other communications
distributed or made generally available with regard to the Fund.
ARTICLE
V. Fees and Expenses
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5.1. The
Fund
and the Underwriter shall pay no fee or other compensation to the Company
under
this Agreement, except that if the Fund or any Portfolio adopts and implements
a
plan pursuant to Rule 12b-1 to finance distribution expenses, then the Fund
or
Underwriter may make payments to the Company or to the underwriter for the
Contracts if and in amounts agreed to by the Underwriter in writing, and
such
payments will be made out of existing fees otherwise payable to the Underwriter,
past profits of the Underwriter, or other resources available to the
Underwriter. Currently, no such payments are
contemplated.
5.2. All
expenses incident to performance by the Fund under this Agreement shall be
paid
by the Fund. The Fund shall see to it that all its shares are
registered and authorized for issuance in accordance with applicable federal
law
and, if and to the extent deemed advisable by the Fund, in accordance with
applicable state laws prior to their sale. The Fund shall bear the
expenses for the cost of registration and qualification of the Fund's shares,
preparation and filing of the Fund's prospectus and registration statement,
proxy materials and reports, setting the prospectus in type, setting in type
and
printing the proxy materials and reports to shareholders (including the costs
of
printing a prospectus that constitutes an annual report), the preparation
of all
statements and notices required by any federal or state law, and all taxes
on
the issuance or transfer of the Fund's shares.
5.3. The
Company shall bear the expenses of distributing the Fund's prospectus to
owners
of Contracts issued by the Company and of distributing the Fund's proxy
materials and reports to such Contract owners.
ARTICLE
VI. Diversification and Qualification
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6.1. The
Fund
will invest its assets in such a manner as to ensure that the Contracts will
be
treated as annuity or life insurance contracts, whichever is appropriate,
under
the Code and the regulations issued thereunder (or any successor
provisions). Without limiting the scope of the foregoing, each
Designated Portfolio has complied and will continue to comply with Section
817(h) of the Code and Treasury Regulation §1.817-5, and any Treasury
interpretations thereof, relating to the diversification requirements for
variable annuity, endowment, or life insurance contracts, and any amendments
or
other modifications or successor provisions to such Section or
Regulations. In the event of a breach of this Article VI by the Fund,
it will take all reasonable steps (a) to notify the Company of such breach
and
(b) to adequately diversify the Fund so as to achieve compliance within the
grace period afforded by Regulation 1.817-5.
6.2. The
Fund
represents that it is or will be qualified as a Regulated Investment Company
under Subchapter M of the Code, and that it will make every effort to maintain
such qualification (under Subchapter M or any successor or similar provisions)
and that it will notify the Company immediately upon having a reasonable
basis
for believing that it has ceased to so qualify or that it might not so qualify
in the future.
6.3. The
Company represents that the Contracts are currently, and at the time of issuance
shall be, treated as life insurance or annuity insurance contracts, under
applicable provisions of the Code, and that it will make every effort to
maintain such treatment, and that it will notify the Fund and the Underwriter
immediately upon having a reasonable basis for believing the Contracts have
ceased to be so treated or that they might not be so treated in the
future. The Company agrees that any prospectus offering a contract
that is a "modified endowment contract" as that term is defined in Section
7702A
of the Code (or any successor or similar provision), shall identify such
contract as a modified endowment contract.
ARTICLE
VII. Potential Conflicts
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The
following provisions shall apply only upon issuance of the Mixed and Shared
Funding Order and the sale of shares of the Fund to variable life insurance
separate accounts, and then only to the extent required under the ▇▇▇▇
▇▇▇.
7.1. The
Board
will monitor the Fund for the existence of any material irreconcilable conflict
between the interests of the Contract owners of all separate accounts investing
in the Fund. An irreconcilable material conflict may arise for a
variety of reasons, including: (a) an action by any state insurance
regulatory authority; (b) a change in applicable federal or state insurance,
tax, or securities laws or regulations, or a public ruling, private letter
ruling, no-action or interpretative letter, or any similar action by insurance,
tax, or securities regulatory authorities; (c) an administrative or judicial
decision in any relevant proceeding; (d) the manner in which the investments
of
any Portfolio are being managed; (e) a difference in voting instructions
given
by variable annuity contract and variable life insurance contract owners;
or (f)
a decision by an insurer to disregard the voting instructions of contract
owners. The Board shall promptly inform the Company if it determines
that an irreconcilable material conflict exists and the implications
thereof.
7.2. The
Company will report any potential or existing conflicts of which it is aware
to
the Board. The Company will assist the Board in carrying out its
responsibilities under the Mixed and Shared Funding Exemptive Order, by
providing the Board with all information reasonably necessary for the Board
to
consider any issues raised. This includes, but is not limited to, an
obligation by the Company to inform the Board whenever Contract owner voting
instructions are disregarded.
7.3. If
it is
determined by a majority of the Board, or a majority of its disinterested
members, that a material irreconcilable conflict exists, the Company and
other
Participating Insurance Companies shall, at their expense and to the extent
reasonably practicable (as determined by a majority of the disinterested
Board
members), take whatever steps are necessary to remedy or eliminate the
irreconcilable material conflict, up to and including: (1)
withdrawing the assets allocable to some or all of the separate accounts
from
the Fund or any Portfolio and reinvesting such assets in a different investment
medium, including (but not limited to) another Portfolio of the Fund, or
submitting the question whether such segregation should be implemented to
a vote
of all affected contract owners and, as appropriate, segregating the assets
of
any appropriate group (i.e., annuity contract owners, life insurance
contract owners, or variable contract owners of one or more Participating
Insurance Companies) that votes in favor of such segregation, or offering
to the
affected contract owners the option of making such a change; and (2)
establishing a new registered investment company.
7.4. If
a
material irreconcilable conflict arises because of a decision by the Company
to
disregard Contract owner voting instructions and that decision represents
a
minority position or would preclude a majority vote, the Company may be
required, at the Fund's election, to withdraw the Account's investment in
the
Fund and terminate this Agreement with respect to each Account; provided,
however, that such withdrawal and termination shall be limited to the extent
required by the foregoing material irreconcilable conflict as determined
by a
majority of the disinterested members of the Board. Any such
withdrawal and termination must take place within six (6) months after the
Fund
gives written notice that this provision is being implemented, and until
the end
of that six month period the Fund shall continue to accept and implement
orders
by the Company for the purchase (and redemption) of shares of the
Fund.
7.5. If
a
material irreconcilable conflict arises because a particular state insurance
regulator's decision applicable to the Company conflicts with the majority
of
other state regulators, then the Company will withdraw the affected Account's
investment in the Fund and terminate this Agreement with respect to such
Account
within six months after the Board informs the Company in writing that it
has
determined that such decision has created an irreconcilable material conflict;
provided, however, that such withdrawal and termination shall be limited
to the
extent required by the foregoing material irreconcilable conflict as determined
by a majority of the disinterested members of the Board. Until the
end of the foregoing six month period, the Fund shall continue to accept
and
implement orders by the Company for the purchase (and redemption) of shares
of
the Fund.
7.6. For
purposes of Section 7.3 through 7.6 of this Agreement, a majority of the
disinterested members of the Board shall determine whether any proposed action
adequately remedies any irreconcilable material conflict, but in no event
will
the Fund be required to establish a new funding medium for the
Contracts. The Company shall not be required by Section 7.3 to
establish a new funding medium for the Contract if an offer to do so has
been
declined by vote of a majority of Contract owners materially adversely affected
by the irreconcilable material conflict. In the event that the Board
determines that any proposed action does not adequately remedy any
irreconcilable material conflict, then the Company will withdraw the Account's
investment in the Fund and terminate this Agreement within six (6) months
after
the Board informs the Company in writing of the foregoing determination;
provided, however, that such withdrawal and termination shall be limited
to the
extent required by any such material irreconcilable conflict as determined
by a
majority of the disinterested members of the Board.
7.7. If
and to
the extent the Mixed and Shared Funding Exemption Order or any amendment
thereto
contains terms and conditions different from Sections 3.4, 3.5, 3.6, 7.1,
7.2,
7.3, 7.4, and 7.5 of this Agreement, then the Fund and/or the Participating
Insurance Companies, as appropriate, shall take such steps as may be necessary
to comply with the Mixed and Shared Funding Exemptive Order, and Sections
3.4,
3.5, 3.6, 7.1, 7.2, 7.3, 7.4 and 7.5 of this Agreement shall continue in
effect
only to the extent that terms and conditions substantially identical to such
Sections are contained in the Mixed and Shared Funding Exemptive Order or
any
amendment thereto. If and to the extent that Rule 6e-2 and Rule
6e-3(T) are amended, or Rule 6e-3 is adopted, to provide exemptive relief
from
any provision of the 1940 Act or the rules promulgated thereunder with respect
to mixed or shared funding (as defined in the Mixed and Shared Funding Exemptive
Order) on terms and conditions materially different from those contained
in the
Mixed and Shared Funding Exemptive Order, then (a) the Fund and/or the
Participating Insurance Companies, as appropriate, shall take such steps
as may
be necessary to comply with Rules 6e-2 and 6e-3(T), as amended, and Rule
6e-3,
as adopted, to the extent such rules are applicable; and (b) Sections 3.5,
3.6, 7.1., 7.2, 7.3, 7.4, and 7.5 of this Agreement shall continue in effect
only to the extent that terms and conditions substantially identical to such
Sections are contained in such Rule(s) as so amended or adopted.
ARTICLE
VIII. Indemnification
8. This
text
is hidden, do not remove.
8.1. Indemnification
By the Company
8.1(a). The
Company agrees to indemnify and hold harmless the Fund and the Underwriter
and
each of its trustees/directors and officers, and each person, if any, who
controls the Fund or Underwriter within the meaning of Section 15 of the
1933
Act or who is under common control with the Underwriter (collectively, the
"Indemnified Parties" for purposes of this Section 8.1) against any and all
losses, claims, damages, liabilities (including amounts paid in settlement
with
the written consent of the Company) or litigation (including reasonable legal
and other expenses), to which the Indemnified Parties may become subject
under
any statute or regulation, at common law or otherwise, insofar as such losses,
claims, damages, liabilities or expenses (or actions in respect thereof)
or
settlements:
(i) arise
out
of or are based upon any untrue statement or alleged untrue statements of
any
material fact contained in the registration statement, prospectus (which
shall
include a written description of a Contract that is not registered under
the
1933 Act), or SAI for the Contracts or contained in the Contracts or sales
literature for the Contracts (or any amendment or supplement to any of the
foregoing), or arise out of or are based upon the omission or the alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, provided that this
agreement to indemnify shall not apply as to any Indemnified Party if such
statement or omission or such alleged statement or omission was made in reliance
upon and in conformity with information furnished to the Company by or on
behalf
of the Fund for use in the registration statement, prospectus or SAI for
the
Contracts or in the Contracts or sales literature (or any amendment or
supplement) or otherwise for use in connection with the sale of the Contracts
or
Fund shares; or
(ii) arise
out
of or as a result of statements or representations (other than statements
or
representations contained in the registration statement, prospectus, SAI,
or
sales literature of the Fund not supplied by the Company or persons under
its
control) or wrongful conduct of the Company or its agents or persons under
the
Company's authorization or control, with respect to the sale or distribution
of
the Contracts or Fund Shares; or
(iii) arise
out
of any untrue statement or alleged untrue statement of a material fact contained
in a registration statement, prospectus, SAI, or sales literature of the
Fund or
any amendment thereof or supplement thereto or the omission or alleged omission
to state therein a material fact required to be stated therein or necessary
to
make the statements therein not misleading if such a statement or omission
was
made in reliance upon information furnished to the Fund by or on behalf of
the
Company; or
(iv) arise
as
a result of any material failure by the Company to provide the services and
furnish the materials under the terms of this Agreement (including a failure,
whether unintentional or in good faith or otherwise, to comply with the
qualification requirements specified in Article VI of this Agreement);
or
(v) arise
out
of or result from any material breach of any representation and/or warranty
made
by the Company in this Agreement or arise out of or result from any other
material breach of this Agreement by the Company;
as
limited by and in accordance with the provisions of Sections 8.1(b) and 8.1(c)
hereof.
8.1(b). The
Company shall not be liable under this indemnification provision with respect
to
any losses, claims, damages, liabilities or litigation to which an Indemnified
Party would otherwise be subject by reason of such Indemnified Party's willful
misfeasance, bad faith, or gross negligence in the performance of such
Indemnified Party's duties or by reason of such Indemnified Party's reckless
disregard of its obligations or duties under this Agreement.
8.1(c). The
Company shall not be liable under this indemnification provision with respect
to
any claim made against an Indemnified Party unless such Indemnified Party
shall
have notified the Company in writing within a reasonable time after the summons
or other first legal process giving information of the nature of the claim
shall
have been served upon such Indemnified Party (or after such Indemnified Party
shall have received notice of such service on any designated agent), but
failure
to notify the Company of any such claim shall not relieve the Company 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 an Indemnified
Party, the Company shall be entitled to participate, at its own expense,
in the
defense of such action. The Company also shall be entitled to assume
the defense thereof, with counsel satisfactory to the party named in the
action. After notice from the Company to such party of the Company's
election to assume the defense thereof, the Indemnified Party shall bear
the
fees and expenses of any additional counsel retained by it, and the Company
will
not be liable to such party under this Agreement for any reasonable legal
or
other expenses subsequently incurred by such party independently in connection
with the defense thereof other than reasonable costs of
investigation.
8.1(d). The
Indemnified Parties will promptly notify the Company of the commencement
of any
litigation or proceedings against them in connection with the issuance or
sale
of the Fund shares or the Contracts or the operation of the Fund.
8.2. Indemnification
by the Underwriter
8.2(a). The
Underwriter agrees to indemnify and hold harmless the Company and each of
its
directors and officers and each person, if any, who controls the Company
within
the meaning of Section 15 of the 1933 Act (collectively, the "Indemnified
Parties" for purposes of this Section 8.2) against any and all losses, claims,
damages, liabilities (including amounts paid in settlement with the written
consent of the Underwriter) or litigation (including reasonable legal and
other
expenses) to which the Indemnified Parties may become subject under any statute
or regulation, at common law or otherwise, insofar as such losses, claims,
damages, liabilities or expenses (or actions in respect thereof) or
settlements:
(i) arise
out
of or are based upon any untrue statement or alleged untrue statement of
any
material fact contained in the registration statement or prospectus or SAI
or
sales literature of the Fund (or any amendment or supplement to any of the
foregoing), or arise out of or are based upon the omission or the alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, provided that this
agreement to indemnify shall not apply as to any Indemnified Party if such
statement or omission or such alleged statement or omission was made in reliance
upon and in conformity with information furnished to the Underwriter or Fund
by
or on behalf of the Company for use in the registration statement, prospectus
or
SAI for the Fund or in sales literature (or any amendment or supplement)
or
otherwise for use in connection with the sale of the Contracts or Fund shares;
or
(ii) arise
out
of or as a result of statements or representations (other than statements
or
representations contained in the registration statement, prospectus, SAI
or
sales literature for the Contracts not supplied by the Underwriter or persons
under its control) or wrongful conduct of the Fund or Underwriter or persons
under their control, with respect to the sale or distribution of the Contracts
or Fund shares; or
(iii) arise
out
of any untrue statement or alleged untrue statement of a material fact contained
in a registration statement, prospectus, SAI or sales literature covering
the
Contracts, or any amendment thereof or supplement thereto, or the omission
or
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statement or statements therein not misleading,
if such
statement or omission was made in reliance upon information furnished to
the
Company by or on behalf of the Fund or the Underwriter; or
(iv) arise
as
a result of any failure by the Fund or the Underwriter to provide the services
and furnish the materials under the terms of this Agreement (including a
failure
of the Fund, whether unintentional or in good faith or otherwise, to comply
with
the diversification and other qualification requirements specified in Article
VI
of this Agreement); or
(v) arise
out
of or result from any material breach of any representation and/or warranty
made
by the Underwriter in this Agreement or arise out of or result from any other
material breach of this Agreement by the Underwriter;
as
limited by and in accordance with the provisions of Sections 8.2(b) and 8.2(c)
hereof.
8.2(b). The
Underwriter shall not be liable under this indemnification provision with
respect to any losses, claims, damages, liabilities or litigation to which
an
Indemnified Party would otherwise be subject by reason of such Indemnified
Party's willful misfeasance, bad faith, or gross negligence in the performance
or such Indemnified Party's duties or by reason of such Indemnified Party's
reckless disregard of obligations and duties under this Agreement or to the
Company or the Account, whichever is applicable.
8.2(c). The
Underwriter shall not be liable under this indemnification provision with
respect to any claim made against an Indemnified Party unless such Indemnified
Party shall have notified the Underwriter in writing within a reasonable
time
after the summons or other first legal process giving information of the
nature
of the claim shall have been served upon such Indemnified Party (or after
such
Indemnified Party shall have received notice of such service on any designated
agent), but failure to notify the Underwriter of any such claim shall not
relieve the Underwriter 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 Party, the Underwriter will be entitled to participate, at
its
own expense, in the defense thereof. The Underwriter also shall be
entitled to assume the defense thereof, with counsel satisfactory to the
party
named in the action. After notice from the Underwriter to such party
of the Underwriter's election to assume the defense thereof, the Indemnified
Party shall bear the fees and expenses of any additional counsel retained
by it,
and the Underwriter will not be liable to such party under this Agreement
for
any reasonable legal or other expenses subsequently incurred by such party
independently in connection with the defense thereof other than reasonable
costs
of investigation.
The
Company agrees promptly to notify the Underwriter of the commencement of
any
litigation or proceedings against it or any of its officers or directors
in
connection with the issuance or sale of the Contracts or the operation of
the
Account.
8.3. Indemnification
By the Fund
8.3(a). The
Fund agrees to indemnify and hold harmless the Company and each of its directors
and officers and each person, if any, who controls the Company within the
meaning of Section 15 of the 1933 Act (collectively, the "Indemnified Parties"
for purposes of this Section 8.3) against any and all losses, claims, expenses,
damages, liabilities (including amounts paid in settlement with the written
consent of the Fund) or litigation (including reasonable legal and other
expenses) to which the Indemnified Parties may be required to pay or may
become
subject under any statute or regulation, at common law or otherwise, insofar
as
such losses, claims, expenses, damages, liabilities or expenses (or actions
in
respect thereof) or settlements, are related to the operations of the Fund
and:
(i) arise
as
a result of any failure by the Fund to provide the services and furnish the
materials under the terms of this Agreement (including a failure, whether
unintentional or in good faith or otherwise, to comply with the diversification
and other qualification requirements specified in Article VI of this Agreement);
or
(ii) arise
out
of or result from any material breach of any representation and/or warranty
made
by the Fund in this Agreement or arise out of or result from any other material
breach of this Agreement by the Fund;
as
limited by and in accordance with the provisions of Sections 8.3(b) and 8.3(c)
hereof.
8.3(b). The
Fund shall not be liable under this indemnification provision with respect
to
any losses, claims, damages, liabilities or litigation to which an Indemnified
Party would otherwise be subject by reason of such Indemnified Party's willful
misfeasance, bad faith, or gross negligence in the performance of such
Indemnified Party's duties or by reason of such Indemnified Party's reckless
disregard of obligations and duties under this Agreement or to the Company,
the
Fund, the Underwriter or the Account, whichever is applicable.
8.3(c). The
Fund shall not be liable under this indemnification provision with respect
to
any claim made against an Indemnified Party unless such Indemnified Party
shall
have notified the Fund in writing within a reasonable time after the summons
or
other first legal process giving information of the nature of the claim shall
have been served upon such Indemnified Party (or after such Indemnified Party
shall have received notice of such service on any designated agent), 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 reasonable legal
or
other expenses subsequently incurred by such party independently in connection
with the defense thereof other than reasonable costs of
investigation.
8.3(d). The
Company and the Underwriter agree promptly to notify the Fund of the
commencement of any litigation or proceeding against it or any of its respective
officers or directors in connection with the Agreement, the issuance or sale
of
the Contracts, the operation of the Account, or the sale or acquisition of
shares of the Fund.
ARTICLE
IX. Applicable Law
9. This
text
is hidden, do not remove.
9.1. This
Agreement shall be construed and the provisions hereof interpreted under
and in
accordance with the laws of the State of Ohio.
9.2. This
Agreement shall be subject to the provisions of the 1933, 1934 and 1940 Acts,
and the rules and regulations and rulings thereunder, including such exemptions
from those statutes, rules and regulations as the SEC may grant (including,
but
not limited to, any Mixed and Shared Funding Exemptive Order) and the terms
hereof shall be interpreted and construed in accordance
therewith. If, in the future, the Mixed and Shared Funding Exemptive
Order should no longer be necessary under applicable law, then Article VII
shall
no longer apply.
ARTICLE
X. Termination
10. This
text
is hidden, do not remove.
10.1. This
Agreement shall continue in full force and effect until the first to occur
of:
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(a)
|
termination
by any party, for any reason with respect to some or all Designated
Portfolios, by three (3) months advance written notice delivered
to the
other parties; or
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(b)
|
termination
by the Company by written notice to the Fund and the Underwriter
based
upon the Company's determination that shares of the Fund are not
reasonably available to meet the requirements of the Contracts;
or
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(c)
|
termination
by the Company by written notice to the Fund and the Underwriter
in the
event any of the Designated Portfolio's shares are not registered,
issued
or sold in accordance with applicable state and/or federal law
or such law
precludes the use of such shares as the underlying investment media
of the
Contracts issued or to be issued by the Company;
or
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(d)
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termination
by the Fund or Underwriter in the event that formal administrative
proceedings are instituted against the Company by the NASD, the
SEC, the
Insurance Commissioner or like official of any state or any other
regulatory body regarding the Company's duties under this Agreement
or
related to the sale of the Contracts, the operation of any Account,
or the
purchase of the Fund's shares; provided, however, that the Fund
or
Underwriter determines in its sole judgment exercised in good faith,
that
any such administrative proceedings will have a material adverse
effect
upon the ability of the Company to perform its obligations under
this
Agreement; or
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(e)
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termination
by the Company in the event that formal administrative proceedings
are
instituted against the Fund or Underwriter by the NASD, the SEC,
or any
state securities or insurance department or any other regulatory
body;
provided, however, that the Company determines in its sole judgment
exercised in good faith, that any such administrative proceedings
will
have a material adverse effect upon the ability of the Fund or
Underwriter
to perform its obligations under this Agreement;
or
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(f)
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termination
by the Company by written notice to the Fund and the Underwriter
with
respect to any Designated Portfolio in the event that such Portfolio
ceases to qualify as a Regulated Investment Company under Subchapter
M or
fails to comply with the Section 817(h) diversification requirements
specified in Article VI hereof, or if the Company reasonably believes
that
such Portfolio may fail to so qualify or comply;
or
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(g)
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termination
by the Fund or Underwriter by written notice to the Company in
the event
that the Contracts fail to meet the qualifications specified in
Article VI
hereof; or
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(h)
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termination
by either the Fund or the Underwriter by written notice to the
Company, if
either one or both of the Fund or the Underwriter respectively,
shall
determine, in their sole judgment exercised in good faith, that
the
Company has suffered a material adverse change in its business,
operations, financial condition, or prospects since the date of
this
Agreement or is the subject of material adverse publicity;
or
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(i)
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termination
by the Company by written notice to the Fund and the Underwriter,
if the
Company shall determine, in its sole judgment exercised in good
faith,
that the Fund, Adviser, or the Underwriter has suffered a material
adverse
change in its business, operations, financial condition or prospects
since
the date of this Agreement or is the subject of material adverse
publicity; or
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(j)
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termination
by the Company upon any substitution of the shares of another investment
company or series thereof for shares of a Designated Portfolio
of the Fund
in accordance with the terms of the Contracts, provided that the
Company
has given at least 45 days prior written notice to the Fund and
Underwriter of the date of substitution;
or
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(k)
|
termination
by any party in the event that the Fund's Board of Trustees determines
that a material irreconcilable conflict exists as provided in Article
VII.
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10.2. Notwithstanding
any termination of this Agreement, the Fund and the Underwriter shall, at
the
option of the Company, continue to make available additional shares of the
Fund
pursuant to the terms and conditions of this Agreement, for all Contracts
in
effect on the effective date of termination of this Agreement (hereinafter
referred to as "Existing Contracts"), unless the Underwriter requests that
the
Company seek an order pursuant to Section 26(c) of the 1940 Act to permit
the
substitution of other securities for the shares of the Designated Portfolios.
The Underwriter agrees to split the cost of seeking such an order, and the
Company agrees that it shall reasonably cooperate with the Underwriter and
seek
such an order upon request. Specifically, the owners of the Existing
Contracts may be permitted to reallocate investments in the Fund, redeem
investments in the Fund and/or invest in the Fund upon the making of additional
purchase payments under the Existing Contracts. The parties agree
that this Section 10.2 shall not apply to any terminations under Article
VII and
the effect of such Article VII terminations shall be governed by Article
VII of
this Agreement. The parties further agree that this Section 10.2
shall not apply to any terminations under Section 10.1(g) of this
Agreement.
10.3. The
Company shall not redeem Fund shares attributable to the
Contracts except (i) as necessary to implement Contract owner
initiated or approved transactions, (ii) as required by state and/or federal
laws or regulations or judicial or other legal precedent of general application
(hereinafter referred to as a "Legally Required Redemption"), (iii) upon
45 days
prior written notice to the Fund and Underwriter, as permitted by an order
of
the SEC pursuant to Section 26(b) of the 1940 Act, but only if a substitution
of
other securities for the shares of the Designated Portfolios is consistent
with
the terms of the Contracts, or (iv) as permitted under the terms of the
Contract. Upon request, the Company will promptly furnish to the Fund
and the Underwriter reasonable assurance that any redemption pursuant to
clause
(ii) above is a Legally Required Redemption. Furthermore, except in
cases where permitted under the terms of the Contacts, the Company shall
not
prevent Contract owners from allocating payments to a Portfolio that was
otherwise available under the Contracts without first giving the Fund or
the
Underwriter 45 days notice of its intention to do so.
10.4. Notwithstanding
any termination of this Agreement, each party's obligation under Article
VIII to
indemnify the other parties shall survive.
ARTICLE
XI. Notices
11. This
text
is hidden, do not remove.
Any
notice shall be sufficiently given when sent by registered, certified or
overnight mail to the other party at the address of such party
set forth below or at such other address as such party may from time to time
specify in writing to the other party.
If
to the
Fund: PIMCO Variable
Insurance Trust
▇▇▇
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▇▇▇
▇▇▇▇▇▇▇
▇▇▇▇▇, ▇▇ ▇▇▇▇▇
If
to the
Company: Nationwide
Life Insurance Company
Nationwide
Life and Annuity
Company
▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇
▇-▇▇-▇▇
▇▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
Attn: Securities
Officer
If
to
Underwriter: PIMCO
Funds Distributors LLC
▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
ARTICLE
XII. Miscellaneous
12. This
text
is hidden, do not remove.
12.1. All
persons dealing with the Fund must look solely to the property of the Fund,
and
in the case of a series company, the respective Designated Portfolios listed
on
Schedule A hereto as though each such Designated Portfolio had separately
contracted with the Company and the Underwriter for the enforcement of any
claims against the Fund. The parties agree that neither the Board,
officers, agents or shareholders of the Fund assume any personal liability
or
responsibility for obligations entered into by or on behalf of the
Fund.
12.2. Subject
to the requirements of legal process and regulatory authority, each party
hereto
shall treat as confidential the names and addresses of the owners of the
Contracts and all information reasonably identified as confidential in writing
by any other party hereto and, except as permitted by this Agreement, shall
not
disclose, disseminate or utilize such names and addresses and other confidential
information without the express written consent of the affected party until
such
time as such information has come into the public domain.
12.3. The
captions in this Agreement are included for convenience of reference only
and in
no way define or delineate any of the provisions hereof or otherwise affect
their construction or effect.
12.4. This
Agreement may be executed simultaneously in two or more counterparts, each
of
which taken together shall constitute one and the same instrument.
12.5. If
any
provision of this Agreement shall be held or made invalid by a court decision,
statute, rule or otherwise, the remainder of the Agreement shall not be affected
thereby.
12.6. Each
party hereto shall cooperate with each other party and all appropriate
governmental authorities (including without limitation the SEC, the NASD,
and
state insurance regulators) and shall permit such authorities reasonable
access
to its books and records in connection with any investigation or inquiry
relating to this Agreement or the transactions contemplated hereby.
12.7. 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.
12.8. This
Agreement or any of the rights and obligations hereunder may not be assigned
by
any party without the prior written consent of all parties hereto.
12.9. The
Company shall furnish, or shall cause to be furnished, to the Fund or its
designee copies of the following reports:
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(a)
|
the
Company's annual statement (prepared under statutory accounting
principles) and annual report (prepared under generally accepted
accounting principles) filed with any state or federal regulatory
body or
otherwise made available to the public, as soon as practicable
and in any
event within 90 days after the end of each fiscal year;
and
|
|
(b)
|
any
registration statement (without exhibits) and financial reports
of the
Company filed with the Securities and Exchange Commission , as
soon as
practicable after the filing
thereof.
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(Signatures
located on the following page)IN WITNESS WHEREOF, each of the parties hereto
has
caused this Agreement to be executed in its name and on its behalf by its
duly
authorized representative and its seal to be hereunder affixed hereto as
of the
date specified below.
NATIONWIDE
LIFE INSURANCE COMPANY
NATIONWIDE
LIFE AND ANNUITY INSURANCE COMPANY:
By
its authorized officer
By:
Name: [▇▇▇▇▇▇▇
▇.
▇▇▇▇▇▇]
Title: [V.P.
Investment
& Advisory Services]
Date: [1/23/03]
PIMCO
VARIABLE INSURANCE TRUST
By
its authorized officer
By:
Name: [▇▇▇▇▇▇▇
▇.▇▇▇▇▇▇▇]
Title: [Senior
Vice
President]
Date: [1/7/03]
PIMCO
FUNDS DISTRIBUTORS LLC
By
its authorized officer
By:
Name: [▇▇▇▇▇▇
▇. ▇▇▇▇▇▇,
▇▇.]
Title: [Managing
Director]
Date: [12/24/02]
8194921.doc 12/31/97
Schedule
A
PIMCO
Variable Insurance Trust Portfolios:
Money
Market
Short-Term
Low
Duration
Real
Return
CommodityRealReturn
Strategy
Total
Return
Total
Return II
High
Yield
Long-Term
U.S. Government
Global
Bond
Foreign
Bond
Emerging
Markets Bond
Strategic
Balanced
StocksPLUS
Growth and Income
StocksPLUS
Total Return
Separate
Accounts
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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
Private Placement Variable Account
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10/07/1981
10/07/1987
10/07/1987
11/01/1989
02/02/1994
07/22/1994
08/03/1995
05/21/1997
03/31/1999
12/15/1999
07/10/2001
07/10/2001
10/07/1981
08/07/1974
08/07/1974
08/07/1974
08/07/1974
08/01/1984
05/06/1987
12/03/1987
12/03/1987
05/21/1998
07/10/2001
08/01/1984
10/02/1991
08/09/1996
07/21/1997
05/21/1998
12/13/2000
|
AMENDMENT
#1 TO PARTICIPATION AGREEMENT
Among
NATIONWIDE
LIFE INSURANCE COMPANY,
NATIONWIDE
LIFE AND ANNUITY INSURANCE COMPANY
PIMCO
VARIABLE INSURANCE TRUST,
and
PIMCO
FUNDS DISTRIBUTORS LLC
This
document constitutes an Amendment to the Participation Agreement (the
“Agreement”) dated March 28, 2002 among Nationwide Life Insurance Company,
Nationwide Life and Annuity Insurance Company (the “Company”), PIMCO Variable
Insurance Trust (the “Fund”) and PIMCO Funds Distributors LLC (the
“Underwriter”), collectively the “Parties.” Capitalized terms not
otherwise defined herein shall have the meanings ascribed to them in the
Agreement.
WHEREAS,
The Parties entered in the Agreement to provide for the use of the Portfolios
as
investment options within the Company’s Variable Insurance
Products.
WHERAS,
The primary purposes of this Amendment are as follows:
|
·
|
Add
additional insurance companies as parties to the
Agreement;
|
|
·
|
Terminate
and Supersede prior agreements; and
|
|
·
|
Update
Schedule A.
|
NOW
THEREFORE, in consideration of their mutual promises, the Parties agree as
follows:
|
1.
|
Nationwide
Life Insurance Company of America (dba Nationwide Provident) and
Nationwide Life and Annuity Company of America are hereby added
as
additional Parties to the Agreement on their own behalf and on
behalf of
each separate account as set forth on Amended Schedule
A.
|
|
2.
|
All
references to the “Company” in the original Agreement and subsequent
Amendments shall now include Nationwide Life Insurance Company
of America
and Nationwide Life and Annuity Company of America (hereafter collectively
the “Company”).
|
|
3.
|
Section
2.1 of Article II - Representations and Warranties is deleted in
its entirety and replaced with the
following:
|
2.1 The
Company represents and warrants that the Contracts (a) are, or prior to issuance
will be, registered under the 1933 Act, or (b) are not registered because
they
are properly exempt from registration under the 1933 Act or will be offered
exclusively in transactions that are properly exempt from registration under
the
1933 Act. The Company further represents and warrants that the
Contracts will be issued in compliance in all material respects with all
applicable federal securities and state securities and insurance laws and
that
the sale of the Contracts shall comply in all material respects with state
insurance requirements. The Company further represents and warrants
that it is an insurance company duly organized and in good standing under
applicable law, that it has legally and validly established the Account prior
to
any issuance or sale thereof as a separate account under applicable state
insurance laws, and that it (a) has registered or, prior to any issuance
or sale
of the Contracts, will register the Account as a unit investment trust in
accordance with the provisions of the 1940 Act to serve as a segregated
investment account for the Contracts, or alternatively (b) has not registered
the Account in proper reliance upon an exclusion from registration under
the
1940 Act. The Company shall register and qualify the Contracts or
interests therein as securities in accordance with the laws of the various
states only if and to the extent deemed advisable by the Company.
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4.
|
Article
XI- Notices is amended to include Nationwide Life Insurance Company
of America and Nationwide Life and Annuity Company of America as
part of
the “Company.”
|
|
5.
|
Article
XIII- Termination of Prior Agreements is added as
follows:
|
XIII. Termination
of Prior Agreements. The Parties agree that by this Amendment the
following Agreements are superseded and replaced:
|
·
|
The
Participation Agreement among Nationwide Life Insurance Company
of America
(fna Provident Mutual Life Insurance Company), PIMCO
Variable Insurance Trust, and PIMCO Funds Distributors LLC dated
June 1,
2001 and assigned on or about October 1,
2002.
|
|
·
|
The
Participation Agreement among Nationwide Life and Annuity Company
of
America (fna Providentmutual Life and Annuity Company of America),
PIMCO
Variable Insurance Trust, and PIMCO Funds Distributors LLC dated
December
1, 1999 as amended and assigned on or about October 1,
2002.
|
|
6.
|
Schedule
A is amended to reflect the inclusion of the separate accounts
of
Nationwide Life Insurance Company of America and Nationwide Life
and
Annuity Company of America. The Amended Schedule A is attached
to and made a part of the
Agreement.
|
|
7.
|
The
Agreement, as amended, is and shall remain in full force and effect
until
terminated pursuant to the terms of the
Agreement.
|
|
8.
|
This
Amendment shall be effective as of __[Jan. 1,
2003]_______.
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IN
WITNESS WHEREOF, each of the parties hereto has caused this Amendment #1
to be
executed:
NATIONWIDE
LIFE INSURANCE COMPANY
NATIONWIDE
LIFE AND ANNUITY INSURANCE COMPANY:
By
its authorized officer
By:
Name: [▇▇▇▇▇▇▇
▇.
▇▇▇▇▇▇]
Title:
[V.P.]
Date: [1-12-04]
NATIONWIDE
LIFE INSURANCE COMPANY OF AMERICA
NATIONWIDE
LIFE AND ANNUITY COMPANY OF AMERICA:
By
its authorized officer
By:
Name: [▇▇▇▇▇
▇.
▇▇▇▇▇▇▇▇]
Title: [V.P.
Ass’t Secretary]
Date:
PIMCO
VARIABLE INSURANCE TRUST
By
its authorized officer
By:
Name: ▇▇▇▇ ▇▇▇▇▇▇▇
Title: Senior
Vice President
Date: November
19, 2003
PIMCO
FUNDS DISTRIBUTORS LLC
By
its authorized officer
By:
Name:
Title:
Date:
Amended
Schedule A
PIMCO
Variable Insurance Trust Portfolios:
Money
Market
Short-Term
Low
Duration
Real
Return
CommodityRealReturn
Strategy
Total
Return
Total
Return II
High
Yield
Long-Term
U.S. Government
Global
Bond
Foreign
Bond
Emerging
Markets Bond
Strategic
Balanced
StocksPLUS
Growth and Income
StocksPLUS
Total Return
Separate
Accounts
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Nationwide
Variable Account-II
Nationwide
Variable Account-3
Nationwide
Variable Account-4
Nationwide
Variable Account-5
Nationwide
Variable Account-6
Nationwide
Variable Account-7
Nationwide
Variable Account-8
Nationwide
Variable Account-9
Nationwide
Variable Account-10
Nationwide
Variable Account-11
Nationwide
Variable Account-12
Nationwide
Variable Account-13
Nationwide
Variable Account-14
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
Private Placement Variable Account
Nationwide
Provident VA Separate Account 1
Nationwide
Provident VLI Separate Account 1
Nationwide
Provident VA Separate Account A
Nationwide
Provident VLI Separate Account A
|
10/07/1981
10/07/1987
10/07/1987
11/01/1989
02/02/1994
07/22/1994
08/03/1995
05/21/1997
03/31/1999
12/15/1999
07/10/2001
07/10/2001
08/08/2002
10/07/1981
08/07/1974
08/07/1974
08/07/1974
08/07/1974
08/01/1984
05/06/1987
12/03/1987
12/03/1987
05/21/1998
07/10/2001
08/01/1984
10/02/1991
08/09/1996
07/21/1997
05/21/1998
12/13/2000
10/19/1992
05/01/2000
05/09/1991
06/30/1994
|