Restated and Amended Fund Participation Agreement
Restated
and Amended
This
Restated and Amended Fund Participation Agreement (“Agreement”), dated as of the
1st day of
June, 2003 is made by and between Nationwide Financial Services, Inc. and its
subsidiaries and affiliates (separately or collectively “Nationwide”) on behalf
of the Nationwide separate accounts identified on Exhibit A which is attached
hereto and may be amended from time to time (“Variable Accounts”), and each of
the mutual funds listed on Exhibit B (each a “Fund” or collectively the “Funds”
or “Dreyfus”) and restates and amends a Fund Participation Agreement between the
parties dated as of the 27th day of
January,
2000 ("Fund Participation Agreement").
WHEREAS,
Nationwide and Dreyfus mutually entered into a Fund Participation Agreement
whereby the Funds are included as underlying investment media for variable
life
insurance policies and/or variable annuity contracts (collectively, the
“Contracts”) issued by Nationwide; and
WHEREAS,
the Contracts allow for the allocation of net amounts received by Nationwide
to
separate sub-accounts of the Variable Accounts for investment in shares of
the
Funds and other similar funds; and
WHEREAS,
selection of a particular sub-account (corresponding to a particular Fund)
is
made by the Contract owner; or, in the case of certain group Contracts, by
participants in various types of retirement plans which have purchased such
group Contracts, and such Contract owners and/or participants may reallocate
their investment options among the sub-accounts of the Variable Accounts in
accordance with the terms of the Variable Accounts in accordance with the terms
of the Contracts; and
WHEREAS,
the parties desire to amend and restate the existing Fund Participation
Agreement as set forth below.
NOW
THEREFORE, Nationwide and Dreyfus, in consideration of the promises and
undertakings described herein, agree as follows:
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1.
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Nationwide
represents and warrants that: (a) it is an insurance company duly
organized and in good standing under applicable law; (b) the
Variable Accounts have been established and are in good standing
under
Ohio Law; (c) the Variable Accounts have been registered as unit
investment trusts under the Investment Company Act of 1940 (the “1940
Act”) or are exempt from registration pursuant to sections 3(c)(1),
3(c)(7), or 3(c)(11) of the 1940 Act; and (d) the
Variable Accounts are eligible to invest in shares of each Fund without
such investment disqualifying any Fund as an investment medium for
insurance company separate accounts supporting variable annuity contracts
or variable life insurance
contracts.
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2.
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Each
party recognizes that the services provided for under this Agreement
are
not exclusive and that the same skill will be used in performing
services
in similar contexts. Nationwide will use its best efforts to
give equal emphasis and promotion to shares of the Funds as is given
to
other underlying investments of the Variable
Accounts.
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3.
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Subject
to the terms and conditions of this Agreement, Nationwide shall be
appointed to, and agrees, to act as a limited agent of Dreyfus, for
the
sole purpose of receiving instructions for the purchase and redemption
of
Fund shares (from Contract owners or participants making investment
allocation decisions under the Contracts) prior to the close of regular
trading each Business Day. “Business Day” shall mean any day on
which the New York Stock Exchange (“NYSE”) is open for trading and on
which the Funds calculate their net asset value as set forth in the
Funds’
most recent Prospectuses and Statements of Additional Information.
Except
as particularly stated in this paragraph, Nationwide shall have no
authority to act on behalf of Dreyfus or to incur any cost or liability
on
its behalf.
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Dreyfus
will use its reasonable best efforts to provide closing net asset value, change
in net asset value, dividend or daily accrual rate information and capital
gain
information by 6:00 p.m. Eastern time each Business Day to Nationwide.
Nationwide shall use this data to calculate unit values. Unit values
shall be used to process that same Business Day’s Variable Account transactions.
Orders for purchases or redemptions shall be placed with Dreyfus or its
specified agent by wiring payment in Federal Funds no later than 10:00 a.m.
Eastern time of the following Business Day. Orders for shares of
Funds shall be accepted and executed at the time they are received by Dreyfus
and at the net asset value price determined as of the close of trading on the
previous Business Day. Dreyfus will not accept any order made on a
conditional basis or subject to any delay or contingency. If payment
in Federal Funds for any purchase is not received or is received by the Fund
after 12:00 noon Eastern time on such Business Day, Nationwide shall promptly,
upon each applicable Fund’s request, reimburse the Fund for any reasonable
charges, costs, fees, interest or other expenses incurred by the Fund, as a
result of portfolio transactions effected by the Fund based upon such purchase
request.
Nationwide
shall only place purchase orders for shares of Funds on behalf of its customers
whose addresses recorded on Nationwide’s books are in a state or other
jurisdiction in which the Funds are registered or qualified for sale, or are
exempt from registration or qualification as confirmed in writing by
Dreyfus. Nationwide represents and warrants that all orders submitted
by Nationwide for execution on the effective trade date shall represent purchase
or redemption orders received from contract holders prior to the close of
trading on the NYSE on the effective date.
Payment
for net purchases shall be wired to a custodial account designated by Dreyfus
and payment for net redemptions will be wired to an account designated by
Nationwide. Dividends and capital gain distributions shall be reinvested in
additional Fund shares at net asset value. Notwithstanding the above,
Dreyfus shall not be held responsible for providing Nationwide with ex-date
net
asset value, change in net asset value, dividend or capital gain information
when the NYSE is closed, when an emergency exists making the valuation of net
assets not reasonably practicable, or during any period when the Securities
and
Exchange Commission (“SEC”) has by order permitted the suspension of pricing
shares for the protection of shareholders.
Nationwide
agrees to provide Dreyfus, upon request, written reports indicating the number
of shareholders that hold interests in the Funds and such other information
(including books and records) that Dreyfus may reasonably request or as may
be
necessary or advisable to enable it to comply with any law, regulation or
order.
At
such
time as Dreyfus and Nationwide are able to transmit information via the NSCC's
DCC&S Fund/SERV System:
a) Orders
derived from, and in amounts equal to, instructions received by Nationwide
prior
to the Close of Trading on Day 1 shall be transmitted without modification
(except for netting and aggregation of such orders) via the NSCC's DCC&S
Fund/SERV system to Dreyfus no later than 5:00 A.M. Eastern Time on the Next
Business Day. Such trades will be effected at the net asset value of
each Fund's shares calculated as of the Close of Trading on Day 1.
b) Dreyfus and
Nationwide shall mutually agree there may be instances when orders shall be
transmitted to Dreyfus via facsimile no later than 9:00 A.M. rather than through
the DCC&S
Fund/SERV
system. In such instances, such orders shall be transmitted to
Dreyfus via facsimile no later than 9:00 A.M. Eastern Time on the next Business
Day.
c) With
respect to purchase and redemption orders received by Dreyfus on any Business
Day for any Fund, within the time limits set forth in this Agreement, settlement
shall occur consistent with the requirements of DCC&S Fund/SERV
system.
At
such
time as Dreyfus and Nationwide are able to transmit information via the
DCC&S Fund/SERV system; Dreyfus or its designated agent shall send to
Nationwide, via the DCC&S Fund/SERV system, verification of net purchase or
redemption orders or notification of the rejection of such orders
("Confirmations ") on each Business Day for which Nationwide has transmitted
such orders. Such confirmations shall include the total number of
shares of each Fund held by Nationwide following such net purchase or
redemption. Dreyfus, or its designated agent, shall submit in a timely manner,
such confirmations to the DCC&S Fund/SERV system in order for Nationwide to
receive such confirmations no later than 11:00 A.M. Eastern Time the next
Business Day. Dreyfus or its designated agent will transmit to NFS via DCC&S
NETWORKING system those Networking activity files reflecting account
activity. In addition, by the (5th) business day after the end of
each month, Dreyfus or its affiliate will send Nationwide a statement of account
which shall confirm all transactions made during that particular month in the
account.
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4.
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All
expenses incident to the performance by Dreyfus under this Agreement
shall
be paid by Dreyfus. Dreyfus shall promptly provide Nationwide, or
cause
Nationwide to be provided with, a reasonable quantity of the Funds’
Prospectuses, Statements of Additional Information and any supplements.
Nationwide shall pay the following expenses or
costs:
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a.
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Such
amount of the production expenses of any Fund materials, including
the
cost of printing a Participating Fund's Prospectus, or marketing
materials
for prospective Nationwide Contractholders and Participants as Dreyfus
and
Nationwide shall agree from time to
time.
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b.
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Distribution
expenses of any Fund materials or marketing materials for prospective
Nationwide Contractholders and
Participants.
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c. Distribution
expenses of any Fund materials or marketing materials for Nationwide
Contractholders and Participants.
A
Fund’s
principal underwriter may pay Nationwide, or the broker-dealer acting as
principal underwriter for the Nationwide’s Contracts, for distribution and other
services related to the Shares of the Fund pursuant to any distribution plan
adopted by the Fund in accordance with Rule 12b-1 under the Act, subject to
the
terms and conditions of an agreement between the Fund’s principal underwriter
and Nationwide or the principal underwriter for Nationwide’s Contracts, as
applicable, related to such plan.
Except
as provided herein, all other
expenses of each Participating Fund shall not be borne by Insurance
Company.
5. Nationwide
and its agents shall make no representations concerning the Funds or Fund shares
except those contained in the Funds’ then current Prospectuses, Statements of
Additional Information or other documents produced by Dreyfus (or an entity
on
its behalf) which contain information about the Funds. Nationwide agrees to
allow a reasonable period of time for Dreyfus to review and approve any
advertising and sales literature drafted by Nationwide (or agents on its behalf)
with respect to the Funds prior to submitting such material to any
regulator. No such material shall be used unless the Fund or its
designee approves such material.
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6.1
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Nationwide
has reviewed a copy of the order dated February 5, 1998 of the Commission
under Section 6(c) of the Act with respect to Dreyfus Investment
Portfolios, and, in particular, has reviewed the conditions to the
relief
set forth in the Notice. As set forth therein, if Dreyfus
Investment Portfolios is a Fund, Nationwide agrees, as applicable,
to
report any potential or existing conflicts promptly to the Board
of
Dreyfus Investment Portfolios, and, in particular, whenever contract
voting instructions are disregarded, and recognizes that it will
be
responsible for assisting the Board in carrying out its responsibilities
under such application. Nationwide agrees to carry out such
responsibilities with a view to the interests of existing
Contractholders.
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6.2
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If
a majority of the Board, or a majority of Disinterested Board Members,
determines that a material irreconcilable conflict exists with regard
to
Contractholder investments in a Fund, the Board shall give prompt
notice
to all Participating Companies and any other Fund. If the Board
determines that Nationwide is responsible for causing or creating
said
conflict, Nationwide shall at its sole cost and expense, and to the
extent
reasonably practicable (as determined by a majority of the Disinterested
Board Members), take such action as is necessary to remedy or eliminate
the irreconcilable material conflict. Such necessary action may
include, but shall not be limited
to:
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a.
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Withdrawing
the assets allocable to the Separate Account from the Fund and reinvesting
such assets in another Fund (if applicable) or a different investment
medium, or submitting the question of whether such segregation should
be
implemented to a vote of all affected Contractholders;
and/or
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b.
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Establishing
a new registered management investment
company.
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6.3
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If
a material irreconcilable conflict arises as a result of a decision
by
Nationwide to disregard Contractholder voting instructions and said
decision represents a minority position or would preclude a majority
vote
by all Contractholders having an interest in a Fund, Nationwide may
be
required, at the Board's election, to withdraw the investments of
the
Separate Account in that Fund.
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6.4
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For
the purpose of this Article, a majority of the Disinterested Board
Members
shall determine whether or not any proposed action adequately remedies
any
irreconcilable material conflict, but in no event will any Fund be
required to bear the expense of establishing a new funding medium
for any
Contract. Nationwide shall not be required by this Article to
establish a new funding medium for any Contract if an offer to do
so has
been declined by vote of a majority of the Contractholders materially
adversely affected by the irreconcilable material
conflict.
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6.5
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No
action by Nationwide taken or omitted, and no action by the Separate
Account or any Fund taken or omitted as a result of any act or failure
to
act by Nationwide pursuant to this Article VI, shall relieve Nationwide
of
its obligations under, or otherwise affect the operation of, Article
V.
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7.
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Dreyfus
represents that the Funds are currently qualified as regulated investment
companies under Subchapter M of the Internal Revenue Code of 1986
(the
“Code”), as amended, and that the Funds shall make every effort to
maintain such qualification. Dreyfus shall promptly notify
Nationwide upon having a reasonable basis for believing that the
Funds
have ceased to so qualify, or that they may not qualify as such in
the
future.
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Dreyfus
represents that the Funds currently comply with the diversification requirements
pursuant to Section 817(h) of the Code and Section 1.817-5(b) of the Federal
Tax
Regulations and that the Funds will make every effort to maintain the Funds’
compliance with such diversification requirements, unless the Funds are
otherwise exempt from section 817(h) and/or except as otherwise disclosed in
each Fund’s prospectus. Dreyfus will notify Nationwide promptly upon
having a reasonable basis for believing that the Funds have ceased to so
qualify, or that the Funds might not so qualify in the future. Unless otherwise
exempt, Dreyfus shall provide to Nationwide a statement indicating compliance
with Section 817(h) and a schedule of investment holdings, to be received by
Nationwide no later than twenty-five (25) days following the end of each
calendar quarter.
Nationwide
represents that the Contracts are currently treated as annuity contracts or
life
insurance policies, whichever is appropriate under applicable provisions of
the
Code, and that it shall make every effort to maintain such treatment. Nationwide
will promptly notify Dreyfus upon having a reasonable basis for believing that
the Contracts have ceased to be treated as annuity contracts or life insurance
polices, or that the Contracts may not be so treated in the future.
Unless
a
Fund is exempt from the requirements of section 817(h), Nationwide represents
that each Variable Account is a “segregated asset account” and that interests in
each Variable Account are offered exclusively through the purchase of a
“variable contract”, within the meaning of such terms pursuant to section
1.817-5(f)(2) of the Federal Tax Regulations, that it shall make every effort
to
continue to meet such definitional requirements, and that it shall notify
Dreyfus immediately upon having a reasonable basis for believing that such
requirements have ceased to be met or that they may not be met in the
future.
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8.
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Within
five (5) Business Days after the end of each calendar month, Dreyfus
shall
provide Nationwide a monthly statement of account, which shall confirm
all
transactions made during that particular month in the Variable
Accounts.
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9.
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Each
party agrees to inform the other of the existence of, or any potential
for, any material conflicts of interest between the parties and any
possible implications of the same.
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It
is
agreed that if it is determined by a majority of the members of the Boards
of
Directors of the Funds, or a majority of the Funds’ disinterested Directors,
that a material conflict exists caused by Nationwide, Nationwide shall, at
its
own expense, take whatever steps are necessary to remedy or eliminate such
material conflict.
It
is
agreed that if it is determined by Nationwide that a material conflict exists
caused by Dreyfus, Dreyfus shall, at its own expense, take whatever steps are
necessary to remedy or eliminate such material conflict.
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10.
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This
Agreement shall terminate as to the sale and issuance of new
Contracts:
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(a)
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at
the option of Nationwide or Dreyfus upon at least 60 days advance
written
notice to the other;
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(b)
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at
any time, upon Dreyfus’ election, if the Funds determine that liquidation
of the Funds is in the best interest of the Funds and their beneficial
owners. Reasonable advance notice of election to liquidate shall
be
furnished by Dreyfus to permit the substitution of Fund shares with
the
shares of another investment company pursuant to SEC
regulation;
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(c)
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if
the Contracts are not treated as annuity contracts or life insurance
policies by the applicable regulators or under applicable rules or
regulations;
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(d)
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if
the Variable Accounts are not deemed “segregated asset accounts” by the
applicable regulators or under applicable rules or
regulations;
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(e)
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at
the option of Nationwide, if Fund shares are not available for any
reason
to meet the requirements of Contracts as determined by
Nationwide. Reasonable advance notice of election to terminate
(and time to cure) shall be furnished by
Nationwide;
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(f)
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at
the option of Nationwide or Dreyfus, upon institution of relevant
formal
proceedings against the broker-dealer(s) marketing the Contracts,
the
Variable Accounts, Nationwide or the Funds by the NASD, IRS, the
Department of Labor, the SEC, state insurance departments or any
other
regulatory body;
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(g)
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upon
a decision by Nationwide, in accordance with regulations of the SEC,
to
substitute such Fund shares with the shares of another investment
company
for Contracts for which the Fund shares have been selected to serve
as the
underlying investment medium. Nationwide shall
give at least 60 days written notice to the
Funds and Dreyfus of any proposal to substitute Fund
shares;
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(h)
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upon
assignment of this Agreement unless such assignment is made with
the
written consent of each other party;
and
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(i)
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in
the event Fund shares are not registered, issued or sold pursuant
to
Federal law, or such law precludes the use of Fund shares as an underlying
investment medium of Contracts issued or to be issued by
Nationwide. Prompt written notice shall be given by either
party to the other in the event the conditions of this provision
occur.
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11. Each
notice required by this Agreement shall be given orally and confirmed in writing
to:
Nationwide
Life Insurance Company
Nationwide
Life and Annuity Insurance Company
▇▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇-▇▇-▇▇
▇▇▇▇▇▇▇▇,
▇▇▇▇ ▇▇▇▇▇
Attention:
Associate General Counsel – Securities
With
a
copy to:
Nationwide
Life Insurance Company
Nationwide
Life and Annuity Insurance Company
▇▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇-▇▇-▇▇
▇▇▇▇▇▇▇▇,
▇▇▇▇ ▇▇▇▇▇
Attention: Associate
General Counsel- Securities
Dreyfus:
The
Dreyfus Corporation
▇▇▇
▇▇▇▇
▇▇▇▇▇▇ - ▇▇▇
▇▇▇▇▇
▇▇▇
▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention:
General Counsel
The
Dreyfus Funds
c/o
Premier Mutual Fund Services, Inc.
▇▇▇
▇▇▇▇
▇▇▇▇▇▇
▇▇▇
▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention:
Vice President
Any
party
may change its address by notifying the other party(ies) in
writing.
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12.
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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,
Nationwide shall distribute all proxy material furnished by Dreyfus
(provided that such material is received by Nationwide at least 10
business days prior to the date scheduled for mailing to Contract
owners)
and shall vote Fund shares in accordance with instructions received
from
the Contract owners who have such interests in such Fund
shares. Nationwide shall vote the Fund shares for which no
instructions have been received in the same proportion as Fund shares
for
which said instructions have been received from Contract owners,
provided
that such proportional voting is not prohibited by the Contract owner’s
related plan or trust document. Nationwide and its agents will
in no way recommend action in connection with or oppose or interfere
with
the solicitation of proxies for the Fund shares held for the benefit
of
such Contract owners.
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13.
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(a)
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Nationwide
agrees to reimburse and/or indemnify and hold harmless each Fund,
The
Dreyfus Corporation, each Fund’s investment adviser or sub investment
adviser (if any), each Fund’s distributor, and their respective
affiliates, and each of their directors, officers, employees, agents
and
each person, if any, who controls the foregoing parties within the
meaning
of the Securities Act of 1933 (the “1933 Act”) against any losses, claims,
damages or liabilities (“Losses”) to which the foregoing parties may
become subject, under the 1933 Act or otherwise, insofar as such
Losses
(or actions in respect thereof) arise out of or are based upon, but
not
limited to:
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(i)
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any
untrue statement or alleged untrue statement of any material fact
contained in information furnished by
Nationwide;
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(ii)
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the
omission or the alleged omission to state in the Registration Statements
or Prospectuses of the Variable Accounts a material fact required
to be
stated therein or necessary to make the statements therein not
misleading;
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(iii)
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conduct,
statements or representations of Nationwide or its agents, with respect
to
the sale and distribution of Contracts for which Fund shares are
an
underlying investment;
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(iv)
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the
failure of Nationwide to provide the services and furnish the materials
under the terms of this Agreement;
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(v)
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a
breach of this Agreement or of any of the representations contained
herein; or
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(vi)
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any
failure to register the Contracts or the Variable Accounts under
federal
or state securities laws, state insurance laws or to otherwise comply
with
such laws, rules, regulations or
orders.
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Provided
however, that Nationwide shall not be liable in any such case to the extent
any
such statement, omission or representation or such alleged statement, alleged
omission or alleged representation was made in reliance upon and in conformity
with written information furnished to Nationwide by or on behalf of Dreyfus
specifically for use therein.
Nationwide
shall reimburse any legal or other expenses reasonably incurred by the foregoing
parties in connection with investigating or defending any such Losses, provided,
however, that Nationwide shall have prior approval of the use of said counsel
or
the expenditure of said fees.
This
indemnity agreement shall be in addition to any liability which Nationwide
may
otherwise have.
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(b)
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Each
Fund severally agrees to indemnify and hold harmless Nationwide and
each
of its directors, officers, employees, agents and each person,
(collectively, “Nationwide Affiliated Party”), who controls Nationwide
within the meaning of the 1933 Act against any Losses to which Nationwide
or any such Nationwide Affiliated Party may become subject, under
the 1933
Act or otherwise, insofar as such Losses (or actions in respect thereof)
arise out of or are based upon; but not limited
to:
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(i)
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any
untrue statement or alleged untrue statement of any material fact
contained in any information furnished by the respective Fund, including
but not limited to, the Registration Statements, Prospectuses or
sales
literature of the Funds;
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(ii)
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the
omission or the alleged omission to state in the Registration Statements
or Prospectuses of the Funds a material fact required to be stated
therein
or necessary to make the statements therein not
misleading;
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(iii)
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the
respective Fund’s failure to remain fully diversified and qualified as
regulated investment companies as required by the applicable provisions
of
the Code, the 1940 Act, and the applicable regulations promulgated
thereunder;
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(iv)
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the
failure of the respective Fund to provide the services and furnish
the
materials under the terms of this
Agreement;
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(v)
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a
breach of this Agreement or of any of the representations contained
herein; or
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(vi)
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any
failure to register the Funds under federal or state securities laws
or to
otherwise comply with such laws, rules, regulations or
orders.
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Provided
however, that the respective Fund shall not be liable in any such case to the
extent that any such loss, claim, damage or liability arises out of or is based
upon an act or omission of Nationwide or untrue statement or omission or alleged
omission made in conformity with written information furnished to each
respective Fund by Nationwide specifically for use therein.
Each
respective Fund shall reimburse any reasonable legal or other expenses
reasonably incurred by Nationwide or any Nationwide Affiliated Party in
connection with investigating or defending any such Losses, provided, however,
that each respective Fund shall have prior approval of the use of said counsel
or the expenditure of said fees.
This
indemnity agreement will be in addition to any liability which Dreyfus may
otherwise have.
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(c)
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Each
party shall promptly notify the other party(ies) in writing of any
situation which presents or appears to involve a claim which may
be the
subject of indemnification under this Agreement and the indemnifying
party
shall have the option to defend against any such claim. In the
event the indemnifying party so elects, it shall notify the indemnified
party and shall assume the defense of such claim, and the indemnified
party shall cooperate fully with the indemnifying party, at the
indemnifying party’s expense, in the defense of such
claim. Notwithstanding the foregoing, the indemnified party
shall be entitled to participate in the defense of such claim at
its own
expense through counsel of its own choosing. Neither party
shall admit to wrong-doing nor make any compromise in any action
or
proceeding which may result in a finding of wrongdoing by the other
party
without the other party’s prior written consent. Any notice
given by the indemnifying party to an indemnified party or participation
in or control of the litigation of any such claim by the indemnifying
party shall in no event be deemed to be an admission by the indemnifying
party of culpability, and the indemnifying party shall be free to
contest
liability among the parties with respect to the
claim.
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14.
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The
forbearance or neglect of any party to insist upon strict compliance
by
another party with any of the provisions of this Agreement, whether
continuing or not, or to declare a forfeiture of termination against
the
other parties, shall not be construed as a waiver of any of the rights
or
privileges of any party hereunder. No waiver of any right or
privilege of any party arising from any default or failure of performance
by any party shall affect the rights or privileges of the other parties
in
the event of a further default or failure of
performance.
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15.
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This
Agreement shall be construed and the provisions hereof interpreted
under
and in accordance with the laws of New York, without respect to its
choice
of law provisions and in accordance with the 1940 Act. In the
case of any conflict, the 1940 act shall
control.
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16.
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Each
party hereby represents and warrants to the other that the persons
executing this Agreement on its behalf are duly authorized and empowered
to execute and deliver the Agreement and that the Agreement constitutes
its legal, valid and binding obligation, enforceable against it in
accordance with its terms. Except as particularly set forth
herein, neither party assumes any responsibility hereunder, and will
not
be liable to the other for any damage, loss of data, delay or any
other
loss whatsoever caused by events beyond its reasonable
control.
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17.
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Nationwide
acknowledges that the identity of Dreyfus’ (and its affiliates’ and/or
subsidiaries’) customers and all information maintained about those
customers constitute the valuable property of
Dreyfus. Nationwide agrees that, should it come into contact or
possession of any such information (including, but not limited to,
lists
or compilations of the identity of such customers), Nationwide shall
hold
such information or property in confidence and shall not use, disclose
or
distribute any such information or property except with Dreyfus’ prior
written consent or as required by law or judicial
process.
|
Dreyfus
acknowledges that the identity of Nationwide’s (and its affiliates’ and/or
subsidiaries’) customers and all information maintained about those customers
constitute the valuable property of Nationwide. Dreyfus agrees that,
should it come into contact or possession of any such information (including,
but not limited to, lists or compilations of the identity of such customers),
Dreyfus shall hold such information or property in confidence and shall not
use,
disclose or distribute any such information or property except with Nationwide’s
prior written consent or as required by law or judicial process
|
18.
|
The
parties agree to keep confidential all information, documentation
and/or
data related to this Agreement, except as may be necessary to perform
services under this Agreement, as required by law, a court of competent
jurisdiction or other governing regulatory body, or as
otherwise may be agreed to in writing by the parties. Each
party agrees not to use, disclose or distribute to others any consumer
non-public personal information, except as necessary to perform the
terms
of this Agreement or as permitted or required by law. This
provision shall survive the termination of this
Agreement.
|
|
19.
|
Nothing
in this Agreement shall be deemed to create a partnership or joint
venture
by and among the parties hereto.
|
|
20.
|
This
Agreement supersedes any and all prior Fund Participation Agreements
made
by and between the parties with respect to the " Nationwide Variable
Accounts " and "Dreyfus Funds" as set forth on Exhibit
A.
|
|
21.
|
Except
to amend Exhibit A, or as otherwise provided in this Agreement, this
Agreement may not be amended or modified except by a written amendment
executed by each of the parties.
|
|
21.
|
This
Agreement may be executed by facsimile signature and it may be executed
in
one or more counterparts, each of which shall be deemed an original,
but
all of which together shall constitute one and the same
instrument.
|
NATIONWIDE
FINANCIAL SERVICES, INC.
By: ▇▇▇▇▇▇▇
▇. ▇▇▇▇▇▇
Title:
Vice President Investment Management Relationships
THE
DREYFUS CORPORATION
On
Behalf
of the Funds
By: ▇▇▇▇▇▇▇
▇. Mareca
Name: Contoller
ON
BEHALF
OF THE FUNDS LISTED ON EXHIBIT B
By: ▇▇▇▇▇▇
▇. ▇▇▇▇▇▇
Title: Secretary
or Assistant Secretary
of
each
mutual fund listed on Exhibit B
EXHIBIT
A
This
Exhibit corresponds with the Restated and Amended Agreement dated October 1,
2002.
Variable
Accounts
Nationwide
Variable Account
Nationwide
Variable Account-II
Nationwide
Variable Account-3
Nationwide
Variable Account-4
Nationwide
Variable Account-5
Nationwide
Variable Account-6
Nationwide
Variable Account-7
Nationwide
Variable Account-8
Nationwide
Variable Account-9
Nationwide
Variable Account-10
Nationwide
Variable Account-11
Nationwide
Variable Account -12
Nationwide
Variable Account-13
Nationwide
Variable Account-14
Nationwide
Variable Account-15
Nationwide
Variable Account-16
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
EXHIBIT
B
|
Funds
|
Share
Class
|
|
Dreyfus
Investment Portfolios
|
|
|
Core
Bond Portfolio
|
Initial
& Service Shares
|
|
Core
Value Portfolio
|
Initial
& Service Shares
|
|
Emerging
Leaders Portfolio
|
Initial
& Service Shares
|
|
Emerging
Markets Portfolio
|
Initial
& Service Shares
|
|
Founders
Discovery Portfolio
|
Initial
& Service Shares
|
|
Founders
Growth Portfolio
|
Initial
& Service Shares
|
|
Founders
International Equity Portfolio
|
Initial
& Service Shares
|
|
Founders
Passport Portfolio
|
Initial
& Service Shares
|
|
Japan
Portfolio
|
Initial
& Service Shares
|
|
MidCap
Stock Portfolio
|
Initial
& Service Shares
|
|
Technology
Growth Portfolio
|
Initial
& Service Shares
|
|
Small
Cap Stock Index Portfolio
|
Service
Shares
|
|
The
Dreyfus Life and Annuity Index Fund (d/b/a
Dreyfus
Stock Index Fund)
|
Initial
& Service Shares
|
|
The
Dreyfus Socially Responsible Growth Fund, Inc.
|
Initial
& Service Shares
|
|
Dreyfus
Variable Investment Fund
|
|
|
Appreciation
Portfolio
|
Initial
& Service Shares
|
|
Balanced
Portfolio
|
Initial
& Service Shares
|
|
Disciplined
Stock Portfolio
|
Initial
& Service Shares
|
|
Growth
and Income Portfolio
|
Initial
& Service Shares
|
|
International
Equity Portfolio
|
Initial
& Service Shares
|
|
International
Value Portfolio
|
Initial
& Service Shares
|
|
Limited
High Term Income Portfolio
|
Initial
& Service Shares
|
|
Small
Cap Portfolio
|
Initial
& Service Shares
|
|
Small
Company Stock Portfolio
|
Initial
& Service Shares
|
|
Special
Value Portfolio
|
Initial
& Service Shares
|
|
Quality
Bond Portfolio
|
Initial
& Service Shares
|
|
Money
Market Portfolio
|
Initial
Shares
|
AMENDMENT
TO RESTATED AND AMENDED FUND PARTICIPATION
AGREEMENT
The
Restated and Amended Fund Participation Agreement dated June 1, 2003 by and
between Nationwide Financial Services, Inc. and its subsidiaries and affiliates
on behalf of the Nationwide separate accounts identified on Exhibit A and
each
of the mutual funds listed on Exhibit B (the "Agreement" is hereby amended,
as
follows:
|
1.
|
Exhibit
A to the Agreement is deleted, and replaced with Exhibit A attached
hereto
and made a part hereof.
|
|
2.
|
Exhibit
B to the Agreement is deleted, and replaced with Exhibit B attached
hereto
and made a part hereof.
|
IN
WITNESS WHEREOF, this Amendment had been executed as of this [22] day of
[July], 2005 by a duly authorized officer of each party.
|
NATIONWIDE
FINANCIAL SERVICES, INC.
|
THE
DREYFUS CORPORATION
|
|
By:
|
By:
|
|
Name: ▇▇▇▇▇
▇. ▇▇▇▇▇▇
|
Name:
▇▇▇▇ ▇. ▇▇▇▇▇▇
|
|
Title: Officer
|
Title: Controller
|
|
Date:
7-22-2005
|
Date: [8-02-05]
|
|
ON
BEHALF OF THE DREYFUS FUNDS LISTED ON EXHIBIT B OF THE
AGREEMENT
|
|
|
By:
|
|
|
Name: ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇
|
|
|
Title: Secretary/Assistant
Secretary
|
|
|
Date: [8-3-05]
|
EXHIBIT
A
Variable
Accounts
Mutual
Funds Separate Account
Nationwide
Variable Account
Nationwide
Variable Account-II
Nationwide
Variable Account-3
Nationwide
Variable Account-4
Nationwide
Variable Account-5
Nationwide
Variable Account-6
Nationwide
Variable Account-7
Nationwide
Variable Account-8
Nationwide
Variable Account-9
Nationwide
Variable Account-10
Nationwide
Variable Account-11
Nationwide
Variable Account-12
Nationwide
Variable Account-13
Nationwide
Variable Account-14
Nationwide
Variable Account-15
Nationwide
Variable Account-16
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
VI Separate Account
Nationwide
VI Separate Account-A
Nationwide
VI Separate Account-B
Nationwide
VI Separate Account-C
Nationwide
VI 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
Qualified Plans Variable Account-II
Nationwide
Private Placement Variable Account
Nationwide
Private Placement Variable Account-II
Nationwide
Provident VLI Separate Account
EXHIBIT
A
Variable
Accounts (continued)
Nationwide
Provident VA Separate Account 1
Nationwide
Provident VLI Separate Account A
Nationwide
Provident VA Separate Account A
Ohio
DC
Variable Account
Variable
Account 9 Memo
EXHIBIT
B
|
Funds
|
Share
Class
|
|
Dreyfus
Investment Portfolios
|
|
|
-
Core Bond Portfolio
|
Initial
& Service Shares
|
|
-
Core Value Portfolio
|
Initial
& Service Shares
|
|
-
Emerging Leaders Portfolio
|
Initial
& Service Shares
|
|
-
Founders Discovery Portfolio
|
Initial
& Service Shares
|
|
-
Founders Growth Portfolio
|
Initial
& Service Shares
|
|
-
Founders International Equity Portfolio
|
Initial
& Service Shares
|
|
-
MidCap Stock Portfolio
|
Initial
& Service Shares
|
|
-
Small Cap Stock Index Portfolio
|
Service
Shares
|
|
-
Technology Growth Portfolio
|
Initial
& Service Shares
|
|
Dreyfus
Stock Index Fund, Inc
|
Initial
& Service Shares
|
|
Dreyfus
Socially Responsible Growth Fund, Inc.
|
Initial
& Service Shares
|
|
Dreyfus
Variable Investment Fund
|
|
|
-
Appreciation Portfolio
|
Initial
& Service Shares
|
|
-
Balanced Portfolio
|
Initial
& Service Shares
|
|
-
Disciplined Stock Portfolio
|
Initial
& Service Shares
|
|
-
Developing Leaders Portfolio (formerly, "Small Cap
Portfolio")
|
Initial
& Service Shares
|
|
-
Growth and Income Portfolio
|
Initial
& Service Shares
|
|
-
International Equity Portfolio
|
Initial
& Service Shares
|
|
-
International Value Portfolio
|
Initial
& Service Shares
|
|
-
Limited Term high Yield Portfolio (formerly, "Limited Term High
Income
Portfolio")
|
Initial
& Service Shares
|
|
-
Money Market Portfolio
|
Initial
Shares
|
|
-
Quality Bond Portfolio
|
Initial
& Service Shares
|
|
-
Small Company Stock Portfolio
|
Initial
& Service Shares
|
|
-
Special Value Portfolio
|
Initial
& Service Shares
|