PARTICIPATION AGREEMENT Among FIDELITY ADVISOR ANNUITY FUND, FIDELITY DISTRIBUTORS CORPORATION and NATIONWIDE LIFE INSURANCE COMPANY
Among
FIDELITY
ADVISOR ANNUITY FUND,
FIDELITY
DISTRIBUTORS CORPORATION
and
NATIONWIDE
LIFE INSURANCE COMPANY
THIS
AGREEMENT, made and entered
into as of the 22nd day of November, 1994 by and among NATIONWIDE LIFE INSURANCE
COMPANY, (hereinafter the "Company"), an Ohio corporation, on its own behalf
and
on behalf of each segregated asset account of the Company set forth on Schedule
A hereto as may be amended from time to time (each such account hereinafter
referred to as the "Account"), and the FIDELITY ADVISOR ANNUITY FUND, an
unincorporated business trust organized under the laws of the Commonwealth
of
Massachusetts (hereinafter the "Fund") and FIDELITY DISTRIBUTORS CORPORATION
(hereinafter the "Underwriter"), a Massachusetts corporation.
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 policies and variable annuity contracts (collectively, the "Variable
Insurance Products") to be offered by insurance companies which have entered
into participation agreements with the Fund and the Underwriter (hereinafter
"Participating Insurance Companies"); and
WHEREAS,
the beneficial interest in
the Fun is divided into several series of shares, each referred to herein as
a
"Portfolio" and representing the interest in a particular managed portfolio
of
securities and other assets (a list of the Portfolios of the Fund to which
this
Agreement applies is included in Schedule C hereto, as may be amended from
time
to time); and
WHEREAS,
an affiliate of the Fund
has obtained an order from the Securities and Exchange Commission, dated
September 17, 1986 (File No. 812-6422), granting Participating Insurance
Companies and variable annuity and variable life insurance separate accounts
exemptions from the provisions of sections 9(a), 13(a), 15(a), and 15(b) of
the
Investment Company Act of 1940, as amended, (hereinafter the "1940 Act") and
Rules 6e-2(b) (15) and 6e-3(T) (b) (15) thereunder, to the extend necessary
to
permit shares of the Fund to be sold to and held by variable annuity and
variable life insurance separate accounts of both affiliated and unaffiliated
life insurance companies (hereinafter the "Shared Funding Exemptive Order");
and
WHEREAS,
the Fund is registered as
an open-end management investment company under the 1940 Act and a registration
statement has been filed with the SEC so that its shares will be registered
under the Securities Act of 1933, as amended (hereinafter the "1933 Act");
and
WHEREAS,
Fidelity Management &
Research Company (the "advisor") is duly registered as an investment adviser
under the federal Investment Advisers Act of 1940 and any applicable state
securities law; and
WHEREAS,
the Company has registered
or will register certain variable life insurance and/or variable annuity
contracts under the 1933 Act; and
WHEREAS,
each Account is a duly
organized, validly existing segregated asset account, established by resolution
of the Board of Directors of the Company, on the date shown for such Account
on
Schedule A hereto, to set aside and invest assets attributable to the aforesaid
variable annuity contracts; and
WHEREAS,
the Company has registered
or will register each Account as a unit investment trust under the 1940 Act;
and
WHEREAS,
the Underwriter is
registered as a broker dealer with the Securities and Exchange Commission
("SEC") under the Securities Exchange Act of 1934, as amended, (hereinafter
the
"1934 Act"), and is a member in good standing of the National Association of
Securities Dealers, Inc. (hereinafter "NASD"); and
WHEREAS,
to the extent permitted by
applicable insurance laws and regulations, the Company intends to purchase
shares in the Portfolios on behalf of each Account to fund certain of the
aforesaid variable life and variable annuity contracts and the Underwriter
is
authorized to see such shares to unit investment trusts such as each 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. Sales of Fund Shares
1.1 The
Underwriter agrees to sell to the Company those shares of the Fund which each
Account orders, executing such orders on a daily basis at the net asset value
next computed after receipt by the Fund or its designee of the order for the
shares of the Fund. For purposes of this Section 1.1, the Company
shall be the designee of the Fund for receipt of such orders from each Account
and receipt by such designee shall constitute receipt by the Fund; provided
that
the Fund receives notice of such order by 10:00 a.m. Boston time on the next
following Business Day. "Business Day" shall mean any day on which
the New York Stock Exchange is open for trading and on which the Fund calculates
its net asset value pursuant to the rules of the Securities and Exchange
Commission.
1.2. The
Fund agrees to make it shares available indefinitely for purchases
at
the
applicable net asset value per share by the Company and its Accounts on those
days on which the Fund calculates its net asset value pursuant to rules of
the
Securities and Exchange Commission and the Fund shall use reasonable efforts
to
calculate such net asset value on each day which the New York Stock Exchange
is
open for trading. Notwithstanding the foregoing, the Board of
Trustees of the Fund (hereinafter the "Board") may refuse to sell shares of
any
Portfolio to any person or suspend or terminate the offering of shares of any
Portfolio if such action is required by law or by regulatory authorities having
jurisdiction or is, in the sole discretion of the Board acting in good faith
and
in light of their fiduciary duties under federal and any applicable state laws,
necessary in the best interests of the shareholders of such
Portfolio.
1.3. The
Fund and the Underwriter agree that shares of the Fund will be sold only to
Participating Insurance Companies and their separate accounts. No
shares of any Portfolio will be sold to the general public.
1.4. The
Fund and the Underwriter will not sell Fund shares to any insurance company
or
separate account unless an agreement containing provisions substantially the
same as Articles I, III, V, VII and Section 2.5 of Article II of this Agreement
is in effect to govern such sales.
1.5. The
Fund agrees to redeem for cash, on the Company’s request, any full or fractional
shares of the Fund held by the Company, executing such requests on a daily
basis
at the net asset value next computed after receipt by the Fund or its designee
of the request for redemption. For purposes of this Section 1.5, the
Company shall be the designee of the Fund for receipt of requests for redemption
from each Account and receipt by such designee shall constitute receipt by
the
Fund; provided that the Fund receives notice of such request for redemption
on
the next following Business Day. Proceeds of any net redemption are
normally wired to the Company on the Business Day immediately following receipt
of the redemption order.
1.6. The
Company agrees to purchase and redeem the shares of each Portfolio offered
by
the then current prospectus of the Fund and in accordance with the provisions
of
such prospectus. The Company agrees that all net amounts available
under the variable annuity contracts with the form number(s) which are listed
on
Schedule A attached hereto and incorporated herein by this reference, as such
Schedule A may be amended from time to time hereafter by mutual written
agreement of all the parties hereto, (the "Contracts") shall be invested in
the
Fund, in such other Funds advised by the Adviser as may be mutually agreed
to in
writing by the parties hereto, or in the Company’s general account.
1.7. The
Company shall pay for Fund shares on the next Business Day after an order to
purchase Fund shares is made in accordance with the provisions of Section 1.1
hereof. Payments shall be in federal funds transmitted by
wire. For purpose of Section 2.10 and 2.11, upon receipt by the Fund
of the federal funds so wired, such funds shall cease to be the responsibility
of the Company and shall become the responsibility of the Fund.
1.8. Issuance
and transfer of the Fund’s shares will be by book entry only. Stock
certificates will not be issued to the Company or any Account. Shares
ordered from the Fund will be recorded in an appropriate title for each Account
or the appropriate subaccount of each Account.
1.9. The
Fund shall furnish same day notice (by wire or telephone, followed by written
confirmation) to the Company of any income, dividends or capital gain
distributions payable on the Fund’s shares. The Company hereby elects
to receive all such income dividends and capital gain distributions as are
payable on the Portfolio shares in additional shares of that
Portfolio. The Company reserves the right to revoke this election and
to receive all such income dividends and capital gain distributions in
cash. The Fund shall notify the Company of the number of shares so
issued as payment of such dividends and distributions.
1.10. The
Fund shall make the net asset value per share for each Portfolio available
to
the Company on a daily basis as soon as reasonably practical after the net
asset
value per share is calculated (normally by 6:30 p.m. Boston time) and shall
use
its best efforts to make such net asset value per share available by 7 p.m.
Boston time.
ARTICLE
II. Representations and Warranties
2.1. The
Company represents and warrants that the Contracts are or will be registered
under the 1933 Act; that the Contracts will be issued and sole in compliance
in
all material respects with all applicable Federal and State laws and that the
sale of the Contracts shall comply in all material respects with state insurance
suitability requirements. The Company further represents and warrants
that it is an insurance company duly organized and in good standing under
applicable law and that it has legally and validly established each Account
prior to any issuance or sale thereof as a segregated asset account under
Section 3907.15 of the Oho Revised Code and has registered or, prior to any
issuance or sale of the Contracts, will register each 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.
2.2. The
Fund represents and warrants that Fund shares sole pursuant to this Agreement
shall be registered under the 1933 Act, duly authorized for issuance and sold
in
compliance with the laws of the State of Ohio and all applicable federal and
state securities laws and that the Fund is and shall remain registered under
the
▇▇▇▇ ▇▇▇. The Fund shall amend the Registration Statement for its
shares under the 1933 Act and the 1940 Act from time to time as required in
order to effect the continuous offering of its shares. The Fund shall
register and qualify the shares for sale in accordance with the laws of the
various states only if and to the extent deemed advisable by the Fund or the
Underwriter.
2.3. The
Fund represents that it will be qualified as a Regulated Investment Company
under Subchapter M of the Internal Revenue Code of 1986, as amended, (the
"Code") and that it will make every effort to maintain such qualification (under
Subchapter M or any successor or similar provision) 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.
2.4. The
Company represents that the Contracts are currently treated as life insurance
or
annuity 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 that the
Contracts have ceased to be so treated or that they might not be so treated
in
the future.
2.5. The
Fund currently does not intend to make any payments to finance distribution
expenses pursuant to Rule 12b-1 under the 1940 Act or otherwise, although it
may
make such payments in the future. The Fund has adopted a "no fee" or
"defensive" Rule 12b-1 Plan under which it makes no payments for distribution
expenses. To the extent that it decides to finance distribution
expenses pursuant to Rule 12b-1, the Fund undertakes to have a board of
trustees, a majority of whom are not interested persons of the Fund, formulate
and approve any plan under Rule 12b-1 to finance distribution
expenses.
2.6. The
Fund makes no representations as to whether any aspect of its operations
(including, but not limited to, fees and expenses and investment policies)
complies with the insurance laws and regulations of the various states except
that the Fund represents that the Fund’s investment policies, fees and expenses
are and shall at all times remain in compliance with the laws of the State
of
Ohio and the Fund and the Underwriter represent that their respective operations
are and shall at all times remain in material compliance with the laws of the
State of Ohio to the extent required to perform this Agreement.
2.7. 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 the laws of the State of Ohio and all applicable state and
federal securities laws, including without limitations the 1933 Act, the 1934
Act, and the ▇▇▇▇ ▇▇▇.
2.8. The
Fund represents that it is lawfully organized and validly existing under the
laws of the Commonwealth of Massachusetts and that it does and will comply
in
all material respects with the 1940 Act.
2.9. The
Underwriter represents and warrants that the Adviser is and shall remain duly
registered in all material respects under all applicable federal and state
securities laws and that the Adviser shall perform its obligations for the
Fund
and compliance in all material respects with the laws of the State of Ohio
and
any applicable state and federal securities laws.
2.10. The
Fund and Underwriter represent and warrant that all of their directors,
officers, employees, investment advisers, and other
individuals/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
minimal 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.
2.11. The
Company represents and warrants that all of the person affiliated with it who
are described in Rule 17g-(1) under the 1940 Act are covered by a blanket
fidelity bond or similar coverage for the benefit of the Fund, in an amount
not
less $5 million. The aforesaid includes coverage for larceny and
embezzlement is issued by a reputable bonding company. 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.
2.12. The
Fund and the Underwriter represent that they will own and control all the
pertinent records pertaining to their performance of services under this
Agreement.
ARTICLE
III. Prospectuses and Proxy Statements: Voting
3.1. The
prospectus for the Fund shall be printed in a document containing the
prospectuses for both the Fund and the Contracts. The Company shall
bear its proportionate of the expense of typesetting and printing the combined
document, based upon a comparison of the number of pages in the Fund’s
prospectus and the number of pages in the prospectus for the
Contracts. The remaining share of the expense shall be borne by the
Fund or the Underwriter. Printing shall be done by an affiliate of
the Fund.
3.2 The
Fund’s prospectus shall state that the Statement of Additional Information for
the Fund is available from the Underwriter (or in the Fund’s discretion, the
Prospectus shall state that such Statement is available from the Fund), and
the
Underwriter (or the Fund), at its expense, shall print and provide such
Statement free of charge to the Company and to any owner of a Contract or
prospective owner who requests such Statement.
3.3. The
Fund, at its expense, shall provide the Company with copies of its proxy
material, reports to shareholders, and other communications to shareholders
in
such quantity as the Company shall reasonably require for distributing to
Contract owners, except that if the proxy results solely form an action taken
by
Company, then said expense shall be an expense of the Company.
3.4. If
and to the extent required by law the Company shall:
(i) solicit
voting instructions from Contract owners;
(ii) vote
the Fund shares in accordance with instructions received fromContract owners;
and
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(iii)
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vote
Fund shares for which no instructions have been received in the same
proportions 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 Securities and Exchange Commission continues
to
interpret the 1940 Act to require pass-through voting privileges for variable
contract owners. The Company reserves the right to vote Fund shares
held in any segregated asset account in its own right, to the extent permitted
by law. Participating Insurance Companies shall be responsible for
assuring that each of their separate accounts participating in the Fund
calculates voting privileges in a manner consistent with the standards set
forth
on Schedule B attached hereto and incorporated herein by this reference, which
standards will also be provided to the other Participating Insurance
Companies.
3.5. The
Fund will comply with all provisions of the 1940 Act requiring voting by
shareholders, and in particular the Fund will either provide for annual meetings
or comply with Section 16(c) of the 1940 Act (although the Fund is not one
of
the trusts described in Section 16(c) of that Act) as well as with Sections
16(a) and, if and when applicable, 16(b). Further, the Fund will act
in accordance with the Securities and Exchange Commission’s interpretation of
the requirements of Section 16(a) with respect to periodic elections of trustees
and with whatever rules the Commission may promulgate with respect
thereto.
ARTICLE
IV. Sales Material and Information
4.1. The
Company shall furnish, or shall cause to be furnished, to the Fund or its
designee, each piece of sales literature or other promotional material in which
the Fund or its investment adviser or the Underwriter is names, at least fifteen
Business Days prior to its use. No such material shall be sued if the
Fund or its designee reasonably objects to such use within fifteen Business
Days
after receipt of such material.
4.2. The
Company shall not give any information or make any representations or statements
on behalf of the Fund or concerning the Fund in connection with the sale of
the
Contracts other than the information or representations contained in the
registration statement or prospectus for the Fund shares, as such registration
statement and prospectus may be amended or supplemented from time to time,
or in
reports or proxy statements for the Fund, or in sales literature or other
promotional material approved by the Fund or its designee or by the Underwriter,
except with the permission of the Fund or the Underwriter or the designee of
either.
4.3. The
Fund, Underwriter, or its designee shall furnish or shall cause to be furnished,
to the Company or its designee, each piece of sales literature or other
promotional material in which the Company or its designee, each piece of sales
literature or other promotional material in which the Company and/or its
separate account(s), is names at least fifteen Business Days prior to its
use. No such material shall be sued if the Company or its designee
reasonably objects to such use within fifteen Business Days after receipt of
such material.
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, each
Account, or the Contracts other than the information or representations
contained in a registration statement or prospectus for the Contracts, as such
registration statement and prospectus may be amended or supplemented from time
to time, or in published reports for each 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, Statements of Additional Information, reports, proxy
statements, sales literature and other promotional materials, applications
for
exceptions, requests for no-action letters, and all amendments to any of the
above, that relate to the Fund or its shares, contemporaneously with the filing
of such document with the Securities and Exchange Commission or any other
regulatory authorities.
4.6 The
Company will provide to the Fund at least one complete copy of all registration
statements, prospectuses, Statements of Additional Information, 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 each Account,
contemporaneously with the filing of such document with the SEC or other
regulatory authorities.
4.7 For
purposes of this Article IV, the phrase "sales literature or other promotional
material" includes, but is not limited to, advertisements (such as material
published, or designed for use in, a newspaper, magazine, or other periodical,
radio, television, telephone or tape recording, videotape display, signs or
billboards, motion pictures, or other public media), sales literature
(i.e., any written communication distributed or made generally available
to customers or the public, including brochures, circulars, research 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,
Statements of Additional Information, shareholder reports, and proxy
materials.
ARTICLE
V. Fees and Expenses
5.1. The
Fund and 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
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. No such payments shall be made directly by the
Fund. 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 (1) the cost of registration and qualification of the Fund’s shares, (b)
preparation and filing of the Fund’s prospectus and registration statement,
proxy materials and reports, (c) its proportionate share of setting the
prospectus in type and printing the prospectus, (d) setting in type, printing
and distributing the proxy materials and reports to contract owners (including
the costs of printing a prospectus that constitutes an annual report), except
for the costs of distributing proxy materials and annual or semi-annual reports
required to be distributed solely because of the existence of a proxy
solicitation, if such costs result solely form an action taken by the Company
(in which such expenses shall be paid for by the Company), (e) the preparation
of all statements and notices required by any federal or state law, and (f)
all
taxes on the issuance or transfer of the Fund’s shares.
ARTICLE
VI. Diversification
6.1. The
Fund will at all times invest money from the Contracts in such a manner so
as to
ensure that the Contracts will be treated as variable contracts under the Code
and the regulations issued thereunder. Without limiting the scope of
the foregoing, the Fund will at all times comply with Section 817(h) of the
Code
and Treasury Regulation 1.817-5, relating to the diversification requirements
for variable annuity, endowment, or life insurance contracts and any amendments
or other modifications 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 Company of such breach and (b) to adequately diversify the Fund
so
as to achieve compliance with the grace period afforded by Regulation
817-5.
ARTICLE
VII. Potential Conflicts
7.1. The
Board will monitor the Fund for the existence of any material irreconcilable
conflict between the interests of the contract owners of all separate accounts
investing in the Fund. An irreconcilable material conflict may arise
for a variety of reasons, including: (a) an action by any state
insurance regulatory authority; (b) a change in applicable federal or state
insurance, tax, or securities laws or regulations, or a public ruling, private
letter ruling, no-action or interpretative letter, or any similar action by
insurance, tax, or securities regulatory authorities; (c) an administrative
or
judicial decision in any relevant proceeding; (d) the manner in which the
investments of any Portfolio are being managed; (e) a difference in voting
instructions given by variable annuity contract and variable life insurance
contract owners; or (f) a decision by an insurer to disregard the voting
instructions of contract owners. The Board shall promptly inform the
Company if it determines that an irreconcilable material conflict exists and
the
implications thereof.
7.2. The
Company will report any potential or existing conflicts of which it is aware
to
the Board. The Company will assist the Board in carrying out its
responsibilities under the Shared Funding Exemptive Order, by providing the
Board with all information reasonably necessary for the Board to consider any
issues raised. This includes, but is not limited to, an
obligation
by the Company to inform the Board whenever contract owner voting instructions
are disregarded.
7.3. If
it is determined by a majority of the Board, or a majority of its
disinterested
trustees, 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
trustees), take whatever steps are necessary to remedy or eliminate the
irreconcilable material conflict, up 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 would 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 contact 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
management investment company or managed separate account.
7.4. If
a material irreconcilable conflict arises because of a decision by the Company
to disregard contract owner voting instructions and that decision represents
a
minority position or would preclude a majority vote, the Company may be
required, at the Fund’s election, to withdraw the affected Account’s investment
in the Fund and terminate this Agreement with respect to such Account; provided,
however that such withdrawal and termination shall be limited to the extend
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 the six-month period the Underwriter and 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 is 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 Underwriter and 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 Contracts if an offer to do so has been
declined by the vote of a majority of Contract owners materially adversely
affected by the irreconcilable material conflict. In the event 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 with 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 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 Act or the rules
promulgated thereunder with respect to mixed or shared funding (as defined
in
the Shared Funding Exemptive Order) on terms and conditions materially different
from those contained in the Shared Funding Exemptive Order, then (a) the Fund
and/or the Participating Insurance Companies, as appropriate, shall take such
steps as may be necessary to comply with Rules 6e-2 and 6e-3(T), as amended
and
Rule 6e-3, as adopted, to the extent such rules are applicable; and (b) Sections
3.4, 3.5, 7.1, 7.2, 7.3, 7.4 and 7.5 of this Agreement shall continue in effect
only to the extent that terms and conditions substantially identical to such
Sections are contained in such Rule(s) as so amended or adopted.
ARTICLE
VIII. Indemnification
8.1. Indemnification
By The Company
8.1(a). The
Company agrees
to indemnify and hold harmless the Fund and each trustee of the Board and
officers and each person, if any, who controls the Fund within the meaning
of
Section 15 of the 1933 Act (collective, 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 amounts paid in settlement with the written consent
of
the Company) or litigation (including legal and other expenses), to which the
Indemnified Parties may become subject under any statute, regulation, at common
law or otherwise, insofar as such losses, claims, damages, liabilities or
expenses (or actions in respect thereof) or settlements are related to the
sale
or acquisition of the Fund’s shares or the Contracts and:
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(i)
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arise
out of or are based upon any untrue statements or alleged untrue
statements of any material fact contained in the Registration Statement
or
prospectus 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 on 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
or prospectus 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 or sales literature of the Fund not supplied by the Company,
or
persons under its control) or wrongful conduct of the Company or
persons
under its control, with respect to the sale or distribution of the
Contracts or Fund Shares; or
|
|
|
(iii)
|
arise
out of any untrue statements or alleged untrue statements of any
material
fact contained in the Registration Statement, prospectus 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 failure by the Company to provide the services
and
furnish the materials under the terms 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 Section 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 incurred or assessed
against an Indemnified Party as such may arise from 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 or duties under this Agreement or to the Fun, whichever
is applicable.
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 the Indemnified Parties, 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 legal or other expenses
subsequently incurred by such 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 (collective, the "Indemnified Parties" for purposes
of this Section 8.2) against any and all losses, claims, damages, liabilities
(including legal and other expenses) to which the Indemnified Parties may become
subject under any statute, a common law or otherwise, insofar as such losses,
claims, damages, liabilities or expenses (or actions in respect thereof) or
settlements are related to the sale or acquisition of the Fund’s shares or the
Contracts and:
|
|
(i)
|
arise
out of or are based upon any untrue statements or alleged untrue
statements of any material fact contained in the Registration Statement
or
prospectus or sales literature of the Fund (or any amendment or
supplement to any of the foregoing), or arise out of or are based
on the
omission or the alleged omission to state therein a material fact
required
to be stated therein or necessary to make the statements therein
not
misleading, provided that this agreement to indemnify shall not apply
as
to any Indemnified Party if such statement or omission or such alleged
statement or omission was made in reliance upon and in conformity
with
information furnished to the Underwriter or Fund by or on behalf
of the
Company for use in the Registration Statement or prospectus for 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 or sales literature for the Contracts not supplied by
the
Underwriter or persons under its control) or wrongful conduct of
the Fund,
Adviser 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 statements or alleged untrue statements of any
material
fact contained in the Registration Statement, prospectus 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 a statement or omission
was
made in reliance upon information furnished to the Company by or
on behalf
of the Fund; or
|
|
|
(iv)
|
arise
as a result of any 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 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
Section 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 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 each 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
Parties, the Underwriter shall be entitled to participate, at its own expense,
in the defense of such action. 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
legal or other expenses subsequently incurred by such independently in
connection with the defense thereof other than reasonable costs of
investigation.
8.2(d).
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 each
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 (collective, the "Indemnified Parties" for purposes
of this Section 8.3) against any and all losses, claims, damages, liabilities
(including amounts paid in settlement with the written consent of the Fund)
or
litigation (including legal and other expenses) to which the Indemnified Parties
may become subject under any statute, at common law or otherwise, insofar as
such losses, claims, damages, liabilities or expenses (or actions in respect
thereof) or settlements result form the gross negligence, bad faith or willful
misconduct of the Board or any member thereof, 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
to
comply with the diversification 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
Underwriter
shall not be liable under this indemnification provision with respect to any
losses, claims, damages, liabilities or litigation incurred or assessed against
an Indemnified Party as much as arise from 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 each 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 Underwriter 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 shall
be
entitled to participate, at its own expense, in the defense
thereof. The Fund also shall be entitled to assume the defense
thereof, with counsel satisfactory to the party named in the
action. After notice from the Fund to such party of the Fund’s
election to assume the defense thereof, the Indemnified Party shall bear the
fees and expenses of any additional counsel retained by it, and the Fund will
not be liable to such party under this Agreement for any legal or other expenses
subsequently incurred by such 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 proceedings against it or any of its respective officers or
directions in connection with this Agreement, the issuance or sale of the
Contracts, with respect to the operation of either Account, or the sale or
acquisition of shares of the Fund.
ARTICLE
IX. Applicable Law
9.1 This
Agreement shall be construed and the provisions hereof interpreted under and
in
accordance with the laws of the Commonwealth of Massachusetts.
9.2 This
Agreement shall be subject to the provisions of the 1933, 1934 and 1940 acts
and
the rules and regulations and rulings thereunder, including such exemptions
from
those statutes, rules and regulations as the Securities and Exchange Commission
may grant (including, but not limited to, the Shared Funding Exemptive Order)
and the terms hereof shall be interpreted and construed in accordance
therewith.
ARTICLE
X. Exclusivity: Initial Term and Termination
10.1. This
Agreement shall continue in full force and effect after the initial term until
the first to occur of:
|
|
(a)
|
termination
by any party for any reason by six months’ advance written notice
delivered to the other parties, but no notice may be given under
this
subparagraph (a) earlier than two years following the effective date
of
this Agreement; or
|
|
|
(b)
|
termination
by the Company by written notice to the Fund and the Underwriter
with
respect to any Portfolio based upon the Company’s determination that
shares of such Portfolio are not reasonably available to meet the
requirements of the Contracts; or
|
|
|
(c)
|
termination
by the Company by written notice to the Fund and the Underwriter
with
respect to any Portfolio in the event any of the 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
|
|
|
(d)
|
termination
by the Company by written notice to the Fund and the Underwriter
with
respect to any Portfolio in the event that such Portfolio ceases
to
qualify as a Regulated Investment Company under Subchapter M of the
Code
or under any successor or similar provision, or if the Company reasonably
believes that the Fund may fail to so qualify;
or
|
|
|
(e)
|
termination
by the Company by written notice to the Fund and the Underwriter
with
respect to any Portfolio in the event that such Portfolio fails to
meet
the diversification requirements specified in Article VI hereof;
or
|
|
|
(f)
|
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 and/or its affiliated companies 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
|
|
|
(g)
|
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 either the Fund or the Underwriter has suffered a material adverse
change in its business, operations, financial condition or prospects
since
the date of this Agreement or is the subject of material adverse
publicity; or
|
10.2. Effect
of Termination. Notwithstanding any termination of this
Agreement, the Fund and the Underwriter shall at the option of the
Company, continue to make available additional shares of the Fund pursuant
to
the terms and conditions of this Agreement, for all Contracts in effect on
the
effective date of termination of this Agreement (hereinafter referred to as
"Existing Contracts"). Specifically, without limitation, the owners
of the Existing Contracts shall 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.
10.3. The
Company shall not redeem Fund shares attributable to the Contracts (as opposed
to Fund shares attributable to the Company’s assets held in the Account) except
(i) as necessary to implement Contract Owner initiated or approved transactions,
(ii) as required by state and /or federal laws or regulations or judicial or
other legal precedent of general application (hereinafter referred to as a
"Legally Required Redemption"), or (iii) in accordance with a substitution
order
issued by the SEC. The Company agrees to use its best efforts to seek
such a substitution order with respect to any Portfolio or Portfolios upon
the
request of the Fund or the Underwriter if by December 31, 1996 said Portfolio
or
Portfolios shall contain less than $100 million in total net
assets. Upon request, the Company will promptly furnish to the Fund
and the Underwriter the opinion of counsel for the Company (which counsel shall
be reasonably satisfactory to the Fund and the Underwriter) to the effect that
any redemption pursuant to clause (ii) above is a Legally Required
Redemption. Furthermore, except in cases where permitted under the
terms of the Contracts, the Company shall not prevent Contract Owners from
allocating payments to a Portfolio that was otherwise available under the
Contracts without first giving the Fund or the Underwriter 90 days notice of
its
intention to do so.
ARTICLE
XI. Notices
Any
notice shall be sufficiently given
when sent by registered or certified mail to the other party at the address
of
such party set forth below or at such other address as such party may from
time
to time specify in writing to the other party.
If
to the Fund:
▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Treasurer
If
to the Company:
Nationwide
Life Insurance
Company
▇▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇,
▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇
▇▇▇▇
If
to the Underwriter:
▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇
Attention: Treasurer
ARTICLE
XII. Miscellaneous
12.1. All
persons dealing with the Fund must look solely to the property of the Fund
for
the enforcement of any claims against the Fund as neither the Board, officers,
agents or shareholders assume any personal liability for obligations entered
into 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 until such a time as it may come into the public domain without
the
express written consent of the affected party.
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. Notwithstanding the generality of the foregoing, each party
hereto further agrees to furnish the California Insurance Commissioner with
any
information or reports in connection with services provided under this Agreement
with such Commissioner may request in order to ascertain whether the insurance
operations of the Company are being conducted in a manner consistent with the
California Insurance Regulations and any other applicable law or
regulations. The Fund agrees that the Company shall have the right to
inspect, audit and copy all records pertaining to the performance of services
under this Agreement to the requirements of the California Insurance
Department.
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; provided,
however, that the Underwriter may assign this Agreement or any rights or
obligations hereunder to any affiliate of or company under common control with
the Underwriter, if such assignee is duly licensed and registered to perform
the
obligations of the Underwriter under this Agreement.
12.9. The
Company shall furnish, or shall cause to be furnished, to the Fund or its
designee copies of the following reports:
|
|
(a)
|
the
Company’s annual statement (prepared under statutory accounting
principles) and annual report (prepared under generally accepted
accounting principles ("GAAP")), as soon as practical and in any
event
within 90 days after the end of each fiscal
year;
|
|
|
(b)
|
the
Company’s quarterly statements (statutory and GAAP), as soon as practical
and in any event within 45 days after the end of each quarterly
period;
|
|
|
(c)
|
any
financial statement, proxy statement, notice or report of the Company
sent
to stockholders and/or policyholders, as soon as practical after
the
delivery thereof to stockholders;
|
|
|
(d)
|
any
registration statement (without exhibits) and financial reports of
the
Company filed with the Securities and Exchange Commission or any
state
insurance regulator, as soon as practical after the filing
thereof;
|
|
|
(e)
|
any
report submitted to the Company by independent accountants in connection
with any annual, interim or special audit made by them of the books
of the
Company, as soon as practical after the receipt
thereof.
|
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
By: __________________________________
Name: _____Joseph
F. Ciminero______________
Title: Vice
President – Financial Operations
FIDELITY
ADVISOR ANNUITY FUND
By: __________________________________
Name:
_____[J. ▇▇▇▇ ▇▇▇▇▇▇▇▇]______________
Title: [Senior
V.
P.]
FIDELITY
DISTRIBUTORS
CORPORATION
By: ______________________________
Name: _____[▇▇▇▇
▇. ▇▇▇▇▇]____________
Title: President
Schedule
A
Separate
Accounts and Associated Contracts
Name
of Separate Account
and Contracts
Funded
Date
Established by Board of
Directors By
Separate Account
Nationwide
Variable Account
7 1293-3A
(July
22,
1994) 1293-36
SCHEDULE
B
PROXY
VOTING PROCEDURE
The
following is a list of procedures and corresponding responsibilities for the
handling of proxies relating to the Fund by the Underwriter, the Fund and the
Company. The defined terms herein shall have the meanings assigned to
the Participation Agreement except that the term "Company" shall also include
the department or third party assigned by the Insurance Company to perform
the
steps delineated below.
|
1.
|
The
number of proxy proposals is given to the Company by the Underwriter
as
early as possible before the date set by the Fund for the shareholder
meeting to facilitate the establishment of tabulation
procedures. At this time the Underwriter will inform the
Company of the Record, Mailing and Meeting dates. This will be
done orally approximately two months before
meeting.
|
|
2.
|
Promptly
after the Record Date, the Company will perform a "tape run", or
other
activity, which will generate the names, addresses and number of
units
which are attributed to each contract owner/policyholder (the "Customer")
as of the Record Date. Allowance should be made for account
adjustments made after this date that could affect the status of
the
Customer’s accounts as of the Record
date.
|
Note: The
number of proxy statements is determined by the activities described in Step
#2. The Company will use its best efforts to call in the number of
Customers to Fidelity, as soon as possible, but no later than two weeks after
the Record Date.
|
3.
|
The
Fund’s Annual Report no longer needs to be sent to each Customer by the
Company either before or together with the Customers’ receipt of a proxy
statement. Underwriter will provide at least one copy of the
last Annual Report to the Company.
|
|
4.
|
The
text and format for the Voting Instruction Cards ("Cards" or "Card")
is
provided to the Company by the Fund. The Company, at its
expense, shall produce and personalize the Voting Instruction
Cards. The Legal Department of the Underwriter or its affiliate
("Fidelity Legal") must approve the Card before it is
printed. Allow approximately 204 business days for printing
information on the Cards. Information commonly found on the
Cards includes:
|
|
a.
|
name
(legal names as found on account
registration)
|
|
b.
|
address
|
|
c.
|
Fund
or account number
|
|
d.
|
coding
to state number of units
|
|
e.
|
individual
Card number for use in tracking and verification votes (already on
Cards
as printed by the Fund)
|
(This
and
related steps may occur later in the chronological process due to possible
uncertainties relating to the proposals.)
|
5.
|
During
this time, Fidelity Legal will develop, produce, and the Fund will
pay for
the Notice of Proxy and the Proxy Statement (one
document). Printed and folded notices and statements will be
sent to Company for insertion into envelopes (envelopes and return
envelopes are proved and paid for by the Insurance
Company). Contents of envelope sent to Customers by Company
will include:
|
|
a.
|
Voting
Instruction Card(s)
|
|
b.
|
one
proxy notice and statement (one
document)
|
|
c.
|
return
envelope (postage pre-paid by Company) addressed to the Company or
its
tabulation agent
|
|
d.
|
"urge
buckslip" – optional, but recommended. (This is a small, single
sheet of paper that requests Customers to vote as quickly as possible
and
that their vote is important. One copy will be supplied by the
Fund.)
|
|
e.
|
cover
letter – optional, supplied by Company and reviewed and approved in
advance by Fidelity Legal.
|
|
6.
|
The
above contents should be received by the Company approximately 305
business days before mail date. Individual in charge at Company
reviews and approves the contents of the mailing package to ensure
correctness and completeness. Copy of this approval sent to
Fidelity Legal.
|
|
7.
|
Package
mailed by the Company.
|
|
|
*
|
The
Fund must allow at least a 15-day solicitation time to the Company
as the shareowner. (A 5-week period is
recommended.) Solicitation time is calculated as calendar days
from (but not including) the meeting, counting
backwards.
|
|
8.
|
Collection
and tabulation of Cards begins. Tabulation usually takes place
in another department or another vendor depending on process
used. An often used procedure is to sort Cards on arrival by
proposal into vote categories of all yes, no, or mixed replies, and
to
begin data entry.
|
|
|
Note: Postmarks
are not generally needed. A need for postmark information would
be due to an insurance company’s internal procedure and has been required
by Fidelity in the past.
|
|
9.
|
Signatures
on Card checked against legal name on account registration which
was
printed on the Card.
|
|
|
Note: For
Example, If the account registration is under "▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇,
Trustee",
then that is the exact legal name to be printed on the Card and is
the
signature needed on the Card.
|
|
10.
|
If
Cards are mutilated, or for any reason are illegible or are not signed
properly, they are sent back to Customer with an explanatory letter,
a new
Card and return envelope. The mutilated or illegible Card is
disregarded and considered to be not received for the purposes of
vote tabulation. Any Cards that have "kicked out" (e.g.
mutilated, illegible) of the procedure are "hand verified", i.e.,
examined
as to why they did not complete the system. Any questions on
those Cards are usually remedied
individually.
|
|
11.
|
There
are various control procedures used to insure proper tabulation of
votes
and accuracy of that tabulation. The most prevalent is to sort
the Carts as they first arrive into categories depending upon their
vote;
an estimate of how the vote is progressing may then be
calculated. If the initial estimates and the actual vote do not
coincide, then an internal audit of that vote should
occur. This may entail a
recount.
|
|
12.
|
The
actual tabulation of votes is done in units which is then converted
to
shares. (It is very important that the Fund receives the
tabulations stated in terms of a percentage and the number of
shares.) Fidelity Legal must review and approve
tabulation format.
|
|
13.
|
Final
tabulation in shares is verbally given by the Company to Fidelity
Legal on
the morning of the meeting not later than 10:00 a.m. Boston
time. Fidelity Legal may request an earlier deadline if
required to calculate the vote in time for the
meeting.
|
|
14.
|
A
Certification of Mailing and Authorization to Vote Shares will be
required
from the Company as well as an original copy of the final
vote. Fidelity Legal will provide a standard form for each
Certification.
|
|
15.
|
The
Company will be required to box and archive the Cards received from
the
Customers. In the event that any vote is challenged or if
otherwise necessary for legal, regulatory, or accounting purposes,
Fidelity Legal will be permitted reasonable access to such
Cards.
|
|
16.
|
All
approvals and "signing-off" may be done orally, but must always be
followed up in writing.
|
|
|
SCHEDULE
C
|
|
|
Fidelity
Advisor Annuity Overseas Fund
|
|
|
Fidelity
Advisor Annuity Growth Opportunities
Fund
|
|
|
Fidelity
Advisor Annuity Income & Growth
Fund
|
|
|
Fidelity
Advisor Annuity Government Investment
Fund
|
|
|
Fidelity
Advisor Annuity High Yield Fund
|
|
|
Fidelity
Advisor Annuity Money Market Fund
|
AMENDMENT
No. 1 TO PARTICIPATION AGREEMENT AMONG
VARIABLE
INSURANCE PRODUCTS FUND
FIDELITY
DISTRIBUTORS CORPORATION
and
FINANCIAL
HORIZONS LIFE INSURANCE COMPANY
WHEREAS,
FINANCIAL HORIZONS LIFE
INSURANCE COMPANY (the “Company”), VARIABLE INSURANCE PRODUCTS FUND (the “Fund”)
and FIDELITY DISTRIBUTORS CORPORATION have previously entered into a
Participation Agreement (the “Agreement”) containing certain arrangements
concerning prospectus costs; and
WHEREAS,
the Trustees of the Fund have
approved certain changes to the expense structure of the Fund; and
NOW,
THEREFORE, the parties do hereby
agree to amend the Agreement by substituting the following arrangement in place
of any inconsistent language in the Participation Agreement, wherever
found:
1. The
Fund will provide to the Company each year, at the Fund’s cost, such number of
prospectuses and Statements of Additional Information as are actually
distributed to the Company’s then-existing variable life and/or variable annuity
contractor owners.
2. If
the Company takes camera-ready film or computer diskettes containing the Fund’s
prospectus and/or Statement of Additional Information in lieu of receiving
hard
copies of these documents, the Fund will reimburse the Company in an amount
computed as follows. The number of prospectuses and Statements of
Additional Information actually distributed to existing contract owners by
the
Company will be multiplied by the Fund’s actual per-unit cost of printing the
documents.
3. The
Company agrees to provide the Fund or its designee with such information as
may
be reasonably requested by the Fund in order to verify that the prospectuses
and
Statements of Additional Information provided to the Company, or the
reimbursement made to the Company, are or have been used only for the purposes
set forth hereinabove.
IN
WITNESS WHEREOF we have set our hand
as of the 15th day of December, 1994.
FINANCIAL
HORIZONS LIFE INSURANCE
COMPANY
By: ______________________________
Name: _Mark
Folk_____________________
Title: Vice
President & Treasurer
VARIABLE
INSURANCE PRODUCTS
FUND FIDELITY
DISTRIBUTORS CORPORATION
By: ______________________________ By: ______________________________
Name: _J.
▇▇▇▇
Burkhead_______________ Name: ___Kurt
A. Lange________________
Title: Senior
Vice
President Title: President
Amendment
No. 2 to Participation Agreement
Among
Variable
Insurance Products Fund
Fidelity
Distributors Corporation
and
Nationwide
Life Insurance Company
Nationwide
Life and Annuity Insurance Company
This
AMENDMENT No. 2, made and entered into as of June 1, 1996 amends the AGREEMENT
made and entered into as of November 22, 1994 and among the COMPANY, the FUND,
and the UNDERWRITER. The parties now wish to amend the agreement as
follows:
All
references to the “Company” shall
refer to Nationwide Life Insurance Company, a mutual corporation and
Nationwide Life and Annuity Insurance Company formerly known as
“Financial Horizons Life Insurance Company”). All references
to “Company contained herein shall be deemed to be references to each such
company, severally and not jointly.
SCHEDULE
A of the agreement currently
lists the name of each Company separate account and the contracts funded by
the
separate account that are within the scope of the agreement. SCHEDULE
C contains a list of funds within the scope of the
agreement. Schedule A is now modified and updated to contain the
following items in addition to the current information: the list of Fund
portfolios the agreement pertains to, and the effective date the portfolios
where made available in the separate accounts. Schedule C is hereby
deleted.
Company:
NATIONWIDE
LIFE INSURANCE COMPANY AND
NATIONWIDE
LIFE
AND ANNUITY COMPANY
By: _______________________________________
Name: ____Robert
O. Cline_______________________
Title: Assoc.
VP-Financial
Operations
Fund:
VARIABLE
INSURANCE PRODUCTS
FUND
By: ________________________________________
Name: ______[J.
▇▇▇▇ ▇▇▇▇▇▇▇▇]___________________
Title: [Senior
Vice
President]
Underwriter:
FIDELITY
DISTRIBUTORS
CORPORATION
By: ________________________________________
Name: ____[▇▇▇▇
Litrack]________________________
Title: [President]
Schedule
A
Accounts,
Contracts and Portfolios
|
Variable
Account(s)
and
Est.
Date
|
Contract(s)
|
Fund(s)
|
Effective
Date
|
|
Nationwide
Variable
Account
7
|
· 1293-3A
· 1293-36
|
· Fidelity
Advisor
Annuity
Overseas
Fund
· Fidelity
Advisor
Annuity
Growth
Opportunities
Fund
· Fidelity
Advisor
Annuity
Income
&
Growth Fund
· Fidelity
Advisor
Annuity
Government
Investment
Fun
· Fidelity
Advisor
Annuity
High
Yield
Fund
· Fidelity
Advisor
Annuity
Money
Market
Fund
|
11/22/94
|
|
Nationwide
VA
Separate
Account A
|
· Eagle
Choice
Variable
Annuity
|
· Equity-Income
Portfolio
· Overseas
Portfolio
|
6/1/96
|
|
Nationwide
Separate
Account
8
|
· Eagle
Choice
Classic
Variable
Annuity
· Eagle
Choice
Gold
Variable
Annuity
|
· Equity-Income
Portfolio
· Overseas
Portfolio
|
6/1/96
|
Amendment
No. 3 To Participation Agreement
Among
Variable
Insurance Products Fund III
(formerly
Fidelity Advisor Annuity Fund)
Fidelity
Distributors Corporation
and
Nationwide
Life Insurance Company
Nationwide
Life and Annuity Insurance Company
This
Third Amendment, Among Nationwide Life Insurance Company and Nationwide Life
and
Annuity Insurance Company (“Company”) and Variable Insurance Products Fund III
(“Fund”) and Fidelity Distributors Corporation (“Underwriter”), executed this
7th day of
April, 1997, hereby amends that certain Participation Agreement (“Agreement”) by
and among the Company and the Fund’s Predecessor, Fidelity advisor Annuity Fund,
entered into on November 22, 1994.
RECITALS
WHEREAS,
the Company, Fund, and Underwriter entered into an Agreement on November 22,
1994, which defined the rights and obligations of the parties; and
WHEREAS,
the Company, Fund, and Underwriter amended said Agreement on the 15th of December,
1994,
by Amendment No. 1 and again on the 1st of June,
1996, by
Amendment No. 2 and
WHEREAS,
now the parties desire to modify the Agreement:
NOW,
THEREFORE, in consideration of the promises and mutual agreements
contained herein, the parties do agree as follows:
1. This
Agreement shall be effective on April 7, 1997.
|
|
2.
|
Effective
December 30, 1996, all references to Fidelity Advisor Fund in this
Agreement shall mean Fidelity Variable Insurance Products Fund III
(“VIP
III”).
|
|
|
3.
|
Additionally,
effective 1/20/97, the following fund was included in Fidelity Advisor
Variable Account.
|
|
|
(I)
|
Growth
and Income Portfolio
|
|
|
4.
|
Schedule
A, of the Agreement is amended to contain the current list of separate
accounts and the contracts funded by the separate accounts that are
within
the scope of the Agreement.
|
In
Witness WHEREOF, the parties have executed this Amendment No. 3
to the Participation Agreement on the date first written above.
Company:
NATIONWIDE
LIFE INSURANCE COMPANY AND NATIONWIDE LIFE AND ANNUITY INSURANCE
COMPANY
By: _______________________________________
Name: ____Robert
O. Cline_____________________
Title: Associate
Vice President-Financial Operations
Fund:
VARIABLE
INSURANCE PRODUCTS FUND III
By: _______________________________________
Name: _______________________________________
Title: _______________________________________
Underwriter:
FIDELITY
DISTRIBUTORS CORPORATION
By: _______________________________________
Name: _______________________________________
Title: _______________________________________
Schedule
A
Accounts,
Contracts and Portfolios
|
Variable
Account(s)
|
Contract(s)
|
Fund(s)
|
Effective
Date
|
|
Nationwide
Fidelity
Advisor
Variable
Account
|
· 1293-3A
· 1293-36
|
· Fidelity
VIP Fund III, Overseas Portfolio
· Fidelity
VIP Fund III Growth Opportunities Portfolio
· Fidelity
VIP Fund III, Balanced Portfolio
· Fidelity
VIP Fund III, Government Investment Portfolio
· Fidelity
VIP Fund, III, Annuity High Yield Portfolio
· Fidelity
VIP Fund III, Money Market Portfolio
|
11/22/94
|
|
Nationwide
Fidelity Advisor Variable
Account
|
· APO-1293-3A
· APO-1293-36
|
· Fidelity
VIP Fund III, Growth & Income Portfolio
|
1/20/97
|
|
[Nationwide
Variable
Account
– 9]
|
· [APO-3416*
· APO-3417*]
|
· [Fidelity
VIP III Growth & Income Portfolio – Service Class]
|
[11/3/97]
|
|
[Nationwide
VII
Separate
Account – 4]
|
· [VLO
- *]
|
· [ " ]
|
[11/3/97]
|
*Or
other
form numbers as may be approved in other states.
AMENDMENT
NO. 4 TO FUND PARTICIPATION AGREEMENT AMONG
VARIABLE
INSURANCE PRODUCTS FUND III (Formerly Fidelity Advisor Annuity
Fund),
FIDELITY
DISTRIBUTORS CORPORATION
and
NATIONWIDE
LIFE INSURANCE COMPANY
NATIONWIDE
LIFE AND ANNUITY INSURANCE COMPANY
This
document constitutes and Amendment to the Participation Agreement dated November
22, 1994 (the “Agreement”) among VARIABLE INSURANCE PRODUCTS FUND III (formerly
“Nationwide Advisor Annuity Fund”) (the “Fund”), FIDELITY DISTRIBUTORS
CORPORATION (the “Underwriter”), and NATIONWIDE LIFE INSURANCE COMPANY and
NATIONWIDE LIFE AND ANNUITY INSURANCE COMPANY (herein collectively referred
to
as the “Company”).
The
purpose of this Amendment is to allow Service Class shares of the Fund to serve
as underlying investment vehicles for products issued through Nationwide
Variable Account – 9, Nationwide VLI Separate Account – 4, and Nationwide VL
Separate Account – C, segregated assent accounts of the Company, for use in
variable annuity contracts and variable life insurance policies,
respectively.
For
such
purpose as listed above, the Fund, the Underwriter and the Company amend the
Agreement as follows (see Attachment A):
|
1.
|
Section
2.5 of Article II – Representations and Warranties is deleted in
its entirety and replaced with the
following:
|
|
|
2.5
|
The
Fund may make payments to finance distribution expenses pursuant
to Rule
12b-1 under the Investment Company Act of 1940. To the extent
that the Fund finances distribution expenses pursuant to Rule 12b-1,
the
Fund undertakes to have the board of trustees, a majority of whom
are not
interested persons of the Fund, formulate and approve any plan under
Rule
12b-1 to finance distribution
expenses.
|
|
2.
|
Section
5.1 of Article V – Fees and Expenses is deleted in its entirety and
replaced with the following:
|
|
|
5.1
|
The
Fund and the Underwriter may pay a fee to the Company’s affiliated
broker-dealer pursuant to a plan or plans pursuant to Rule 12b-1
under the
Investment Company Act of 1940 to finance distribution expenses including
certain shareholders services for the sale of Fund shares including
Service Class Shares. Such payments may be paid out of existing
fees otherwise payable to the Underwriter, past profits of the Underwriter
or other resources available to the
Underwriter.
|
|
3.
|
Schedule
A is amended to reflect the addition of the following Contracts,
Policies
and segregated accounts of the
Company:
|
|
|
a)
|
Variable
Annuity Contract Forms APO-3416 and APO-3417 (or such other form
numbers
as may be approved in other states)
|
|
|
b)
|
Variable
Life Policy Forms ▇▇▇-▇▇▇, ▇▇▇▇-▇▇, ▇▇▇-▇▇▇, ▇▇▇▇-▇▇ (or such other
form
numbers as may be approved in other
states)
|
|
|
c)
|
Nationwide
Variable Account – 9, established on May 22,
1997
|
|
|
d)
|
Nationwide
VLI Separate Account – 4, established on December 3,
1987
|
|
|
e)
|
Nationwide
VL Separate Account – C, established on July 22,
1997
|
4. The
Amendment to Schedule A is attached to and made a part of the
Agreement.
|
5.
|
The
Agreement and any related Service Agreements, as amended, are and
shall
remain in full force and effect until terminated pursuant to terms
of the
Agreement.
|
|
|
IN
WITNESS WHEREOF, the parties hereto cause this Amendment No. 4 to
be executed as of the date(s) set forth
below:
|
|
|
VARIABLE
INSURANCE PRODUCTS FUND
III
|
|
By:
|
_____________________________________
|
Date:
|
________[12/22/97]____________
|
|
|
[▇▇▇▇▇▇
▇. ▇▇▇▇▇]
|
Title: [Senior
Vice President]
|
|
FIDELITY
DISTRIBUTORS CORPORATION
|
|
By:
|
_____________________________________
|
Date:
|
__________[01/05/98]___________
|
|
|
[▇▇▇▇▇
▇. ▇▇▇▇▇]
|
Title: Vice
President
|
|
NATIONWIDE
LIFE INSURANCE COMPANY and NATIONWIDE LIFE AND ANNUITY INSURANCE
COMPANY
FOR THE COMPANIES AND ON BEHALF OF THE VARIABLE ACCOUNTS SET FORTH
IN
SCHEDULE A
|
|
By:
|
_____________________________________
|
Date:
|
___________[12/5/97]___________
|
|
|
[▇▇▇▇▇▇
▇. ▇▇▇▇]
|
Title: Vice
President
|
|
Product
and Market Compliance
|
|
|
Attachment
A
|
|
|
Section
1.1 of Article 1 – Sale of Fund Shares is hereby amended by adding
the following to the end of such
section:
|
|
|
For
purposes of this Agreement, all references to shares of the Fund
shall
include both Service
|
|
|
Class
Shares and Initial Class Shares unless otherwise
designated.
|
Schedule
A
Accounts,
Contract and Portfolios
|
Variable
Accounts
|
Contracts
|
Funds
|
Effective
Date
|
|
Nationwide
Fidelity Advisor Variable Account
|
· 1293-3A*
· 1293-36*
|
· Fidelity
VIP Fund III, Overseas Portfolio
· Fidelity
VIP Fund III, Growth Opportunities Portfolio
· Fidelity
VIP Fund III, Balanced Portfolio
· Fidelity
VIP Fund III, Government Investment Portfolio
· Fidelity
VIP FUND III, Annuity High Yield Portfolio
· Fidelity
VIP Fund III, Money Market Portfolio
|
11/22/94
|
|
Nationwide
Variable Account - II
|
· APO-1293-3A*
· APO-1293-36*
|
· Growth
Opportunities Portfolio
|
7/14/97
|
|
Nationwide
Variable Account - 6
|
· APO-1293-36*
|
· Growth
Opportunities Portfolio
|
5/1/97
|
|
Nationwide
VA Separate Account - B
|
· FHL-463*
|
· Growth
Opportunities Portfolio
|
7/14/97
|
|
Nationwide
Variable Account - 9
|
· APO-3416*
· APO-3417*
|
· Fidelity
VIP III Growth & Income Portfolio – Service Class
|
11/3/97
|
|
Nationwide
VLI Separate Account - 4
|
· VLO-407*
· NWLA-23*
|
· Growth
Opportunities Portfolio
|
12/3/87
|
|
Nationwide
VL Separate Account - C
|
· VLO-510*
· NWLA-30*
|
· Growth
Opportunities Portfolio
|
7/22/97
|
|
|
*Or
other form numbers as may be approved in other
states.
|
AMENDMENT
NO. 5 TO FUND PARTICIPATION AGREEMENT AMONG
VARIABLE
INSURANCE PRODUCTS FUND III,
FIDELITY
DISTRIBUTORS CORPORATION
and
NATIONWIDE
LIFE INSURANCE COMPANY AND NATIONWIDE LIFE AND ANNUITY
INSURANCE
COMPANY
This
document constitutes an Amendment to the Participation Agreement dated November
22, 1994 (the “Agreement”) among VARIABLE INSURANCE PRODUCTS FUND III (the
“Fund”), FIDELITY DISTRIBUTORS CORPORATION (the “Underwriter”), and NATIONWIDE
LIFE INSURANCE COMPANY and NATIONWIDE LIFE AND ANNUITY INSURANCE COMPANY
(collectively, the “COMPANY”),
The
primary purpose of this Amendment is to amend Schedule A to reflect those
separate accounts and Contracts of the Company in which the Funds serve as
underlying investment options.
The
Amendment to Schedule A is attached to and made a part of the
Agreement.
The
Agreement and any related Service Agreements, as amended, are and shall remain
in full force and effect until terminated pursuant to the terms of the
Agreement.
IN
WITNESS WHEREOF, the parties hereto cause this Amendment No. 5 to be
executed as of the date(s) set forth below:
VARIABLE
INSURANCE PRODUCTS FUND III
By: _____________________________________ Date: _____[3/3/99]_______
▇▇▇▇▇▇
▇. ▇▇▇▇▇
Senior
Vice President
FIDELITY
DISTRIBUTORS CORPORATION
By: _____________________________________ Date: _____[2/26/99]_______
▇▇▇▇▇
▇. ▇▇▇▇▇
Vice
President
NATIONWIDE
LIFE INSURANCE COMPANY and NATIONWIDE LIFE AND ANNUITY INSURANCE COMPANY FOR
THE
COMPANIES AND ON BEHALF OF THE VARIABLE ACCOUNTS SET FORTH IN SCHEDULE
A
By: _____________________________________ Date: ______[2/18/99]_______
▇▇▇▇▇▇
▇. ▇▇▇▇
Vice
President – Office of
Product
and
Market Compliance
FIDELITY
VARIABLE INSURANCE PRODUCTS FUND III
Schedule
A
Accounts,
Contract and Portfolios
|
Variable
Accounts
|
Contracts
|
Portfolios**
|
|
Nationwide
Fidelity Advisor Variable
Account
|
· APO-1293-3A*
· APO-1293-36*
· APO-3416*
· APO-3417*
|
· VIP
III Growth Opportunities Portfolio:
Initial
and Service Class
· VIP
III Balanced Portfolio: Initial and Service Class
· VIP
III Growth & Income Portfolio:
Initial
and Service Class
|
|
Nationwide
Variable Account- II
|
· APO-1293-3A*
· APO-1293-36*
· APO-2796*
|
· VIP
III Growth Opportunities Portfolio
|
|
Nationwide
Variable Account- 6
|
· APO-1293-36*
· APO-3366*
|
· VIP
III Growth Opportunities Portfolio
|
|
Nationwide
Variable Account- 9
|
· APO-3416*
· APO-3417*
· APO-3275-8*
· APO-3691*
· APO-3694*
|
· VIP
III Growth Opportunities Portfolio:
Service
Class
|
|
Nationwide
VA Separate Account- B
|
· FHL-463*
|
· VIP
III Growth Opportunities Portfolio
|
|
Nationwide
VLI Separate Account-2
|
· APO-430*
· APO-426*
· VLO-355*
· VLO-510*
· NWLA-23*
· VLO-275*
· VLO-3*
|
· VIP
III Growth Opportunities Portfolio
|
|
Nationwide
VLI Separate Account- 3
|
· VLO-355*
· VLO-275*
|
· VIP
III Growth Opportunities Portfolio
|
|
Nationwide
VLI Separate Account- 4
|
· VLO-507*
· NWLA-23*
|
· VIP
III Growth Opportunities Portfolio:
Service
Class
|
|
Nationwide
VL Separate Account- C
|
· VLO-510*
· NWLA-30*
|
· VIP
III Growth Opportunities Portfolio:
Service
Class
|
|
Nationwide
VL Separate Account- D
|
· VLO-507*
|
· VIP
III Balanced Portfolio: Service Class
· VIP
III Growth & Income Portfolio:
Service
Class
· VIP
III Growth Opportunities Portfolio: Service
Class
|
*Or
other
form numbers as may be approved in other states.
**Unless
otherwise indicated, reference is to Initial Class Shares of the
Portfolio.
FIDELITY
VARIABLE INSURANCE PRODUCTS FUND III
Addendum
No. 1 to Schedule A
Accounts,
Contract and Portfolios
|
Variable
Accounts
|
Contracts
|
Funds
|
Effective
Date
|
|
Nationwide
Fidelity
Advisor
Variable
Account
|
· 1293-3A*
· 1293-36*
|
· Fidelity
VIP Fund III, Overseas Portfolio
· Fidelity
VIP Fund III Growth Opportunities Portfolio
· Fidelity
VIP Fund III, Balanced Portfolio
· Fidelity
VIP Fund III, Government Investment Portfolio
· Fidelity
VIP Fund, III, Annuity High Yield Portfolio
· Fidelity
VIP Fund III, Money Market Portfolio
|
11/22/94
|
|
Nationwide
Variable Account – II
|
· APO-1293-3A*
· APO-1293-36*
|
· Growth
Opportunities Portfolio
|
7/14/97
|
|
Nationwide
Variable
Account
- 6
|
· APO-1293-36*
|
· Growth
Opportunities Portfolio
|
5/1/97
|
|
Nationwide
VA Separate Account - B
|
· FHL-463*
|
· Growth
Opportunities Portfolio
|
7/14/97
|
|
Nationwide
Variable Account - 9
|
· APO-3416*
· APO-3417*
|
· Fidelity
VIP III Growth & Income Portfolio – Service Class
|
11/3/97
|
|
Nationwide
VLI Separate Account - 4
|
· VLO-507*
· NWLA-30*
|
· Growth
Opportunities Portfolio
|
12/3/87
|
|
Nationwide
VL Separate Account - C
|
· VLO-510*
· NWLA-30*
|
· Growth
Opportunities Portfolio
|
7/22/97
|
|
Nationwide
VL Separate Account - A
|
· NWLA-23*
|
· Growth
Opportunities Portfolio
|
8/14/84
|
*Or
other
form numbers as may be approved in other states.
IN
WITNESS WHEREOF, the parties hereto cause this Addendum No. 1 to
Schedule A to be executed as of the date(s) set forth below:
VARIABLE
INSURANCE PRODUCTS FUND III
By: _____________________________________ Date: _______[2/2/98]_______________
[▇▇▇▇▇▇
▇. ▇▇▇▇▇]
Title: [Senior
Vice President]
FIDELITY
DISTRIBUTORS CORPORATION
By: _____________________________________ Date: __________[1/28/98]___________
[▇▇▇▇▇
▇. ▇▇▇▇▇]
Title: [Vice
President]
NATIONWIDE
LIFE INSURANCE COMPANY and NATIONWIDE LIFE AND ANNUITY INSURANCE COMPANY FOR
THE
COMPANIES AND ON BEHALF OF THE VARIABLE ACCOUNTS SET FORTH IN SCHEDULE
A
By: _____________________________________ Date: January
22, 1998
[▇▇▇▇▇▇
▇. ▇▇▇▇]
Title: Vice
President – Product and Market Compliance
AMENDMENT
NO. 6 TO FUND PARTICIPATION AGREEMENT AMONG
VARIABLE
INSURANCE PRODUCTS FUND III,
FIDELITY
DISTRIBUTORS CORPORATION
and
LIFE
INSURANCE COMPANY and NATIONWIDE LIFE AND ANNUITY
INSURANCE
COMPANY
This
document constitutes an Amendment to the Participation Agreement dated November
22, 1994 (the “Agreement”) among VARIABLE INSURANCE PRODUCTS FUND III (the
“Fund”), FIDELITY DISTRIBUTORS CORPORATION (the “Underwriter”), and NATIONWIDE
LIFE INSURANCE COMPANY and NATIONWIDE LIFE AND ANNUITY INSURANCE COMPANY
(collectively, the “Company”).
The
primary purposes of this Amendment are:
|
·
|
to
add immediate variable annuity contracts (APO-4364) to Nationwide
Variable
Account-9; and
|
|
·
|
to
add Nationwide Variable Account-8 and Nationwide Variable Account-10;
each
a segregated asset account of Nationwide;
and
|
|
·
|
to
add the VIP III Mid Cap Portfolio: Service Class to Nationwide VL
Separate
Account-D.
|
The
Amendment to Schedule A is attached to and made a part of the
Agreement.
This
Amendment No. 6 shall be effective October 1, 1999.
This
Agreement and any related Service Agreements, as amended, are and shall remain
in full force and effect until terminated pursuant to the terms of the
Agreement.
IN
WITNESS WHEREOF, the parties hereto cause this Amendment No. 6 to be
executed as of the date(s) set forth below:
VARIABLE
INSURANCE PRODUCTS FUND III
By: ____________________________________ Date: __________[10/21/99]__________
[▇▇▇▇▇▇
▇. ▇▇▇▇▇]
FIDELITY
DISTRIBUTORS CORPORATION
By: ____________________________________ Date: ___________[10/22/99]_________
[▇▇▇▇▇
▇. ▇▇▇▇▇]
NATIONWIDE
LIFE INSURANCE COMPANY and NATIONWIDE LIFE AND ANNUITY INSURANCE COMPANY FOR
THE
COMPANIES AND ON BEHALF OF THE VARIABLE ACCOUNTS SET FORTH IN SCHEDULE
A
By: ___________________________________ Date: ____________[10/18/99]_______
▇▇▇▇▇▇
▇. ▇▇▇▇
Vice
President – Office of
Product
and
Market Compliance
FIDELITY
VARIABLE INSURANCE PRODUCTS FUND III
Schedule
A
Accounts,
Contract and Portfolios
|
Variable
Accounts
|
Contracts
|
Portfolios**
|
|
Nationwide
Fidelity Advisor Variable
Account
|
· APO-1293-3A*
· APO-1293-36*
· APO-3416*
· APO-3417*
|
· VIP
III Growth Opportunities Portfolio:
Initial
and Service Class
· VIP
III Balanced Portfolio:
Initial
and Service Class
· VIP
III Growth & Income Portfolio:
Initial
and Service Class
· VIP
III Mid Cap Portfolio: Service Class
|
|
Nationwide
Variable Account- II
|
· APO-1293-3A*
· APO-1293-36*
· APO-2796*
|
· VIP
III Growth Opportunities Portfolio
|
|
Nationwide
Variable Account- 6
|
· APO-1293-36*
· APO-3366*
|
· VIP
III Growth Opportunities Portfolio
|
|
Nationwide
Variable Account- 8
|
· APO-4384*
|
· VIP
III Growth Opportunities Portfolio:
Service
Class
|
|
Nationwide
Variable Account- 9
|
· APO-3416*
· APO-3417*
· APO-3275-8*
· APO-3691*
· APO-3694*
· APO-4364*
|
· VIP
III Growth Opportunities Portfolio:
Service
Class
|
|
Nationwide
Variable Account- 10
|
· APO-4446*
|
· VIP
III Growth Opportunities Portfolio:
Service
Class
|
|
Nationwide
VA Separate Account- B
|
· FHL-463*
|
· VIP
III Growth Opportunities Portfolio
|
|
Nationwide
VLI Separate Account-2
|
· APO-430*
· APO-426*
· VLO-355*
· VLO-510*
· NWLA-23*
· VLO-275*
· VLO-3*
|
· VIP
III Growth Opportunities Portfolio
|
|
Nationwide
VLI Separate Account- 3
|
· VLO-355*
· VLO-275*
|
· VIP
III Growth Opportunities Portfolio
|
|
Nationwide
VLI Separate Account- 4
|
· VLO-507*
· NWLA-23*
|
· VIP
III Growth Opportunities Portfolio:
Service
Class
|
|
Nationwide
VL Separate Account- C
|
· VLO-510*
· NWLA-30*
|
· VIP
III Growth Opportunities Portfolio:
Service
Class
|
|
Nationwide
VL Separate Account- D
|
· VLO-507*
|
· VIP
III Balanced Portfolio: Service Class
· VIP
III Growth & Income Portfolio:
Service
Class
· VIP
III Growth Opportunities Portfolio: Service Class
· VIP
III Mid Cap Portfolio: Service
Class
|
*Or
other
form numbers as may be approved in other states.
**Unless
otherwise indicated, reference is to Initial Class shares of the
Portfolio.
AMENDMENT
NO. 7 TO FUND PARTICIPATION AGREEMENT AMONG
VARIABLE
INSURANCE PRODUCTS FUND III,
FIDELITY
DISTRIBUTORS CORPORATION
and
NATIONWIDE
LIFE INSURANCE COMPANY and
NATIONWIDE
LIFE AND ANNUITY INSURANCE COMPANY
This
document constitutes an Amendment to the Participation Agreement dated November
22, 1994 (the “Agreement”) among VARIABLE INSURANCE PRODUCTS FUND III (the
“Fund”), FIDELITY DISTRIBUTORS CORPORATION (the “Underwriter”), and NATIONWIDE
LIFE INSURANCE COMPANY and NATIONWIDE LIFE AND ANNUITY INSURANCE COMPANY
(collectively, the “Company”).
The
primary purposes of this Amendment are:
|
·
|
to
add immediate variable annuity contracts (VLO-521) to Nationwide
Private
Placement Variable Account; and
|
|
·
|
to
add Nationwide Private Placement Variable Account; a segregated asset
account of Nationwide.
|
The
Amendment to Schedule A is attached to and made a part of the
Agreement.
This
Amendment No. 7 shall be effective January 4, 2000.
This
Agreement and any related Service Agreements, as amended, are and shall remain
in full force and effect until terminated pursuant to the terms of the
Agreement.
IN
WITNESS WHEREOF, the parties hereto cause this Amendment No. 7 to be
executed as of the date(s) set forth below:
VARIABLE
INSURANCE PRODUCTS FUND III
By: ____________________________________ Date: ________[1/05/00]___________
▇▇▇▇▇▇
▇. ▇▇▇▇▇
Senior
Vice President
FIDELITY
DISTRIBUTORS CORPORATION
By: ____________________________________ Date: _________[1/06/00]___________
▇▇▇▇▇
▇▇▇▇▇
Vice
President
NATIONWIDE
LIFE INSURANCE COMPANY and NATIONWIDE LIFE AND ANNUITY INSURANCE COMPANY FOR
THE
COMPANIES AND ON BEHALF OF THE VARIABLE ACCOUNTS SET FORTH IN SCHEDULE
A
By: ___________________________________ Date: ________[12/29/99]___________
▇▇▇▇▇▇
▇. ▇▇▇▇
Vice
President – Office of
Product
and
Market Compliance
FIDELITY
VARIABLE INSURANCE PRODUCTS FUND III
Schedule
A
Accounts,
Contract and Portfolios
|
Variable
Accounts
|
Contracts
|
Portfolios**
|
|
Nationwide
Fidelity Advisor Variable
Account
|
· APO-1293-3A*
· APO-1293-36*
· APO-3416*
· APO-3417*
|
· VIP
III Growth Opportunities Portfolio:
Initial
and Service Class
· VIP
III Balanced Portfolio:
Initial
and Service Class
· VIP
III Growth & Income Portfolio:
Initial
and Service Class
· VIP
III Mid Cap Portfolio: Service Class
|
|
Nationwide
Variable Account- II
|
· APO-1293-3A*
· APO-1293-36*
· APO-2796*
|
· VIP
III Growth Opportunities Portfolio
|
|
Nationwide
Variable Account- 6
|
· APO-1293-36*
· APO-3366*
|
· VIP
III Growth Opportunities Portfolio
|
|
Nationwide
Variable Account- 8
|
· APO-4384*
|
· VIP
III Growth Opportunities Portfolio:
Service
Class
|
|
Nationwide
Variable Account- 9
|
· APO-3416*
· APO-3417*
· APO-3275-8*
· APO-3691*
· APO-3694*
· APO-4364*
|
· VIP
III Growth Opportunities Portfolio:
Service
Class
|
|
Nationwide
Variable Account- 10
|
· APO-4446*
|
· VIP
III Growth Opportunities Portfolio:
Service
Class
|
|
Nationwide
VA Separate Account- B
|
· FHL-463*
|
· VIP
III Growth Opportunities Portfolio
|
|
Nationwide
VLI Separate Account-2
|
· APO-430*
· APO-426*
· VLO-355*
· VLO-510*
· NWLA-23*
· VLO-275*
· VLO-3*
|
· VIP
III Growth Opportunities Portfolio
|
|
Nationwide
VLI Separate Account- 3
|
· VLO-355*
· VLO-275*
|
· VIP
III Growth Opportunities Portfolio
|
|
Nationwide
VLI Separate Account- 4
|
· VLO-507*
· NWLA-23*
|
· VIP
III Growth Opportunities Portfolio:
Service
Class
|
|
Nationwide
VL Separate Account- C
|
· VLO-510*
· NWLA-30*
|
· VIP
III Growth Opportunities Portfolio:
Service
Class
|
|
Nationwide
VL Separate Account- D
|
· VLO-507*
|
· VIP
III Balanced Portfolio: Service Class
· VIP
III Growth & Income Portfolio:
Service
Class
· VIP
III Growth Opportunities Portfolio:
Service
Class
· VIP
III Mid Cap Portfolio: Service Class
|
|
Nationwide
Private Placement Variable
Account
|
· VLO-521*
|
· VIP
III Growth Opportunities Portfolio:
Service
Class
|
*Or
other
form numbers as may be approved in other states.
**Unless
otherwise indicated, reference is to Initial Class shares of the
Portfolio.
Amendment
to Participation Agreement
This
Amendment, dated as of May 1, 2002, amends the Participation Agreements, as
previously amended (each, an “Agreement”), among Nationwide Life Insurance
Company and Nationwide Life and Annuity Insurance Company (“Company”), Fidelity
Distributors Corporation (“Underwrite”) and each of Variable Insurance Products
Fund, Variable Insurance Products Fund II, and Variable Insurance Products
Fund
III (each, a “Fund” and collectively, the “Funds”).
WHEREAS,
the parties acknowledge that excessive trading by insurance company contract
owners, including those of the Company, may adversely affect the Funds, by
forcing portfolio managers to take undesirable actions in order to meet
redemptions, such as retaining excess cash, selling desirable positions and/or
incurring excessive portfolio trading costs; and
WHEREAS,
the Funds’ Boards of Trustees have found that the deterrence of excessive
trading to be in the best interests of the Funds, and have authorized
Underwriter to take appropriate actions, including without limitation the
refusal of insurance company purchase orders, to deter excessive trading;
and
WHEREAS,
the Underwriter has put in place procedures designed to detect and deter
excessive trading in all insurance company separate accounts; and
WHEREAS,
the Company and the Underwriter have studied various potential solutions for
deterring excessive trading, and have agreed to implement R-class shares as
an
additional measure intent on deterring market timing with relatively minimal
disruption to long-term shareholders; and
WHEREAS,
each Fund may create and offer one or more classes of shares of certain
portfolios, which are subject to redemption fees (“R” classes), and
WHEREAS,
Company, on behalf of certain of its Separate Accounts, may elect to purchase
R
class shares for use in variable annuity or variable life insurance products
issued by Company;
NOW,
THEREFORE, the parties hereby agree as follows:
1. The
first sentence of section 1.1 is amended to read as follows:
Subject
to the provisions of Sections 1.2 and 2.13, the Underwriter agrees to sell
to
the Company those shares of the Fund which each Account orders, executing such
orders on a daily basis at the net asset value next computed after receipt
by
the Fund or its designee of the order for the shares of the Fund.
2. Section
1.4 is replaced in its entirety with the following:
1.4 The
Fund and the Underwriter will not sell Fund shares to any insurance company
or
separate account unless an agreement containing provisions substantially the
same as Articles I, III, V, VII and Section 2.5 and, in the event such insurance
company purchase R class shares, Sections 2.12 and 2.13, of this Agreement
is in
effect to govern such sales.
3. Section
2.5 is replaces in its entirety with the following:
2.5 (A)
With respect to Initial Class and Initial Class R shares, the Fund currently
does not intend to make any payments to finance distribution expenses pursuant
to Rule 12b-1 under the 1940 Act or otherwise, although it may make such
payments in the future. The Fund has adopted a “no fee” or
“defensive” Rule 12b-1 Plan under which it makes no payments for distribution
expenses. To the extent that it decides to finance distribution
expenses pursuant to Rule 12b-1, the Fund undertakes to have a board of
trustees, a majority of whom are not interested persons of the Fund, formulate
and approve any plan under Rule 12b-1 to finance distribution
expenses.
(b)
With respect to Service Class,
Service Class 2, Service Class R and Service Class 2 R shares, the Fund has
adopted Rule 12b-1 Plans under which it makes payments to finance distribution
expenses. The Fund represents and warrants that it has a board of
trustees, a majority of whom are not interested persons of the Fund, which
has
formulated and approved each of its Rule 12b-1 Plans to finance distribution
expenses of the Fun and that any changes to the Fund’s Rule 12b-1 Plans will be
approved by a similarly constituted board of trustees.
4. Sections
2.12 and 2.13 are added:
2.12. The
Company represents and warrants that it will enforce and administer the
short-term redemption fee (for purposes of Section 2.12, “the fee”) applicable
to R class shares in accordance with the fee structure described in the Fund’s
then-current SEC registration statement. The Distributor shall
provide Company with commercially reasonable advance written notice of any
change in the fee structure. In addition to, and with limiting, the
provisions of this Agreement concerning books and records contained in Section
12.6, books and records maintained by the Company with respect to the
calculation and administration of the fee shall be the books and records of
the
Fun and shall be made available to the Fund immediately upon request by the
Fun,
the Fund’s transfer agent and/or its auditors in order for the Fund to conduct
due diligence reviews or to comply with regulatory examination
requirements. The Company further represents and warrants that it
will periodically remit to the Fund, or to the Fund’s transfer agent, such
information as the Fund or the Fund’s transfer agent may require in order to
fulfill its obligations with respect to the administration of the fee, and
will
also wire to the Fund the amount of the fee attributable to transactions
included in the period for which the information is provided. The
Company or the Underwriter or their affiliates may make arrangements to pay
the
fee on behalf of Contract owners making certain redemptions or terminal
redemptions deemed unlikely to result in or from market timing activities
(“Covered Redemptions”), so long as the Fund receives the fee and the parties
comply with all other provisions of this Agreement. The parties agree
to cooperate with each other so that within a reasonable time after the
execution of this Agreement the information furnished by the Company pursuant
to
this section 2.12 will be provided in an automated format acceptable to the
Fund
or the Fund’s transfer agent. A description of the fee, and examples
indicating its application, are included in Schedule D, attached, which may
be
modified in the Fund’s sole discretion upon written notice to the
Company. The company further represents and warrants that it will
include in the Disclosure Document (as defined in Section 3.1 below) for each
Contract the disclosure language substantially as set forth in then-current
Schedule D with respect to the fee.
2.13. The
Company represents and warrants that it will use its best efforts to discourage
market timing and other disruptive trading activity by third parties with power
to act on behalf of multiple contract owners and by individual contract
owners. Company further represents and warrants that any annuity
contract forms or variable life insurance policy forms not in use at the time
of
execution of this Agreement, but added to in the future via amendment of
Schedule A hereto, will contain language reserving to the Company the right
to
refuse to accept instructions from person that engage in market timing or other
disruptive trading activity.
5. The
second sentence of section 10.2 is amended to read as follows:
Specifically,
and without limitation except for limitations imposed under Sections 1.2 and
2.13, the owners of the Existing Contracts shall be permitted to reallocate
investments in the Fund, redeem investments in the Fund and/or invest in the
Fund upon making of additional purchase payments under the Existing
Contracts.
6. Schedule
A is replaced in its entirety with revised Schedule A.
IN
WITNESS WHEREOF, the parties have executed this Amendment as of the
date indicated above.
Nationwide
Life Insurance Company
By: _______________________
Name: ___[▇▇▇▇
▇. ▇▇▇▇▇]_______
Title: ___[VP-Financial
Operations]
Fidelity
Distributors
Corporation Variable
Insurance Products Fund
Variable
Insurance Products Fund
II
Variable
Insurance Products Fund
III
By: ______________________ By: ________________________
Name: ▇▇▇▇
▇▇▇▇▇▇▇ Name: ▇▇▇▇▇
▇▇▇▇▇
Title: Executive
Vice
President Title: Treasurer
SCHEDULE
D
R
CLASS
SHARES’ SHORT TERM REDEMPTION FEE
METHODOLOGY,
REQUIRED DISCLOSURE AND EXAMPLES
1. Methodology
and
Required Disclosure. The following language both describes the
operation of the R class shares’ short-term redemption fee and serves as a model
for the disclosure the Company must include in the prospectus or other offering
documents(s) for the Contract(s). Differences in the operational
aspects of Contracts may require different disclosure, but pursuant to Section
2.12 of the Agreement, all disclosure must be approved in writing by the Fund
or
the Fund’s designee.
A
Contract owner (or a person who
succeeds to the owner’s rights after the owner’s death) who chooses to redeem an
interest in a separate account (or subaccount of a separate account) that
invests in R class shares will be subject to a 1.00% short-term trading fee
if
and to the extent that the interest in the separate account (or subaccount,
as
appropriate) has been held for less than 60 days. For this purpose,
interests held longest will be treated as being redeemed first and interests
held shortest as being redeemed last.
Redemption
from a separate account may,
but does not necessarily, mean a withdrawal from a variable
contract. It includes all transactions, such as transfers among
subaccounts, initiated at the request of a Contract owner (or the owner’s
successor). The fee applies both to one-time transactions and to
periodic transactions, such as automatic rebalancing. In the event
that the Company or the Underwriter or their affiliate(s) have made arrangements
to pay the fee on behalf of Contract Owners making certain Covered Redemptions,
the fee shall still apply but the Company’s Disclosure Documents may indicate
that the fee will not be charged to Contract Owners in the event of such
redemptions.
The
fee will not apply to redemptions
made to generate money to pay the Company its mortality and expense risk fee
or
other charges under a Contract. The fee will also not apply to
redemptions made to generate money to make scheduled annuity income payments
for
Contracts no longer in the deferral stage (i.e. Contracts that are either
immediate annuities or deferred annuity Contracts with have been annuitized),
or
to any other transactions designated in writing by the Fund as
exempt.
|
2.
|
Examples:
Annuity Contracts in Accumulation Phase and Variable Life Insurance
Policies
|
|
A.
|
Contract
owner purchases a Contract on Day One and purchase 100 units of a
subaccount that
|
invests
in R class shares. On Day 58, Contract owner transfers money within
the contract by redeeming 50 units from the subaccount. The value of
those 50 units at the time of transfer is $500.
The
fee applies to the entire amount
transferred. The fee is $5 (1% of $500).
B. Contract
Owner purchases a Contract on Day One and purchases 100 units of a subaccount
that invests its R class shares. On Day 50 Contract owner purchase an
additional 50 units of the same subaccount. On Day 65 Contract Owner
redeems 125 units at $10 each in order to transfer the proceeds to another
subaccount.
The
first step is to determine which
units are redeemed. Using the first in, first out rule, all 100 units
purchased on Day One are redeemed, and 25 of the 50 units purchased on Day
50
are redeemed. The 100 units purchased on Day One are not subject to
the redemption fee, but the 25 units purchased on Day 50 are subject to the
fee. The value of the units subject to the redemption fee is $250 (25
units at $10 per unit). The redemption fee is $2.50 (1% of
$250).
3. Examples:
Annuity Contracts in Payout Phase (applies equally to annuitized deferred
contracts and immediate annuities).
A. On
Day One, Contract Owner allocates all of variable annuity income to the
Subaccount that invests in R class shares. On Day 58, Contract Owner
makes a full withdrawal of withdrawal value. The withdrawal value
immediately before the reallocations is $50,000.
The
fee applies to the entire amount
reallocated. The fee is $500 (1% of $50,000).
B. On
Day One, the Contract
Owner allocates half of the Purchase Payment to a Subaccount that invests in
R
class shares. On day 50 Contract Owner allocates the remainder of his
variable annuity income to the same Subaccount. On Day 65 the
withdrawal value in a Subaccount is $50,000 and Contract Owner withdraws 80%
of
the withdrawal value from that Subaccount. Immediately before the
redemption the withdrawal value in the Subaccount attributable to the original
allocation is $30,000 and the withdrawal value is the Subaccount attributable
to
the subsequent allocation is $20,000.
The
first step is to determine how much
of the withdrawal value is subject to the fee. Contract Owner
reallocated $40,000 of withdrawal value (80% of the total withdrawal value
of
$50,000). Using the first in, first out rule, all $30,000 of
withdrawal value that relates to the original allocation is redeemed, and
$10,000 of the subsequent allocation is redeemed. The $30,000 of
withdrawal value associated with the original allocation is not subject to
the
redemption fee because the original allocation has been maintained in the
Subaccount for 60 days or longer, but the $10,000 of the reallocation
attributable to the subsequent allocation is subject to the fee because it
has
been maintained in the Subaccount for less than 60 days. Since the
withdrawal value in the Subaccount subject to the fee has a value of $10,000
at
the time of the subsequent reallocation, the redemption fee is $100 (1% of
$10,000).
C. On
Day One, Contract
Owner allocates all of his variable annuity income to a Subaccount that invests
in R class shares. On Day 58 Contract Owner changes his entire
allocation of variable annuity income to another Subaccount. The
value of periodic annuity income in the first Subaccount immediately before
the
reallocation is $500.
D. On
Day One, Contract
Owner allocates half of the Purchase Payment to a Subaccount that invests in
R
class shares. On Day 50 Contract Owner allocates the remainder his
variable annuity income to the same Subaccount. On Day 65 the value
of annuity income in the Subaccount is $500, and Contract Owner reallocates
80%
of his variable annuity income to another Subaccount. Immediately
before the redemption $300 of variable annuity income from the Subaccount comes
from the original allocation and $200 from the subsequent
allocation.
The
first step is to determine how much
of the variable annuity income is subject to the fee. Contract Owner
reallocated $400 of variable annuity income (80% of the $500). Using
the first in, first out rule, all $300 of variable annuity income that related
to the original allocation is redeemed, and $100 of variable annuity income
from
the subsequent allocation is redeemed. The $300 of income associated
with the original allocation is not subject to the redemption fee because the
original allocation has been maintained in the Subaccount for 60 days or longer,
but the $100 of income attributable to the subsequent allocation is subject
to
the fee because it has been maintained in the Subaccount for less than 60
days.
Since
the income in the Subaccount
subject to the fee has a value of $100 at the time of the subsequent
reallocation, variable annuity income is reduced by $1 (1% of
$100). Company remits to the Fund the amount that was invested in the
Fund immediately prior to the reallocation attributable to the $1 of
income.
AMENDMENT
NO. 9 TO PARTICIPATION AGREEMENT AMONG
VARIABLE
INSURANCE PRODUCTS FUND III,
FIDELITY
DISTRIBUTORS CORPORATION
and
NATIONWIDE
LIFE INSURANCE COMPANY and
NATIONWIDE
LIFE and ANNUITY INSURANCE COMPANY
This
document constitutes an Amendment to the Participation Agreement dated November
22, 1994 (the “Agreement”) among VARIABLE INSURANCE PRODUCTS FUND III (the
“Fund”), FIDELITY DISTRIBUTORS CORPORATION (the “Underwriter), and NATIONWIDE
LIFE INSURANCE COMPANY AND NATIONWIDE LIFE and ANNUITY INSURANCE COMPANY
(collectively, the “Company”).
The
primary purpose of this Amendment is:
To
Amend Schedule A of the Agreement
and replace it with the Amended Schedule A attached hereto.
This
Amendment No. 9 shall be effective May 1, 2003.
The
Agreement and any related Service Agreements, as amended, are and shall remain
in full force and effect until terminated pursuant to the terms of the
Agreement.
IN
WITNESS WHEREOF, the parties hereto cause this Amendment No. 9 to be
executed:
NATIONWIDE
LIFE INSURANCE COMPANY AND NATIONWIDE LIFE AND ANNUITY INSURANCE COMPANY FOR
THE
COMPANIES AND ON BEHALF OF THE VARIOUS ACCOUNTS SET FORTH IN SCHEDULE
A
By: _________________________
Name: __[▇▇▇▇▇▇▇
▇. ▇▇▇▇▇▇]_______
Title: __[VP
Investment & Advisory Services]
VARIABLE
INSURANCE PRODUCTS FUND III
By: _________________________
Name: ___[▇▇▇▇▇
▇▇▇▇▇]__________
Title: ___[Treasurer]____________
FIDELITY
DISTRIBUTORS CORPORATION
By: _________________________
Name: ____[D
Holborn]___________
Title: ____[Executive
Vice President]
FIDELITY
VARIABLE INSURANCE PRODUCTS FUND III
SCHEDULE
A
Accounts,
Contracts, and Products
|
Variable
Accounts
|
Contracts*
|
Products
|
|
Nationwide
Variable Account- II
|
· APO-1293-3A
· APO-1293-36
· APO-2796
· APO-6302
· APO-6282
· APO-6317
|
· BOA
IV Annuity
· BOA
Vision
· NEBA
· BOA
Future II Annuity
· BOA
All American Gold Annuity
· BOA
Achiever Annuity
· BOA
Future Venue
· BOA
Exclusive Venue
· BOA
Elite Venue
· BOA
Choice Venue II
|
|
Nationwide
Variable Account- 6
|
· APO-1293-36
· APO-3366
|
· Evergreen
Ultra Advantage
|
|
Nationwide
Variable Account- 7
|
· APO-1293-3A
· APO-1293-36
· APO-3416
· APO-3417
|
· Nationwide
Classic
· Nationwide
Select
· BOA
All American Annuity
|
|
Nationwide
Variable Account- 8
|
· APO-4384
|
· Vision
NY (Citibank)
· Vision
Plus
|
|
Nationwide
Variable Account- 9
|
· APO-3416
· APO-3417
· APO-4364
|
· Future
· BOA
Choice/Venue
· BOA
Vision II
· BOA
V
· Exclusive
II
· BOA
American’s Income Annuity
· BOA
Elite Pro LTD
· BOA
Elite Pro Classic
|
|
Nationwide
Variable Account- 10
|
· APO-4446
|
· BOA
InvestCare
|
|
Nationwide
VA Separate Account- B
|
· FHL-463
|
· BOA
Exclusive
|
|
Nationwide
VLI Separate Account-2
|
· APO-430
· APO-426
· VLO-355
· VLO-510
· NWLA-23
· VLO-275
· VLO-3
|
· BOA
SPVL
· BOA
Multiple Pay
· BOA
FPVUL
· BOA
MSPVL
· BOA
Last Survivor
|
|
Nationwide
VLI Separate Account- 3
|
· VLO-355
· VLO-275
|
· Multi-Flex
FPVUL
|
|
Nationwide
VLI Separate Account- 4
|
· VLO-507
· NWLA-23
|
· BOA
Next Generation FPVUL
· BOA
COLI Future NWL
· BOA
Last Survivor Future
· BOA
MSPVL Future
· BOA
Last Survivor III
· BOA
Advantage FPVUL
· BOA
Protection FPVUL
· BOA
Protection Last Survivor
|
|
Nationwide
VL Separate Account- C
|
· VLO-510
· NWLA-30
|
BOA
COLI Future NLAIC
|
|
Nationwide
VL Separate Account- D
|
· VLO-507
|
· BOA
Private Client CVUL
|
|
Nationwide
Private Placement Variable Account
|
· VLO-521
|
· Private
Placement
|
*Or
other
form numbers as may be approved in other states.
Amendment
to Participation Agreements
This
Amendment, dated as of May 1, 2005, amends the Participation
Agreements (“Agreement”) dated as of 5/1/88, 7/15/89 and 11/22/94
among Nationwide Life Insurance Company and Nationwide Life and Annuity
Insurance Company (“Nationwide ”), Fidelity Distributors Corporation
(“Underwriter”) and Variable Insurance Products Fund, Variable Insurance
Products Fund II, and Variable Insurance Products Fund III (each, a “Fund” and
collectively, the “Funds”).
WHEREAS,
Variable Insurance Products Fund IV (VIP IV), an unincorporated business trust
organized under the laws of the Commonwealth of Massachusetts, through the
Underwriter, makes available shares of certain of its series (“Portfolios”) to
separate accounts of participating insurance companies on terms and conditions
similar to those of the Funds, and
WHEREAS,
Nationwide , on behalf of certain of its Separate Accounts, desires to purchase
and redeem shares of certain VIP IV Portfolios on such terms and
conditions;
NOW,
THEREFORE, the undersigned parties hereby agree as follows:
1. Nationwide
, the Underwriter, the Funds and VIP IV all agree that VIP IV shall be added
to
the Agreements as an additional Fund party. Nationwide, the
Underwriter and VIP IV hereby adopt the provisions of the Agreement as though
set forth herein. Without limiting the foregoing, the parties each
expressly adopt Article A of the Agreement, as follows:
Although
the parties have executed this Agreement in the form of a Master Participation
Agreement for administrative convenience, this Agreement shall create a separate
participation agreement for each Fund, as though Nationwide and the
Distributor had executed a separate, identical form of participation agreement
with each Fund. No rights, responsibilities or liabilities of any
Fund shall be attributed to any other Fund.
|
2.
|
The
parties agree that they will negotiate in good faith to consolidate
the
existing Agreements into a Master Participation Agreement to
cover the Portfolios offered through VIP, VIP II, VIP III and
VIP IV.
|
All
other
terms and provisions of the Agreements not amended herein shall remain in full
force and effect.
IN
WITNESS WHEREOF, the parties have executed this Amendment as of the date
indicated above.
Nationwide
Life Insurance Company
Nationwide
Life and Annuity Insurance Company
By: ________________________
Name: __[▇▇▇▇▇▇▇
▇. ▇▇▇▇▇▇]______
Title: __[Vice
President]_________
Fidelity
Distributors
Corporation Variable
Insurance Products Fund
Variable
Insurance Products Fund
II
Variable
Insurance Products Fund
III
Variable
Insurance Products Fund
IV
By: ________________________ By: ________________________
Name: _____[▇.
▇▇▇▇▇▇▇▇]_______ Name: ____[▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇]___
Title: _____[Ex.
VP]____________ Title: _____[Treasurer,
SVP]_____
May
16,
2007
Nationwide
Life Insurance Company and Nationwide Life and Annuity Insurance
Company
▇▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇,
▇▇▇▇ ▇▇▇▇▇
Re: Participation
Agreement among Variable Insurance Products Fund (“Fund I”),
Fidelity
Distributors Corporation (the
“Underwriter”) and Insurance Company
(the
“Company”),
dated May 1, 1988, as
amended (Participation Agreement I”);
and
Participation
Agreement among Variable
Insurance Products Fund II (“Fund II”),
The
Underwriter and the Company, dated
July 15, 1989, as amended
(“Participation
Agreement II”);
and
Participation
Agreement among Variable
Insurance Products Fund IV (“Fund
IV”),
the Underwriter and the Company,
dated May 1, 2005, as amended
(Participation
Agreement
IV”).
Dear
Sir
or Madam:
The
Company, the Underwriter, and Fund I, Fund II, and Fund IV respectively, are
parties to the above-referenced Participation Agreements (Fund I, Fund II and
Fund IV are referred to as the “Current Funds”). As explained in the
notice sent to you on May 3, 2007, Fidelity is in the process of reorganizing
some of the portfolios of the Current Funds (the “Affected Portfolios”) for
administration purposes. In connect with this reorganization, the
Affected Portfolios will be moved into corresponding “shell” portfolios of a new
Variable Insurance Products Fund V (“Fund V”). A lit of all of the
Affected Portfolios in Fund I, Fund II and Fund IV covered by the reorganization
and the corresponding Fund V portfolios is set forth on the attached
Exhibit.
In
connection with this change, we are asking for you consent to (1) the amendment
of each Participation Agreement to add Fund V as a “Fund” party under the terms
of each Participation Agreement (the “Amendment”); and (2) the assignment of all
of each Current Fund’s rights, benefits and obligations under each Participation
Agreement with respect to the Affected Portfolios to Fund V, with respect to
the
corresponding portfolios of Fund V, and the release of the Current Funds from
the obligations so assigned (the “Assignment”). Each Participation
Agreement will remain in full force and effect in accordance with its terms,
as
so amended and assigned herein. The Amendment will also add the
following clarifying language to each Participation Agreement as a new Article
A
of the Agreement:
This
Agreement shall create a separate participation agreement for each Fund, as
though the Company and the Underwriter had executed a separate, identical form
of participation agreement with each Fund. No rights,
responsibilities or liabilities of any Fund shall be attributed to any other
Fund.
Your
signature below will indicate the Company’s consent to the Amendment and
Assignment of each Participation Agreement as set forth above, to become
effective immediately upon consummation of the reorganization.
Thank
you
for your prompt attention to this matter. If for some reason we have
not obtained your signature prior to the reorganization, and the Company submits
orders or instructions under the Participation Agreements, we will deem the
Company to have consented to each Amendment and Assignment. Please do
not hesitate to contact your Fidelity Relationship Manager or Key Account
Manager if you have any questions.
Very
truly yours,
FIDELITY
DISTRIBUTORS
CORPORATION
By: ________________________________
Name: ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇
Title:
Executive
Vice
President
VARIABLE
INSURANCE PRODUCTS
FUND,
VARIABLE
INSURANCE PRODUCTS FUND
II
VARIABLE
INSURANCE PRODUCTS FUND IV
and
VARIABLE
INSURANCE PRODUCTS FUND
V
By: _________________________________
Name: ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇
Title: Treasurer
The
Undersigned Consents to the Amendment and Assignment of each
Participation
Agreement
as of this _____ day of _____________ 2007:
NATIONWIDE
LIFE INSURANCE COMPANY AND
NATIONWIDE
LIFE AND ANNUITY INSURANCE COMPANY
By: __________________________
Name:
Title:
Please
keep one copy and return the other to:
▇▇▇▇▇▇
▇▇▇▇▇▇, Director, Contracts Management
Fidelity
Investments
▇▇▇
▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇
▇▇▇▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
EXHIBIT
A
AFFECTED
PORTFOLIOS FUND
V PORTFOLIOS
Variable
Insurance Products
Fund Variable
Insurance Products Fund V
Money
Market
Portfolio Money
Market Portfolio
Variable
Insurance Products Fund II
Asset
Manager
Portfolio Asset
Manager Portfolio
Asset
manager: Growth
Portfolio
Asset manager: Growth Portfolio
Investment
Grade Bond
Portfolio Investment
Grade Bond Portfolio
Variable
Insurance Products Fund IV
Freedom
Income
Portfolio Freedom
Income Portfolio
Freedom
2005
Portfolio Freedom
2005 Portfolio
Freedom
2010
Portfolio Freedom
2010 Portfolio
Freedom
2015
Portfolio Freedom
2015 Portfolio
Freedom
2020
Portfolio Freedom
2020 Portfolio
Freedom
2025
Portfolio Freedom
2025 Portfolio
Freedom
2030
Portfolio Freedom
2030 Portfolio
FundsManager
20%
Portfolio FundsManager
20% Portfolio
FundsManager
50%
Portfolio FundsManager
50% Portfolio
FundsManager
70%
Portfolio
FundsManager 70% Portfolio
FundsManager
85%
Portfolio
FundsManager 85% Portfolio
Strategic
Income
Portfolio Strategic
Income Portfolio