JANUS ASPEN SERIES FUND PARTICIPATION AGREEMENT (Service II Shares)
JANUS
ASPEN SERIES
(Service
II Shares)
THIS
AGREEMENT is made this [5th] day of [May, 2002], between JANUS
ASPEN SERIES, an open-end management investment company organized as a Delaware
business trust (the “Trust”), NATIONWIDE LIFE INSURANCE COMPANY and NATIONWIDE
LIFE AND ANNUITY INSURANCE COMPANY, life insurance companies organized under
the
laws of the State of Ohio (“Nationwide”), on their own behalf and on behalf of
each segregated asset account of Nationwide set forth on Schedule A, as may
be amended from time to time (the “Accounts”).
W
I T
N E S S E T H:
WHEREAS,
the Trust has registered with the Securities and Exchange Commission as an
open-end management investment company under the Investment Company Act of
1940,
as amended (the “1940 Act”), and the beneficial interest in the Trust is divided
into several series of shares, each series representing an interest in a
particular managed portfolio of securities and other assets (the “Portfolios”);
and
WHEREAS,
the Trust has registered the offer and sale of a class of shares designated
as
Service II Shares (the “Shares”) of certain Portfolios under the
Securities Act of 1933, as amended (the “1933 Act”); and
WHEREAS,
the Trust desires to act as an investment vehicle for separate accounts
established for variable life insurance policies and variable annuity contracts
to be offered by insurance companies that have entered into participation
agreements with the Trust (the “Participating Insurance Companies”);
and
WHEREAS,
the Trust has received an order from the Securities and Exchange Commission
granting Participating Insurance Companies and their separate accounts
exemptions from the provisions of Sections 9(a), 13(a), 15(a) and 15(b) of
the 1940 Act, and Rules 6e-2(b)(15) and 6e-3(T)(b)(15) thereunder, to the extent
necessary to permit shares of the Trust to be sold to and held by variable
annuity and variable life insurance separate accounts of both affiliated and
unaffiliated life insurance companies and certain qualified pension and
retirement plans (the “Exemptive Order”); and
WHEREAS,
Nationwide has registered or will register (unless registration is not required
under applicable law) certain variable life insurance policies and/or variable
annuity contracts under the 1933 Act (the “Contracts”); and
WHEREAS,
Nationwide has registered or will register each Account as a unit investment
trust under the 1940 Act; and
WHEREAS,
Nationwide desires to utilize the Shares of one or more Portfolios as an
investment vehicle of the Accounts;
WHEREAS,
the Trust has made it known that certain short-term trading practices exhibited
by Nationwide customers may have a harmful or deleterious effect on some of
the
Portfolios currently offered through Nationwide separate accounts;
and
WHEREAS,
the Trust has communicated that, if the status quo is maintained with
respect to short term trading involving certain currently available Portfolios
within Nationwide separate accounts, the probability of prospective refusals
of
purchase and redemption orders for Portfolio shares by Nationwide is
substantially increased; and
WHEREAS,
Nationwide acknowledges that such short-term trading practices may in fact
have
a harmful or deleterious impact on the Portfolios; and
WHEREAS,
Nationwide and the Trust agree that the imposition of redemption fees on
redemptions and exchanges among certain Portfolios available through Nationwide
separate accounts will help to eliminate the harmful effects of short-term
trading that may arise within such separate accounts; NOW, THEREFORE, in
consideration of their mutual promises, the parties agree as
follows:
ARTICLE I
Sale
of Trust Shares
1.1 The
Trust
shall make Shares of its Portfolios available to the Accounts at the net asset
value next computed after receipt of such purchase order by the Trust (or its
agent), as established in accordance with the provisions of the then current
prospectus of the Trust. Shares of a particular Portfolio of the
Trust shall be ordered in such quantities and at such times as determined by
Nationwide to be necessary to meet the requirements of the
Contracts. The Trustees of the Trust (the “Trustees”) may refuse to
sell Shares of any Portfolio to any person, or suspend or terminate the offering
of Shares of any Portfolio if such action is required by law or by regulatory
authorities having jurisdiction or is, in the sole discretion of the Trustees
acting in good faith and in light of their fiduciary duties under federal and
any applicable state laws, necessary in the best interests of the shareholders
of such Portfolio.
1.2 The
Trust
will redeem any full or fractional Shares of any Portfolio when requested by
Nationwide on behalf of an Account at the net asset value next computed after
receipt by the Trust (or its agent) of the request for redemption minus the
redemption fee, if applicable, as established in accordance with the provisions
of the then current prospectus of the Trust. The Trust shall make
payment for such shares in the manner established from time to time by the
Trust, but in no event shall payment be delayed for a greater period than is
permitted by the ▇▇▇▇ ▇▇▇.
1.3 For
the
purposes of Sections 1.1 and 1.2, the Trust hereby appoints Nationwide as
its agent for the limited purpose of receiving and accepting purchase and
redemption orders resulting from investment in and payments under the
Contracts. Receipt by Nationwide shall constitute receipt by the
Trust provided that i) such orders are received by Nationwide in good order
prior to the time the net asset value of each Portfolio is priced in accordance
with its prospectus and ii) the Trust receives notice of such orders by
10:00 a.m. New York time on the next following Business
Day. Notices with respect to the redemption of Shares shall state
separately the amount of any redemption fee payable to the
Portfolio. “Business Day” shall mean any day on which the New York
Stock Exchange is open for trading and on which the Trust calculates its net
asset value pursuant to the rules of the Securities and Exchange
Commission.
1.4 Purchase
orders that are transmitted to the Trust in accordance with Section 1.3
shall be paid for no later than 12:00 noon New York time on the same Business
Day that the Trust receives notice of the order. Payments shall be
made in federal funds transmitted by wire.
1.5 Issuance
and transfer of the Trust’s Shares will be by book entry only. Stock
certificates will not be issued to Nationwide or the Accounts. Shares
ordered from the Trust will be recorded in the appropriate title for each
Account or the appropriate subaccount of each Account.
1.6 The
Trust
shall furnish prompt notice to Nationwide of any income dividends or capital
gain distributions payable on the Trust’s Shares. Nationwide hereby
elects to receive all such income dividends and capital gain distributions
as
are payable on a Portfolio’s Shares in additional Shares of that
Portfolio. The Trust shall notify Nationwide of the number of Shares
so issued as payment of such dividends and distributions.
1.7 The
Trust
shall make the net asset value per Share for each Portfolio available to
Nationwide on a daily basis as soon as reasonably practical after the net asset
value per Share is calculated and shall use its best efforts to make such net
asset value per Share available by 6 p.m. New York time. If the
Trust provides Nationwide with materially incorrect share net asset value
information, the Trust shall make an adjustment to the number of shares
purchased or redeemed for the Accounts to reflect the correct net asset value
per share. Any material error in the calculation or reporting of net
asset value per share, dividend or capital gains information shall be reported
promptly upon discovery to Nationwide.
1.8 The
Trust
agrees that its Shares will be sold only to Participating Insurance Companies
and their separate accounts and to certain qualified pension and retirement
plans to the extent permitted by the Exemptive Order. No Shares of
any Portfolio will be sold directly to the general public. Nationwide
agrees that Trust Shares will be used only for the purposes of funding the
Contracts and Accounts listed in Schedule A, as amended from time to
time.
1.9 The
Trust
agrees that all Participating Insurance Companies shall have the obligations
and
responsibilities regarding pass-through voting and conflicts of interest
corresponding to those contained in Section 2.8 and Article IV of this
Agreement.
1.10 Within
five (5) Business Days after the end of each calendar month, the Trust
shall mail to Nationwide a monthly statement of account, which shall confirm
all
transactions made during that particular month in the Accounts.
1.11 All
orders accepted by Nationwide shall be subject to the terms of the then current
prospectus of each Portfolio, including without limitation, policies
regarding market timing and excessive trading, and redemption
fees. Nationwide shall use its best efforts, and shall reasonably
cooperate with, the Trust to enforce stated prospectus policies regarding
transactions in Shares, particularly those related to market timing. Nationwide
represents that it has and will maintain adequate systems, processes and
procedures to modify and track the holding period of interests of variable
contract owners held in the Accounts for sixty (60) days or less (or such other
period specified in the then current prospectus of the
Trust). Nationwide shall be responsible for monitoring the holding
period of interests of variable contract owners held through the Contracts
and
for tracking such holding periods for purposes of assessing redemption fees
in
conjunction with those transactions specifically subject to such fees subject
to
any reasonable exceptions as set forth in Nationwide separate account
prospectuses which include the Shares as underlying investment
media. Nationwide shall maintain records supporting its calculations
of redemption fees payable to each Portfolio and shall provide the Trust with
access, to or copies of, such records upon the reasonable request of the
Trust. Nationwide shall calculate the amount of redemption fees
payable to each Portfolio on a daily basis and such amount shall be netted
against the redemption proceeds payable by the Trust pursuant to
Section 1.2.
In
addition, Nationwide acknowledges that the Trust has the right to refuse any
purchase order for any reason, particularly if the Trust determines that a
Portfolio would be unable to invest the money effectively in accordance with
its
investment policies or would otherwise be adversely affected due to the size
of
the transaction, frequency of trading by the account or other
factors.
Nothing
herein shall be construed to require actions on the part of Nationwide that
would, in the best judgment of Nationwide, constitute the violation or breach
of
variable insurance product contracts established prior to the creation of the
Shares.
1.12 The
Trust acknowledges that, with the addition of the Shares to certain of its
Portfolios, Nationwide may be subjected to unfavorable comparisons with other
insurance carriers offering the Portfolios through variable insurance
products. Moreover, the Trust acknowledges that the ameliorative
benefits that may be realized by the Portfolios in connection with Nationwide’s
incorporation of the Shares into its products may benefit other insurance
company contract and policy owners.
Notwithstanding
the foregoing, Nationwide acknowledges that the Trust cannot and will not compel
every such insurance carrier offering the Portfolios to incorporate the Shares
in the same manner as Nationwide. The Trust, however, does agree --
to the extent the negative effects of short-term trading practices may be
engendered through trading activity within other insurance carriers’ separate
account products -- that such other companies will be required by the Trust
to
take any and all actions (not excluding the possible incorporation of the
Shares) necessary to eliminate the potentially harmful consequences to the
Portfolios of short-term trading practices. The Trust agrees to use
its best efforts to encourage, promote, and, if necessary, compel other
insurance companies to employ such measures, irrespective of the size of such
companies’ separate account investments in the Portfolios. The Trust
shall not unreasonably withhold from Nationwide information relative to what,
if
any, measures have been taken by other such insurance carriers.
ARTICLE II
Obligations
of the Parties
2.1 The
Trust
shall prepare and be responsible for filing with the Securities and Exchange
Commission and any state regulators requiring such filing all shareholder
reports, notices, proxy materials (or similar materials such as voting
instruction solicitation materials), prospectuses and statements of additional
information of the Trust. The Trust shall bear the costs of
registration and qualification of its shares, preparation and filing of the
documents listed in this Section 2.1 and all taxes to which an issuer is
subject on the issuance and transfer of its shares.
2.2 At
the
option of Nationwide, the Trust shall either (a) provide Nationwide
(at Nationwide’s expense) with as many copies of the Trust’s Shares’
current prospectus, annual report, semi-annual report and other shareholder
communications, including any amendments or supplements to any of the foregoing,
as Nationwide shall reasonably request or (b) provide Nationwide with a
camera-ready copy of such documents in a form suitable for
printing. The Trust shall provide Nationwide with a copy of the
Shares’ statement of additional information in a form suitable for duplication
by Nationwide. The Trust (at its expense) shall provide Nationwide
with copies of any Trust-sponsored proxy materials in such quantity as
Nationwide shall reasonably require for distribution to Contract
owners.
2.3 (a) Nationwide
shall bear the costs of printing and distributing the Trust’s Shares’
prospectus, statement of additional information, shareholder reports and other
shareholder communications to owners of and applicants for policies for which
Shares of the Trust are serving or are to serve as an investment
vehicle. Nationwide shall bear the costs of distributing proxy
materials (or similar materials such as voting solicitation instructions) to
Contract owners. Nationwide assumes sole responsibility for ensuring
that such materials are delivered to Contract owners in accordance with
applicable federal and state securities laws, provided that all such materials
are provided to Nationwide in a timely manner.
(b) If
Nationwide elects to include any materials provided by the Trust, specifically
prospectuses, SAIs, shareholder reports and proxy materials, on its web site
or
in any other computer or electronic format, Nationwide assumes sole
responsibility for maintaining such materials in the form provided by the Trust
and for promptly replacing such materials with all updates provided by the
Trust.
2.4 Nationwide
agrees and acknowledges that the Trust’s adviser, Janus Capital Management LLC
(“Janus Capital”), is the sole owner of the name and ▇▇▇▇ “▇▇▇▇▇” and that all
use of any designation comprised in whole or part of Janus (a “▇▇▇▇▇ ▇▇▇▇”)
under this Agreement shall inure to the benefit of Janus
Capital. Except as provided in Section 2.8 or 2.9 Nationwide
shall not use any ▇▇▇▇▇ ▇▇▇▇ on its own behalf or on behalf of the Accounts
or
Contracts in any registration statement, advertisement, sales literature or
other materials relating to the Accounts or Contracts without the prior written
consent of Janus Capital. All references contained in this Agreement
to “the name or ▇▇▇▇ ▇▇▇▇▇” shall include, but not be limited, to the Janus
logo, the website ▇▇▇.▇▇▇▇▇.▇▇▇ and any and all electronic links relating to
such website. Nationwide will make no use of the name or ▇▇▇▇ “▇▇▇▇▇”
except as expressly provided in this Agreement or expressly authorized by Janus
Capital in writing. All goodwill associated with the name and ▇▇▇▇
“▇▇▇▇▇” shall inure to the benefit of Janus Capital. Upon termination
of this Agreement for any reason, Nationwide shall cease all use of any ▇▇▇▇▇
▇▇▇▇(s) as soon as reasonably practicable.
2.5 The
Trust
agrees and acknowledges that “The Best of America” logo is a federally
registered service ▇▇▇▇ of Nationwide Life Insurance Company; “Nationwide,”
“Nationwide Life,” “Nationwide Insurance Enterprise” and the N-and eagle logo
are federally registered service marks of Nationwide Mutual Insurance
Company. The Nationwide frame is a service ▇▇▇▇ of Nationwide Mutual
Insurance Company. The Trust shall not use any of the service marks
listed in this provision on its own behalf without the written consent of
Nationwide. Upon termination of this Agreement for any reason, the
Trust shall cease all use of any Nationwide service marks as soon as reasonably
practicable.
2.6 Nationwide
acknowledges that the identity of Janus’ (and its affiliates and/or
subsidiaries’) customers and all information maintained about those customers
constitute the valuable property of Janus. Nationwide agrees that,
should it come into contact or possession of any such information (including,
but not limited to, lists or compilations of the identity of such customers),
Nationwide shall hold such information or property in confidence and shall
not
use, disclose or distribute any such information or property except with Janus’
prior written consent or as required by law or judicial process. This
Section 2.6 shall survive the expiration or termination of this
Agreement.
2.7 Janus
acknowledges the identity of Nationwide’s (and its affiliates’ and/or
subsidiaries’) customers and all information maintained about those customers
constitute the valuable property of Nationwide. Janus agrees that,
should it come into contact or possession of any such information (including,
but not limited to, lists or compilations of such customers), Janus shall hold
such information or property in confidence and shall not use, disclose or
distribute any such information or property except with Nationwide’s prior
written consent or as required by law or judicial process. This
Section 2.7 shall survive the expiration or termination of this
Agreement.
2.8 Nationwide
shall furnish, or cause to be furnished, to the Trust or its designee, a copy
of
each Contract prospectus or statement of additional information in which the
Trust or its investment adviser is named prior to the filing of such document
with the Securities and Exchange Commission. Nationwide shall
furnish, or shall cause to be furnished, to the Trust or its designee, each
piece of sales literature or other promotional material in which the Trust
or
its investment adviser is named, at least fifteen Business Days prior to its
use. No such material shall be used if the Trust or its designee
reasonably objects to such use within fifteen Business Days after receipt of
such material.
2.9 Nationwide
shall not give any information or make any representations or statements on
behalf of the Trust or concerning the Trust or its investment adviser in
connection with the sale of the Contracts other than information or
representations contained in and accurately derived from the registration
statement or prospectus for the Trust Shares (as such registration statement
and
prospectus may be amended or supplemented from time to time), reports of the
Trust, Trust-sponsored proxy statements, or in sales literature or other
promotional material approved by the Trust or its designee, except as required
by legal process or regulatory authorities or with the written permission of
the
Trust or its designee.
2.10 The
Trust
shall not give any information or make any representations or statements on
behalf of Nationwide or concerning Nationwide, the Accounts or the Contracts
other than information or representations contained in and accurately derived
from the registration statement or prospectus for the Contracts (as such
registration statement and prospectus may be amended or supplemented from time
to time), or in materials approved by Nationwide for distribution including
sales literature or other promotional materials, except as required by legal
process or regulatory authorities or with the written permission of
Nationwide.
2.11 So
long
as, and to the extent that the Securities and Exchange Commission interprets
the
1940 Act to require pass-through voting privileges for variable policyowners,
Nationwide will provide pass-through voting privileges to owners of policies
whose cash values are invested, through the Accounts, in shares of the
Trust. The Trust shall require all Participating Insurance Companies
to calculate voting privileges in the same manner and Nationwide shall be
responsible for assuring that the Accounts calculate voting privileges in the
manner established by the Trust. With respect to each Account,
Nationwide will vote Shares of the Trust held by the Account and for which
no
timely voting instructions from policyowners are received as well as Shares
it
owns that are held by that Account, in the same proportion as those Shares
for
which voting instructions are received. Nationwide and its agents
will in no way recommend or oppose or interfere with the solicitation of proxies
for Trust shares held by Contract owners without the prior written consent
of
the Trust, which consent may be withheld in the Trust’s sole
discretion.
2.12 Nationwide
shall notify the Trust of any applicable state insurance laws that restrict
the
Portfolios’ investments or otherwise affect the operation of the Trust and shall
notify the Trust of any changes in such laws.
ARTICLE III
Representations
and Warranties
3.1 Nationwide
represents and warrants that it is an insurance company duly organized and
in
good standing under the laws of the State of Ohio and that it has legally and
validly established each Account as a segregated asset account under such law
on
the date set forth in Schedule A.
3.2 Nationwide
represents and warrants that each Account has been registered or, prior to
any
issuance or sale of the Contracts, will be registered as a unit investment
trust
in accordance with the provisions of the 1940 Act, unless otherwise exempt
from
Section 3(c)(11) thereof.
3.3 Nationwide
represents and warrants that the Contracts or interests in the Accounts
(1) are or, prior to issuance, will be registered as securities under the
1933 Act or, alternatively (2) are not registered because they are properly
exempt from registration under the 1933 Act or will be offered exclusively
in
transactions that are properly exempt from registration under the 1933
Act. Nationwide further represents and warrants that the Contracts
will be issued and sold in compliance in all material respects with all
applicable federal and state laws; and the sale of the Contracts shall comply
in
all material respects with state insurance suitability
requirements.
3.4 The
Trust
represents and warrants that it is duly organized and validly existing under
the
laws of the State of Delaware.
3.5 The
Trust
represents and warrants that the Trust Shares offered and sold pursuant to
this
Agreement will be registered under the 1933 Act and the Trust shall be
registered under the 1940 Act prior to any issuance or sale of such
Shares. The Trust shall amend its registration statement under the
1933 Act and the 1940 Act from time to time as required in order to effect
the
continuous offering of its Shares. The Trust shall register and
qualify its Shares for sale in accordance with the laws of the various states
only if and to the extent deemed advisable by the Trust.
3.6 The
Trust
represents and warrants that the investments of each Portfolio will comply
with
the diversification requirements set forth in Section 817(h) of the
Internal Revenue Code of 1986, as amended, and the rules and regulations
thereunder.
ARTICLE IV
Potential
Conflicts
4.1 The
parties acknowledge that the Trust’s Shares may be made available for investment
to other Participating Insurance Companies. In such event, the
Trustees will monitor the Trust for the existence of any material irreconcilable
conflict between the interests of the contract owners of all Participating
Insurance Companies. 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 Trustees shall promptly
inform Nationwide if they determine that an irreconcilable material conflict
exists and the implications thereof.
4.2 Nationwide
agrees to promptly report any potential or existing conflicts of which it is
aware to the Trustees. Nationwide will assist the Trustees in
carrying out their responsibilities under the Exemptive Order by providing
the
Trustees with all information reasonably necessary for the Trustees to consider
any issues raised including, but not limited to, information as to a decision
by
Nationwide to disregard Contract owner voting instructions.
4.3 If
it is
determined by a majority of the Trustees, or a majority of its disinterested
Trustees, that a material irreconcilable conflict exists that affects the
interests of Contract owners, Nationwide shall, in cooperation with other
Participating Insurance Companies whose contract owners are also affected,
at
its expense and to the extent reasonably practicable (as determined by the
Trustees) take whatever steps are necessary to remedy or eliminate the
irreconcilable material conflict, which steps could
include: (a) withdrawing the assets allocable to some or all of
the Accounts from the Trust or any Portfolio and reinvesting such assets in
a
different investment medium, including (but not limited to) another Portfolio
of
the Trust, or submitting the question of whether or not such segregation should
be implemented to a vote of all affected Contract owners and, as appropriate,
segregating the assets of any appropriate group (i.e., annuity contract
owners, life insurance contract owners, or variable contract owners of one
or
more Participating Insurance Companies) that votes in favor of such segregation,
or offering to the affected Contract owners the option of making such a change;
and (b) establishing a new registered management investment company or
managed separate account.
4.4 If
a
material irreconcilable conflict arises because of a decision by Nationwide
to
disregard Contract owner voting instructions and that decision represents a
minority position or would preclude a majority vote, Nationwide may be required,
at the Trust’s election, to withdraw the affected Account’s investment in the
Trust and terminate this Agreement with respect to such Account; provided,
however that such withdrawal and termination shall be limited to the extent
required by the foregoing material irreconcilable conflict as determined by
a
majority of the disinterested Trustees. Any such withdrawal and
termination must take place within six (6) months after the Trust gives
written notice that this provision is being implemented. Until the
end of such six (6) month period, the Trust shall continue to accept and
implement orders by Nationwide for the purchase and redemption of shares of
the
Trust.
4.5 If
a
material irreconcilable conflict arises because a particular state insurance
regulator’s decision applicable to Nationwide conflicts with the majority of
other state regulators, and such conflict cannot be remedied in a timely manner,
then Nationwide will withdraw the affected Account’s investment in the Trust and
terminate this Agreement with respect to such Account within six (6) months
after the Trustees inform Nationwide in writing that it has determined that
such
decision has created an irreconcilable material conflict; provided, however,
that such withdrawal and termination shall be limited to the extent required
by
the foregoing material irreconcilable conflict as determined by a majority
of
the disinterested Trustees. Until the end of such six (6) month
period, the Trust shall continue to accept and implement orders by Nationwide
for the purchase and redemption of shares of the Trust.
4.6 For
purposes of Sections 4.3 through 4.6 of this Agreement, a majority of the
disinterested Trustees shall determine whether any proposed action adequately
remedies any irreconcilable material conflict, but in no event will Nationwide
be required to establish a new funding medium for the Contracts if an offer
to
do so has been declined by vote of a majority of Contract owners materially
adversely affected by the irreconcilable material conflict. In the
event that the Trustees determine that any proposed action does not adequately
remedy any irreconcilable material conflict, then Nationwide will withdraw
the
Account’s investment in the Trust (pending SEC approval) and terminate this
Agreement within six (6) months after the Trustees inform Nationwide 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
Trustees.
4.7 Nationwide
shall at least annually submit to the Trustees such reports, materials or data
as the Trustees may reasonably request so that the Trustees may fully carry
out
the duties imposed upon them by the Exemptive Order, and said reports, materials
and data shall be submitted more frequently if deemed appropriate by the
Trustees.
4.8 If
and to
the extent that Rule 6e-2 and Rule 6e-3(T) are amended, or Rule 6e-3 is adopted,
to provide exemptive relief from any provision of the 1940 Act or the rules
promulgated thereunder with respect to mixed or shared funding (as defined
in
the Exemptive Order) on terms and conditions materially different from those
contained in the Exemptive Order, then the Trust 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.
ARTICLE V
Indemnification
5.1 Indemnification
By Nationwide. Nationwide agrees to indemnify and hold harmless
the Trust and each of its Trustees, officers, employees and agents and each
person, if any, who controls the Trust within the meaning of Section 15 of
the 1933 Act (collectively, the “Indemnified Parties” for purposes of this
Article V) against any and all losses, claims, damages, liabilities
(including amounts paid in settlement with the written consent of Nationwide)
or
expenses (including the reasonable costs of investigating or defending any
alleged loss, claim, damage, liability or expense and reasonable legal counsel
fees incurred in connection therewith) (collectively, “Losses”), to which the
Indemnified Parties may become subject under any statute or regulation, or
at
common law or otherwise, insofar as such Losses:
(a) arise
out
of or are based upon any untrue statements or alleged untrue statements of
any
material fact contained in a registration statement or prospectus for the
Contracts or in the Contracts themselves or in sales literature generated or
approved by Nationwide on behalf of the Contracts or Accounts (or any amendment
or supplement to any of the foregoing) (collectively, “Company Documents” for
the purposes of this Article V), or arise out of or are based upon the
omission or the alleged omission to state therein a material fact required
to be
stated therein or necessary to make the statements therein not misleading,
provided that this indemnity 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 was accurately derived from written information furnished to Nationwide
by or on behalf of the Trust for use in Company Documents or otherwise for
use
in connection with the sale of the Contracts or Trust Shares; or
(b) arise
out
of or result from statements or representations (other than statements or
representations contained in and accurately derived from Trust Documents as
defined in Section 5.2(a)) or wrongful conduct of Nationwide or persons
under its control, with respect to the sale or acquisition of the Contracts
or
Trust Shares; or
(c) arise
out
of or result from any untrue statement or alleged untrue statement of a material
fact contained in Trust Documents as defined in Section 5.2(a) 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 statement or omission was made in reliance upon and accurately derived
from
written information furnished to the Trust by or on behalf of Nationwide;
or
(d) arise
out
of or result from any failure by Nationwide to provide the services or furnish
the materials required under the terms of this Agreement; or
(e) arise
out
of or result from any material breach of any representation and/or warranty
made
by Nationwide in this Agreement or arise out of or result from any other
material breach of this Agreement by Nationwide.
5.2 Indemnification
By the Trust. The Trust agrees to indemnify and hold harmless
Nationwide and each of its directors, officers, employees and agents and each
person, if any, who controls Nationwide within the meaning of Section 15 of
the 1933 Act (collectively, the “Indemnified Parties” for purposes of this
Article V) against any and all losses, claims, damages, liabilities
(including amounts paid in settlement with the written consent of the Trust)
or
expenses (including the reasonable costs of investigating or defending any
alleged loss, claim, damage, liability or expense and reasonable legal counsel
fees incurred in connection therewith) (collectively, “Losses”), to which the
Indemnified Parties may become subject under any statute or regulation, or
at
common law or otherwise, insofar as such Losses:
(a) 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
Trust (or any amendment or supplement thereto), (collectively, “Trust Documents”
for the purposes of this Article V), or arise out of or are based upon the
omission or the alleged omission to state therein a material fact required
to be
stated therein or necessary to make the statements therein not misleading,
provided that this indemnity 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 was accurately derived from written information furnished to the Trust
by or on behalf of Nationwide for use in Trust Documents or otherwise for use
in
connection with the sale of the Contracts or Trust Shares; or
(b) arise
out
of or result from statements or representations (other than statements or
representations contained in and accurately derived from Nationwide Documents)
or wrongful conduct of the Trust or persons under its control, with respect
to
the sale or acquisition of the Contracts or Trust Shares; or
(c) arise
out
of or result from any untrue statement or alleged untrue statement of a material
fact contained in Nationwide Documents 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 statement or omission was made
in
reliance upon and accurately derived from written information furnished to
Nationwide by or on behalf of the Trust; or
(d) arise
out
of or result from any failure by the Trust to provide the services or furnish
the materials required under the terms of this Agreement; or
(e) arise
out
of or result from any material breach of any representation and/or warranty
made
by the Trust in this Agreement or arise out of or result from any other material
breach of this Agreement by the Trust.
5.3 Neither
Nationwide nor the Trust shall be liable under the indemnification provisions
of
Sections 5.1 or 5.2, as applicable, with respect to any Losses incurred or
assessed against an Indemnified Party that arise from such Indemnified Party’s
willful misfeasance, bad faith or 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.
5.4 Neither
Nationwide nor the Trust shall be liable under the indemnification provisions
of
Sections 5.1 or 5.2, as applicable, with respect to any claim made against
an Indemnified Party unless such Indemnified Party shall have notified the
other
party in writing within a reasonable time after the summons, or other first
written notification, giving information of the nature of the claim shall have
been served upon or otherwise received by such Indemnified Party (or after
such
Indemnified Party shall have received notice of service upon or other
notification to any designated agent), but failure to notify the party against
whom indemnification is sought of any such claim shall not relieve that party
from any liability which it may have to the Indemnified Party in the absence
of
Sections 5.1 and 5.2.
5.5 In
case
any such action is brought against the Indemnified Parties, the indemnifying
party shall be entitled to participate, at its own expense, in the defense
of
such action. The indemnifying party also shall be entitled to assume
the defense thereof, with counsel reasonably satisfactory to the party named
in
the action. After notice from the indemnifying party to the
Indemnified Party of an election to assume such defense, the Indemnified Party
shall bear the fees and expenses of any additional counsel retained by it,
and
the indemnifying party will not be liable to the Indemnified Party under this
Agreement for any legal or other expenses subsequently incurred by such party
independently in connection with the defense thereof other than reasonable
costs
of investigation.
ARTICLE VI
Termination
6.1 This
Agreement may be terminated by either party for any reason by ninety (90) days
advance written notice delivered to the other party.
6.2 Notwithstanding
any termination of this Agreement, the Trust shall, at the option of Nationwide,
continue to make available additional shares of the Trust (or any Portfolio)
pursuant to the terms and conditions of this Agreement for all Contracts in
effect on the effective date of termination of this Agreement, provided that
Nationwide continues to pay the costs set forth in
Section 2.3.
6.3 The
provisions of Article V shall survive the termination of this Agreement,
and the provisions of Article IV and Section 2.8 shall survive the
termination of this Agreement as long as Shares of the Trust are held on behalf
of Contract owners in accordance with Section 6.2.
ARTICLE VII
Notices
Any
notice shall be sufficiently given when sent by registered or certified mail
to
the other party at the address of such party set forth below or at such other
address as such party may from time to time specify in writing to the other
party.
If
to the
Trust:
Janus
Aspen Series
▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: General
Counsel
If
to
Nationwide:
▇▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇-▇▇-▇▇
▇▇▇▇▇▇▇▇,
▇▇▇▇ ▇▇▇▇▇
Attention:
Vice
President - Office of Product
and Market ComplianceWith
a
copy to:
▇▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇-▇▇-▇▇
▇▇▇▇▇▇▇▇,
▇▇▇▇ ▇▇▇▇▇
Attention: Compliance
Manager - Securities Filings
ARTICLE VIII
Miscellaneous
8.1 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.
8.2 This
Agreement may be executed simultaneously in two or more counterparts, each
of
which taken together shall constitute one and the same instrument.
8.3 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.
8.4 This
Agreement shall be construed and the provisions hereof interpreted under and
in
accordance with the laws of State of Colorado.
8.5 The
parties to this Agreement acknowledge and agree that all liabilities of the
Trust arising, directly or indirectly, under this Agreement, of any and every
nature whatsoever, shall be satisfied solely out of the assets of the Trust
and
that no Trustee, officer, agent or holder of shares of beneficial interest
of
the Trust shall be personally liable for any such liabilities.
8.6 Each
party shall cooperate with each other party and all appropriate governmental
authorities (including without limitation the Securities and Exchange
Commission, the National Association of Securities Dealers, Inc., 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.
8.7 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.
8.8 The
parties to this Agreement acknowledge and agree that this Agreement shall not
be
exclusive in any respect.
8.9 Neither
this Agreement nor any rights or obligations hereunder may be assigned by either
party without the prior written approval of the other party.
8.10 No
provisions of this Agreement may be amended or modified in any manner except
by
a written agreement properly authorized and executed by both
parties.
8.11 Nothing
in this Agreement shall be deemed to create a partnership or joint venture
by
and among the parties hereto.
IN
WITNESS WHEREOF, the parties have caused their duly authorized officers to
execute this Participation Agreement as of the date and year first above
written.
|
JANUS
ASPEN SERIES
By:
Name: ▇▇▇▇▇▇
▇. ▇▇▇▇
Title: Assistant
Vice President
|
|
|
NATIONWIDE
LIFE INSURANCE COMPANY and NATIONWIDE LIFE AND ANNUITY INSURANCE
COMPANY
By:
Name: ▇▇▇▇▇▇▇
▇▇▇▇▇▇
Title: Vice
President
|
Schedule A
Separate
Accounts and Portfolios Available In Such Separate
Accounts
|
Name
of Separate Account
|
Janus
Funds
|
|
Nationwide
MultiFlex Variable Account
|
-Janus
Aspen Series International Growth Portfolio
|
|
Nationwide
Variable Account – 9
|
-Janus
Aspen Series International Growth Portfolio
-Janus
Aspen Series Global Technology Portfolio
|
|
Nationwide
Variable Account – 10
|
-Janus
Aspen Series International Growth Portfolio
-Janus
Aspen Series Global Technology Portfolio
|
|
Nationwide
VLI Separate Account - 4
|
-Janus
Aspen Series International Growth Portfolio
-Janus
Aspen Series Global Technology Portfolio
|
|
Nationwide
VL Separate Account - C
|
-Janus
Aspen Series International Growth Portfolio
-Janus
Aspen Series Global Technology Portfolio
|
|
Private
Placement Separate Account
|
-Janus
Aspen Series International Growth Portfolio
-Janus
Aspen Series Global Technology
Portfolio
|