EX-99.H PARTIC AGREE 15 leggmasonfpa.htm LEGG MASON FPA leggmasonfpa.htm


 
PARTICIPATION AGREEMENT
 
BY AND AMONG
 
NATIONWIDE LIFE INSURANCE COMPANY
 
NATIONWIDE LIFE AND ANNUITY INSURANCE COMPANY
 
ON BEHALF OF THEMSELVES AND
 
THEIR SEPARATE ACCOUNTS
 
AND
 
 
SALOMON BROTHERS ASSET MANAGEMENT INC
 
 
AND
 
 
SALOMON BROTHERS VARIABLE SERIES FUNDS INC
 

 
 
 


 
PARTICIPATION AGREEMENT
 
THIS AGREEMENT, made and entered into as of September , 1999 ("Agreement"), by and among Salomon Brothers Variable Series Funds Inc, a Maryland corporation (the "Fund"), Salomon Brothers Asset Management Inc, a Delaware Corporation (the "Adviser") and Nationwide Life Insurance Company and Nationwide Life and Annuity Insurance Company, Ohio He insurance companies (collectively referred to herein as "NATIONWIDE"), on behalf of themselves and each of their segregated asset accounts listed in Schedule A hereto, as the parties hereto may amend from time to time (each, an "Account," and collectively, the "Accounts").
 
W1TNESSETH THAT:
 
WHEREAS, the Fund is registered with the Securities and Exchange Commission ("SEC") as an open-end management investment company under the Investment Company Act of 1940, as amended (the "1940 Act");
 
WHEREAS, the Fund is available to the extent set forth herein to act as the investment vehicle for separate accounts established for variable life insurance policies and variable annuity contracts to be offered by insurance companies which have entered into participation agreements with the Fund and ("Participating Insurance Companies");
 
WHEREAS, the Fund currently consists of seven separate investment portfolios which issue shares ("Shares") registered under the Securities Act of 1933, as amended (the "1933 Act");
 
WHEREAS, the Fund will make Shares of each investment portfolio listed on Schedule A hereto (each, a "Portfolio" and collectively, the "Portfolios") as the Parties hereto may amend from time to time available for purchase by the Accounts;
 
WHEREAS, the Fund has received an order (the "Order") from the SEC to permit Participating Insurance Companies and variable annuity and variable He insurance 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){bXl5) thereunder, to the extent necessary to permit shares of the Fund to be sold to and held by variable annuity and variable life insurance separate accounts of both affiliated and unaffiliated He insurance companies;
 
WHEREAS, NATIONWIDE will be the issuer of certain variable annuity contracts and variable life insurance policies (collectively, the "Contracts") as set forth on Schedule A hereto, as the Parties hereto may amend from time to time, which Contracts, if required by applicable law, will be registered under the 1933 Act;

 
 
 


 
WHEREAS, NATIONWIDE wi11, to the extent set forth herein, fund the variable life insurance policies and variable annuity contracts through the Accounts, each of which may be divided into two or more subaccounts ("Subaccounts"; reference herein to an "Account" includes reference to each Subaccount thereof to the extent the context requires);
 
WHEREAS, NATIONWIDE will serve as the depositor of the Accounts, each of which is registered as a unit investment trust under the 1940 Act (or exempt therefrom), and the security interests deemed to be issued by the Accounts under the Contracts will be registered as securities under the 1933 Act (or exempt therefrom);
 
WHEREAS, to the extent permitted by applicable insurance laws and regulations, NATIONWIDE intends to purchase Shares in one or more of the Portfolios on behalf of the Accounts to fund the Contracts; and
 
NOW, THEREFORE, in consideration of the mutual benefits and promises contained herein, the Parties hereto agree as follows:
 
Section 1. Available Portfolios 1.1Available Portfolios
The Fund will make Shares of each Portfolio listed on Schedule A available to NATIONWIDE for purchase and redemption at net asset value next computed after the Fund's receipt of a purchase or redemption order and with no sales charges, in accordance with the Fund's then current prospectus and subject to the terms and conditions of this Agreement. The Board of Directors of the Fund 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 if, in the sole discretion of the Directors acting in good faith and in light of their fiduciary duties under federal and any applicable state laws, such action is deemed in the best interests of the shareholders of such Portfolio.
 
1.2             Addition. Deletion or Modification of Portfolios.
 
The Parties hereto may agree, from time to time, to add other Portfolios to provide additional funding alternatives for the Contracts, or to delete or modify existing Portfolios, by amending Schedule A hereto. Upon such amendment to Schedule A, any applicable reference to a Portfolio, the Fund, or its Shares herein shall include a reference to all Portfolios set forth on Schedule A as then amended. Schedule A, as amended from time to time, is incorporated herein by reference and is a part hereof
 
1.3 No Sales to the General Publie.
 
The Fund represents that shares of the Portfolios will be sold only to Participating Insurance Companies, their separate accounts and qualified pension and retirement plans ("Plans") and that no Shares of any Portfolio have been or will be sold to the general public.

 
 
 


 
Section 2. Processing Transactions 2.1 Placing Orders.
 
    (a)  The Fund or its designated agent will use its best effort to provide NATIONWIDE with the net asset value per Share for each Portfolio by 6:30 p.m. Eastern Time on each Business Day, As used herein, "Business Day" shall mean any day on which (i) the New York Stock Exchange is open for regular trading, and (ii) the Fund calculates the Portfolios' net asset value.
 
    (b)  NATIONWIDE will use the data provided by the Fund each Business Day pursuant to paragraph (a) immediately above to calculate Account unit values and to process transactions that receive that same Business Day's Account unit values. NATIONWIDE will perform such Account processing the same Business Day, and will place corresponding orders to purchase or redeem Shares with the Fund by 9:00 a.m. Eastern Time the following Business Day.
 
    (c)  With respect to payment of the purchase price by NATIONWIDE and of redemption proceeds by the Fund, NATIONWIDE and the Fund shall net purchase and redemption orders with respect to each Portfolio and shall transmit one net payment per Portfolio in accordance with Section 2.2, below.
 
(d)  If the Fund provides materially incorrect Share net asset value information (as determined under SEC guidelines), NATIONWIDE shall be entitled to an adjustment to the number of Shares purchased or redeemed 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 gain information shall be reported promptly upon discovery to NATIONWIDE.
 
2.2Payments
 
(a)  NATIONWIDE shall pay for Shares of each Portfolio on the same day that it notifies the Fund of a purchase request for such Shares. Payment for Shares shall be made in federal funds transmitted to the Fund by wire to be received by the Fund by 1:00 P.M. Eastern Time on the day the Fund is notified of the purchase request for Shares. If payment in federal funds for any purchase is not received, or is received by the Fund after 1:00 p.m. Eastern Time on such Business Day, NATIONWIDE shall promptly, upon the Fund's request in writing, reimburse the Fund for any charges, costs, fees, interest or other expenses incurred by the Fund in connection with any advances to, or borrowings or overdrafts by, the Fund, or any similar expenses incurred by the Fund, as a result of non-payment or late payment.
 
(b)  The Fund wi11 wire payment in federal funds for net redemptions to an account designated by NATIONWIDE by 1:00 p.m. Eastern Time on the business day succeeding the day the order is placed, to the extent practicable, but in any event within five (5) calendar days after the date the order is placed in order to enable NATIONWIDE to pay redemption proceeds within the time specified in Section 22(e) of the 1940 Act. The Fund shall not bear any responsibility whatsoever for the proper disbursement or crediting of redemption proceeds by NATIONWIDE.

 
 
 


 
2.3 Applicable Price
 
(a)  Share purchase payments and redemption orders that result from purchase payments, premium payments, surrenders and other transactions under Contracts (collectively, "Contract transactions") and that NATIONWIDE receives prior to the dose of regular trading on the New York Stock Exchange on a Business Day will be executed at the net asset values of the appropriate Portfolios next computed after receipt by the Fund or its designated agent of the orders. For purposes of this Section 2.3(a), NATIONWIDE shall be the designated agent of the Fund for receipt of orders relating to Contract transactions on each Business Day and receipt by such designated agent shall constitute receipt by the Fund; provided that the Fund receives notice of such orders by 10:00 a.m. Eastern Time on the following Business Day.
 
(b)  All other Share purchases and redemptions by NATIONWIDE will be effected at the net asset values of the appropriate Portfolios next computed after receipt by the Fund or its designated agent of the order therefor, and such orders will be irrevocable.
 
2.4 Dividends and Distributions
 
The Fund will furnish notice by wire or telephone (followed by written confirmation) on or prior to the payment date to NATIONWIDE of any income dividends or capital gain distributions payable on the Shares of any Portfolio. NATIONWIDE hereby elects to reinvest all dividends and capital gains distributions in additional Shares of the corresponding Portfolio at the ex-dividend date net asset values until NATIONWIDE otherwise notifies the Fund in writing, it being agreed by the Parties that the ex-dividend date and the payment date with respect to any dividend or distribution will be the same Business Day. NATIONWIDE reserves the right to revoke this election and to receive all such income dividends and capital gain distributions in cash. Any such revocation will take effect with respect to the next income dividend or capital gain distribution following receipt by the Fund of such notification from NATIONWIDE.
 
2.5 Book Entry
 
Issuance and transfer of Portfolio Shares will be by book entry only. Stock certificates will not be issued to NATIONWIDE. Shares ordered from the Fund will be recorded in an appropriate title for NATIONWIDE, on behalf of its Accounts.
 
Section 3. Costs and Expenses 3.1 General
Except as otherwise specifically provided herein, each parry will bear all expenses incident to its performance under this Agreement.
 
3.2 Registration
 
(a) The Fund will bear the cost of its registering as a management investment company under the 1940 Act and registering its Shares under the 1933 Act, and keeping such registrations current and effective; including, without limitation, the preparation of and filing with the SEC of Forms N-SAR and Rule 24f-2 Notices with respect to the Fund and its Shares and payment of all applicable registration or filing fees with respect to any of the foregoing.
 
    (b) NATIONWIDE will bear the cost of registering, to the extent required, each Account as a unit investment trust under the 1940 Act and registering units of interest under the Contracts under the 1933 Act and keeping such registrations current and effective; including, without limitation, the preparation and filing with the SEC of Forms N-SAR and Rule 24f-2 Notices with respect to each Account and its units of interest and payment of all applicable registration or filing fees with respect to any of the foregoing.
 
3.3 Fund Expense
 
The Fund will bear, or arrange for others to bear, the costs of preparing and filing with the SEC the Fund's prospectus, statement of additional information and any amendments or supplements thereto (collectively, the "Fund Prospectus") and setting the Fund Prospectus for printing. In addition, the Fund will bear the costs of printing and distributing the Fund's Prospectus, the Fund's periodic reports to shareholders, the Fund proxy material and other shareholder communications to existing Contract owners on whose behalf the Accounts hold Shares to the extent required by law or as deemed appropriate by the Fund.
 
3.4 Nationwide Expenses
 
NATIONWIDE will bear the costs of preparing, filing with the SEC and printing each Account's prospectus, statement of additional information and any amendments or supplements thereto (collectively, the "Account Prospectus"), any periodic reports to Contract owners, annuitants, insureds or participants (as appropriate) under the Contracts (collectively, "Participants"), voting instruction solicitation material and other Participant communications to the extent required by law or as deemed appropriate by NATIONWIDE. In addition, NATIONWIDE will bear the costs of printing in quantity and distributing the Fund Prospectus to be delivered to prospective Participants.
 
3.5 Parties To Cooperate
 
Each parry agrees to cooperate with the other, in arranging to print, mail and/or deliver, in a timely manner, combined or coordinated prospectuses or other materials of the Fund and the Accounts.
 
Section 4. Legal Compliance 4.1 Tax Laws
(a)  The Fund represents and warrants that it will elect to be qualified as a regulated investment company ("RIC") under Subchapter M of the Internal Revenue Code of 1986, as amended (the "Code"), and represents that it will qualify and maintain its qualification as a RIC and to comply with the diversification requirements set forth in Section 817(h) of the Code and the regulations thereunder. The Fund will notify NATIONWIDE immediately upon having a reasonable basis for believing that it has ceased to so qualify or so comply, or that it might not so qualify or so comply in the future.
(b)  NATIONWIDE represents and warrants that the Contracts currently are and will be treated as annuity contracts or life insurance contracts under applicable provisions of the Code
(c)  and that it will maintain such treatment; NATIONWIDE will notify the Fund immediately upon having a reasonable basis for believing that any of the Contracts have ceased to be so treated or that they might not be so treated in the future.
 
                 (c) NATIONWIDE represents and warrants that each Account is a "segregated asset account" and that interests in each Account are offered exclusively through the purchase of or transfer into a "variable contract," within the meaning of such terms under Section 817 of the Code and the regulations thereunder. NATIONWIDE will continue to meet such definitional requirements, and it will notify the Fund immediately upon having a reasonable basis for believing that such requirements have ceased to be met or that they might not be met in the future.
 
4.2 Insurance and Certain Other Laws
 
    (a)  NATIONWIDE represents and warrants that (i) it is an insurance company duly organized, validly existing and in good standing under all applicable laws and has full corporate power, authority and legal right to execute, deliver and perform its duties and comply with its obligations under this Agreement, (ii) it has legally and validly established and maintains each Account as a segregated asset account under all applicable laws and regulations, and (iii) the Contracts comply in all material respects with all applicable federal and state laws and regulations.
 
(b)  The Fund represents and warrants that it is a corporation duly organized, validly existing, and in good standing under the laws of the State of Maryland and has full corporate power, authority, and legal right to execute, deliver, and perform its duties and comply with its obligations under this Agreement. Notwithstanding the foregoing, the Fund, makes no representations as to whether any aspect of its operations (including, but not limited to, fees and expenses and investment policies) otherwise complies with the insurance Iaws or regulations of any state.
 
(c)  The Adviser represents that it is and warrants that it shall remain duly registered as an investment adviser under all applicable federal and state securities laws and agrees that it shall perform its obligations to the Fund in accordance in all material respects with such laws.
 
(d)  NATIONWIDE acknowledges and agrees that it is the responsibility of NATIONWIDE and other Participating Insurance Companies to determine investment restrictions under state insurance law applicable to any Portfolio, and that the Fund shall bear no responsibility to NATIONWIDE, for any such determination or the correctness of such determination. NATIONWIDE has determined that the investment restrictions set forth in the current Fund Prospectus are sufficient to comply with all investment restrictions under state insurance laws that are currently applicable to the Portfolios as a result of the Accounts' investment therein. NATIONWIDE shall inform the Fund of any additional investment restrictions imposed by state insurance law after the date of this agreement that may become applicable to the Fund or any Portfolio from time to time as a result of the Accounts' investment therein. Upon receipt of any such information from NATIONWIDE or any other Participating Insurance Company, the Fund shall determine whether it is in the best interests of shareholders to comply with any such restrictions. If the Fund determines that it is not in the best interests of shareholders to comply with a restriction determined to be applicable by the NATIONWIDE, the Fund shall so inform NATIONWIDE, and the Fund and NATIONWIDE shall discuss alternative accommodations in the circumstances.
 

 
4.3 Securities Laws,
 
(a)  NATIONWIDE represents and warrants that (i) interests in each Account pursuant to the Contracts will be registered under the 1933 Act to the extent required by the 1933 Act, (ii) the Contracts will be duly authorized for issuance and sold in compliance with all applicable federal and state laws, including, without limitation, the 1933 Act, the 1934 Act, the 1940 Act and applicable state law, (iii) each Account is and will remain registered under the 1940 Act, to the extent required by the 1940 Act or any other relevant provision, (iv) each Account does and will comply in all material respects with the requirements of the 1940 Act and the rules thereunder, to the extent required, (v) each Account's 1933 Act registration statement relating to the Contracts, together with any amendments thereto, will at all times comply in all material respects with the requirements of the 1933 Act and the rules thereunder, (vi) NATIONWIDE will amend the registration statement for its Contracts under the 1933 Act and for its Accounts under the 1940 Act from time to time as required in order to effect the continuous offering of its Contracts unless otherwise exempt, or as may otherwise be required by applicable law, (vii) each Account Prospectus will at all times comply in all material respects with the requirements of the 1933 Act and the rules thereunder, (viii) all of its directors, officers, employees, investment advisers, and other individuals/entities having access to the funds and/or securities of any Portfolio are and continue to be at all times covered by a blanket fidelity bond or similar coverage covering such risks and in such amount as is customary for companies engaged in similar businesses in similar industries. The aforesaid bond includes coverage for larceny and embezzlement and is issued by a reputable bonding company.
 
(b)  The Fund represents and warrants that (i) Shares sold pursuant to this Agreement will be registered under the 1933 Act to the extent required by the 1933 Act and will be duly authorized for issuance and sold in compliance with Maryland law, (ii) the Fund is and will remain registered under the 1940 Act to the extent required by the 1940 Act, (iii) the Fund will amend the 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, (iv) the Fund does and will comply in all material respects with the requirements of the 1940 Act and the rules thereunder, (v) the Fund's 1933 Act registration statement, together with any amendments thereto, will at all times comply in all material respects with the requirements of the 1933 Act and rules thereunder, (vi) the Fund's Prospectus will at all times comply in all material respects with the requirements of the 1933 Act and the rules thereunder and (vii) all of its directors, officers, employees, investment advisers, and other individuals/entities having access to the funds and/or securities of any Portfolio are and 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 includes coverage for larceny and embezzlement and is issued by a reputable bonding company.
 
(c)  The Fund will at its expense register and qualify its Shares for sale in accordance with the laws of any state or other jurisdiction if and to the extent reasonably deemed advisable by the Fund.
 
4.4            Notice of Certain Proceedings and Other Circumstances.
 
(a) The Fund will immediately notify NATIONWIDE of (i) the issuance by any court or regulatory body of any stop order, cease and desist order, or other similar order with respect to
 

 
 
the Fund's registration statement under the 1933 Act or the Fund Prospectus, (ii) any request by the SEC for any amendment to such registration statement or the Fund Prospectus that may affect the offering of Shares of any Portfolio, (iii) the initiation of any proceedings for that purpose or for any other purpose relating to the registration or offering of Shares of any Portfolio, or (iv) any other action or circumstances that may prevent the lawful offer or sale of Shares of any Portfolio in any state or jurisdiction, including, without limitation, any circumstances in which such Shares are not registered and are not, in all material respects, issued and sold in accordance with applicable state and federal law. The Fund will make every reasonable effort to prevent the issuance of any such stop order, cease and desist order or similar order and, if any such order is issued, to obtain the lifting thereof at the earliest possible time.
 
(b) NATIONWIDE will immediately notify the Fund of (i) the issuance by any court or regulatory body of any stop order, cease and desist order, or other similar order with respect to each Account's registration statement under the 1933 Act relating to the Contracts or each Account Prospectus, (ii) any request by the SEC for any amendment to such registration statement or Account Prospectus that may affect the offering of Shares of any Portfolio, (ii) the initiation of any proceedings for that purpose or for any other purpose relating to the registration or offering of each Account's interests pursuant to the Contracts, or (iv) any other action or circumstances that may prevent the lawful offer or We of said interests in any state or jurisdiction, including, without limitation, any circumstances in which said interests are not registered and are not, in all material respects, issued and sold in accordance with applicable state and federal law. NATIONWIDE will make every reasonable effort to prevent the issuance of any such stop order, cease and desist order or similar order and, if any such order is issued, to obtain the lifting thereof at the earliest possible time.
 
4.5 Documents Provided by NATIONWIDE; Information About the Fund.
 
(a)  NATIONWIDE will provide to the Fund or its designated agent at least one (1) complete copy of all SEC registration statements, Account Prospectuses, reports, any preliminary and final voting instruction solicitation material, applications for exemptions, requests for now action letters, and all amendments to any of the above, that relate to the Fund which serves as an investment option in each Account or the Contracts, contemporaneously with the filing of such document with the SEC or other regulatory authorities.
 
(b)  NATIONWIDE will provide to the Fund or its designated agent at least one (1) complete copy of each piece of sales literature or other promotional material in which any Portfolio, the Fund or any of its affiliates is named, at least ten (10) Business Days prior to its use or such shorter period as the Parties hereto may, from time to time, agree upon. No such material shall be used if the Fund or its designated agent objects to such use within ten (10) Business Days after receipt of such material or such shorter period as the Parties hereto may, from time to time, agree upon.
 
(c)  Neither NATIONWIDE nor any of its affiliates, will give any information or make any representations or statements on behalf of or concerning any Portfolio, the Fund or its affiliates in connection with the sale of the Contracts other than (i) the information or representations contained in the then current registration statement, including the Fund Prospectus contained therein, relating to Shares, as such registration statement and the Fund Prospectus may be amended from time to time; (ii) in reports or proxy materials for the Fund; (iii) in published reports for the Fund that are in the public domain and approved by the Fund for distribution by
 
NATIONWIDE; or (iv) in sales literature or other promotional material approved by the Fund for use by NATIONWIDE, except with the express written permission of the Fund.
 
(d)  NATIONWIDE shall adopt and implement procedures reasonably designed to ensure that information concerning the Fund and its affiliates that is intended for use only by brokers or agents selling the Contracts (i.e., information that is not intended for distribution to Participants) ("broker only materials") is so used, and neither the Fund nor any of its affiliates shall be liable for any losses, damages or expenses relating to the improper use of such broker only materials.
 
(e)  For the purposes of this Section 4.5, 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 (e.g., on-line networks such as the Internet or other electronic messages)), 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, registration statements, prospectuses, statements of additional information, shareholder reports, and proxy materials and any other material constituting sales literature or advertising under the NASD rules, the 1933 Act or the 1940 Act.
 
4.6 Documents Provided by Fund; Information About NATIONWIDE.
 
(a)  The Fund will provide to NATIONWIDE at least one (1) complete copy of all SEC registration statements, Fund Prospectuses, reports, any preliminary and final proxy material, applications for exemptions, requests for no-action letters, and all amendments to any of the above, that relate to the Fund or the Shares of a Portfolio, contemporaneously with the filing of such document with the SEC or other regulatory authorities.
 
(b)  The Fund will provide to NATIONWIDE copies of all Fund prospectuses, and printed copies of all statements of additional information, proxy materials, periodic reports to shareholders and other materials required by law to be sent to Participants who have allocated any Contract value to a Portfolio. The Fund will provide such copies to NATIONWIDE in a timely manner so as to enable NATIONWIDE to print and distribute such materials within the time required by law to be furnished to Participants.
 
(c)  The Fund will provide to NATIONWIDE or its designated agent at least one (1) complete copy of each piece of sales literature or other promotional material in which NATIONWIDE, or any of its respective affiliates is named, or that refers to the Contracts, at least ten (10) Business Days prior to its use or such shorter period as the Parties hereto may, from time to time, agree upon. No such material shall be used if NATIONWIDE or its designated agent reasonably objects to such use within ten (10) Business Days after receipt of such material or such shorter period as the Parties hereto may, from time to time, agree upon.
 
(d)  Neither the Fund nor any of its affiliates will give any information or make any representations or statements on behalf of or concerning NATIONWIDE, each Account, or the Contracts other than (i) the information or representations contained in the registration statement, including each Account Prospectus contained therein, relating to the Contracts, as such registration statement and Account Prospectus may be amended from time to time: (ii) in published reports for the Account or the Contracts that are in the public domain and approved by NATIONWIDE for distribution; or (iii) in sales literature or other promotional material approved by NATIONWIDE or its affiliates, except with the express written permission of NATIONWIDE.
 
        (e)  The Fund shall cause its principal underwriter to adopt and implement procedures reasonably designed to ensure that information concerning NATIONWIDE, and its respective affiliates that is intended for use only by brokers or agents selling the Contracts (i.e., information that is not intended for distribution to Participants) ("broker only materials") is so used, and neither NATIONWIDE, nor any of its respective affiliates shall be liable for any losses, damages or expenses relating to the improper use of such broker only materials.
 
       (f)  For purposes of this Section 4.6, 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 (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, registration statements, prospectuses, statements of additional information, shareholder reports, and proxy materials and any other material constituting sales literature or advertising under the NASD rules, the 1933 Act or the 1940 Act.
 
Section 5. Mixed and Shared Funding
 
NATIONWIDE acknowledges that the Fund has received an order from the SEC granting relief from various provisions of the 1940 Act and the rules thereunder to the extent necessary to permit Fund shares to be sold to and held by variable annuity and variable life insurance separate accounts of both affiliated and unaffiliated Participating Insurance Companies, as well as by Plans. Any conditions or undertakings that are imposed on NATIONWIDE and the Fund by virtue of such order shall be incorporated herein by reference, as of the date such order is granted, as though set forth herein in full, and the parties to this Agreement shall comply with such conditions and undertakings to the extent applicable to each such party.

Section 6. Termination
 
6.1 Events of Termination
 
Subject to Section 6.4 below, this Agreement will terminate as to a Portfolio:
 
        (a) at the option of any party, with or without cause, upon one (1) year advance written notice to the other parties; or
  
        (b) at the option of Nationwide if shares of a Portfolio are not reasonably available to meet the requirements of the Contracts as determined by NATIONWIDE provided, however, that such a termination shall apply only to the Portfolio(s) not available. Prompt written notice of the election to terminate for such cause shall be furnished by NATION IDE to the Fund;
 
    (c)  at the option of the Fund upon institution of formal proceeding against NATIONWIDE or its affiliates by the NASD, the SEC, any state insurance regulator or any other regulatory body regarding NATIONWIDE's obligations under this Agreement or related to the sale of the Contracts, the operation of each Account, or the purchase of Shares, each case, the Fund reasonably determines that such proceedings, or the facts on which such proceedings would be based, have a material likelihood of imposing material adverse consequences on the Portfolio with respect to which the Agreement is to be terminated; or
 
    (d)  at the option of NATIONWIDE upon institution of formal proceedings against the Fund, its principal underwriter, or its investment adviser by the NASD, the SEC, or any state insurance regulator or any other regulatory body regarding the Fund's obligations under this Agreement or related to the operation or management of the applicable Portfolio or the purchase of the applicable Portfolios, if, m each case, NATIONWIDE reasonably determines that such proceedings, or the facts on which such proceedings would be based, have a material likelihood of imposing material adverse consequences on NATIONWIDE, or the Subaccount corresponding to the Portfolio with respect to which the Agreement is to be terminated; or
 
(e)  at the option of any parry in the event that (i) a Portfolio's Shares are not registered and, in all material respects, issued and sold in accordance with any applicable federal or state law, or (ii) such law precludes the use of such Shares as an underlying investment medium of the Contracts issued or to be issued by NATIONWIDE; or
 
(f)  at the option of NATIONWIDE if the applicable Portfolio ceases to qualify as a RIC under Subchapter M of the Code or under successor or similar provisions or fails to comply with the diversification requirements of Section 817(h) of the Code or such requirements under successor or similar provisions or if NATIONV~IDE reasonably believes the applicable Portfolio may so cease to qualify or comply and, in each case, the Fund upon written request fails to provide reasonable assurance that it will take action to cure or correct such failure; or
 
(g)  at the option of the Fund if the Contracts issued by NATIONWIDE cease to qualify as annuity contracts or life insurance contracts under the Code or if Fund reasonably believes the applicable Contracts may so cease to qualify, or if interests in an Account under the Contracts are not registered, where required, and, in all material respects, are not issued or sold in accordance with any applicable federal or state law and, in each case, NATIONWIDE upon written request fails to provide reasonable assurance that it will take action to cure or correct such failure; or
 
         (h)  at the option of the Fund by written notice to NATIONWIDE, if the Fund shall determine in its sole judgment exercised in good faith, that NATIONWIDE 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
 
          (i)  at the option of NATIONWIDE by written notice to the Fund, if NATIONWIDE shall determine in its sole judgment exercised in good faith, that the Fund 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
 
          (j)  at the option of NATIONWIDE by written notice to the Fund, if NATIONWIDE shall determine in its sole judgment exercised in good faith, that the Adviser 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
 
          (k)  at the option of either party upon a determination by a majority of the Fund's Board of Directors, or a majority of the Fund's disinterested directors, that an irreconcilable material conflict exists among the interests of: (1) all contract owners of variable insurance products of all separate accounts; or (2) the interests of the Participating Insurance Companies investing in the Fund; or
 
      (1) at the option of any party upon another party's material breach of any provision of this Agreement; or
 
 (m)  with respect to any Account, upon requisite vote of the Contract owners having an interest in that Account (or any subaccount) or upon the receipt of a substitution order by the SEC to substitute the shares of another investment company for the corresponding Fund shares in accordance with the terms of the Contracts for which those Fund shares had been selected to serve as the underlying investment media. NATIONWIDE will give at least 30 days' prior written notice to the Fund of the date of any proposed vote to replace the Fund's shares; or
 
  (n)  at the option of the Fund if it suspends or terminates the offering of Shares of the applicable Portfolio to all Participating Insurance Companies or only designated Participating Insurance Companies, if such action is required by law or by regulatory authorities having jurisdiction or if, in the sole discretion of the Fund acting in good faith, suspension or termination is necessary in the best interests of the shareholders of the applicable Portfolio (it being understood that "shareholders" for this purpose shall mean Participants), such notice effective immediately upon receipt of written notice, it being understood that a lack Participating Insurance Companies interest in the applicable Portfolio may be grounds for a suspension or termination as to such Portfolio.
 
6.2 Notice Requirement for Termination
 
No termination of this Agreement will be effective unless and until the party terminating this Agreement gives prior written notice to the other party to this Agreement of its intent to terminate, and such notice shall set forth the basis for such termination. Furthermore:
 
(a) in the event that any termination is based upon the provisions of Section 6.1(a) hereof, such prior written notice shall be given at least one (1) year in advance of the effective date of termination unless a shorter time is agreed to by the Parties hereto;
 
(b) in the event that any termination is based upon the provisions of Section 6.1(b), 6.1(c), 6.1(d), 6.1(e), 6.1(f), 6.1(g), 6.1(h), 6.1(i), 6.16), 6.1(k), 6.1(1), 6.1(m), or 6.1(n) hereof, such prior written notice shall be given at least 30 days in advance of the effective date of termination unless a shorter time is agreed to by the Parties hereto.
 
6.3 Fund To Remain Available
 
Notwithstanding any termination of this Agreement, the Fund will, at the option of NATIONWIDE, continue to make available additional shares of a Portfolio 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 will be permitted to reallocate investments in Portfolios of the Fund (as in effect on such date), redeem investments in Portfolios of the Fund and/or invest in Portfolios of the Fund upon the making of additional purchase payments under the Existing Contracts. Notwithstanding any termination of this Agreement, NATIONWIDE agrees to distribute to holders of Existing Contracts all materials required by law to be distributed to such holders (including, without limitation, prospectuses, statements of additional information, proxy materials and periodic reports). The parties agree that this Section 6.3 will not apply to any terminations under the conditions of the Order and the effect of such terminations will be governed by the Order.
 
6.4 Survival of Warranties and Indemnifications
 
All warranties and indemnifications will survive the termination of this Agreement.
 
Section 7. Parties To Cooperate Respecting Termination
Subject to the provisions of Section 6.3 hereof, the Parties hereto agree to cooperate and give reasonable assistance to one another in taking all necessary and appropriate steps for the purpose of ensuring that an Account owns no Shares of the applicable Portfolio after the Final Termination Date with respect thereto, or, in the case of a termination pursuant to Section 6.1(a), the termination date specified in the notice of termination. Such steps may include combining the affected Account with another Account, substituting other mutual fund shares for those of the affected Portfolio, or otherwise terminating participation by the Contracts in such Portfolio.
 
Section 8. Assignment
 
This Agreement may not be assigned by any party, except with the prior written consent of all the Parties.

 
 
 


 
Section 9. Notices
 
Notices and communications required or permitted by Section 9 hereof will be given by means mutually acceptable to the Parties concerned. Each other notice or communication required or permitted by this Agreement will be given to the following persons at the following addresses and facsimile numbers, or such other persons, addresses or facsimile numbers as the party receiving such notices or communications may subsequently direct in writing:
 
Nationwide Life Insurance Company
Nationwide Life and Annuity Insurance Company One Nationwide Plaza
 
Columbus, Ohio 43215
Att: Vice President - Life Company Operations
 
with a copy to:
Compliance Manager - Securities Facsimile: 614-249-2112
 
Salomon Brothers Variable Series Funds Inc. 7 World Trade Center
 
New York, New York 14048
Facsimile: (212) 783-3357
Attn.: Corporate Secretary
 
Section 10. Voting Procedures
 
Subject to the cost allocation procedures set forth in Section 3 hereof, NATIONWIDE will distribute all proxy material furnished by the Fund to Participants to whom pass-through voting privileges are required to be extended and will solicit voting instructions from Participants. NATIONWIDE will vote Shares in accordance with timely instructions received from Participants. NATIONWIDE will vote Shares that are (a) not attributable to Participants to whom pass-through voting privileges are extended, or (b) attributable to Participants, but for which no timely instructions have been received, in the same proportion as Shares for which said instructions have been received from Participants, so long as and to the extent that the SEC continues to interpret the 1940 Act to require pass through voting privileges for Participants. Neither NATIONWIDE nor any of its affiliates will in any way recommend action in connection with or oppose or interfere with the solicitation of proxies for the Shares held for such Participants. NATIONWIDE reserves the right to vote shares held in any Account in its own right, to the extent permitted by law. NATIONWIDE shall be responsible for assuring that each of its Accounts holding Shares calculates voting privileges in the manner required by the Order obtained by the Fund. The Fund will notify NATIONWIDE of any amendments to the Order it has obtained.

 
 
 


 
Section 11. Indemnification 11.1 Of the Fund by NATIONWIDE
 
(a) Except to the extent provided in Sections 11.1(b) and 11.1(c), below, NATIONWIDE agrees to indemnify and hold harmless the Fund, its affiliates, and each person, if any, who controls the Fund or its affiliates within the meaning of Section 15 of the 1933 Act and each of their respective directors and officers (collectively, the "Indemnified Parties" for purposes of this Section 11.1) against any and all losses, claims, damages, costs, expenses, liabilities (including amounts paid in settlement with the written consent of NATIONWIDE)or actions in respect thereof (including, to the extent reasonable, 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, costs, expenses, liabilities or actions:
 
 
(i)arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in any Account's 1933 Act registration statement, any Account Prospectus, the Contracts, or sales literature or advertising for the Contracts (or any amendment or supplement to any of the foregoing), or arise out of or are based upon the omission or the alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading; provided, that this agreement to indemnify shall not apply as to any Indemnified Party if such statement or omission or such alleged statement or omission was made in reliance upon and in conformity with written information furnished to NATIONWIDE by or on behalf of the Fund for use in any Account's 1933 Act registration statement, any Account Prospectus, the Contracts, or sales literature or advertising (or any amendment or supplement to any of the foregoing); or
 
 
(ii)arise out of or as a result of any other statements or representations (other than statements or representations contained in the Fund's 1933 Act registration statement, the Fund Prospectus, sales literature or advertising of the Fund, or any amendment or supplement to any of the foregoing, not supplied for use therein by or on behalf of NATIONWIDE, or its affiliates and on which such persons have reasonably relied) or the negligent, illegal or fraudulent conduct of NATIONWIDE, or its respective affiliates or persons under their control (including, without limitation, their employees and "Associated Persons," as that term is defined in paragraph (ee) of Article I of the NASD's By-Laws) or subject to its authorization, including without limitation, broker-dealers or agents authorized to sell the Contracts, in connection with the We, marketing or distribution of the Contracts or Shares; or
 
 
(iii)arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in the Fund's 1933 Act registration statement, the Fund Prospectus, sales literature or advertising of the Fund, or any amendment or supplement to any of the foregoing, 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 and in conformity with information furnished to the Fund or its affiliates by or on behalf of NATIONWIDE or its affiliates for use in the Fund's 1933 Act registration statement, the Fund Prospectus, sales literature or advertising of the Fund, or any amendment or supplement to any of the foregoing; or
 
 
(iv)arise as a result of any failure by NATIONWIDE or persons under its control (or subject to its authorization) to perform the obligations, provide the services and furnish the materials required under the terms of this Agreement, or 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 or persons under its control (or subject to its authorization); or
 
 
(v)arise as a result of failure to transmit a request for purchase or redemption of Shares or payment therefor within the time period specified herein and otherwise in accordance with the procedures set forth in this Agreement; or
 
 
(vi)arise as a result of any unauthorized use of the trade names of the Fund to the extent such use is not required by applicable law or regulation.
 
(b)  This indemnification is in addition to any liability that NATIONWIDE may otherwise have. NATIONWIDE shall not be liable under this Section 11.1 with respect to any losses, claims, damages, costs, expenses, liabilities or actions to which an Indemnified Party would otherwise be subject by reason of willful misfeasance, bad faith, or Boss negligence in the performance by that Indemnified Parry of its duties or by reason of that Indemnified Party's reckless disregard of obligations or duties (i) under this Agreement, or (ii) to the Fund.
 
(c)  NATIONWIDE shall not be liable under this Section 11.1 with respect to any action against an Indemnified Party unless the Fund shall have notified NATIONWIDE in writing promptly after the summons or other first legal process giving information of the nature of the action shall have been served upon such Indemnified Party (or after such Indemnified Parry shall have received notice of such service on any designated agent), but NATIONWIDE shall be relieved of liability under this Section 11.1 only to the extent the indemnifying parry is damaged solely by reason of such party's failure to so notify and failure to notify NATIONWIDE of any such action shall not relieve NATIONWIDE from any liability which they may have to the Indemnified Party against whom such action is brought otherwise than on account of this Section 11.1. Except as otherwise provided herein, in case any such action is brought against an Indemnified Party, NATIONWIDE shall be entitled to participate, at its own expense, in the defense of such action and also shall be entitled to assume the defense thereof (which shall include, without limitation, the conduct of any ruling request and closing agreement or settlement with the Internal Revenue Service ("IRS") and/or SEC), with counsel approved by the Indemnified Party named in the action, which approval shall not be unreasonably withheld. After notice from NATIONWIDE to such Indemnified Party of NATIONWIDE's election to assume the defense thereof, the Indemnified Party will cooperate fully with NATIONWIDE and shall bear the fees and expenses of any additional counsel retained by it, and NATIONWIDE will not be liable to such Indemnified Parry under this Agreement for any legal or other expenses subsequently incurred by such Indemnified Parry independently in connection with the defense thereof, other than reasonable costs of investigation.

 
 
 


 
11.2 Of NATIONWIDE by the Fund
 
(a) Except to the extent provided in Sections 11.2(b), 11.2(c) and 11.2(d), below, the Fund agrees to indemnify and hold harmless NATIONWIDE, its affiliates, and each person, if any, who controls NA"T"IONWIDE or its affiliates within the meaning of Section 15 of the 1933 Act and each of their respective directors and officers (collectively, the "Indemnified Parties" for purposes of this Section 11.2) against any and all losses, claims, damages, costs, expenses, liabilities (including amounts paid in settlement with the written consent of the Fund) or actions in respect thereof (including, to the extent reasonable, 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, costs, expenses, liabilities or actions:
 
 
(i)arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in the Fund's 1933 Act registration statement, Prospectus or sales literature or advertising of the Fund (or any amendment or supplement to any of the foregoing), or arise out of or are based upon the omission or the alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading; provided, that this agreement to indemnify shall not apply to any Indemnified Party if such statement or omission or such alleged statement or omission was made in reliance upon and in conformity with written information furnished to the Fund or its affiliates by or on behalf of NATIONWIDE or its affiliates for use in the Fund's 1933 Act registration statement, the Fund Prospectus, or in sales literature or advertising or otherwise for use in connection with the We of Contracts or Shares (or any amendment or supplement to any of the foregoing); or
 
 
(ii)arise out of or as a result of any other statements or representations (other than statements or representations contained in any Account's 1933 Act registration statement, any Account Prospectus, sales literature or advertising for the Contracts, or any amendment or supplement to any of the foregoing, not supplied for use therein by or on behalf of the Fund or its affiliates and on which such persons have reasonably relied) or the negligent, illegal or fraudulent conduct of the Fund or its affiliates or persons under its control (including, without limitation, their employees and "Associated Persons" as that Term is defined in Section (ee) of Article 1 of the NASD By-Laws), in connection with the We, marketing or distribution of Fund Shares; or
 
 
(iii)arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in any Account's 1933 Act registration statement, any Account Prospectus, sales literature or advertising covering the Contracts, or any amendment or supplement to any of the foregoing, 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 in conformity with written information furnished to NATIONWIDE, or its affiliates by or on behalf of the Fund for use in any Account's 1933 Act registration statement, any Account Prospectus, sales literature or advertising covering the Contracts, or any amendment or supplement to any of the foregoing; or

 
 
 


 
 
(iv)arise as a result of any failure by the Fund or persons under its control (or subject to its authorization) to perform the obligations, provide the services and furnish the materials required of it under the terms of this Agreement, including, without limitation, any failure of the Fund or its designated agent to inform NATIONWIDE of the correct net asset values per share for each Portfolio on a timely basis sufficient to ensure the timely execution of all purchase and redemption orders at the correct net asset value per share, or 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 or persons under its control (or subject to its authorization); or
 
 
(v)arise as a result of any unauthorized use of the trade names of NATIONWIDE to the extent such use is not required by applicable law or regulation.
 
(b)  Thus indemnification is in addition to any liability that the Fund may otherwise have. The Fund shall not be liable under this Section 11.2 with respect to any losses, claims, damages, costs, expenses, liabilities or actions to which an Indemnified Party would otherwise be subject by reason of willful misfeasance, bad faith, or gross negligence in the performance by that Indemnified Party of its duties or by reason of such Indemnified Party's reckless disregard of its obligations and duties (i) under this Agreement, or (ii) to NATIONWIDE, each Account or Participants.
 
(c)  The Fund shall not be liable under this Section 11.2 with respect to any action against an Indemnified Party unless the Indemnified Party shall have notified the Fund in writing promptly after the summons or other first legal process giving information of the nature of the action shall have been served upon such Indemnified Party (or after such Indemnified Parry shall have received notice of such service on any designated agent), but the Fund shall be relieved of liability under this Section 11.2 only to the extent the indemnifying party is damaged solely by reason of such party's failure to so notify and failure to notify the Fund of any such action 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 Section 11.2. Except as otherwise provided herein, in case any such action is brought against an Indemnified Parry, the Fund will be entitled to participate, at its own expense, in the defense of such action and also shall be entitled to assume the defense thereof (which shall include, without limitation, the conduct of any ruling request and closing agreement or other settlement proceeding with the IRS and/or SEC), with counsel approved by the Indemnified Party named in the action, which approval shall not be unreasonably withheld. After notice from the Fund to such Indemnified Party of the Fund's election to assume the defense thereof, the Indemnified Party will cooperate fully with the Fund and shall bear the fees and expenses of any additional counsel retained by it, and the Fund will not be liable to such Indemnified Party under this Agreement for any legal or other expenses subsequently incurred by such Indemnified Party independently in connection with the defense thereof, other than reasonable costs of investigation.

 
 
 


 
11.3 Of NATIONWIDE by the Adviser
 
(a) Except to the extent provided in Sections 11.3(b), 11.3(c) and 1.3(d), below, the Adviser agrees to indemnify and hold harmless NATIONWIDE, its affiliates, and each person, if any, who controls NATIONWIDE or its affiliates within the meaning of Section 15 of the 1933 Act and each of their respective directors and officers (collectively, the "Indemnified Parties" for purposes of this Section 11.2) against any and all losses, claims, damages, costs, expenses, liabilities (including amounts paid in settlement with the written consent of the Fund) or actions in respect thereof (including, to the extent reasonable, 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, costs, expenses, liabilities or actions:
 
 
(i)arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in the Fund's 1933 Act registration statement, Prospectus or sales literature or advertising of the Fund (or any amendment or supplement to any of the foregoing), or arise out of or are based upon the omission or the alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading; provided, that this agreement to indemnify shall not apply to any Indemnified Party if such statement or omission or such alleged statement or omission was made in reliance upon and in conformity with written information furnished to the Adviser, the Fund or their affiliates by or on behalf of NATIONWIDE or its affiliates for use in the Fund's 1933 Act registration statement, the Fund Prospectus, or in sales literature or advertising or otherwise for use in connection with the We of Contracts or Shares (or any amendment or supplement to any of the foregoing); or
 
 
(ii)arise out of or as a result of any other statements or representations (other than statements or representations contained in any Account's 1933 Act registration statement, any Account Prospectus, sales literature or advertising for the Contracts, or any amendment or supplement to any of the foregoing, not supplied for use therein by or on behalf of the Adviser, the Fund or their affiliates and on which such persons have reasonably relied) or the negligent, illegal or fraudulent conduct of the Adviser, the Fund or their affiliates or persons under their control (including, without limitation, their employees and "Associated Persons" as that Term is defined in Section (ee) of Article 1 of the NASD By-Laws), in connection with the sale, marketing or distribution of Fund Shares; or
 
 
(iii)arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in any Account's 1933 Act registration statement, any Account Prospectus, sales literature or advertising covering the Contracts, or any amendment or supplement to any of the foregoing, 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 in conformity with written information furnished to NATIONWIDE, or its affiliates by or on behalf of the Adviser or the Fund for use in any Account's 1933 Act registration statement, any Account Prospectus, sales literature or advertising covering the Contracts, or any amendment or supplement to any of the foregoing; or


 
 
 


 
 
(iv)arise as a result of any failure by the Adviser or the Fund or persons under their control (or subject to their authorization) to perform the obligations, provide the services and furnish the materials required of it under the terms of this Agreement, including, without limitation, any failure of the Fund or its designated agent to inform NATIONWIDE of the correct net asset values per share for each Portfolio on a timely basis sufficient to ensure the timely execution of all purchase and redemption orders at the correct net asset value per share, or any material breach of any representation and/or warranty made by the Adviser or the Fund in this Agreement or arise out of or result from any other material breach of this Agreement by the Adviser or persons under its control (or subject to its authorization); or
 
 
(v)arise as a result of any unauthorized use of the trade names of NATIONWIDE to the extent such use is not required by applicable law or regulation.
 
(b)  This indemnification is in addition to any liability that the Adviser may otherwise have. The Adviser shall not be liable under this Section 11.3 with respect to any losses, claims, damages, costs, expenses, liabilities or actions to which an Indemnified Party would otherwise be subject by reason of willful misfeasance, bad faith, or gross negligence in the performance by that Indemnified Parry of its duties or by reason of such Indemnified Party's reckless disregard of its obligations and duties (i) under this Agreement, or (ii) to NATIONWIDE, each Account or Participants.
 
(c)  The Adviser shall not be liable under tNs Section 11.3 with respect to any action against an Indemnified Party unless the Indemnified Party shall have notified the Adviser in writing promptly after the summons or other first legal process giving information of the nature of the action 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 the Adviser shall be relieved of liability under this Section 11.3 only to the extent the indemnifying party is damaged solely by reason of such party's failure to so notify and failure to notify the Adviser of any such action shall not relieve the Adviser from any liability which it may have to the Indemnified Party against whom such action is brought otherwise than on account of this Section 11.3. Except as otherwise provided herein, in case any such action is brought against an Indemnified Parry, the Adviser will be entitled to participate, at its own expense, in the defense of such action and also shall be entitled to assume the defense thereof (which shall include, without limitation, the conduct of any ruling request and closing agreement or other settlement proceeding with the IRS and/or SEC), with counsel approved by the Indemnified Party named in the action, which approval shall not be unreasonably withheld. After notice from the Adviser to such Indemnified Party of the Adviser's election to assume the defense thereof, the Indemnified Party will cooperate fully with the Fund and shall bear the fees and expenses of any additional counsel retained by it, and the Adviser will not be liable to such Indemnified Party under this Agreement for any legal or other expenses subsequently incurred by such Indemnified Party independently in connection with the defense thereof, other than reasonable costs of investigation.

 
 
 


 
11.4             Effect of Notice
 
Any notice given by the indemnifying party to an Indemnified Party referred to in Sections 11.1(c), 11,2(c) or 11.3(c) above of participation in or control of any action by the indemnifying party will in no event be deemed to be an admission by the indemnifying party of liability, culpability or responsibility, and the indemnifying party will remain free to contest liability with respect to the claim among the Parties or otherwise.
 
11.5             Successors
 
A successor by law of any party shall be entitled to the benefits of the indemnification contained in this Section 11.
 
11.6             Obligations of the Fund.
 
All persons dealing with the Fund must look solely to the property of the applicable Portfolio 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.
 
Section 12. Applicable Law
 
(a)  This Agreement wi11 be construed and the provisions hereof interpreted under and in accordance with New York law, without regard for that state's principles of conflict of laws.
 
(b)  This Agreement shall be subject to the provisions of the 1933 Act, 1934 and 1940 acts, and the rules and regulations and rulings thereunder, including such exemptions from those statutes, rules and regulations as the SEC may grant (including, but not limited to, any Order of the SEC) and the terms hereof shall be interpreted and construed in accordance therewith.
 
Section 13. Execution in Counterparts
 
This Agreement may be executed simultaneously in two or more counterparts, each of which taken together with constitute one and the same instrument.
 
Section 14. SeverabiIity
 
If any provision of this Agreement is held or made invalid by a court decision, statute, rule or otherwise, the remainder of this Agreement will not be affected thereby.
 
Section 15. Rights Cumulative
 
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, that the Parties are entitled to under federal and state laws.

 
 
 


 
Section 16. Headings
 
The headings used in this Agreement are for purposes of reference only and shall not limit or define the meaning of the provisions of this Agreement.
 
Section 17. Confidentiality
 
Subject to the requirements of legal process and regulatory authority, each party hereto shall treat as confidential the names and addresses of customers of the other party and all information reasonably identified as confidential in writing by any other party hereto and, except as permitted by this Agreement, shall not, without the express written consent of the affected parry, disclose, disseminate or utilize such names and addresses and other confidential information until such time as it may come into the public domain.
 
Section 18. Trademarks and Fund Names
 
(a)  Salomon Brothers Asset Management Inc, the adviser to the Fund and its affiliates, own all right, title and interest in and to the names, trademarks and service marks "Salomon" and "Salomon Brothers" and such other tradenames, trademarks and service marks as may be identified to NATIONWIDE from time to time (the "Salomon licensed marks"). Upon termination of this Agreement NATIONWIDE and its affiliates shall cease to use the Salomon licensed marks, except to the extent required by law or regulation.
 
(b)  NATIONWIDE and its affiliates, own all right, title and interest in and to the names, trademarks and service marks "Nationwide®", Nationwide Life®, Nationwide Insurance Enterprise®, the N-and eagle logo, "The Best of America®" and such other tradenames, trademarks and service marks as may be identified to the Adviser and/or the Fund from time to time (the "Nationwide" licensed marks). Upon termination of this Agreement the Fund, the Adviser and their affiliates shall cease to use the Nationwide licensed marks, except to the extent required by law or regulation.
 
Section 19. Parties to Cooperate
 
Each parry to this Agreement will cooperate with each other parry and all appropriate governmental authorities (including, without limitation, the SEC, the NASD and state insurance regulators) and will permit each other and such authorities reasonable access to its books and records (including copies thereof) in connection with any investigation or inquiry relating to this Agreement or the transactions contemplated hereby.
 
Section 20. Year 2000 Compliance
 
Adviser and Nationwide hereby agree and represent that each expects their information technology systems will be Year 2000 Compliant. The Fund hereby agrees and represents that it has been advised by the Adviser that it expects the Fund's information technology systems will by Year 2000 Compliant. Each party shall notify the other if there is a change in the status of their informational technology systems or upon having a reasonable basis for believing that their information technology systems will bat be Year 2000 Compliant.
 
"Year 2000 Compliant" shall mean that the systems or software in question shall be able to accurately process date or date-related data, without creating any material logical or mathematical inconsistencies from, into and between, the twentieth and twenty-first centuries, when used in accordance with the specifications set forth for such systems or software; provided, however, that neither party shall be responsible for any failure of its systems or software to by Year 2000 Compliant which is caused by or related to the interaction or interface of such systems or software with the systems or software of a third party which are not Year 2000 Compliant.
 
Section 21. Partnership
 
Nothing in this Agreement shall be deemed to create a partnership or joint venture by and among the parties hereto.
 
Section 22. Amendments
 
Except to amend Schedule A, or as otherwise provided in this Agreement, this Agreement may not be amended or modified except by a written amendment executed by each of the parties.
 
Section 23. Countemarts
 
This Agreement may be executed by facsimile signature and it may be executed in one or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.
 
Section 24. Authorization
 
Each pasty hereby represents and warrants to the other that the persons executing this Agreement on its behalf are duly authorized and empowered to execute and deliver the Agreement and that the Agreement constitutes its legal, valid and binding obligation, enforceable against it in accordance with its terms. Except as particularly set forth herein, neither party assumes any responsibility hereunder, and will not be liable to the other for any damage, loss of data, delay or any other loss whatsoever caused by events beyond its reasonable control.
 
IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed in their names and on their behalf by and through their duly authorized officers signing below.
 
SALOMON BROTHERS VARIABLE SERIES FUNDS INC
 


Attest:___________________________              By:______________________________


Name:_[Robert Vegliante]___________                   Name:____Heath B. McLendon]_______

Title:__[Asst. Secretary]_____________               Title:_____[President]________________

 
 
 


 
SALOMON BROTHERS ASSET
 
MANAGEMENT INC
 
Attest:_______________________                                                                                                By:_________________________
 

 
Name:___[Robert Vegliante]_____                                                                                                Name:___[Howard Fredman]____
 

 
Title:___[Asst Secretary]________                                                                                                Title:___[Director]____________
 

 

 

 
NATIONWIDE LIFE INSURANCE COMPANY
 
NATIONWIDE LIFE AND ANNUITY
 
INSURANCE COMPANY
 
on behalf of themselves and their separate accounts
 

 
Attest:_____________________________                                                                                                     By:___________________________
 

 
Name:____Heather C. Harker_________                                                                                                           Name:___Joseph P. Rath__________
 

 
Title: ____Compliance Manager_______                                                                                                           Title:___Vice President – Office of
 
  Product and Market Compliance
 


 
 
 

 
SCHEDULE A
 

 

PORTFOLIOS AVAILABLE UNDER THE CONTRACTS
 
Salomon Brothers Variable Total Return Fund Salomon Brothers Variable Capital Fund
Salomon Brothers Variable High Yield Bond Fund Salomon Brothers Variable Strategic Bond Fund Salomon Brothers Variable Investors Fund
 
SEPARATE ACCOUNTS U ILI ING TIDE FUNDS
 
Nationwide Private Client Corporate Variable Universal. Life
 
                 CONTRACTS FUNDED BY THE SEPARATE ACCOUNTS  Nationwide’s Private Client Corporate Variable Universal Life



 
 
 

SCHEDULE B
 
As of September , 1999, the Administrative Services Agreement between the Nationwide and SALOMON BROTHERS ASSET MANAGEMENT INC is applicable to the following portfolios of the Fund:
 
Salomon Brothers Variable Investors Fund Salomon Brothers Variable Capital Fund
 
Salomon Brothers Variable Strategic Bond Fund Salomon Brothers Variable High Yield Bond Fund Salomon Brothers Variable Total Return Fund
 
The applicable annual fee shall be 25 basis points (0.25%) of the aggregate investments in portfolios of the Fund by all separate accounts of the Nationwide related to the Contracts and Policies as a percentage of the average daily net asset value of such investments.

 
 
 

 
AMENDMENT NO. I TO SCHEDULE A
 
TO PARTICIPATION AGREEMENT
 
This amendment corresponds to the Participation Agreement dated September 1999.
SEPARATE ACCOUNTS
UTILIZING THE FUNDS
 
 
CORRESPONDING
NATIONWIDE CONTRACT
PORTFOLIOS AVAILABLE UNDER THE CONTRACTS
Nationwide Private Client
Corporate Variable Universal
Life
 
Nationwide Private Clients
Corporate Variable Universal
Life
·  Salomon Brothers Variable Total Return Fund
·  Salomon Brothers Variable Capital Fund
·  Salomon Brothers Variable High Yield Bond Fund
·  Salomon Brothers Variable Strategic Bond Fund
·  Salomon Brothers Variable Investors Fund
Nationwide Qualified Plans
Variable Account (‘APVA”)
Qualified Plans Variable Group
Annuity Contract
·  Small Cap Growth Fund
·  International Equity Fund
·  Capital Fund
·  Investors Growth Fund
·  High Yield Bond
·  Strategic Bond Fund

SALOMON BROTHERS VARIABLE SERIES FUND INC
         
Attest:
    
Attest:
  
Name:
    
Name:
  
Title:
    
Title:
  
         
   
SALOMON BROTHERS ASSET MANAGEMENT INC
Attest:
    
Attest:
  
Name:
    
Name:
  
Title:
    
Title:
  

   
NATIONWIDE LIFE INSURANCE COMPANY
NATIONWIDE LIFE AND ANNUITY INSURANCE
COMPANY on behalf of themselves and their respective separate accounts
Attest:
    
Attest:
  
Name:
    
Name:
  
Title:
    
Title: