Exhibit 10.5
GENERAL AGENT AGREEMENT
THIS AGREEMENT, effective this 20th day of October, 2000, is made by and
among Nationwide Life Insurance Company, Nationwide Life and Annuity
Insurance Company, (collectively, "Nationwide") WADDELL & REED, INC. on its
own behalf and on behalf of its affiliated Corporate Insurance Agencies
(Collectively referred to as "Agency") and ("Broker/Dealer").
Nationwide hereby appoints Broker/Dealer and Agency (collectively, "General
Agent") as General Agent with the rights, powers, duties and liabilities set
forth herein. General Agent hereby accepts the appointment.
General Agent acknowledges, understands and agrees that although Nationwide
Life Insurance Company ("NWL") and Nationwide Life and Annuity Insurance
Company ("NWLAIC") are collectively referred to herein as "Nationwide", NWL
and NWLAIC are separate corporate entities, and that the rights and
obligations of each under this Agreement are to be exclusively determined on
the basis of which of the two entities (NWL or NWLAIC) is the issuing company
of the product(s) specified in Exhibit A, and being sold pursuant to this
Agreement.
Nationwide acknowledges, understands and agrees that although Broker/Dealer
and its affiliated Corporate insurance agencies are collectively, referred to
herein as "General Agent", Broker/Dealer and each of the Corporate insurance
agencies are separate corporate entities, and that the rights and obligations
of each under this Agreement are to be exclusively determined on the basis of
which of the entities is acting as agent with respect to the product(s)
specified in Exhibit A and being sold pursuant to this Agreement.
IN CONSIDERATION OF THE MUTUAL PROMISES HEREIN MADE, THE PARTIES AGREE AS
FOLLOWS:
1. SCOPE. This Agreement shall supersede the General Agent Agreement by
and between Nationwide Life Insurance Company, Nationwide Life and
Annuity Insurance Company, and Waddell & Reed, Inc. dated December 6,
1999, and all other prior agreements between the parties, with respect
to the matters addressed herein. All of the insurance or annuity
products sold under this Agreement shall be referred to as "Contract(s)"
except when particular provisions relate solely to variable contracts
required to be registered under the Securities Act of 1933 ("1933 Act")
and/or the Investment Company Act of 1940 ("1940 Act") and such
contracts shall be referred to as "Variable Contracts". The Contracts
which may be sold under this Agreement are listed in the Compensation
Schedules which are included in Exhibit A. These Compensation Schedules
may be amended upon written agreement of Nationwide and General Agent.
In consideration of the services to be performed hereunder, Nationwide
agrees to pay General Agent compensation, in accordance with the
Exhibits to this Agreement, as may be amended from time to time by
mutual written agreement of the parties, based on purchase payments due
and received by Nationwide on Contracts issued upon applications
submitted either directly or through registered representatives and
agents, on or after the date of this Agreement.
2. EXCLUSIVITY. Except as otherwise provided herein, Nationwide will be
the exclusive provider to General Agent of the products specified in
Exhibit B for a period of five- (5) years. During this five- (5) year
period, General Agent will not offer any other competitor's products to
their clients, except as otherwise provided herein. Notwithstanding the
foregoing, this exclusivity provision will not apply to (a) clients
transferring similar investment products from one investment advisor
and/or broker-
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dealer to General Agent, but only to the extent of the transfer itself,
(b) products offered by General Agent's former affiliate, United Investors
Life Insurance Company, (c) additions made by General Agent clients to
products owned prior to the commencement of distribution of like Nationwide
products by General Agent pursuant to this agreement, (d) sales made in
New York prior to the development by Nationwide of replacement products
for sale in New York, and (e) sales made by new General Agent financial
advisors to prospects to which non-Nationwide products were offered prior
to their engagement by General Agent. General Agent will make a good
faith effort to monitor and report these exceptions to ensure that the
principle of overall exclusivity is maintained.
Nationwide will provide sufficient resources to fulfill mutually agreed
upon product feature, support and service level standards. It is
understood and agreed that such exclusivity shall terminate at General
Agent's option if (a) Nationwide fails to meet the agreed upon product
feature, support and service standards and (b) Nationwide experiences a
change of control involving an unaffiliated organization. Nationwide may
also terminate its exclusive relationship with General Agent if General
Agent fails to meet its obligations as set forth herein.
Notwithstanding the foregoing, if General Agent experiences a change of
control involving an unaffiliated organization and such organization
desires for General Agent to sell its products or the products of one or
more of its affiliates ("Acquirer Products"), this exclusivity provision
will not apply to the Acquirer Products. It is understood and agreed
that if such a change of control should occur, and General Agent
commences offering Acquirer Products, General Agent shall use its best
efforts to insure that Nationwide's products receive and maintain an
equitable competitive position in General Agent's distribution system
throughout the exclusive period. For purposes of this provision, an
"equitable competitive position" shall mean, the opportunity for
Nationwide to provide products with substantially similar costs,
features commissions, fund diversification and positioning as the
Acquirer Products. In the event such a change of control occurs and
General Agent commences offering Acquirer Products, the exception from
this exclusivity provision identified in section (b) of the previous
paragraph, regarding a change of control at Nationwide involving an
unaffiliated organization, shall cease to apply.
3. AUTHORITY. Agency and Broker/Dealer are hereby authorized, through
their individual agents ("Agents"), representatives or duly licensed
affiliated agencies who are duly licensed and registered as required by
law, to solicit and procure applications for the Contracts in accordance
with the terms and conditions of this Agreement, and are authorized in
connection therewith:
a. to collect purchase payments on Contracts for which applications
are submitted;
b. when requested and as directed by Nationwide to deliver Contracts
after the terms and conditions governing such delivery are completed,
provided that no such delivery of a Contract shall be deemed to
constitute a warranty by General Agent that such terms and conditions
have been complied with;
c. to perform any other act related to the Contracts that is
authorized in writing by Nationwide and is permissible under the law;
and
d. General Agent will pay all fees required to obtain and/or maintain
any licenses or registrations required by state or federal law for
General Agent and agents of General Agent. Nationwide will pay the
fees in connection with the initial appointment with Nationwide of
agents of General Agent. Any subsequent appointment fees will be the
responsibility of the General Agent or as mutually agreed upon with
Nationwide.
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4. Right to Sell; Regulatory Approvals.
a. General Agent is authorized to sell the Contracts set forth in the
Compensation Schedule (Exhibit A) as now and hereafter attached to
this Agreement. The Compensation Schedule is hereby incorporated by
reference.
b. Except as disclosed to General Agent in writing, Nationwide
represents and warrants that it has the authority to issue
Contracts in the states where the General Agent is authorized to
conduct business. Nationwide agrees to notify General Agent
promptly of any change in such authority.
General Agent agrees that it will solicit applications for
Nationwide only in those states in which such Contracts are
approved.
c. General Agent will not solicit applications in any state unless the
Agent signing the application has been properly licensed by the
appropriate regulatory agency in that state, which may include
registrations as a registered representative of Broker/Dealer if
Variable Contracts are being sold. As a licensed appointee of
Nationwide, General Agent will comply with the statutory and
regulatory obligations related to the solicitation and procurement
of applications for Contracts.
d. If General Agent engages in sales of the Contracts on the premises
of or in cooperation with financial institutions (including banks,
savings and loan institutions, or credit unions), General Agent
shall, as required by applicable law, maintain separation of its
business from the business of such financial institution, including
separation of records. General Agent shall also conduct its
business at all times so as not to lead to confusion between the
business conducted by General Agent and the business conducted by
the financial institution.
The parties to the Agreement hereby agree to abide by, observe, and
otherwise conduct the business contemplated under the Agreement in
a manner consistent with the Guidelines set forth in the
Interagency Statement on Retail Sales of Non-Deposit Investment
Products, issued jointly by the Board of Governors of the Federal
Reserve System, the Federal Deposit Insurance Corporation, the
Office of the Comptroller of the Currency, and the Office of Thrift
Supervision on February 15, 1994, or any modifications or
interpretations thereof.
5. AGENT SUPERVISION
a. Before an Agent is permitted to solicit and procure applications
for the Contracts, General Agent and Agent shall have entered into
an agreement pursuant to which such Agent will be appointed as an
agent of General Agent and in which Agent will agree that Agent's
selling activities relating to the Contracts will be under the
supervision and control of General Agent. The Agent's right to
continue to sell the Contracts is subject to Agent's continued
compliance with such agreement.
b. If an Agent fails to meet the rules and standards imposed by
General Agent, General Agent shall take such disciplinary action as
it deems appropriate. If an Agent fails or refuses to submit to
supervision of General Agent in accordance with this Agreement,
General Agent shall immediately notify such Agent that such Agent
is no longer authorized to sell the Contracts and shall take
whatever additional action may be necessary to terminate the sales
activities of such Agent relating to the Contracts including
immediate notification to Nationwide of such termination.
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c. In the event that General Agent regards itself as exempt from the
licensing requirements of a state insurance authority, then General
Agent hereby warrants and guarantees that it shall exercise
supervisory control over the training and conduct of its Agents in
a manner consistent with state insurance requirements with respect
to fair, accurate and good faith representations of product
information in the solicitation process, with due regard to the
financial status of individual consumers and the appropriateness of
the Contract as an investment for such individual consumers. Any
intentional or negligent failure in this regard, by any Agent of
General Agent, shall require General Agent to immediately terminate
such Agent's ability to sell the Contracts and to notify Nationwide
of such termination. In addition, General Agent will ensure that
its Agents comply with all applicable state insurance requirements
and have obtained and maintain any security licenses required by
the state insurance authorities.
6. SALE OF VARIABLE CONTRACTS.
a. General Agent agrees that each Agent who sells Variable Contracts
will be a registered representative of Broker/Dealer (for purposes
of this section, "Registered Representative") with the National
Association of Securities Dealers Inc. (the "NDAS") before the
Agent engages into the offer and sale of Variable Contracts.
Broker/Dealer shall certify the status of each Registered
Representative's qualifications to Nationwide's satisfaction and
shall notify Nationwide if any such person ceases to be a
Registered Representative of Broker/Dealer.
b. Broker/Dealer shall have full responsibility for the training and
supervision of the Registered Representatives that offer and sell
the Variable Contracts. This training shall include training in the
sale of variable contracts. All Registered Representatives shall be
subject to the control of Broker/Dealer in connection with the
offer and sale of such Variable Contracts.
c. Broker/Dealer will fully comply with the requirements of the NASD,
the Securities Exchange Act of 1934, and all other applicable
federal or state laws and will establish such rules and procedures
as may be necessary to cause diligent supervision of the securities
activities of the Registered Representatives. Broker/Dealer shall
furnish records necessary to document such supervision at
Nationwide's reasonable request.
d. Before a Registered Representative is permitted to solicit and
procure applications for the Variable Contracts, Broker/Dealer and
the Registered Representative shall have entered into an agreement
pursuant to which the Registered Representative will become a
Registered Representative of Broker/Dealer and will agree that
their selling activities relating to the Variable Contracts will be
under the supervision and control of Broker/Dealer. The right to
continue to sell such Variable Contracts is subject to continued
compliance with such agreement.
e. If a Registered Representative fails to meet the rules and
standards imposed by Broker/Dealer, Broker/Dealer shall take such
disciplinary action as it deems appropriate. If a Registered
Representative fails or refuses to submit to supervision of
Broker/Dealer in accordance with this Agreement, Broker/Dealer
shall immediately notify such Registered Representative that he is
no longer authorized to sell the Variable Contracts, and
Broker/Dealer shall take whatever additional action may be
necessary to terminate the sales activities of such Registered
Representative relating to the Variable Contracts including
immediate notification to Nationwide of such termination.
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f. Nationwide represents that (a) the Variable Contracts are properly
registered under the 1933 Act and/or 1940 Act and the registration
statements and the Variable Contracts will remain in full force and
effect for the duration of this Agreement, and (b) the Variable
Contracts are exempted or excepted from registration under state
securities laws. If any state should amend its current securities
laws to require registration of insurance contracts, then Nationwide
will comply with the amended state law.
g. In connection with the conduct of its business, Broker/Dealer shall
be provided with prospectuses relating to the Variable Contracts
and such other material as Nationwide determines to be necessary.
Nationwide represents and warrants to Broker/Dealer that all
prospectuses and other material, which Nationwide makes available
to Broker/Dealer will comply in all respects with any and all
applicable federal and state securities laws.
7. INDEPENDENT CONTRACTOR.
General Agent is free to exercise its own judgment as to the persons
from whom it will solicit applications for Contracts as well as the
time, manner and place of solicitation, and Nationwide will not
unreasonably interfere with its activity or manner of performance under
this Agreement as an independent contractor.
Nothing contained in this Agreement shall create, or shall be construed
to create, the relationship of an employer and employee between
Nationwide and General Agent.
8. COLLECTION OF PURCHASE PAYMENTS.
All Contract purchase payments on applications procured by or through
General Agent, which General Agent may collect, are collected on behalf
of Nationwide. All purchase payments shall be in check or wire transfer.
All such monies received by General Agent shall be collected and
transmitted promptly to Nationwide in a manner agreed to by both General
Agent and Nationwide.
9. LIMITATIONS ON AUTHORITY. Unless otherwise authorized by Nationwide in
writing pursuant to Section 3(c), General Agent shall have no authority
on behalf of Nationwide to:
a. make, alter or discharge any Contract,
b. incur any indebtedness or liability, expend or contract for the
expenditure of funds of Nationwide,
c. extend the time for payment of any purchase payment, bind
Nationwide to the reinstatement of any terminated Contract, or
accept notes for payment of purchase payments,
d. waive or modify any terms, conditions or limitations of any
Contract, adjust or settle any claim or commit Nationwide with
respect thereto except as provided in Section 13 c.,
e. enter into legal proceedings in connection with any matter
pertaining to Nationwide's business without the prior written consent
of Nationwide unless General Agent is named in such proceedings or
General Agent could be subject to paying all or a part of any
judgment. General Agent must immediately give Nationwide written
notification of the legal proceeding. Where General Agent is either
named or may be subject to paying all or a portion of any judgment,
General Agent may retain counsel of its choice,
f. use the registered marks of Nationwide without receiving prior
written approval of Nationwide,
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g. represent products of Nationwide except as referenced in the
prospectus,
h. advertise or publish any matter or thing concerning Nationwide or
the Contracts without the prior written permission of Nationwide,
except as provided in Section 14.a.,
i. open any bank account or trust account on behalf of, for the
benefit of, or containing the name of Nationwide.
j. directly or indirectly cause or endeavor to cause any General Agent
or their Agents to terminate or alter their association with
Nationwide, or will not advise or encourage any Nationwide Contract
Owner to relinquish, surrender, replace or lapse their Nationwide
contract unless such action is in the best interest of the Contract
Owner as reasonably determined by the General Agent.
k. do or perform any acts or things other than expressly authorized
herein.
10. AGENTS.
a. General Agent shall select Agents subject to the provisions of this
Agreement and Nationwide shall appoint the selected Agents or
provide to General Agent in writing a reasonable basis for not
making such appointment. General Agent shall notify Nationwide
promptly, in writing, upon the giving or receipt of any notice of
termination of an Agent. General Agent will provide Nationwide with
any documentation necessary for the appointment of the Agents.
Nationwide reserves the right to terminate the appointment of any
Agent in its reasonable discretion. Nationwide will promptly notify
the General Agent of the termination of the appointment of any
Agent and the basis therefor.
b. At all times during which an Agent is appointed by Nationwide to
sell Contracts, General Agent shall ensure that each Agent has
obtained and maintains all applicable licenses in accordance with
applicable state and federal laws and regulations. General Agent
shall provide Nationwide on request evidence of applicable
insurance licenses of General Agent's Agents.
c. General Agent maintains the responsibility to ensure its Agents
comply with the terms of the Agreement.
11. COMPENSATION.
a. Nationwide agrees to pay General Agent compensation, in accordance
with the Compensation Schedules to this Agreement as may be amended
from time to time by mutual written agreement of the parties.
b. Nationwide will pay all compensation due General Agent or any
Agents, either directly to General Agent or, as necessary to meet
legal requirements, to the licensed General Agent affiliate or
other affiliated entity which is permitted to receive such
compensation under applicable state law. In states where corporate
licenses are not granted, General Agent represents and warrants
that it or its affiliated entity has the necessary relationship
with the Agents based upon which such affiliated entity is
permitted to receive compensation under applicable state insurance
law except as otherwise approved by Nationwide. General Agent
hereby warrants that all necessary contractual arrangements are in
place to enable Nationwide to pay General Agent, or any of its
affiliates, for business produced by Agents in the jurisdiction in
which they hold licenses. General Agent shall pay all compensation
due to Agents or any other person with respect to the Contracts,
and no such Agent or other person shall have any claim against
Nationwide on account of the sale or service of any Contract.
Nationwide shall have no obligation to make compensation payments
except as
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provided above. If Nationwide permits the General Agent to retain
compensation before remitting purchase payments, then the Net
Compensation Addendum shall specify that authority. Should Nationwide
pay General Agent for premiums later returned or credited to the
customer or any other overpayment to General Agent, Nationwide shall
have, in addition to all other creditor rights, the right to deduct
such overpayment from any current or future compensation due General
Agent.
c. All trail commissions, if any, shall be paid by Nationwide to
General Agent with respect to all Contracts sold by Agents on or
before the date of termination of this Agreement. In the event
Nationwide receives written authorization from an appointed officer
of the General Agent to transfer a Contract paying trail
commissions to a new General Agent, all subsequent trail
commissions as of the effective date of the transfer will be paid
to the new General Agent of record. In the event Nationwide
receives a written request from a contract owner to transfer a
contract to a new General Agent, all subsequent trail commissions
as of the effective date of the transfer will be paid to the new
General Agent of record. This paragraph shall not be in derogation
of any right of offset or other remedy Nationwide may have on
monies owed by General Agent or by the new General Agent of record.
General Agent agrees to maintain any or all federal or state
license and appointment including any applicable renewal fees
required, except to the extend Nationwide is responsible therefor
pursuant to this Agreement, in order to receive trail commissions
from Nationwide.
d. Notwithstanding any other provisions of this Agreement Nationwide
shall not be obligated to pay any compensation which would be in
violation of the applicable laws, rules or regulations of any
jurisdiction, subject to Section 13 of this Agreement.
12. SEGREGATED BANK ACCOUNT.
All purchase payments received by General Agent on behalf of Nationwide,
including purchase payments received by General Agent from Agents, shall be
held in a segregated bank account and shall be forwarded to Nationwide in
accordance with mutually agreed upon instructions.
13. INDEMNIFICATION.
a. Nationwide agrees to indemnify and hold General Agent harmless from
any and all losses, claims, damages, liabilities or expenses to which
General Agent may become subject under any statute, regulation, common
law or otherwise, insofar as such losses, claims, damages, liabilities
or expenses relate directly to the sale of the Contracts and arise as
a direct consequence of:
1) any material misrepresentation or omission, or alleged
misrepresentation or omission, contained in the registration
statement, prospectuses, the Contracts, this Agreement or any
other document prepared or distributed by Nationwide including,
but not limited to, advertising or sales literature;
2) any failure by Nationwide or its employees, whether negligent or
intentional, to perform the duties and discharge the obligations
contemplated in this Agreement; and
3) any fraudulent, unauthorized or wrongful act or omission by
Nationwide or its employees or agents.
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b. General Agent agrees to indemnify and hold Nationwide harmless from
any and all losses, claims, damages, liabilities or expenses to which
Nationwide may become subject under any statute, regulation, common
law or otherwise, insofar as such losses, claims, damages, liabilities
or expenses related directly to the sale of the Contracts and arise as
a direct consequence of:
1) any material misrepresentation or omission, or alleged
misrepresentation or omission involving the sales contained
within this Agreement provided that such misrepresentations or
omissions are not attributable to any failure by Nationwide;
2) any failure by General Agent or its employees or Agents, whether
negligent or intentional, to perform the duties and discharge the
obligations contemplated in this agreement; and
3) any fraudulent, unauthorized or wrongful act or omission by
General Agent or its employees or Agents.
c. In the event that Nationwide is compelled or agrees to pay any amount
in the settlement of any claim, judgment, arbitration or similar
action and, in conjunction therewith, General Agent voluntarily agrees
to reimburse Nationwide, either partially or totally, Nationwide may
deduct the amount of the reimbursement from any sales compensation
subsequently payable to General Agent. Nothing herein shall obligate
General Agent to provide any such voluntary reimbursement.
d. Neither Nationwide or General Agent shall be liable, as the
indemnifying party pursuant to Sections 13a and 13b, if the losses,
claims, damages, liabilities or legal expenses incurred by the
indemnified party arise out of the indemnified party's willful
misfeasance, bad faith, or gross negligence in the performance of its
duties, or through the reckless disregard of the indemnified party's
duties under this Agreement.
e. Nationwide and General Agent will promptly notify each other of the
commencement of any litigation or proceedings, or the assertion of any
claim or any material inquiries related to the duties set forth in the
Agreement.
f. This indemnification shall be in addition to any other course of
action Nationwide or General Agent may have.
14. AGREEMENTS.
a. All advertising material and sales promotional material published by
General Agent or its Agents that specifically name Nationwide or
reference the Contracts shall be and remain the sole and exclusive
property of General Agent and shall be used solely and exclusively by
General Agent and its Agents. Such material shall be submitted to
Nationwide for its approval prior to its use by General Agent or
Agents. Nationwide shall provide its approval in writing. Such
material shall not be used by Nationwide or its other agents without
prior written consent of General Agent.
b. Nationwide and General Agent shall keep thorough and correct records,
books, and accounts on all transactions arising out of this Agreement,
and shall preserve and hold all documents, correspondence and records
relating to Contracts which come into its possession or under its
control. All such books or accounts, documents, correspondence and
records of each party pertaining to or used by it in connection with
its operations hereunder shall belong to it, and
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at all times shall be open to inspection by any officer or duly
authorized representative of the other party.
c. In the course of normal customer servicing of existing Contracts or
if required by law, Nationwide may contact by mail or otherwise any
client, agent, account executive, or employee of General Agent or
other individual acting in a similar capacity if deemed appropriate
by Nationwide.
d. Each party agrees to promptly notify the others in writing of any
written customer complaint or notice of regulatory investigation it
receives which may involve the others.
e. Each party represents and warrants that the entering into and
performance of this Agreement does not and will not conflict with
or cause a breach of any other agreement to which any of them is a
party.
f. Each party represents and warrants that it has full power and
authority to enter into this Agreement and to carry out its duties
and obligations hereunder.
g. Agency represents and warrants that it has the authority to execute
this Agreement on its own behalf and on behalf of any of its
affiliated agencies providing the services set forth in this
Agreement in order for General Agent to meet all applicable legal
requirements. All the necessary arrangements are in place to bind
Agency's affiliated agencies to the terms and conditions of this
Agreement.
15. TERMINATION.
a. Each party may terminate this Agreement for cause at any time,
without prior written notice, if another party (1) fails to comply
with the laws or regulations of any state or other governmental
agency or body having jurisdiction over the sale of insurance or
securities, (2) misappropriates any money or property belonging to
another party, (3) subjects an other party to any actual or
potential liability due to misfeasance, malfeasance, or
nonfeasance, (4) commits any fraud upon another party, (5) has an
assignment for the benefit of creditors, (6) incurs bankruptcy, or
(7) commits a material breach of this Agreement.
b. Nationwide may terminate the relationship and any obligations set
forth herein if Waddell & Reed experiences a change of control, if
said change of control materially alters General Agent's ability to
perform its obligations under this agreement.
c. This Agreement may be terminated by a party upon six months written
notice to the other parties.
16. MISCELLANEOUS PROVISIONS.
a. General Agent may assign or pledge any rights under this Agreement
with Nationwide's prior written consent.
b. The forbearance or neglect of Nationwide, Broker/Dealer or Agency
to insist upon strict compliance by a party, with any of the
provisions of this Agreement, whether continuing or not, or to
declare a forfeiture of termination against that party, shall not
be construed as a waiver of any of the rights or privileges of the
parties. No waiver of any right or privilege of Nationwide,
Broker/Dealer or Agency arising from any default or failure of
performance by a party shall affect
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the rights or privileges of the other parties in the event of a
further default or failure of performance.
c. Communications sent pursuant to provisions of this item shall be in
writing and shall be delivered personally or sent by U.S. mail or
commercial courier:
If to Nationwide: Nationwide Life Insurance
Company and/or
Nationwide Life and Annuity
Insurance Company
One Nationwide Plaza
Columbus, OH 43215
Attn: Vice President,
Individual Annuity Operations
If to General Agent: Waddell & Reed, Inc.
Attn: Legal Department
6300 Lamar Avenue
Overland Park, KS 66202
Any party may change its address by so notifying the other parties in
writing. Any notice shall be deemed given only upon receipt by the party
to be notified.
d. Except as otherwise provided in this Agreement, this Agreement may
not be amended or modified except by a written Agreement executed
by the parties.
e. This Agreement (including Amendments and Compensation Schedules)
constitutes the entire agreement between the parties and supersedes
all prior agreements, understandings and arrangements, oral and
written, between the parties with respect to the subject matter
hereof.
f. This Agreement shall be binding upon the parties and their
respective successors and assigns.
g. This Agreement shall be governed and construed in accordance with
the laws of the State of Ohio.
h. In case any provision in this Agreement shall be invalid, illegal
or unenforceable, the validity, legality and enforceability of the
remaining provisions shall not be affected or impaired.
i. The paragraph headings are for reference purposes only and shall
not be deemed to be a part of this Agreement or to affect the
meaning or interpretation of the Agreement.
j. This Agreement may be executed in any number of counterparts, each
of which shall be deemed to be an original instrument and all of
which together shall be deemed to be one and the same instrument.
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IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the
date first above written.
WADDELL & REED, INC. NATIONWIDE LIFE INSURANCE
COMPANY
on it's own behalf and on the behalf
of its affiliated Corporate Agencies NATIONWIDE LIFE AND ANNUITY
(General Agent) INSURANCE COMPANY
By: /s/ Thomas W. Butch By: /s/ Rhodes B. Baker
-------------------------------- ---------------------------------
Title: Executive Vice President Title: VP
-------------------------------- ---------------------------------
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EXHIBIT A
COMPENSATION SCHEDULE
Effective Date: October 20, 2000
This is the Compensation Schedule for the General Agent Agreement between
Nationwide and General Agent.
1. Nationwide shall pay General Agent compensation computed on the premiums
or purchase payments paid to, received and accepted by Nationwide on
contract applications procured by General Agent in accordance with this
Agreement, and at the rates set forth in this schedule and all
amendments attached hereto.
2. Unless otherwise provided in an applicable Net Compensation Addendum,
nothing herein shall be construed as giving General Agent the right to
withhold or net such compensation from premium or purchase payments it
shall receive.
3. Except as otherwise provided in this Agreement, Nationwide will prepare
a compensation statement for periods ending on the 7th, 15th, 22nd and
the last business day of each month and shall deliver the statement, and
any compensation due there under, to General Agent within 15 business
days of the end of such period for the following products: Waddell &
Reed Advisors Select Life, Waddell & Reed Advisors Survivorship Life,
Waddell & Reed Advisors Term One/Ten/Twenty and Waddell & Reed Advisors
Term Ten/Twenty-NY.
The billing cycle for compensation associated with the Waddell & Reed
Advisors Retirement Plan product, is the 1st day of the month through
the 15th day and the 16th day through the last business day of the month.
The compensation cycle for the following products will be daily:
Waddell & Reed Advisor Select Annuity
Waddell & Reed Advisors Select Plus Annuity
Waddell & Reed Advisors Select Plus Annuity NY
4. The compensation rates which shall apply to business produced by General
Agent pursuant to this Agreement are attached to this Exhibit as one or
more Compensation Schedules, which may be amended from time to time as
provided for in this Agreement. The Compensation Schedules also apply to
all state specific versions of the contract form numbers listed on the
Compensation Schedules.
Some of the Contracts listed in the Compensation Schedules may not be
available for sale in all states. General Agent is responsible for
ascertaining whether it has the authority, pursuant to state and federal
law, to sell the Contracts in the jurisdictions in which the Contracts
have been approved and in which General Agent is appointed by Nationwide.
5. No compensation shall be payable, and Nationwide may chargeback any
compensation that may have been paid in any of the following situations:
(i) Nationwide, in its good faith discretion, determines not to issue
the Contract applied for; (ii) Nationwide refunds the premiums or
purchase payments upon the applicant's surrender or withdrawal pursuant
to any "free-look" privilege; (iii) Nationwide refunds the premiums paid
as a result of a complaint by the Contract holder or applicant; or (iv)
Nationwide determines that any person soliciting an application was
required to be licensed and was not or that any other person or entity
receiving compensation for soliciting application or premiums for the
Contracts is not or was not duly licensed as an insurance agent and
appointed (v) if Nationwide determines at any time that the applicant
did not meet applicable underwriting standards, including but not
limited to, the maximum issue age.
6. Compensations or replacements or conversions shall be allowed in
accordance with the Company rules in force at the time such replacement
or conversion is effected.
7. Nationwide will not pay compensation on an internal exchange unless
otherwise provided in this Agreement.
THIS EXHIBIT ESTABLISHES THE COMPENSATION RATES FOR PURCHASE PAYMENTS
SPECIFIED HEREIN AND IN NO WAY SUPERSEDES OR REVOKES ANY OTHER TERMS IN THE
AGREEMENT. ALL OTHER PROVISIONS OF THE AGREEMENT ARE UNAFFECTED BY THIS
EXHIBIT.
12
EXHIBIT B
EXCLUSIVITY
Nationwide will be the exclusive provider to Waddell & Reed for the following
products:
1. Waddell & Reed Advisor Select Annuity
2. Waddell & Reed Advisors Select Plus Annuity
3. Waddell & Reed Advisors Select Plus Annuity NY
4. Waddell & Reed Advisors Select Life
5. Waddell & Reed Advisors Retirement Plan
There will be no Exclusivity Arrangement regarding the following products:
1. Waddell & Reed Advisors Survivorship Life
2. Waddell & Reed Advisors Term Ten/Twenty
3. Waddell & Reed Advisors Term Ten/Twenty NY
Upon the mutual agreement of both parties, this EXHIBIT may be amended from
time to time with the addition of certain other annuity or insurance products.
*Actual form numbers to be used in certain states may have different
identifying suffixes, which reflect certain unique characteristics of the
contract mandated by the particular state insurance authority.