Nationwide Trust Company Plan Investment Advisory Firm Services Payment Agreement ( Agreement )

Transcription

1 Nationwide Trust Company Plan Investment Advisory Firm Services Payment Agreement ( Agreement ) This Agreement is entered into between ( Sponsor ), a Plan Investment Advisory Firm ( Advisory Firm ), and Nationwide Life Insurance Company and/or Nationwide Trust Company, FSB a division of Nationwide Bank (collectively, Nationwide ) to establish a fee arrangement for investment advisory services to be provided to ( Plan ) by the Advisory Firm. These investment advisory services are provided through the Advisory Firm s designated investment adviser representative ( IAR ), under a separate agreement between the Sponsor and the Advisory Firm ( Advisory Agreement ). This Agreement shall be effective upon execution of this Agreement by the Sponsor, Advisory Firm and Nationwide. Sponsor Representations Sponsor acknowledges that it is solely responsible for the selection of the Advisory Firm and that Nationwide shall be under no obligation to confirm or verify that the Advisory Firm or the IAR is properly registered with the Securities and Exchange Commission or with state(s) securities authorities, as applicable. Sponsor represents that as a plan fiduciary independent of the Advisory Firm and any other plan fiduciary, (1) it approves of the Advisory Firm s investment strategies, and (2) the provision of investment advisory services to the Plan by the IAR and the payment arrangement set forth herein are consistent with the terms of the Plan s plan document and related materials ( Plan Document ) and with the Employee Retirement Income Security Act of 1974, as amended, ( ERISA ) and other applicable law. Sponsor acknowledges that it has provided the Advisory Firm and/or the IAR with a copy of the Plan Document and that Sponsor is solely responsible for monitoring the services of Advisory Firm and IAR, including their ongoing compliance with the terms of the Plan Document and all applicable provisions of ERISA and/or other applicable law. Sponsor acknowledges that, to the extent applicable, it has received full disclosure of the payment structure with respect to Plan assets that are invested in Affiliated Funds (as later defined herein). Advisory Firm Representations Advisory Firm represents that it is registered as an investment adviser with the Securities and Exchange Commission under the Investment Advisers Act of 1940 or with applicable state(s) securities authorities, and that its IAR is properly registered as an investment adviser representative. Advisory Firm agrees to notify the Sponsor and Nationwide in writing within ten (10) business days after the Advisory Firm ceases to be registered as an investment adviser or if the IAR ceases to be registered as an investment adviser representative. Advisory Firm represents that the IAR is a fiduciary as that term is defined by ERISA with respect to investment advisory services described herein and also represents that Advisory Firm and/or IAR has received, read and will comply with the PNF-0250AO.2 Case Number: - 1 of 8 06/2014

2 terms of the Plan Document and all applicable provisions of ERISA and/or other applicable law. In the event that Advisory Firm and IAR employ investment strategies which involve the investment of Plan assets in mutual funds that are affiliated with the Advisory Firm ( Affiliated Funds ), Advisory Firm represents that it will comply with ERISA Prohibited Transaction Exemption 77-4 or any successor thereto, as applicable, and offset or credit the pro rata share of its investment advisory fee received from Affiliated Funds with respect to the investment of Plan assets against the Advisory Firm s investment advisory fee. Nationwide Representations Nationwide represents that, using reasonable care consistent with industry standards, it will carry out instructions provided by Sponsor and/or Advisory Firm in support of the payment arrangement set forth herein. IAR Information Advisory Firm herby appoints [ ] as the IAR for this Plan. The last four digits of the IAR s social security number are as follows [ ]. Fee Disclosure The ERISA 404(a)(5) regulations require that plan sponsors make certain plan fee and investment- related disclosure available 30 days in advance of changes. Please choose one of the options below. By checking this box, the Plan Sponsor directs Nationwide to generate and provide to the Plan Sponsor a copy of the 30-day advance notice for the Plan Sponsor to distribute according to ERISA guidelines. This request must be received by Nationwide in the required format no less than 40 days prior to the desired processing date. OR By checking this box, the Plan Sponsor acknowledges that they understand they have a fiduciary obligation under ERISA to provide a 30-day advance notice of this change and have provided 30 day advance notice to plan participants, eligible employees, and beneficiaries. PNF-0250AO.2 Case Number: - 2 of 8 06/2014

3 Payment Arrangement Sponsor authorizes that the Advisory Firm shall be compensated in one of the following ways for providing investment advisory services to the Plan. % of Plan assets annually (to be assessed and deducted no less frequently than quarterly). $ per participant annually (to be assessed and deducted no less frequently than quarterly). $ flat fee annually (to be assessed and deducted in equal installments based on pay frequency, which will be no less frequently than quarterly). As otherwise agreed to by Sponsor, Advisory Firm, and Nationwide via separate instruction from the Sponsor. The fee will be forwarded by Nationwide to the Advisory Firm and represents payment for investment advisory services for the relevant service period. All fees will be paid in accordance with current administrative procedures, a copy of which is incorporated into this Agreement and attached as Exhibit A. These procedures detail the fee calculation and payment frequency. Any changes to Exhibit A may be made solely by Nationwide with 90 days advance written notice to the Sponsor and Advisory Firm. The initial fee payment under this Agreement shall not commence until the service period as outlined in Exhibit A following the effective date of this Agreement. Advisory Firm acknowledges that it may only be compensated for services to the Plan under the terms of this Agreement, and that Advisory Firm and/or its associated persons will not also be compensated for such non-advisory services under Nationwide s General Agent Compensation Agreement, Companion Agreement, or other similar selling agreement. Advisory Firm and Sponsor acknowledge that Nationwide: (1) is acting solely as a paying agent of the Plan with respect to this Agreement, (2) may conclusively rely on any instructions it may receive to effectuate payment to the Advisory Firm under this Agreement, and (3) shall have no duty to monitor or otherwise review the instructions received or the services provided to the Plan by the Advisory Firm or IAR. Advisory Firm and Sponsor agree to indemnify, defend, and hold Nationwide and its directors, PNF-0250AO.2 Case Number: - 3 of 8 06/2014

4 officers, agents, affiliates, and employees (collectively, the Nationwide Indemnities ) harmless from and against any and all losses, claims, demands, liabilities, damages, suits or other legal actions, judgments and decrees, attorneys fees, costs and expenses of any kind or nature whatsoever ( Losses ) that the Nationwide Indemnities may directly or indirectly suffer or incur arising out of the performance of Nationwide s duties under this Agreement, except to the extent such Losses result from Nationwide s willful misfeasance, bad faith, gross negligence or reckless disregard of its duties or obligations hereunder. Each party acknowledges and agrees that the terms set forth herein are consistent with and not contradictory to any other agreements or understandings between the parties and that in the event any such terms herein are inconsistent or contradictory therewith, the terms of this Agreement shall control. Confidentiality of Information and Authorization to Share Sponsor authorizes Nationwide to provide Advisory Firm and/or IAR with access to Plan and participant information that Nationwide holds, including, but not limited to, participant name, Social Security number, account values, fund balances, transaction histories, and Funding Vehicle allocations ( Plan Related Information ). Sponsor acknowledges that Nationwide shall have no liability or responsibility for Advisory Firm and/or IAR s use or disclosure of Plan Related Information. Information provided by Nationwide to Advisory Firm and IAR pursuant to this Agreement shall be kept strictly confidential ( Confidential Information ). Advisory Firm agrees to protect and maintain the Confidential Information with reasonable care, which shall not be less than the degree of care it uses to protect its own confidential information. Furthermore, Advisory Firm agrees not to use or disclose Confidential Information other than on a need to know basis and then only as (i) necessary to carry out the purpose for which the Confidential Information was disclosed, (ii) expressly authorized by Sponsor (a copy of such authorization must be provided to Nationwide prior to the release of Confidential Information), or (iii) required by law. In the event that the Advisory Firm uses a third-party service provider to provide services under this Agreement, they agree that any such third-party service providers shall have, by appropriate written agreement, agreed to safeguard Confidential Information and to limit its use to performance of services authorized by the Sponsor. Upon discovery of unauthorized access to or disclosure of Confidential Information, Advisory Firm shall promptly notify, furnish full details to, and cooperate with Nationwide to limit and correct the unauthorized disclosure and shall pay all direct damages associated with notification and correction deemed necessary by Nationwide. These direct damages include all reasonable costs associated with notifying affected PNF-0250AO.2 Case Number: - 4 of 8 06/2014

5 individuals (e.g., printing, mailing, service center response, and credit monitoring services). Upon Nationwide s written request or following termination of this Agreement, the Advisory Firm agrees to (1) promptly return to Nationwide any Confidential Information in its possession or control, or (2) purge, delete, destroy, to the extent reasonably practicable, any Confidential Information that cannot feasibly be returned to Nationwide (certifying such actions in writing), and (3) safeguard all other Confidential Information that cannot be returned, purged, deleted or destroyed. Advisory Firm acknowledges that Confidential Information may contain non-public personally identifiable information as defined in the Gramm-Leach-Bliley Act and the rules and regulations promulgated thereunder ( Personal Information ). Advisory Firm agrees to establish and maintain procedures reasonably designed to assure the security and privacy of Personal Information. Furthermore, Advisory Firm agrees to comply with all laws, rules, regulations and ordinances relating to privacy, confidentiality, data security and the handling of Personal Information that may from time to time be established. Each of the parties warrants to the other that it shall not disclose to any third party proprietary information that it may acquire in the performance of this Agreement; nor shall it use such proprietary information for any purposes other than to fulfill its contractual obligations under this Agreement or as required by law. This subsection shall survive and continue in full force and effect notwithstanding the expiration or termination of this Agreement. Termination, Resignation or Replacement Each party may terminate this Agreement at any time by providing at least ten (10) business days written notice to the other parties. Such termination will not, however, affect the liabilities or obligations of the Parties arising from transactions initiated prior to such termination, and such liabilities and obligations shall survive any expiration or termination of this Agreement. Upon termination of this Agreement, Nationwide shall be under no obligation to carry out payment instructions on behalf of the Sponsor, the Advisory Firm, or any successor advisory firm chosen by the Sponsor unless such parties enter into a new Agreement with Nationwide. Further, Sponsor acknowledges that Nationwide cannot and is not under any legal obligation to facilitate refunding any appropriately paid payment to the Advisory Firm under the terms of this Agreement. In the event the IAR resigns from providing services to the Plan, or is suspended or terminated by the Advisory Firm, Advisory Firm shall provide Nationwide with at least ten (10) business days written notice. PNF-0250AO.2 Case Number: - 5 of 8 06/2014

6 Termination of Prior Agreements As of the effective date of this Agreement, this Agreement shall supersede and replace any prior agreements between the parties pertaining to the subject matter hereof. Notice All notices to be given pursuant to this Agreement shall be given in writing and delivered by personal delivery or by postage prepaid, registered or certified United States first class mail, return receipt requested, overnight mail, or by facsimile, or similar means of same day delivery (with a confirming copy by mail as provided herein). All notices shall be given or sent to the addresses shown herein or as Nationwide has on file for each party. Execution Copies Sponsor hereby authorizes Nationwide to send executed copies of this Agreement to Sponsor, Advisory Firm, and the Plan s authorized representative. Authority The Sponsor signing this Agreement represents that performance of the Agreement is within the scope of the activities authorized by the Plan and applicable laws and that he or she is duly authorized to negotiate, enter into, and renew this Agreement on behalf of the Plan. Each party represents to the others that the person executing this Agreement on its behalf is duly authorized and empowered to execute this Agreement. We hereby agree with the provisions set forth in this Agreement and the verification set forth above. Sponsor - Signature Sponsor - Name/Title Address: PNF-0250AO.2 Case Number: - 6 of 8 06/2014

7 Plan Investment Advisory Firm - Signature Plan Investment Advisory Firm - Name/Title Address: Address: Nationwide Signature Effective Date Nationwide - Name/Title Address: Case Name Case Number PNF-0250AO.2 Case Number: - 7 of 8 06/2014

8 Exhibit A Administrative Procedures for Advisory Firm Services Payment Agreement The Advisory Firm will be compensated in one of the following ways based on their selection within the Agreement. The relevant service period is for the upcoming calendar quarter. All fees will be assessed, calculated and deducted as follows based on Plan assets prior to any distributions: For fees that are a percentage of Plan assets, the annual asset percentage will be calculated based on the beginning assets as of the first day of each quarter, calculated to be a quarterly payment (annual percentage divided by four) and will be deducted the same evening, unless the first day of the quarter is not a business day, then it shall be deducted the next business day from Plan assets at Nationwide. The amount will be pro-rated across all participant and Plan-level accounts with a balance in the Plan. The fee will be deducted from the largest fund/source combination of each account, with the exception of self-directed brokerage accounts and/or FDIC Insured accounts. For fees that are an annual dollar amount per participant, this set annual dollar amount will be calculated to be a quarterly payment (annual amount divided by four) and will be deducted on the first day of the quarter, unless the first day of the quarter is not a business day, then it shall be deducted the next business day from Plan assets at Nationwide. The amount will be taken from all participant and Plan-level accounts with a balance in the Plan. The fee will be deducted from the largest fund/source combination of each account, with the exception of selfdirected brokerage accounts and/or FDIC Insured accounts. For fees that are an annual flat fee, this set dollar amount will be calculated to be a quarterly payment (annual amount divided by four) and will be deducted on the first day of the quarter, unless the first day of the quarter is not a business day, then it shall be deducted the next business day from Plan assets at Nationwide. The amount will be pro-rated across all participant and Plan-level accounts with a balance in the Plan. The fee will be deducted from the largest fund/source combination of each account, with the exception of self-directed brokerage accounts and/or FDIC Insured accounts. PNF-0250AO.2 Case Number: - 8 of 8 06/2014