FUND PARTICIPATION AGREEMENT
AXA EQUITABLE LIFE INSURANCE COMPANY,
IVY FUNDS VARIABLE INSURANCE PORTFOLIOS
AND
XXXXXXX & XXXX, INC.
DATE
FUND PARTICIPATION AGREEMENT
Among
AXA Equitable Life Insurance Company,
Ivy Funds Variable Insurance Portfolios
and
Xxxxxxx & Xxxx, Inc.
THIS AGREEMENT, effective______________, by and among AXA Equitable
Life Insurance Company (the "Company"), a New York Corporation, on its own
behalf and on behalf of certain separate accounts (the "Accounts"); Ivy Funds
Variable Insurance Portfolios, a Delaware statutory trust (the "Fund"); and
Xxxxxxx & Xxxx, Inc. (the "Distributor"), a Delaware corporation.
WHEREAS, the Fund engages in business as an open-end management
investment company and is available to act as the investment vehicle for
separate accounts established for variable life insurance policies and/or
variable annuity contracts (collectively, the "Variable Insurance Products") to
be offered by insurance companies (the "Participating Insurance Companies"); and
WHEREAS, the beneficial interest in the Fund is divided into several
series of shares, each designated a "Portfolio" and representing the interest in
a particular managed portfolio of securities and other assets; and
WHEREAS, the Fund has obtained an order from the Securities and
Exchange Commission (the "SEC"), dated September 20, 1999 (File No. IC-24019)
(the "Mixed and Shared Funding Exemptive Order"), granting Participating
Insurance Companies and variable annuity and variable life insurance separate
accounts exemptions from the provisions of sections 9(a),
13(a), 15(a), and 15(b) of the Investment Company Act of 1940, as amended
(hereinafter the "1940 Act"), and Rules 6e-2(b)(15) and 6e-3(T)(b)(15)
thereunder, to the extent necessary to permit shares of the Fund to be sold to
and held by variable annuity and variable life insurance separate accounts of
life insurance companies that may or may not be affiliated with one another and
qualified pension and retirement plans ("Qualified Plans"); and
WHEREAS, the Fund is registered as an open-end management investment
company under the 1940 Act and shares of the Portfolio(s) are registered under
the Securities Act of 1933, as amended (the "1933 Act"); and
WHEREAS, the Distributor is duly registered as a broker-dealer under
the Securities Exchange Act of 1934, as amended, (the "1934 Act") and is a
member in good standing of the Financial Industry Regulatory Authority (the
"FINRA"); and
WHEREAS, the Company has issued and plans to continue to issue certain
variable life insurance policies and/or variable annuity contracts supported
wholly or partially by the Accounts (the "Contracts"); and such Contracts are
listed in Schedule A attached hereto and incorporated herein by reference, as
such schedule may be amended from time to time by mutual written agreement of
the parties; and
WHEREAS, each Account is a duly organized, validly existing segregated
asset account, established by resolution of the Board of Directors of the
Company under the insurance laws of the State of New York, to set aside and
invest assets attributable to the Contracts; and
WHEREAS, to the extent permitted by applicable insurance laws and
regulations, the Company intends to continue to purchase shares in the
Portfolios listed on Schedule B attached hereto and incorporated herein by
reference, as such schedule may be amended from time to time by mutual written
agreement of the parties (the "Portfolios"), on behalf of the Accounts to fund
the Contracts, and the Fund is authorized to sell such shares to unit investment
trusts such as the Accounts at net asset value; and
WHEREAS, to the extent permitted by applicable insurance laws and
regulations, the
Company also intends to continue to purchase shares in other open-end investment
companies or series thereof not affiliated with the Fund (the "Unaffiliated
Funds") on behalf of the Accounts to fund the Contracts.
NOW, THEREFORE, in consideration of their mutual promises, the Company,
the Fund, and the Distributor agree as follows:
ARTICLE I. Sale of Fund Shares
1.1. The Fund agrees to sell to the Company for its accounts those
shares of the Portfolios which the Account orders, executing such orders on each
Business Day at the net asset value next computed after receipt by the Fund's
designee of the order for the shares of the Portfolios. For purposes of this
Section 1.1, the Company shall be the designee of the Fund for receipt of such
orders and receipt by such designee shall constitute receipt by the Fund,
provided that the Fund receives notice of any such order by 9:00 a.m. Eastern
time on the next following Business Day. "Business Day" shall mean any day on
which the New York Stock Exchange (the "NYSE") is open for trading and on which
the Portfolio calculates its net asset value pursuant to the rules of the SEC as
described in the then-current registration statement of the Fund on Form N-1A.
"Market Close" shall mean 4:00 p.m. Eastern time, unless the NYSE closes earlier
in which case such earlier time shall apply.
1.2. The Fund agrees to make shares of the Portfolios available for
purchase at the applicable net asset value per share by the Company and the
Accounts on those days on which the Fund calculates its Portfolios' net asset
value pursuant to rules of the SEC, and the Fund shall calculate such net asset
value on each day which the NYSE is open for trading. Notwithstanding the
foregoing, 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 is, in the
sole discretion of the Fund acting in good faith, necessary or appropriate in
the best interests of the shareholders of such Portfolio. All orders accepted by
the Company shall be subject to the terms of the then current prospectus of the
Fund. The Company shall use its best efforts, and shall reasonably cooperate
with, the Fund to
enforce stated prospectus policies regarding transactions in Portfolio shares.
The Company acknowledges that orders for Portfolio shares accepted by it in
violation of the stated policies of the Fund as set forth in the Fund's
then-current prospectus may be subsequently revoked or cancelled by the Fund and
that the Fund shall not be responsible for any losses incurred by the Company or
the Contract owner as a result of such cancellation. In addition, the Company
acknowledges that the Fund has the right to refuse any purchase order for any
reason, particularly if the Fund determines that a Portfolio would be unable to
invest the money effectively in accordance with its investment policies or would
otherwise be adversely affected due to the size of the transaction, frequency of
trading, or other factors, or if such action is required by any policies that
the Fund's Board has adopted and that apply to all Participating Insurance
Companies.
1.3. The Fund will not sell shares of the Portfolios to any other
Participating Insurance Company separate account or Qualified Plan unless an
agreement containing provisions the substance of which are the same as Sections
2.1, 2.2 (except with respect to designation of applicable law), 3.5, 3.6, 3.7,
and Article VII of this Agreement is in effect to govern such sales.
1.4. The Fund agrees to redeem for cash, on the Company's request, any
full or fractional shares of the Fund held by the Company, executing such
requests on each Business Day at the net asset value next computed after receipt
by the Fund's designee of the request for redemption. For purposes of this
Section 1.4, the Company shall be the designee of the Fund for receipt of
requests for redemption and receipt by such designee shall constitute receipt by
the Fund, provided that the Fund receives notice of any such request for
redemption by 9:00 a.m. Eastern time on the next following Business Day.
1.5. The parties hereto acknowledge that the arrangement contemplated
by this Agreement is not exclusive; the Fund's shares may be sold to other
Participating Insurance Companies (subject to Section 1.3) and the cash value of
the Contracts may be invested in other investment companies.
1.6. The Company shall pay for Fund shares by 3:00 p.m. Eastern time on
the next
Business Day after an order to purchase Fund shares is received in
accordance with the provisions of Section 1.1 hereof. Payment shall be in
federal funds transmitted by wire and/or by a credit for any shares redeemed the
same day as the purchase.
1.7. The Fund shall pay and transmit the proceeds of redemptions of
Fund shares by 3:00 p.m. Eastern Time on the next Business Day after a
redemption order is received in accordance with Section 1.4 hereof; provided,
however, that the Fund may delay payment in extraordinary circumstances to the
extent permitted under Section 22(e) of the 1940 Act. Payment shall be in
federal funds transmitted by wire and/or a credit for any shares purchased the
same day as the redemption.
1.8. Issuance and transfer of the Fund's shares will be by book entry
only. Stock certificates will not be issued to the Company or the Accounts.
Shares purchased from the Fund will be recorded in an appropriate title for the
relevant Account or the relevant sub-account of an Account.
1.9. The Fund or its designee shall furnish same day notice (by
electronic communication or telephone, followed by electronic confirmation) to
the Company of any income, dividends or capital gain distributions payable on a
Portfolio's shares. The Company hereby elects to receive all such income
dividends and capital gain distributions as are payable on a Portfolio's shares
in additional shares of that Portfolio. The Company reserves the right to revoke
this election and to receive all such income dividends and capital gain
distributions in cash. The Fund shall notify the Company by the end of the next
following Business Day of the number of shares so issued as payment of such
dividends and distributions.
1.10 The Fund shall make the net asset value per share for each
Portfolio available to the Company on each Business Day as soon as reasonably
practicable after the net asset value per share is calculated and shall use its
best efforts to make the net asset value per share for each Portfolio available
by 6:30 p.m. Eastern time. In the event of an error in the computation of a
Portfolio's net asset value per share ("NAV") or any dividend or capital gain
distribution (each, a "pricing error"), the Distributor or the Fund shall notify
the Company as soon as reasonably
possible after discovery of the error. Such notification may be verbal, but
shall be confirmed promptly in writing. A pricing error shall be corrected in
accordance with the Fund's pricing error policy. If an adjustment is necessary
to correct a material error which has caused Contract owners to receive less
than the amount to which they are entitled, the number of shares of the
applicable sub-account of such Contract owners will be adjusted and the amount
of any underpayments shall be credited by the Distributor to the Company for
crediting of such amounts to the applicable sub-accounts of such Contract
owners. Upon notification by the Distributor of any overpayment due to a
material error, the Company shall promptly remit to the Distributor any
overpayment that has not been paid to Contract owners. In no event shall the
Company be liable to Contract owners for any such adjustments or underpayment
amounts. The standards set forth in this Section 1.10 are based on the parties'
understanding of the views expressed by the staff of the SEC as of the date of
this Agreement. In the event the views of the SEC staff are later modified or
superseded by SEC or judicial interpretation, the parties shall amend the
foregoing provisions of this Agreement to comport with the then-currently
acceptable standards, on terms mutually satisfactory to all parties.
1.11 Company shall provide Distributor with reports substantially in
the form attached as Schedule E ("Distribution Reports"). Company shall use its
best efforts to provide Distributor with Distribution Reports on a monthly
basis, but in no event shall Company provide Distribution Reports less
frequently than quarterly. Company and Distributor agree to use reasonable
efforts to include such additional items in the Distribution Reports as Company
and Distributor may mutually agree upon in writing.
ARTICLE II. Representations and Warranties
2.1. The Company represents and warrants that: (a) the securities
deemed to be issued by the Accounts under the Contracts are or will be
registered under the 1933 Act, or are not so registered in proper reliance upon
an exemption from such registration requirements; (b) the Contracts will be
issued and sold in compliance in all material respects with all applicable
federal and state laws, and applicable rules and regulations; and (c) the sale
of the Contracts shall comply in all material respects with state insurance
suitability requirements.
2.2. The Company represents and warrants that: (a) it is an insurance
company duly organized and in good standing under applicable law; (b) it has
legally and validly established each Account prior to any issuance or sale of
units thereof as a separate account under New York State law; (c) it has
registered each Account as a unit investment trust in accordance with the
provisions of the 1940 Act to serve as a segregated investment account for the
Contracts, and will maintain such registration for so long as any Contracts are
outstanding as required by applicable law or, alternatively, the Company has not
registered one or more Accounts in proper reliance upon an exclusion from such
registration requirements, (d) during the term of this Agreement, it will have
in force adequate insurance coverage insuring the Company against potential
liabilities associated with the underwriting and distribution of the Contracts.
2.3. The Fund represents and warrants that: (a) the Fund shares sold
pursuant to this Agreement shall be registered under the 1933 Act; (b) the Fund
shares sold pursuant to this Agreement shall be duly authorized for issuance and
sold in compliance with all applicable federal securities laws including,
without limitation, the 1933 Act, the 1934 Act, and the 1940 Act; (c) the Fund
is and shall remain a registered investment company under the 1940 Act; and (d)
the Fund shall amend the registration statement for its shares under the 1933
Act and the 1940 Act from time to time as required in order to effect the
continuous offering of its shares.
2.4. The Fund represents and warrants that it has adopted a service
plan pursuant to Rule 12b-1 under the 1940 Act. The parties acknowledge that the
Fund reserves the right to modify its existing plan or to adopt additional plans
pursuant to Rule 12b-1 under the 1940 Act and to impose an asset-based or other
charge to finance distribution expenses as permitted by applicable law and
regulation. The Fund and the Distributor agree to comply with applicable
provisions and SEC interpretation of the 1940 Act with respect to any 12b-1
plan.
2.5. The Fund represents and warrants that it shall register and
qualify the shares for sale in accordance with the laws of the various states if
and to the extent required by applicable law.
2.6 The Fund represents and warrants that it is lawfully organized and
validly existing
under the laws of the State of Delaware and that it does and will comply in all
material respects with the 1940 Act.
2.7 The Fund will at all times invest money from the Contracts in such
a manner as to ensure that the Contracts will be treated as variable contracts
under the Code and the regulations issued thereunder. Without limiting the scope
of the foregoing or anything contained in Article VI of this Agreement, the Fund
represents and warrants that each Portfolio of the Fund will comply with Section
817(h) of the Code and Treasury Regulation 1.817-5, relating to the
diversification requirements for variable annuity, endowment, or life insurance
contracts and any amendments or other modifications to such Section or
Regulations (and any revenue rulings, revenue procedures, notices, and other
published announcements of the Internal Revenue Service interpreting these
provisions). In the event the Fund should fail to so qualify, it will take all
reasonable steps (a) to notify the Company of such breach and (b) to resume
compliance with such diversification requirement within the grace period
afforded by Treasury Regulations 1.817-5.
2.8. The Distributor represents and warrants that it is and shall
remain duly registered under all applicable federal and state securities laws
and that it shall perform its obligations for the Fund in compliance in all
material respects with the laws of any applicable state and federal securities
laws.
2.9. The Fund represents and warrants that all of its officers,
employees, investment advisers, and other individuals or entities dealing with
the money and/or securities of the Fund are, and shall continue to be at all
times, covered by one or more blanket fidelity bonds or similar coverage for the
benefit of the Fund in an amount not less than the minimal coverage required by
Rule 17g-1 under the 1940 Act or related provisions as may be promulgated from
time to time. The aforesaid bonds shall include coverage for larceny and
embezzlement and shall be issued by a reputable bonding company.
2.10. The Fund represents, warrants, and covenants: (i) that each
Portfolio shall be classified as a "regulated investment company" for federal
income tax purposes and shall at all
times maintain such classification; (ii) to notify the Company upon having a
reasonable basis for believing that the Fund or any Portfolio has ceased to
comply, or might not so comply, with the aforesaid classification as a
"regulated investment company" (iii) that each Portfolio shall not be a
"publicly-traded partnership" within the meaning of the Code and the regulations
thereunder; and (iv) that each Portfolio will not make any direct or indirect
investment which would require the Company to report such an investment as a
"listed transaction" on the Company's tax return or any similar Internal Revenue
Service reporting requirements.
2.11. The Fund and the Distributor represent and warrant that they will
provide the Company with as much advance notice as is reasonably practicable of
any material change affecting the Portfolios (including, but not limited to, any
material change in the registration statement or prospectus affecting the
Portfolios) and any proxy solicitation affecting the Portfolios and consult with
the Company in order to implement any such change in an orderly manner,
recognizing the expenses of changes and attempting to minimize such expenses by
implementing them in conjunction with regular annual updates of the prospectus
for the Contracts.
2.12. The Company represents and warrants, for purposes other than
diversification under Section 817 of the Internal Revenue Code of 1986, as
amended (the "Code"), that the Contracts are currently and at the time of
issuance will be treated as annuity contracts or life insurance policies under
applicable provisions of the Code, and that it will make every effort to
maintain such treatment and that it will notify the Fund and the Distributor
immediately upon having a reasonable basis for believing that the Contracts have
ceased to be so treated or that they may not be so treated in the future. In
addition, the Company represents and warrants 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. The Company will use best efforts to continue to meet
such definitional requirements, and it will notify the Fund the Distributor
immediately upon having a reasonable basis for believing that such requirements
have ceased to be met or that they may not be met in the future.
2.13. Each party represents and warrants that it is currently in
compliance, and will remain in compliance, with all applicable anti-money
laundering laws, regulations, and requirements. In addition, the Company
represents and warrants that it has adopted and implemented policies and
procedures reasonably designed to achieve compliance with the applicable
requirements administered by the Office of Foreign Assets Control ("OFAC") of
the U.S. Department of the Treasury.
2.14. The Company represents and warrants that it is currently in
compliance, and will remain in compliance, with all applicable laws, rules and
regulations relating to consumer privacy, including, but not limited to,
Regulation S-P.
2.15. The Company represents and warrants that it has adopted, and will
at all times during the term of this Agreement maintain, reasonable and
appropriate procedures ("Late Trading Procedures") designed to ensure that any
and all orders relating to the purchase, sale or exchange of Fund shares
communicated to the Fund are treated in accordance with Article I of this
Agreement as having been received on a Business Day have been received by the
Market Close on such Business Day and were not modified after the Market Close,
and that all orders received from Contract owners but not rescinded by the
Market Close were communicated to the Fund or its agent as received for that
Business Day. Each transmission of orders by the Company shall constitute a
representation by the Company that such orders are accurate and complete and
relate to orders received by the Company by the Market Close on the Business Day
for which the order is to be priced and that such transmission includes all
orders relating to Fund shares received from Contract owners but not rescinded
by the Market Close. The Company agrees to provide the Fund or its designee with
a copy of the Late Trading Procedures and such certifications and
representations regarding the Late Trading Procedures as the Fund or its
designee may reasonably request. The Company will promptly notify the Fund in
writing of any material change to the Late Trading Procedures.
2.16. The Company represents and warrants that it has adopted, and will
at all times during the term of this Agreement maintain, reasonable and
appropriate procedures ("Market Timing Procedures") designed to minimize any
adverse impact on other Fund investors due to
excessive trading. The Company agrees to provide the Fund or its designee with a
copy of the Market Timing Procedures and such certifications and representations
regarding the Market Timing Procedures as the Fund or its designee may
reasonably request. The Company will promptly notify the Fund in writing of any
material change to the Market Timing Procedures. The parties agree to cooperate
in light of any conflict between the Market Timing Procedures and actions taken
or policies adopted by the Fund designed to minimize any adverse impact on other
Fund investors due to excessive trading.
2.17. The Fund and the Distributor make no representation as to whether
any aspect of the Fund's operations (including, but not limited to, fees and
expenses and investment policies) complies with the insurance laws or
regulations of the various states.
ARTICLE III. Prospectuses and Proxy Statements; Voting
3.1. At least annually, the Distributor shall provide the Company with
as many copies of the Fund's current prospectus as the Company may reasonably
request, with expenses to be borne in accordance with Schedule C hereof. If
requested by the Company in lieu thereof, the Distributor or Fund shall provide
such documentation (including an electronic version of the current prospectus)
and other assistance as is reasonably necessary in order for the Company once
each year (or more frequently if the prospectus for the Fund is amended) to have
the prospectus for the Contracts and the prospectus for the Fund printed
together in one document. The Fund hereby notifies Company that it may be
appropriate to include in the prospectus to which a Contract is offered
disclosure regarding the potential risk of Mixed and Shared Funding.
3.2. If applicable state or federal laws or regulations require that
the Statement of Additional Information ("SAI") for the Fund be distributed to
all Contract owners, then the Fund, and/or Distributor shall provide the Company
with copies of the Fund's SAI in such quantities, with expenses to be borne in
accordance with Schedule C hereof, as the Company may reasonably require to
permit timely distribution thereof to Contract owners. The Distributor and/or
the Fund shall also provide an SAI to any Contract owner or prospective owner
who requests such SAI from the Fund.
3.3. The Fund and/or the Distributor shall provide the Company with
copies of the Fund's proxy material, reports to shareholders and other
communications to shareholders in such quantity, with expenses to be borne in
accordance with Schedule C hereof, as the Company may reasonably require to
permit timely distribution thereof to Contract owners.
3.4. It is understood and agreed that, except with respect to
information regarding the Company provided in writing, the Company shall not be
responsible for the content of the prospectus or SAI for the Fund. It is also
understood and agreed that, except with respect to information regarding the
Fund, the Distributor, or the Portfolios provided in writing or approved of in
writing by the Fund or the Distributor, neither the Fund nor the Distributor is
responsible for the content of the prospectus or SAI for the Contracts.
3.5. If and to the extent required by law the Company shall:
(a) solicit voting instructions from Contract owners;
(b) vote the Portfolio shares held in the Accounts in accordance
with instructions received from Contract owners;
(c) vote Portfolio shares held in the Accounts for which no
instructions have been received in the same proportion as Portfolio shares for
which instructions have been received from Contract owners, so long as and to
the extent that the SEC continues to interpret the 1940 Act to require
pass-through voting privileges for variable contract owners; and
(d) vote Portfolio shares held in its general account or otherwise
in the same proportion as Portfolio shares for which instructions have been
received from Contract owners, so long as and to the extent that the SEC
continues to interpret the 1940 Act to require such voting by the insurance
company. The Company reserves the right to vote Fund shares in its own right, to
the extent permitted by law.
3.6. The Company shall be responsible for assuring that each of its
separate accounts holding shares of a Portfolio calculates voting privileges as
directed by the Fund and agreed to by the Company and the Fund. The Fund agrees
to promptly notify the Company of any changes
of interpretations or amendments of the Mixed and Shared Funding Exemptive
Order.
3.7. The Fund will comply with all provisions of the 1940 Act requiring
voting by shareholders, and in particular the Fund will either provide for
annual meetings (except insofar as the SEC may interpret Section 16 of the 1940
Act not to require such meetings) or, as the Fund currently intends, comply with
Section 16(c) of the 1940 Act (although the Fund is not one of the trusts
described in Section 16(c) of that Act) as well as with Sections 16(a) and, if
and when applicable, 16(b). Further, the Fund will act in accordance with the
SEC's interpretation of the requirements of Section 16(a) with respect to
periodic elections of directors or trustees and with whatever rules the SEC may
promulgate with respect thereto.
3.8 Company and Fund or Distributor will, at least annually, submit to
the Fund's Board such reports, materials or data as the Board may reasonably
request so that the Board may fully carry out the obligations imposed upon it by
the provisions hereof or any exemptive order granted by the SEC to permit Mixed
and Shared Funding, and said reports, materials and data will be submitted at
any reasonable time deemed appropriate by the Board. This information will
include, but not be limited to, requirements set forth in Section 7.1 of this
Agreement.
ARTICLE IV. Sales Material and Information
4.1. The Company shall furnish, or shall cause to be furnished, to the
Fund or its designee, a copy of each piece of sales literature or other
promotional material that the Company develops or proposes to use and in which
the Fund (or a Portfolio thereof), or the Distributor is named in connection
with the Contracts, at least ten (10) Business Days prior to its use. No such
material shall be used if the Fund or its designee objects to such use within
seven (7) Business Days after receipt of such material.
4.2. The Company shall not give any information or make any
representations or statements on behalf of or concerning the Fund, the
Portfolios or the Distributor in connection with the sale of the Contracts other
than the information or representations contained in the registration statement,
including the prospectus or SAI for the Fund, as the same may be amended or
supplemented from time to time, or in sales literature or other promotional
material
approved by the Fund or the Distributor, except with the permission of the Fund
or the Distributor.
4.3. The Fund or the Distributor shall furnish, or shall cause to be
furnished, to the Company, a copy of each piece of sales literature or other
promotional material in which the Company and/or its separate account(s) is
named at least five (5) Business Days prior to its use. No such material shall
be used if the Company objects to such use within three (3) Business Days after
receipt of such material.
4.4. The Fund or the Distributor shall not give any information or make
any representations on behalf of the Company or concerning the Company, the
Accounts, or the Contracts other than the information or representations
contained in a registration statement, including the prospectus or SAI for the
Contracts, as the same may be amended or supplemented from time to time, or in
sales literature or other promotional material approved by the Company or its
designee, except with the permission of the Company.
4.5. The Fund or its designees will provide to the Company at least one
complete copy of all registration statements, prospectuses and SAIs and all
amendments and supplements. On an annual basis, and upon Company's request, the
Fund or its designee will provide to the Company copies of applications for
exemptions and requests for no-action letters that relate to the Fund within a
reasonable period of time following the filing of such document(s) with the SEC
or FINRA or other regulatory authorities, or, with respect from exemptive
applications and no-action letters, upon receipt of an order or no-action
assurance from the SEC.
4.6. The Company will provide to the Fund or its designees at least one
complete copy of all registration statements, prospectuses, SAIs, reports,
solicitations for voting instructions, sales literature and other promotional
materials, applications for exemptions, requests for no-action letters, and all
amendments and supplements to any of the above, that relate to the Accounts with
respect to the Fund, within a reasonable period of time following the filing of
such document(s) with the SEC, FINRA, or other regulatory authority.
4.7. For purposes of Articles IV and VIII, the phrase "sales literature
and other
promotional material" includes, but is not limited to materials related to the
Accounts such as: 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 media), sales literature (i.e., any written communication distributed
or made generally available to customers or the public, including brochures,
circulars, research reports, market letters, form letters, seminar texts,
reprints or excerpts of any other advertisement, sales literature, or published
article), educational or training materials or other communications distributed
or made generally available to some or all agents or employees, and shareholder
reports, and proxy materials (including solicitations for voting instructions)
and any other material constituting sales literature or advertising under the
FINRA rules, the 1933 Act or the 0000 Xxx.
4.8. At the request of any party to this Agreement, each other party
will make available to the other party's independent auditors and/or
representatives of the appropriate regulatory authorities, all records, data and
access to operating procedures that may be reasonably requested in connection
with compliance and regulatory requirements related to this Agreement or any
party's obligations under this Agreement.
4.9. If Company elects to include any materials provided by Distributor
or the Funds, (specifically prospectuses, SAIs, periodic reports and proxy
materials) on its web site or in any other computer or electronic format,
Company assumes sole responsibility for maintaining such materials in the form
provided by Distributor or the Fund and for promptly replacing such materials
with all updates provided by Distributor or the Fund. Distributor or the Fund
agree to provide all such materials requested by Company in a Portable Document
Format (PDF) in a timely fashion at no additional cost, together with such other
formats at Company's cost as may be mutually agreed upon.
ARTICLE V. Fees and Expenses
5.1. The Fund and the Distributor shall pay no fee or other
compensation to the
Company under this Agreement, and the Company shall pay no fee or other
compensation to the Fund or the Distributor under this Agreement; provided,
however, (a) the parties will bear their own expenses as reflected in Schedule C
and other provisions of this Agreement, and (b) the parties may enter into other
agreements relating to the Company's investment in the Fund, including services
agreements.
ARTICLE VI. Diversification and Qualification
6.1. The Fund and the Distributor represent and warrant that the Fund
and each Portfolio thereof will at all times comply with Section 817(h) of the
Code and Treasury Regulation ss.1.817-5, as amended from time to time, and any
Treasury interpretations thereof, relating to the diversification requirements
for variable annuity, endowment, or life insurance contracts and any amendments
or other modifications or successor provisions to such Section or Regulations.
The Fund or the Distributor shall provide timely to the Company a quarterly
written diversification certification, in the form attached hereto as Schedule
D, as to whether each Portfolio complies with the diversification requirements
of Section 817(h) of the Code.
6.2. The Fund and the Distributor represent and warrant that shares of
the Portfolios will be sold only to Participating Insurance Companies and their
separate accounts and to Qualified Plans. All parties agree that no shares of
any Portfolio of the Fund will be sold to the general public.
6.3. The Fund and the Distributor represent and warrant that prior to
allowing an purchase of shares of the Fund, the status of each purchaser with
respect to Section 817(h) of the Code and Treasury Regulation ss.1.817-5,
including any insurance company separate account or Qualified Plan, is verified
and documented and that such documentation is verified quarterly.
6.4. The Fund or the Distributor will notify the Company immediately
upon having a reasonable basis for believing that the Fund or any Portfolio has
ceased to comply with the aforesaid Section 817(h) diversification requirements
or might not so comply in the future.
6.5. Without in any way limiting the effect of Sections 8.2 hereof and
without in any
way limiting or restricting any other remedies available to the Company, the
Fund or Distributor will pay all costs associated with or arising out of any
failure, or any anticipated or reasonably foreseeable failure, of the Fund or
any Portfolio to comply with Sections 6.1 or 6.2 hereof, including all costs
associated with reasonable and appropriate corrections or responses to any such
failure; such costs may include, but are not limited to, the costs involved in
creating, organizing, and registering a new investment company as a funding
medium for the Contracts and/or the costs of obtaining whatever regulatory
authorizations are required to substitute shares of another investment company
for those of the failed Portfolio (including, but not limited to, an order
pursuant to Section 26(c) of the 1940 Act).
6.6. The Company agrees that if the Internal Revenue Service ("IRS")
asserts in writing in connection with any governmental audit or review of the
Company (or, to the Company's knowledge, of any Contract owner) that any
Portfolio has failed to comply with the diversification requirements of Section
817(h) of the Code or the Company otherwise becomes aware of any facts that
could give rise to any claim against the Fund or the Distributor as a result of
such a failure or alleged failure:
(a) The Company shall promptly notify the Fund and the Distributor
of such assertion or potential claim;
(b) The Company shall consult with the Fund and the Distributor as
to how to minimize any liability that may arise as a result of such failure or
alleged failure;
(c) The Company shall use its best efforts to minimize any
liability of the Fund and the Distributor resulting from such failure,
including, without limitation, demonstrating, pursuant to Treasury Regulations,
Section 1.817-5(a)(2), to the commissioner of the IRS that such failure was
inadvertent;
(d) Any written materials to be submitted by the Company to the
IRS, any Contract owner or any other claimant in connection with any of the
foregoing proceedings or contests (including, without limitation, any such
materials to be submitted to the IRS pursuant to Treasury Regulations, Section
1.817-5(a)(2)) shall be provided by the Company to the Fund and
the Distributor (together with any supporting information or analysis)
contemporaneous with such submission;
(e) The Company shall provide the Fund and the Distributor with
such cooperation as the Fund and the Distributor shall reasonably request
(including, without limitation, by permitting the Fund and the Distributor to
review the relevant books and records of the Company) in order to facilitate the
review by the Fund and the Distributor of any written submissions provided to it
or its assessment of the validity or amount of any claim against it arising from
such failure or alleged failure;
(f) The Company shall not with respect to any claim of the IRS or
any Contract owner that would give rise to a claim against the Fund and the
Distributor (i) compromise or settle any claim, (ii) accept any adjustment on
audit, or (iii) forego any allowable administrative or judicial appeals, without
the express written consent of the Fund and the Distributor, which shall not be
unreasonably withheld; provided that, the Company shall not be required to
appeal any adverse judicial decision unless the Fund or the Distributor shall
have provided an opinion of independent counsel to the effect that a reasonable
basis exists for taking such appeal; and further provided that the Fund and/or
the Distributor shall bear the costs and expenses, including reasonable
attorney's fees, incurred by the Company in complying with this clause (f).
ARTICLE VII. Potential Conflicts and Compliance With Mixed and Shared Funding
Exemptive Order
7.1. The Fund's Board of Trustees (the "Board") will monitor the Fund
for the existence of any material irreconcilable conflict between the interests
of the Contract owners of all separate accounts investing in the Fund and
participants in all qualified retirement and pension plans investing in the
Fund. An irreconcilable material conflict may arise for a variety of reasons,
including: (a) an action by any state insurance regulatory authority; (b) a
change in applicable federal or state insurance, tax, or securities laws or
regulations, or a public ruling, private letter ruling, no-action or
interpretative letter, or any similar action by insurance, tax, or securities
regulatory authorities; (c) an administrative or judicial decision in any
relevant
proceeding; (d) the manner in which the investments of any Portfolio is being
managed; (e) a difference in voting instructions given by variable annuity
contract and variable life insurance contract owners or by contract owners of
different Participating Insurance Companies; or (f) a decision by a
Participating Insurance Company to disregard the voting instructions of Contract
owners. The Board shall promptly inform the Company if it determines that an
irreconcilable material conflict exists and the implications thereof.
7.2. The Company will report any potential or existing material
conflicts of which it is aware to the Board. The Company will assist the Board
in carrying out its responsibilities under the Mixed and Shared Funding
Exemptive Order, by providing the Board with all information reasonably
necessary for the Board to consider any issues raised. This includes, but is not
limited to, an obligation by the Company to inform the Board whenever Contract
owner voting instructions are to be disregarded. Such responsibilities shall be
carried out by the Company with a view only to the interests of its Contract
owners.
7.3. If it is determined by a majority of the Board, or a majority of
its trustees who are not interested persons of the Fund and the Distributor to
any of the Portfolios, as defined in Section 2(a)(19) of the 1940 Act (the
"Independent Trustees"), that a material irreconcilable conflict exists, the
Company and other Participating Insurance Companies shall, at their expense and
to the extent reasonably practicable (as determined by a majority of the
Independent Trustees), take whatever steps are necessary to remedy or eliminate
the irreconcilable material conflict, up to and including: (1) withdrawing the
assets allocable to some or all of the separate accounts from the Fund or any
Portfolio and reinvesting such assets in a different investment medium,
including (but not limited to) another Portfolio, or submitting the question
whether such segregation should be implemented to a vote of all affected
Contract owners and, as appropriate, segregating the assets of any appropriate
group (i.e., annuity contract owners, life insurance contract owners, or
variable contract owners of one or more Participating Insurance Companies) that
votes in favor of such segregation, or offering to the affected contract owners
the option of making such a change; and (2) establishing a new registered
management investment company or managed separate account.
7.4. If a material irreconcilable conflict arises because of a decision
by the Company to disregard Contract owner voting instructions and that decision
represents a minority position or would preclude a majority vote, the Company
may be required, at the Fund's election, to withdraw the Account's investment in
the Fund and terminate this Agreement; provided, however, that such withdrawal
and termination shall be limited to the extent required by the foregoing
material irreconcilable conflict as determined by a majority of the Independent
Trustees. Any such withdrawal and termination must take place within six (6)
months after the Fund gives written notice that this provision is being
implemented, and until the end of that six-month period the Distributor and the
Fund shall continue to accept and implement orders by the Company for the
purchase (and redemption) of shares of the Fund.
7.5. If a material irreconcilable conflict arises because a particular
state insurance regulator's decision applicable to the Company conflicts with
the majority of other state regulators, then the Company will withdraw the
Account's investment in the Fund and terminate this Agreement within six (6)
months after the Board informs the Company in writing that it has determined
that such decision has created an irreconcilable material conflict; provided,
however, that such withdrawal and termination shall be limited to the extent
required by the foregoing material irreconcilable conflict as determined by a
majority of the Independent Trustees. Until the end of the foregoing six-month
period, the Fund shall continue to accept and implement orders by the Company
for the purchase (and redemption) of shares of the Fund.
7.6 Company agrees that any remedial action taken by it in resolving
any material irreconcilable conflict will be carried out at its expense and with
a view only to the interests of participants.
7.7. For purposes of Sections 7.3 through 7.5 of this Agreement, a
majority of the Independent Trustees shall determine whether any proposed action
adequately remedies any irreconcilable material conflict, but in no event will
the Fund be required to establish a new funding medium for the Contracts. The
Company shall not be required by Section 7.3 to establish a new funding medium
for the Contracts if an offer to do so has been declined by vote of a majority
of Contract owners affected by the irreconcilable material conflict. In the
event
that the Board determines that any proposed action does not adequately remedy
any irreconcilable material conflict, then the Company will withdraw the
Account's investment in the Fund and terminate this Agreement within six (6)
months after the Board informs the Company in writing of the foregoing
determination; provided, however, that such withdrawal and termination shall be
limited to the extent required by any such material irreconcilable conflict as
determined by a majority of the Independent Trustees.
7.8. If and to the extent that Rule 6e-2 and Rule 6e-3(T) are amended,
or Rule 6e-3 is adopted, to provide exemptive relief from any provision of the
1940 Act or the rules promulgated thereunder with respect to mixed or shared
funding (as defined in the Mixed and Shared Funding Exemptive Order) on terms
and conditions materially different from those contained in the Mixed and Shared
Funding Exemptive Order, then (a) the Fund and/or the Participating Insurance
Companies, as appropriate, shall take such steps as may be necessary to comply
with Rules 6e-2 and 6e-3(T), as amended, and Rule 6e-3, as adopted, to the
extent such rules are applicable; and (b) Sections 3.5, 3.6, 3.7, 7.1, 7.2, 7.3,
7.4, and 7.5 of this Agreement shall continue in effect only to the extent that
terms and conditions substantially identical to such Sections are contained in
such Rule(s) as so amended or adopted.
ARTICLE VIII. Indemnification
8.1. Indemnification By The Company
(a) As limited by and in accordance with Section 8.1(b) and 8.1(c)
hereof, the Company agrees to indemnify and hold harmless the Fund, the
Distributor and each of their respective officers, employees, agents and
directors or trustees and each person, if any, who controls the Fund or the
Distributor within the meaning of Section 15 of the 1933 Act (collectively, the
"Indemnified Parties" for purposes of this Section 8.1) against any and all
losses, claims, expenses, damages and liabilities (including amounts paid in
settlement with the written consent of the Company) or litigation (including
reasonable legal and other expenses) to which the Indemnified Parties may become
subject under any statute or regulation, at common law or otherwise, insofar as
such losses, claims, expenses, damages or liabilities (or actions in
respect thereof) or settlements are related to the sale or acquisition of the
Fund's shares or the Contracts and:
(i) arise out of or are based upon any untrue
statements or alleged untrue statements of any
material fact contained in the registration statement
or prospectus or SAI covering the Contracts or
contained in the Contracts or sales literature or
other promotional material 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 information
furnished in writing to the Company or approved in
writing to the Company by or on behalf of the
Distributor or Fund for use in the registration
statement or prospectus for the Contracts or in the
Contracts or sales literature or other promotional
material (or any amendment or supplement to any of
the foregoing) or otherwise for use in connection
with the sale of the Contracts or Fund shares; or
(ii) arise out of or as a result of statements or
representations (other than statements or
representations contained in the registration
statement, prospectus, SAI or sales literature or
other promotional material of the Fund not supplied
by the Company or persons under its control) or
wrongful conduct of the Company or persons under its
control, with respect to the sale or distribution of
the Contracts or Fund Shares; or
(iii) arise out of any untrue statement or alleged
untrue statement of a material fact contained in a
registration statement, prospectus, SAI, or sales
literature or other promotional material of the Fund,
or any amendment thereof or supplement thereto, or
the omission or alleged omission to state therein a
material fact required to be stated therein or
necessary to make the statements therein not
misleading, if such a statement or omission was made
in reliance upon information furnished in writing to
the Fund by or on behalf of the Company; or
(iv) arise as a result of any failure by the Company
to provide the services and furnish the materials
under the terms of this Agreement; or
(v) arise out of or result from any material breach
of any representation and/or warranty made by the
Company in this Agreement or arise out of or result
from any other material breach of this Agreement by
the Company, including without limitation Section
2.13 and Section 6.5 hereof.
(b) The Company shall not be liable under this indemnification
provision with respect to any losses, claims, expenses, damages, liabilities or
litigation to which an Indemnified Party would otherwise be subject by reason of
such Indemnified Party's willful misfeasance, bad faith, or negligence in the
performance of such Indemnified Party's duties or by reason of such Indemnified
Party's reckless disregard of obligations or duties under this Agreement or to
any of the Indemnified Parties.
(c) The Company shall not be liable under this indemnification
provision with respect to any claim made against an Indemnified Party unless
such Indemnified Party shall have notified the Company in writing within a
reasonable time after the summons or other first legal process giving
information of the nature of the claim shall have been served upon such
Indemnified Party (or after such Indemnified Party shall have received notice of
such service on any designated agent), but failure to notify the Company of any
such claim shall not relieve the Company from any liability which it may have to
the Indemnified Party against whom such action is brought otherwise than on
account of this indemnification provision, except to the extent that the Company
has been prejudiced by such failure to give notice. In case any such action is
brought against the Indemnified Parties, the Company shall be entitled to
participate, at its own expense, in the defense of such action. The Company also
shall be entitled to assume the defense thereof, with counsel satisfactory to
the party named in the action. After notice from the Company to such party of
the Company's election to assume the defense thereof, the Indemnified Party
shall bear the fees and expenses of any additional counsel retained by it, and
the Company will not be liable to such party under this Agreement for any legal
or other expenses subsequently incurred by such party independently in
connection with the defense thereof other than reasonable costs of
investigation. The Company shall not be liable under this indemnification
provision with respect to any claim, action, suit, or preceding settled by an
Indemnified Party without the Company's written approval.
(d) The Indemnified Parties will promptly notify the Company of
the commencement of any litigation or proceedings against them in connection
with the issuance or sale of the Fund Shares or the Contracts or the operation
of the Fund.
8.2. Indemnification by the Distributor
(a) The Distributor agrees to indemnify and hold harmless the
Company and its directors and officers and each person, if any, who controls the
Company within the meaning of Section 15 of the 1933 Act (collectively, the
"Indemnified Parties" for purposes of this Section 8.2) against any and all
losses, claims, expenses, damages, liabilities (including amounts paid in
settlement with the written consent of the Distributor) or litigation (including
reasonable legal and other expenses) to which the Indemnified Parties may become
subject under any statute or regulation, at common law or otherwise, insofar as
such losses, claims, damages, liabilities or expenses (or actions in respect
thereof) or settlements are related to the sale or acquisition of the Fund's
shares or the Contracts and:
(i) arise out of or are based upon any untrue
statement or alleged untrue statement of any material
fact contained in the registration statement or
prospectus or SAI or sales literature or other
promotional material of the Fund prepared by the
Fund, or the Distributor (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 information furnished in writing
to the Distributor or the Fund by or on behalf of the
Company for use in the registration statement,
prospectus or SAI for the Fund or in sales literature
or other promotional material (or any amendment or
supplement to any of the foregoing) or otherwise for
use in connection with the sale of the Contracts or
the Fund shares; or
(ii) arise out of or as a result of statements or
representations (other than statements or
representations contained in the registration
statement, prospectus, SAI or sales literature or
other promotional material for the Contracts not
supplied by the Distributor or persons under its
control) or wrongful conduct of the Fund, the
Distributor or persons under their control, with
respect to the sale or distribution of the Contracts
or Fund shares; or
(iii) arise out of any untrue statement or alleged
untrue statement of a material fact contained in a
registration statement, prospectus, SAI, or sales
literature or other promotional material covering the
Contracts, or
any amendment thereof or supplement thereto, or the
omission or alleged omission to state therein a
material fact required to be stated therein or
necessary to make the statement or statements therein
not misleading, if such statement or omission was
made in reliance upon information furnished in
writing to the Company by or on behalf of the
Distributor or the Fund; or
(iv) arise as a result of any failure by the Fund or
the Distributor to provide the services and furnish
the materials under the terms of this Agreement
(including a failure, whether unintentional or in
good faith or otherwise, to comply with the
diversification and other qualification requirements
specified in Article VI of this Agreement); or
(v) arise out of or result from any material breach
of any representation and/or warranty made by the
Fund or the Distributor in this Agreement or arise
out of or result from any other material breach of
this Agreement by the Distributor or the Fund
(including, without limitation, any material breach,
whether unintentional or in good faith or otherwise,
of the representations, warranties, or covenants set
forth in Section 2.11 of this Agreement); or
(vi) arise out of or result from the incorrect or
untimely calculation or reporting by the Fund or the
Distributor of a Portfolio's daily NAV per share
(subject to Section 1.10 of this Agreement) or
dividend or capital gain distribution rate.
as limited by and in accordance with the provisions of Sections 8.2(b) and
8.2(c) hereof. This indemnification is in addition to and apart from the
responsibilities and obligations of the Distributor specified in Article VI
hereof.
(b) The Distributor shall not be liable under this indemnification
provision with respect to any losses, claims, expenses, damages, liabilities or
litigation to which an Indemnified Party would otherwise be subject by reason of
such Indemnified Party's willful misfeasance, bad faith, or negligence in the
performance of such Indemnified Party's duties or by reason of such Indemnified
Party's reckless disregard of obligations or duties under this Agreement or to
any of the Indemnified Parties.
(c) The Distributor shall not be liable under this indemnification
provision with respect to any claim made against an Indemnified Party unless
such Indemnified Party shall
have notified the Distributor in writing within a reasonable time after the
summons or other first legal process giving information of the nature of the
claim shall have been served upon such Indemnified Party (or after such
Indemnified Party shall have received notice of such service on any designated
agent), but failure to notify the Distributor of any such claim shall not
relieve the Distributor from any liability which it may have to the Indemnified
Party against whom such action is brought otherwise than on account of this
indemnification provision, except to the extent that the Distributor has been
prejudiced by such failure to give notice. In case any such action is brought
against the Indemnified Parties, the Distributor will be entitled to
participate, at its own expense, in the defense thereof. The Distributor also
shall be entitled to assume the defense thereof, with counsel satisfactory to
the party named in the action. After notice from the Distributor to such party
of the Distributor's election to assume the defense thereof, the Indemnified
Party shall bear the fees and expenses of any additional counsel retained by it,
and the Distributor will not be liable to such party under this Agreement for
any legal or other expenses subsequently incurred by such party independently in
connection with the defense thereof other than reasonable costs of
investigation. The Distributor shall not be liable under this indemnification
provision with respect to any claim, action, suit, or preceding settled by an
Indemnified Party without the Distributor's written approval.
(d) The Company agrees promptly to notify the Distributor of the
commencement of any litigation or proceedings against it or any of its officers
or directors in connection with the issuance or sale of the Contracts or the
operation of the Account.
ARTICLE IX. Applicable Law
9.1. This Agreement shall be construed and the provisions hereof
interpreted under and in accordance with the laws of the State of Delaware,
without regard to the Delaware conflict of laws provisions.
9.2. This Agreement shall be subject to the provisions of the 1933 Act,
the 1934 Act and the 1940 Act, 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, the Mixed and Shared Funding Exemptive Order) and the terms hereof
shall be interpreted and construed in accordance therewith.
ARTICLE X. Termination
10.1. This Agreement shall terminate:
(a) at the option of any party, with or without cause, with
respect to some or all Portfolios, upon sixty (60) days' advance written notice
delivered to the other parties; or
(b) at the option of the Company by written notice to the other
parties with respect to any Portfolio based upon the Company's determination
that shares of such Portfolio are not reasonably available to meet the
requirements of the Contracts; or
(c) at the option of the Company by written notice to the other
parties with respect to any Portfolio in the event any of the Portfolio's shares
are not registered, issued or sold in accordance with applicable state and/or
federal law or such law precludes the use of such Portfolio as the underlying
investment option of the Contracts issued or to be issued by the Company; or
(d) at the option of the Fund, the Distributor or the Distributor
in the event that formal administrative proceedings are instituted against the
Company by FINRA, the SEC, the insurance commissioner or comparable official of
any state or any other regulatory body regarding the Company's duties under this
Agreement or related to the sale of the Contracts, the operation of any Account,
or the purchase of the Fund shares, if, in each case, the Fund, or Distributor,
as the case may be, reasonably determines in its sole judgment exercised in good
faith, that any such administrative proceedings will have a material adverse
effect upon the ability of the Company to perform its obligations under this
Agreement; or
(e) at the option of the Company in the event that formal
administrative proceedings are instituted against the Fund or the Distributor by
FINRA, the SEC, or any state securities or insurance department or any other
regulatory body, if the Company reasonably
determines in its sole judgment exercised in good faith, that any such
administrative proceedings will have a material adverse effect upon the ability
of the Fund or the Distributor to perform their obligations under this
Agreement; or
(f) at the option of the Company by written notice to the Fund
with respect to any Portfolio if the Company reasonably believes that the
Portfolio will fail to meet the diversification requirements of Section 817(h)
of the Code specified in Article VI hereof; or
(g) at the option of any non-defaulting party hereto in the event
of a material breach of this Agreement by any party hereto (the "defaulting
party") other than as described in Section 10.1(b)-(f); provided, that the
non-defaulting party gives written notice thereof to the defaulting party, with
copies of such notice to all other non-defaulting parties, and if such breach
shall not have been remedied within ten (30) days after such written notice is
given, then the non-defaulting party giving such written notice may terminate
this Agreement by giving thirty (30) days written notice of termination to the
defaulting party; or
(h) at any time upon written agreement of all parties to this
Agreement.
10.2. Notice Requirement
No termination of this Agreement shall be effective unless and until
the party terminating this Agreement gives prior written notice to all other
parties of its intent to terminate, which notice shall set forth the basis for
the termination. Furthermore,
(a) in the event any termination is based upon the provisions of
Article VII, or the provisions of Section 10.1(a) of this Agreement, the prior
written notice shall be given in advance of the effective date of termination as
required by those provisions unless such notice period is shortened by mutual
written agreement of the parties;
(b) in the event any termination is based upon the provisions of
Section 10.1(d) or 10.1(e) of this Agreement, the prior written notice shall be
given at least sixty (60) days before the effective date of termination; and
(c) in the event any termination is based upon the provisions of
Section 10.1(b), 10.1(c), 10.1(f) or 10.1(g), the prior written notice shall be
given in advance of the effective date of termination, which date shall be
determined by the party sending the notice.
10.3. Effect of Termination
Notwithstanding any termination of this Agreement, other than as a
result of a failure by either the Fund or the Company to meet the
diversification requirements of Section 817(h) of the Code, the Fund and the
Distributor shall, at the option of the Company, but subject to the provisions
set forth in Section 1.2, continue to make available additional shares of the
Fund pursuant to the terms and conditions of this Agreement, for all Contracts
in effect on the effective date of termination of this Agreement (hereinafter
referred to as "Existing Contracts"). Specifically, without limitation, the
owners of the Existing Contracts shall be permitted to reallocate investments in
the Fund, redeem investments in the Fund and/or invest in the Fund upon the
making of additional purchase payments under the Existing Contracts. The parties
agree that this Section 10.3 shall not apply to any terminations under Article
VII of this Agreement and the effect of such Article VII terminations shall be
governed by Article VII of this Agreement.
10.4. Surviving Provisions
Notwithstanding any termination of this Agreement, each party's
obligations under Article VIII of this Agreement to indemnify other parties
shall survive and not be affected by any termination of this Agreement. In
addition, with respect to Existing Contracts, all provisions of this Agreement
shall also survive and not be affected by any termination of this Agreement.
ARTICLE XI. Notices
11.1. Any notice shall be sufficiently given when sent by registered or
certified mail to the other party at the address of such party set forth below
or at such other address as such party may from time to time specify in writing
to the other parties.
If to the Company:
AXA Equitable Life Insurance Company
1290 Avenue of the Xxxxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Funds Management Group
If to the Fund:
Ivy Funds Variable Insurance Portfolios
0000 Xxxxx Xxxxxx
Xxxxxxxx Xxxx, Xxxxxx 00000
Attention: Contracts Department
With a copy to the Legal Department
If to the Distributor:
Xxxxxxx & Xxxx, Inc.
0000 Xxxxx Xxxxxx
Xxxxxxxx Xxxx, Xxxxxx 00000
Attention: Contracts Department
With a copy to the Legal Department
ARTICLE XII. Miscellaneous
12.1. Except as required by law, subpoena, court order or regulatory
order or request, each party hereto shall treat as confidential the names and
addresses of the owners of the Contracts and all information reasonably
identified as confidential in writing by any other party hereto and, except as
permitted by this Agreement, shall not disclose, disseminate or utilize such
names and addresses and other confidential information without the express
written consent of the affected party until such time as such information may
come into the public domain.
12.2. The captions in this Agreement are included for convenience of
reference only and in no way define or delineate any of the provisions hereof or
otherwise affect their construction or effect.
12.3. This Agreement may be executed simultaneously in two or more
counterparts, each of which taken together shall constitute one and the same
instrument.
12.4. If any provision of this Agreement shall be held or made invalid
by a court decision, statute, rule or otherwise, the remainder of the Agreement
shall not be affected thereby.
12.5. Each party hereto shall cooperate with each other party and all
appropriate governmental authorities (including without limitation the SEC,
FINRA and state insurance regulators) and shall permit such authorities
reasonable access to its books and records in connection with any investigation
or inquiry relating to this Agreement or the transactions contemplated hereby.
12.6. Any controversy or claim arising out of or relating to this
Agreement, or breach thereof, shall be settled by arbitration in a forum jointly
selected by the relevant parties (but if applicable law requires some other
forum, then such other forum) in accordance with the Commercial Arbitration
Rules of the American Arbitration Association, and judgment upon the award
rendered by the arbitrators may be entered in any court having jurisdiction
thereof.
12.7. The rights, remedies and obligations contained in this Agreement
are cumulative and are in addition to any and all rights, remedies and
obligations, at law or in equity, which the parties hereto are entitled to under
state and federal laws.
12.8. This Agreement or any of the rights and obligations hereunder may
not be assigned by any party without the prior written consent of all parties
hereto; provided, however, that a transaction that does not result in a change
of actual control or management of a party hereto shall not be deemed to be an
assignment of this Agreement for purposes of this Section 12.8. Any assignment
of this Agreement in violation of this Section 12.8 shall be void.
12.9. The Company agrees that the obligations assumed by the Fund and
Distributor pursuant to this Agreement shall be limited in any case to the Fund
and Distributor and their respective assets and the Company shall not seek
satisfaction of any such obligation from the shareholders of the Fund or
Distributor , the Directors, officers, employees or agents of the Fund
or Distributor.
12.10. The Fund and the Distributor agree that the obligations assumed
by the Company pursuant to this Agreement shall be limited in any case to the
Company and its assets and neither the Fund nor Distributor shall seek
satisfaction of any such obligation from the shareholders of the Company, the
directors, officers, employees or agents of the Company, or any of them.
12.11. No provision of this Agreement may be deemed or construed to
modify or supersede any contractual rights, duties, or indemnifications, as
between the Distributor and the Fund.
IN WITNESS WHEREOF, each of the parties hereto has caused this
Agreement to be executed in its name and on its behalf by its duly authorized
representative and its seal to be hereunder affixed hereto as of the date
specified below.
AXA EQUTIABLE LIFE INSURANCE COMPANY, ON BEHALF OF CERTAIN
SEPARATE ACCOUNTS
By its authorized officer,
By:
Title: Senior Vice President
IVY FUNDS VARIABLE INSURANCE PORTFOLIOS
By its authorized officer,
By:
Title:
XXXXXXX & XXXX, INC.
By its authorized officer,
By:____________________________
Title:
SCHEDULE A
CONTRACTS
AXA Equitable Separate Account 65 - All Contracts
AXA Equitable Separate Account 49 - All Contracts
SCHEDULE B
PORTFOLIOS
Ivy Funds Variable Insurance Portfolios
SCHEDULE C
EXPENSES
The Fund and/or the Distributor, and the Company will coordinate the functions
and pay the costs of the completing these functions based upon an allocation of
costs in the tables below. Costs shall be allocated to reflect the Fund's share
of the total costs determined according to the number of pages of the Fund's
respective portions of the documents.
------------------------------------------------------------------------------------------------------------------
ITEM FUNCTION PARTY RESPONSIBLE FOR PARTY RESPONSIBLE FOR
COORDINATION EXPENSE
------------------------------------------------------------------------------------------------------------------
Mutual Fund Prospectus Printing of prospectuses Company Inforce - Fund
Prospective - Company
------------------------------------------------------------------------------------------------------------------
Distribution (including Company Fund
postage) to Inforce
Clients
------------------------------------------------------------------------------------------------------------------
Distribution (including Company Company
postage) to Prospective
Clients
------------------------------------------------------------------------------------------------------------------
Mutual Fund Prospectus If Required by Fund, Fund or Distributor Fund or Distributor
Update & Distribution Distributor
------------------------------------------------------------------------------------------------------------------
If Required by Company Company (Fund or Company
Distributor to provide
Company with document in
PDF format)
------------------------------------------------------------------------------------------------------------------
Mutual Fund SAI Printing Fund or Distributor Fund or Distributor
------------------------------------------------------------------------------------------------------------------
Distribution (including Party who receives the Party who receives the
postage) request request
------------------------------------------------------------------------------------------------------------------
Proxy Material for Mutual Printing of proxy Fund or Distributor Fund or Distributor
Fund required by Law
------------------------------------------------------------------------------------------------------------------
Distribution (including Company Fund or Distributor
labor) of proxy required
by Law
------------------------------------------------------------------------------------------------------------------
Mutual Fund Annual & Printing of reports Fund or Distributor Fund or Distributor
Semi-Annual Report
------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------
Distribution Company Fund, or Distributor
------------------------------------------------------------------------------------------------------------------
Other communication to New If Required by Law, the Company Distributor
and Prospective clients Fund or Distributor
------------------------------------------------------------------------------------------------------------------
If Required by Company Company Company
------------------------------------------------------------------------------------------------------------------
Other communication to Distribution (including Company Fund or Distributor
inforce labor and printing) if
required by the Fund or
Distributor
------------------------------------------------------------------------------------------------------------------
Distribution (including Company Company
labor and printing) if
required by Company
------------------------------------------------------------------------------------------------------------------
Operations of the Fund All operations and Fund or Distributor Fund or its designee
related expenses,
including the cost of
registration and
qualification of shares,
taxes on the issuance or
transfer of shares, cost
of management of the
business affairs of the
Fund, and expenses paid
or assumed by the fund
pursuant to any Rule
12b-1 plan
------------------------------------------------------------------------------------------------------------------
Operations of the Accounts Federal registration of Company Company
units of separate account
(24f-2 fees)
------------------------------------------------------------------------------------------------------------------
SCHEDULE D
Diversification Compliance Certification
Name of Portfolio: FUND
--------------------------------------------------------------------------------
CERTIFICATION
Fund was in compliance with the federal tax rules relating to diversification
requirements under Section 817(h) of the Internal Revenue Code and Treasury
Regulation 1.817-5, for the quarter ending [Insert most recently ended fiscal
quarter].
--------------------------------------------- ---------------------
Signed by Date
--------------------------------------------------------------------------------
SCHEDULE E
------------------------------------------------------------------------------------------------------------------------------------
Firm Code Firm Name State Zip Contrib Freelook Withdrawals TrfIn TrfOut
------------------------------------------------------------------------------------------------------------------------------------
$ $ $ $ $
------------------------------------------------------------------------------------------------------------------------------------
