EXHIBIT 8(w)
BUY-SELL AGREEMENT
THIS AGREEMENT is made on this ___ the day of October, 2001 by and among
the Canada Life Insurance Company of America, a Michigan corporation ("CLICA")
on its own behalf and on behalf of its Variable Annuity Account 1 (the "Separate
Account"), Xxxxxxxx Portfolios, Inc. (formerly Xxxxxxxx Mutual Benefit
Portfolios, Inc.) (the "Fund") and J.& X. Xxxxxxxx & Co. Incorporated ("JWSI").
WHEREAS, CLICA is a stock life insurance company incorporated under the
laws of the State of Michigan; and
WHEREAS, the Separate Account is registered as a unit investment trust
under the Investment Company Act of 1940 ("1940 Act") and it is intended that
certain variable annuity contracts (the "Contracts"), a list of which is
included herein as Exhibit A, shall be funded through the Separate Account; and
WHEREAS, the Fund is registered as an open-end diversified management
investment company under the 1940 Act and is currently authorized to issue six
separate series of shares (the "Portfolios") and to create additional Portfolios
in the future; and
WHEREAS, JWSI is registered as an investment adviser under the
Investment Advisers Act of 1940 and is the Fund's investment adviser pursuant to
the terms of agreements between JWSI and the Fund dated December 29, 1988 and
May 1, 1993 ("Management Agreements"); and
WHEREAS, it is the intention of the parties to this Agreement that the
Fund will serve as a funding vehicle for the Separate Account under the variable
accumulation options afforded by the Contracts;
NOW, THEREFORE, in consideration of the covenants, mutual promises
herein contained and other good and valuable consideration, the receipt and
legal sufficiency of which are hereby acknowledged, and intending to be legally
bound hereby, the parties agree as follows:
1. FUND SHARES.
A. CLICA agrees that the Fund will be a funding vehicle for the
Separate Account. The Fund agrees that, except for shares sold
to JWSI at the Fund's initial capitalization, and to The Mutual
Benefit Life Insurance Company through its Mutual Benefit
Variable Contract Account 9 ("VCA-9") on behalf of existing
Mutual Benefit Life contract owners, the Fund will sell its
shares only to the Separate Account or to other separate
accounts of CLICA or any of its affiliates.
B. The Fund agrees to sell to CLICA, on behalf of the Separate
Account, those shares of the Fund which the Separate Account
orders, executing such orders on a daily basis at the net asset
value next computed after receipt by the Fund or its designee of
the order for the shares of the Fund. For purposes of this
Section, CLICA (or its designated agent) shall be the designee
of the Fund for receipt of such orders from Policy owners and
receipt by such designee by 4:00 p.m. New York time on a
Business Day, shall
constitute receipt by the Fund; provided that the Fund receives
notice of such order by 9:30 a.m. New York time on the next
following Business Day. "Business Day" shall mean any day on
which the New York Stock Exchange is open for trading.
C. The Fund agrees to make Fund shares available for purchase at
the applicable net asset value per share by CLICA for the
Separate Account on those days on which the Fund calculates its
net asset value pursuant to rules of the Securities and Exchange
Commission and the Fund shall use reasonable efforts to
calculate such net asset value on each day which the New York
Stock Exchange is open for trading. Notwithstanding the
foregoing, the parties to this Agreement recognize that the
Board of Directors of the Fund (hereinafter the "Directors") may
refuse to sell shares of any Portfolio to the Separate Account,
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
Directors acting in good faith and in light of their fiduciary
duties under federal and any applicable state laws, necessary in
the best interests of the shareholders of such Portfolio. The
Separate Account shall pay for the Fund shares on the next
Business Day after an order to purchase shares is made in
accordance with the provisions of this Section. Payment shall be
in federal funds transmitted by wire to the Fund's designated
custodian or by a credit for any shares redeemed.
D. The Fund agrees to redeem for cash, on CLICA's request, any full
or fractional shares of the Fund held by CLICA, executing such
requests on a daily basis at the net asset value next computed
after receipt by the Fund or its designee of the request for
redemption. For purposes of this Section, CLICA (or its
designated agent) shall be the designee of the Fund for receipt
of requests for redemption from Policy owners and receipt by
such designee by 4:00 p.m. New York time on a Business Day,
shall constitute receipt by the Fund, provided that the Fund
receives notice of such request for redemption by 9:30 a.m. New
York time on the next following Business Day. The Fund
ordinarily shall make payment to CLICA for shares on the next
business day after the Fund receives notice from CLICA. Payment
shall be in federal funds transmitted by wire or by a debit
against any shares purchased.
E. Transfer of Portfolio shares will be by book entry. No stock
certificates will be issued to the Separate Account unless the
Separate Account so requests. Shares of each Portfolio will be
recorded in an appropriate title for the corresponding Sub-
account on the books of CLICA. If, however, state law requires
transfer other than by book entry, then the Fund agrees to
provide the required form of transfer.
F. The Fund shall make the net asset value per share for each
Portfolio available to CLICA on a daily basis as soon as
reasonably practicable after the net asset value per share is
calculated. The Fund will instruct its recordkeeper to use all
reasonable efforts to make such net asset value per share
available by 5:30 p.m. New York time, but in no event later than
6 p.m. New York time. Notwithstanding the foregoing, the parties
to this Agreement recognize that the Fund is ultimately
responsible for the pricing of its own shares.
G. The Fund shall furnish notice on the ex-dividend date to CLICA
of any dividend or distribution payable on any shares underlying
Sub-accounts. All of such dividends
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and distributions as are payable on shares of a Portfolio
recorded in the title for the corresponding Sub-account shall be
automatically reinvested in additional shares of that Portfolio
at the net asset value computed on its dividend or distribution
payable date. The Fund shall notify CLICA of the number of
shares so issued.
2. REPRESENTATIONS AND WARRANTIES OF THE FUND. The Fund and JWSI
hereby represent and warrant that:
A. The Fund is duly incorporated and in good standing under the
laws of the State of Maryland;
B. The Fund is duly registered under the 1940 Act as an open-end
diversified management investment company;
C. All actions necessary to authorize the execution, delivery and
performance of this Agreement and all transactions contemplated
hereunder have been taken or will be taken prior to any sale
hereunder;
D. A Registration Statement on Form N-1A relating to the Fund,
including a Prospectus and statement of additional information,
has been prepared and filed with the SEC in accordance with
applicable provisions of the Securities Act of 1933 ("1933 Act")
and the 1940 Act, and is effective;
E. The Registration Statement does not include any untrue
statements of a material fact or omit to state any material fact
required to be stated therein or necessary to make the
statements therein not misleading;
F. The Fund will use its best efforts to ensure that the
Registration Statement continues to conform in all material
respects to the requirements of the 1933 Act and the 1940 Act
and the rules and regulations of the SEC thereunder and its best
efforts to ensure that at no time will the Registration
Statement include an untrue statement of a material fact or omit
to state any material fact required to be stated therein or
necessary to make the statements therein not misleading.
G. The Fund will promptly furnish CLICA with copies of the Fund's
Registration Statement, all amendments and exhibits thereto,
each definitive Prospectus, each Prospectus supplement, and each
periodic report under the 1940 Act, as filed with the SEC;
H. The Fund will promptly advise CLICA of any proposed amendment to
the Registration Statement or supplement to the Prospectus and
shall provide CLICA with a copy of such proposed amendment or
supplement in advance of the filing with the SEC of such
amendment or supplement to permit CLICA's review of such
amendment or supplement, unless legal or regulatory requirements
would make such review impractical;
I. The Fund and JWSI represent that each Portfolio except for the
Xxxxxxxx Xxxxxxxxx Global Portfolio, which expects to be, is
currently qualified as a Regulated Investment Company under
Subchapter M of the Internal Revenue Code of 1986, as amended
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("Code"), that they will use reasonable effort to maintain such
qualification (under Subchapter M or any successor or similar
provision), and that they will notify CLICA immediately upon
having a reasonable basis for believing that a Portfolio has
ceased to so qualify or that it might not so qualify in the
future, and that it provide to CLICA not later than 14 days
following the end of each calendar quarter, a report showing
each Portfolio's continued qualification;
J. The Fund and JWSI represent that each Portfolio except for the
Xxxxxxxx Xxxxxxxxx Global Portfolio, which expects to be, is
currently in compliance with the provisions of Section 817(h) of
the Code and regulations thereunder concerning diversification
of the assets of the Portfolios of the Fund, and that they will
use reasonable effort to maintain such compliance (under Section
817(h) or any successor or similar provision), provided that
CLICA will promptly advise the Fund of any changes in such
provisions after the date of this Agreement, and that it will
provide to CLICA, not later than 14 days following the end of
each calendar quarter, a report showing each Portfolio's
continued compliance;
K. The Fund will as directed in writing by CLICA make every effort
to comply with the requirements of the State of Michigan
concerning permissible investments for the Separate Account;
L. The Fund shall pay all its expenses incidental to its
performance under this Agreement. The Fund shall see to it that
its shares are continuously registered and authorized for issue
in accordance with any applicable federal and state laws for so
long as this Agreement is in effect, and for so long as CLICA
may purchase shares of the Fund. Without limiting the generality
of the foregoing, the Fund shall bear any expenses in connection
with the cost of maintaining registration of Fund shares and a
current registration statement, proxy materials, any
solicitation of Fund proxies, the preparation of all statements
and notices required by any federal or state law, and taxes
imposed upon the Fund on the issue or transfer of the Fund's
shares subject to this Agreement, to the extent such expenses
are incurred. The parties shall cooperate in the printing of the
prospectuses of the Fund and of any disclosure documents related
to the Contracts; however, the cost of printing prospectuses
shall not be borne by the Fund; and
M. The Fund and JWSI represent and warrant that each of the Fund's
officers and employees that is a "covered person" as defined in
Rule 17g-1 under the 1940 Act shall at all times be covered by a
blanket fidelity bond or similar coverage for the benefit of the
Fund in an amount not less than the amount of coverage required
by Section 17(g) of the 1940 Act and Rule 17g-1 thereunder. The
aforesaid bond shall cover larceny and embezzlement and shall be
issued by a reputable fidelity insurance company.
3. REPRESENTATIONS AND WARRANTIES OF JWSI. JWSI represents and
warrants that:
A. It will vote Fund shares which it owns in the same proportion as
instructions received from owners of variable contracts backed
by the Fund;
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B. It will not vote to elect a Director of the Fund unless the
composition of the Board of Directors of the Fund is in
compliance with the 1940 Act; and
C. JWSI agrees that in connection with the Fund's compliance with
Section 817(h) of the Code and any regulations thereunder,
concerning diversification of the assets of the Portfolios of
the Fund, (i) JWSI will provide CLICA within 14 days of the end
of each quarter of the Fund's fiscal year, a statement of each
Portfolio's assets and (ii) JWSI will provide CLICA with a copy
of the procedures that have been established by JWSI for the
purpose of ascertaining and monitoring the Fund's compliance
with the diversification requirements of Section 817(h) and
regulations thereunder.
4. REPRESENTATIONS AND WARRANTIES OF CLICA. CLICA represents and
warrants that:
A. All actions necessary to authorize the execution, delivery and
performance of this Agreement and all transactions contemplated
hereunder have been taken;
B. All actions required to authorize investment by the Separate
Account in the Fund have been taken;
C. It will comply with applicable law, including state insurance
law, in connection with its obligations hereunder;
D. It will provide to Contract owners voting privileges with
respect to Fund shares attributable to the variable annuity
contracts of such Contract owners. Pass-through voting
privileges will be calculated with reference to the number of
shares of the Fund attributable to a particular Contract or
pursuant to any other method of calculation recommended by the
SEC or its staff. CLICA will vote its own shares and shares for
which no instructions have been received in the same proportion
as instructions received from Contract owners for that
Portfolio;
E. The shares of the Fund qualify as an eligible investment for the
Separate Account; and
F. The Separate Account has been established in accordance with
Section 925 of the Michigan Insurance Code and applicable
regulations of the Michigan Administrative Code.
(i) Section 925 provides that the income, if any, and gains
or losses realized or unrealized on the Separate Account will
be credited to or charged against the amount allocated to the
Separate Account in accordance with the Contracts, without
regard to CLICA's other income, gains or losses.
(ii) Regulation 500.624 of the Michigan Administrative Code
provides that a Separate Account annuity shall not be charged
with liabilities arising out of other separate accounts or out
of other business of CLICA unless the liabilities have a
specific and determinable relation to or dependence upon the
Separate Account.
(iii) The Contracts provide that although CLICA owns the
assets in the Separate Account, these assets are held
separately from CLICA's other assets and are not part of
CLICA's general account; and the assets in the Separate Account
are used to
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support the operation of and provide the variable values and
benefits for the Contracts and similar policies. Further, the
Contracts provide that the portion of the assets of the
Separate Account equal to the reserves and other contract
liabilities of the Separate Account will not be charged with
liabilities that arise from any other business that CLICA
conducts. CLICA has the right to transfer to its general
account any assets of the Separate Account which are in excess
of such reserves and other liabilities.
(iv) Based on the foregoing, CLICA believes that the portion
of the assets of the Separate Account equal to the reserves and
other contract liabilities of the Separate Account will not be
charged with liabilities that arise from any other business
that CLICA conducts.
5. INDEMNIFICATION.
A. The Fund and JWSI will indemnify and hold harmless CLICA and the
Separate Account against any and all losses, claims, damages,
liabilities or expenses (including, without limitation, any
expenses reasonably incurred in investigating or defending
against any litigation commenced or threatened, or any claim) to
which CLICA or the Separate Account may become subject arising
out of or based upon (i) any untrue statement or alleged untrue
statement of any material fact contained in the Registration
Statement or Prospectus relating to the Fund or any amendment or
supplement thereto; (ii) 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; or
(iii) any material breach of any representation and/or warranty
made by the Fund or JWSI in this Agreement or any material
breach of this Agreement by the Fund or JWSI; provided, however,
JWSI and the Fund shall not be liable in any such case under (i)
and (ii) above to the extent that any such loss, claim, damage,
liability or expense arises out of or is based upon an untrue
statement or alleged untrue statement or omission or alleged
omission in the Registration Statement or Prospectus relating to
the Fund made in good faith reliance upon and in conformity with
written information furnished by CLICA or the Separate Account
specifically for use in the preparation thereof.
B. CLICA will indemnify and hold harmless the Fund and JWSI against
any and all losses, claims, damages, liabilities, or expense
(including without limitation, any expense reasonably incurred
in investigating or defending against any litigation commenced
or threatened, or any claim) to which the Fund or JWSI becomes
subject arising out of or based upon (i) any untrue statement or
alleged untrue statement of any material fact contained in the
registration statement or prospectus relating to the Contracts
or any amendment or supplement thereto, or (ii) 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; or (iii) any material breach of any representation
and/or warranty made by CLICA in this Agreement or of any
material breach of this Agreement by CLICA; provided, however,
that CLICA shall not be liable in any such case under (i) and
(ii) above to the extent that any such loss, claim, damage,
liability or expense arises out of or is based upon an untrue
statement or alleged untrue statement or omission or alleged
omission in the registration statement or prospectus relating to
the Contracts made in good faith reliance upon and in
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conformity with written information furnished by the Fund or
JWSI specifically for use in the preparation thereof; and that
CLICA shall not be liable to the extent that any such loss,
claim, damage, liability or expense arises out of or is based
upon the Fund's failure to comply with the investment policies
and restrictions set forth in its Registration Statement.
C. Promptly after receipt by an indemnified party under this
Section 5 of notice of the commencement of any action by a third
party, such indemnified party will, if a claim in respect
thereof is to be made against the indemnifying party under this
Section 5, notify the indemnifying party of the commencement
thereof. The omission so to notify the indemnifying party shall
not relieve it from liability which it may have to any
indemnified party under this Section 5, except to the extent
that the omission results in a failure of actual notice to the
indemnifying party and such indemnifying party is damaged solely
as a result of the failure to give such notice; however, it
shall not relieve it otherwise. In case any such action is
brought against any indemnified party, and it notifies the
indemnifying party of the commencement thereof, the indemnifying
party will be entitled to participate therein and, to the extent
that it may wish, to assume the defense thereof, with counsel
satisfactory to such indemnified party, and after notice from
the indemnifying party to such indemnified party of its election
to assume the defense thereof, the indemnifying party will not
be liable to such indemnified party under this Section for any
legal or other expenses subsequently incurred by such
indemnified party in connection with the defense thereof other
than reasonable costs of investigation.
6. TERM OF AGREEMENT. This Agreement shall continue in full force
and effect for a period of five (5) years from the effective date of this
Agreement, unless otherwise agreed upon by the parties to terminate sooner or if
terminated for such reasons as set forth in Section 7 below. After such 5 year
period, it will be deemed extended thereafter from year to year, subject to
termination at will by any party hereto upon 60 days prior written notice to the
other party.
7. TERMINATION. This Agreement shall terminate:
A. At the option of CLICA, upon the institution of formal
proceedings against the Fund, JWSI, or SFSI by the SEC, the
National Association of Securities Dealers, Inc. ("NASD"), any
state securities or insurance department or any other regulatory
body provided that CLICA determines in good faith in its sole
judgment, that such institution will have a material adverse
impact upon the Fund or JWSI's ability to perform its
obligations under this Agreement; or
B. At the option of the Fund, upon the institution of formal
proceedings against The Canada Life Assurance Company ("CLA"),
CLICA or Canada Life of America Financial Services, Inc.
("CLAFS") brought by a Canadian regulatory authority, the SEC,
the NASD, or any formal proceedings involving a material matter
brought by any state securities or state insurance department or
any other regulatory body regarding CLICA or CLAFS provided that
the Fund determines in good faith in its sole judgment that such
institution will have a material adverse impact upon CLA's or
CLICA's ability to perform its obligations under this Agreement;
or
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C. At the option of the Fund, if there is a material adverse change
in the financial condition of CLA or CLICA; or
D. At the option of the Fund, if there is material adverse
publicity regarding CLA or CLICA; or
E. At the option of CLICA, if the Fund fails to meet the
diversification requirements in Section 817(h) of the Code and
the regulations thereunder; or
F. At the option of CLICA, if there is a material adverse change in
the financial condition of the Fund or JWSI; or
G. At the option of CLICA, if there is material adverse publicity
regarding the Fund or JWSI; or
H. At the option of CLICA, if JWSI hires a sub-adviser for a
Portfolio of the Fund without the prior written consent of
CLICA. CLICA agrees that Xxxxxxxx Xxxxxxxxx Co. shall act as
sub-adviser for the Xxxxxxxx Xxxxxxxxx Global Portfolio of the
of the Fund; or
I. If such action is required by law or by regulatory authorities
having jurisdiction or is, in the discretion of the Board of
Directors of CLICA or the Board of Directors of the Fund acting
in good faith and in light of their fiduciary duties under
applicable federal and state laws, necessary in the best
interests of the shareholders of the Fund or Contract owners;
J. At the option of CLICA or the Fund, upon the termination of the
Management Agreements; or
In the event that JWSI shall cease to serve as the Fund's
investment adviser, the obligations of JWSI hereunder shall
terminate, provided only that any liability for action taken by
JWSI in accordance with its representations, warranties, and
obligations hereunder during the period that JWSI served as
investment adviser to the Fund shall survive such termination.
9. MISCELLANEOUS; BOOKS AND RECORDS.
A. The terms and conditions of this Agreement shall be interpreted
and construed in accordance with the provisions of the federal
securities laws and rules and regulations thereunder.
B. The Fund shall immediately notify CLICA of the issuance by any
regulatory body of any stop order with respect to the Fund's
Registration Statement or the initiation of any proceeding
relating to the offer or sale of shares of the Fund in any state
or jurisdiction.
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C. Each party hereto shall cooperate with each other party and all
appropriate governmental authorities 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.
D. The Fund agrees that all records and other data pertaining to
the Contracts are the exclusive property of CLICA and that any
such records and other data shall be furnished to CLICA by the
Fund upon termination of this Agreement for any reason
whatsoever. This shall not preclude the Fund from keeping copies
of such data or records for its own files to the extent that the
Fund is required to keep such records in order to meet any
applicable legal or regulatory requirements. CLICA shall have
the right to inspect, audit and copy all pertinent records
pertaining to the Contracts.
10. SEVERABILITY AND GOVERNING LAW. If any provisions of this
Agreement shall be held or made invalid by a court decision, statute, rule or
otherwise, the remainder of this Agreement shall not be affected thereby. This
Agreement shall be interpreted in accordance with the laws of the State of
Michigan.
11. NOTICES. Any notice required under this Agreement shall deemed
to have been given to CLICA and the Separate Account if mailed to Assistant
Secretary, Canada Life Insurance Company of America, 0000 Xxxxxx Xxxxx Xxxx,
Xxxxxxx, Xxxxxxx 00000, and notice given to the Fund (Attention: Treasurer) and
JWSI (Attention: General Counsel) if mailed to J. & X. Xxxxxxxx & Co.
Incorporated at 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, or at such other
address furnished to the other party pursuant hereto.
12. PROVISION SURVIVING TERMINATION.
A. Notwithstanding any termination of this Agreement, and
regardless of the cause or reason for such termination, the
provisions of Section 5 of this Agreement (Indemnification)
shall survive and be binding upon JWSI, the Fund, and CLICA for
a period of ten years following such termination.
B. Upon termination of this Agreement, as long as the Fund is in
existence, the Fund shall, so long as Contracts in effect on the
effective date of termination of this Agreement ("Existing
Contracts") remain outstanding, continue to make additional
Portfolio shares available pursuant to the terms of this
Agreement for all Existing Contracts. The Fund agrees to provide
CLICA and the Separate Account with the daily net asset value of
each of the Portfolios for as long as there are Existing
Contract owners with Contract values allocated to a Sub-Account
of the Separate Account which invests in such Portfolio.
13. HEADINGS. The descriptive headings of this Agreement are for
convenience only and shall not control or affect the meaning or construction of
any provision of this Agreement.
14. WAIVERS. The waiver by any party of a breach of any other party
of any of the provisions of this Agreement shall not operate or be deemed as a
waiver of any other provision of this Agreement or of any subsequent breach
thereof by any party.
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15. COUNTERPARTS. This Agreement may be executed in any number of
counterparts and by the different parties hereto or separate counterparts, each
complete set of which, when so executed and delivered by the parties shall
constitute one and the same instrument.
16. ENTIRE AGREEMENT; MODIFICATIONS; AMENDMENTS. This Agreement
constitutes the entire agreement between the parties hereto and may not be
modified or amended except as herein noted or in a written instrument executed
by all parties hereto. Notwithstanding the foregoing, the parties to this
Agreement acknowledge that the parties may execute a letter of intent regarding
the resolution of certain matters in connection with the Fund's obligations
under Section 1.F. of this Agreement.
17. ASSIGNMENT. No party hereto may assign any of its rights
pursuant to this Agreement without the prior written consent of the other
parties hereto.
[Signatures are on the next page]
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IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed as of the day and year first above
written.
Attest: CANADA LIFE INSURANCE COMPANY
OF AMERICA, on its own behalf
and on behalf of its Variable
Annuity Account 1
By:
---------------------------- -------------------------
Assistant Secretary
Attest:
By:
------------------------------ -------------------------
Assistant Secretary
Attest: XXXXXXXX PORTFOLIOS, INC.
By:
------------------------------ -------------------------
Secretary
Attest: J. & X. XXXXXXXX & CO.
INCORPORATED
By:
------------------------------ -------------------------
Secretary
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EXHIBIT A
Contracts
---------
Varifund
Varifund Plus Variable Annuity
12
[Date]
Canada Life Insurance Company of America
Attn: Assistant Secretary
0000 Xxxxxx Xxxxx Xxxx
Xxxxxxx, Xxxxxxx 00000
Re: VAA1 Buy-Sell Agreement (the "Agreement") by and among
Canada Life Insurance Company of America ("CLICA"),
Xxxxxxxx Portfolio, Inc. (the "Fund")
Dear Sirs:
We are writing to confirm our agreement that paragraph 1.A of the
Agreement referenced above is hereby amended to read in its entirety as follows:
"A. The parties acknowledge that the arrangement contemplated by
this Agreement is not exclusive and that: (i) the Fund's shares
may be made sold to separate accounts of insurance companies
that are not affiliated with CLICA or any of its affiliates; and
(ii) CLICA may purchase shares for the Separate Account from
entities other than the Fund."
Please acknowledge your agreement with the forgoing by executing this
Letter Agreement where indicated below.
XXXXXXXX PORTFOLIOS, INC. J. & X. XXXXXXXX & CO. INCORPORATED
By: By:
------------------------- --------------------------------
Acknowledged and Agreed to this
day of ,
------ -------------- -------
By:
--------------------------
Name:
-----------------------
Title:
----------------------
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