EXHIBIT 8
PARTICIPATION AGREEMENT
by and among
DFA INVESTMENT DIMENSIONS GROUP INC.,
DIMENSIONAL FUND ADVISORS LP,
DFA SECURITIES LLC
and
AMERITAS LIFE INSURANCE CORP.
THIS AGREEMENT, made and entered into this 26th day of October 2010, by and
among Ameritas Life Insurance Corp. ("Company"), on its own behalf and on behalf
of segregated asset accounts of the Company that may be established from time to
time (individually, an "Account" and collectively, the "Accounts"); DFA
Investment Dimensions Group Inc. ("Fund"); the Fund's investment adviser,
Dimensional Fund Advisors LP ("Adviser"); and DFA Securities LLC ("DFAS")
(individually, a "Party" and collectively, the "Parties").
The Company, the Fund, the Adviser and DFAS, intending to be legally bound,
hereby agree as follows:
1. Sales of Shares/Procedures
1.1 Shares of the respective portfolios ("Portfolios") of the Fund listed
on Schedule 1.1 hereto, as amended from time to time by the Parties,
shall be sold by the Fund through its agent DFAS, and purchased by the
Company for the appropriate subaccount of each Account, at the net
asset value next computed after receipt by the Fund or its designee of
each order of the Accounts, in accordance with the provisions of this
Agreement, the then current prospectus(es) of the Portfolios, and the
variable annuity contracts and variable life insurance policies that
use the Portfolios as an underlying investment medium ("Contracts").
1.1(a) Transmission of Instructions For each Portfolio and for each
Account maintained by the Company with such Portfolio, the
Company shall transmit to National Securities Clearing
Corporation ("NSCC") (which shall forward the information to the
transfer agent of the Fund), no more than two aggregate purchase
orders as follows:
(i) a purchase order for the Accounts expressed in dollars
(sent via NSCC's DCC&S System); and
(ii) a purchase order for the Accounts expressed in shares (sent
via NSCC's DCC&S System);
and no more than two aggregate redemption orders as follows:
(i) a redemption order for the Accounts expressed in dollars
(sent via NSCC's DCC&S System); and
(ii) a redemption order for the Accounts expressed in shares
(sent via NSCC's DCC&S System);
each of which reflects the aggregated effect of all purchases and
all redemptions of shares of the Portfolios in such categories,
based upon instructions from each Account (collectively,
"Instructions") received prior to the Close of Trading on a given
Business Day ("Trade Date"). "Close of Trading" shall mean 4:00
p.m. Eastern Time on a Business Day or such other time as the net
asset value of a Portfolio is calculated, as
disclosed in the then current prospectus(es) of the Portfolios.
"Business Day" shall mean, unless otherwise noted in this
Agreement, any day on which the New York Stock Exchange (the
"NYSE") is open for trading and on which a Portfolio calculates
its net asset value pursuant to the rules of the Securities and
Exchange Commission ("SEC"). "Business Day," for the purposes of
this Section 1.1(a), shall also include any day on which the
NSCC's DCC&S System is open to transmit and settle orders, even
if the NYSE is closed for trading on such day.
On any given Business Day, the Company shall accept Instructions
in proper form from an Account up to the Close of Trading, but in
no event shall the Company accept Instructions that have been
received by the Company after the Close of Trading on such
Business Day. Instructions received in proper form by the Company
after the Close of Trading on any Business Day shall be treated
as if accepted on the next following Business Day. Each
transmission of Instructions by the Company will constitute a
representation that all purchase and redemption orders from the
Accounts were received by the Company prior to 4:00 p.m. Eastern
Time or the close of the NYSE, whichever is earlier, on the
Business Day on which the purchase or redemption orders are
transmitted, in accordance with Rule 22c-1 under the Investment
Company Act of 1940, as amended (the "1940 Act").
Pricing Information. The Fund or its designee shall furnish the
Company, with respect to each Portfolio:
(i) net asset value information as of the close of regular
trading on the New York Stock Exchange (currently 4:00 p.m.
Eastern Time) or as of such earlier times at which a
Portfolio's net asset value is calculated as specified in
such Portfolio's then current prospectus ("Close of
Trading") on each business day that the New York Stock
Exchange is open for business ("Business Day");
(ii) dividend and capital gains information as it becomes
available; and
(iii)in the case of Portfolios that declare dividends daily, the
daily accrual for interest rate factor (mil rate).
The Fund shall use commercially reasonable efforts, consistent
with industry standards, to provide such information to the
Company by means of electronic transmission or other mutually
acceptable means by 7:30 p.m. Eastern Time on each Business Day.
1.1(b) Transmission Deadlines for the Accounts The transmission of
orders for the Accounts will be accepted by the Fund only if
provided through NSCC's DCC&S System in the file delivered to the
Fund or its transfer agent prior to 6:30 a.m. Eastern Time
(currently NSCC Cycle 8) on the
next Business Day following the Trade Date. Any information
delivered to the Fund after such 6:30 a.m. Eastern Time file is
received will be rejected by the Fund or its transfer agent,
subject to the Fund's sole discretion to accept any trade.
Notwithstanding the foregoing, on a limited basis, the Company
may transmit orders until 9:00 a.m. Eastern Time via NSCC Cycles
9 through 12 on the next Business Day following the Trade Date
for corrections to orders already transmitted or for contingency
purposes.
In the event that transactions cannot be completed through the
NSCC systems on a given Business Day, the Company may transmit
Instructions to the Fund, its transfer agent or as otherwise
directed by the Fund or the Adviser via facsimile by 7:30 a.m.
Eastern Time on the next Business Day following the Trade Date;
provided however, the Company will notify the Fund and the
Adviser prior to transmitting Instructions via facsimile.
However, this paragraph will not be applicable to Instructions
which have already been entered via NSCC but not received by the
Fund or its transfer agent. The Company must notify the Fund of
the existence of any such Instructions, and the Fund and its
transfer agent will use commercially reasonable efforts to
process those Instructions in a mutually satisfactory manner.
1.1(c) Settlement Aggregated purchase and net redemption transactions
shall be settled in accordance with NSCC rules and procedures.
"Business Day," for the purposes of this Section 1.1(c), shall
also include any day on which the NSCC's DCC&S System is open to
transmit and settle orders, even if the NYSE is closed for
trading on such day.
In the event that NSCC systems are not functioning on a given
Business Day (1) for net purchase Instructions, the Company shall
wire payment, or arrange for payment to be wired by the Company's
designated bank, in immediately available funds, to the
Portfolio's custodial account at the Fund's custodian; and (2)
for net redemption Instructions, the Fund or its transfer agent
shall wire payment, or arrange for payment to be wired, in
immediately available funds, to an account designated by the
Company in writing. Wires from the Company must be received no
later than the close of the Federal Reserve Wire Transfer System
on the next day on which the Federal Reserve Wire Transfer System
is open.
In the event that the total redemption order for any one Business
Day shall exceed dollar limits set for a Portfolio by the Fund,
such Portfolio shall have the option of (i) settling the
redemption on the second Business Day following trade date
through the NSCC's money settlement process, (ii) settling the
redemption outside of Fund/SERV, if necessary as determined in
the discretion of the Fund, at any time within seven (7) days
after receipt of the redemption order, in accordance with
provisions of the
1940 Act, or (iii) in any other manner provided for in the
Portfolio's then current prospectus(es) and statement of
additional information.
Nothing herein shall prevent the Fund, on behalf of a Portfolio,
from delaying or suspending the right of purchase or redemption
in accordance with the provisions of the 1940 Act and the rules
thereunder. The Fund will not bear any responsibility whatsoever
for the proper disbursement or crediting of redemption proceeds;
the Company alone will be responsible for such action.
1.1(d) Errors The Company shall be solely responsible for the accuracy
of any Instruction transmitted to the Fund or its transfer agent
via NSCC systems or otherwise, and the transmission of such
Instruction shall constitute the Company's representation to the
Fund that the Instruction is accurate, complete and duly
authorized by the Accounts that are purchasing or redeeming
shares of the Portfolio. The Company shall assume responsibility
for any loss to the Fund, the Portfolios or their transfer agent
caused by a cancellation or correction made subsequent to the
date as of which an Instruction has been placed, and the Company
will immediately pay such loss to the Adviser, the Fund or such
Portfolio(s) upon notification.
Each Party shall notify the other Parties of any errors or
omissions in any information and interruptions in or delay or
unavailability of, the means of transmittal of any such
information as promptly as possible. The Company agrees to
maintain reasonable errors and omissions insurance coverage
commensurate with the Company's responsibilities under this
Agreement.
In the event of an error in the computation of a Portfolio's net
asset value per share, the Fund will follow its then current
policy adopted for the sale and distribution of shares of the
Portfolio regarding appropriate error correction standards in a
manner consistent with SEC guidelines and the 1940 Act. The Fund
shall provide the Company with documentation of the Fund's "NAV
ERROR CORRECTION" procedures, as a flowchart or in narrative
form, to be attached to this document as Schedule 1.1(d), and
shall provide the Company with timely notice and updated
documentation of any change the Fund may make in such Schedule.
Any gain to the Company or an Account attributable to the
incorrect calculation or reporting of a Portfolio's daily net
asset value shall be immediately returned to the Portfolio. The
Company agrees to make commercially reasonable efforts to recover
from the Contract holders any material losses incurred by the
Adviser, the Fund or the Portfolios as a result of the foregoing.
The Company shall maintain a record of the total number of shares
of the Portfolios which are so purchased, based on information
provided by the
Fund or its designee to the Company, and shall reconcile with the
Fund on a periodic basis the number of shares of each Portfolio
attributable to each Account. If an order to purchase shares of a
Portfolio must be canceled due to nonpayment, the Company will be
responsible for any loss incurred by the Fund or the Portfolio
arising out of such cancellation. To recover any such loss, the
Fund and the Portfolios reserve the right to redeem shares of the
affected Portfolio(s) held in the name of the Company or a
corresponding subaccount of the applicable Account.
1.2 The Fund will redeem the shares of the Portfolios when requested on
behalf of the Company or the corresponding subaccount of the
applicable Account at the net asset value next computed after receipt
by the Fund or its designee of each request for redemption, in
accordance with the provisions of this Agreement, the then current
prospectus(es) of the Portfolios, the statement of additional
information of the Fund and the Contracts; provided, however, if any
conflicts exist among any such documents, then the terms of the Fund's
current prospectus(es) describing the Portfolios and the statement of
additional information describing the Portfolios shall control.
The Company shall apply any net redemption proceeds received by it in
accordance with the applicable Contracts. The Company shall not
process or effect any redemptions with respect to shares of any
Portfolio after receipt by the Company of notification of suspension
of the determination of the net asset value of such Portfolio. The
Board of Directors of the Fund ("Directors") may refuse to sell shares
of any Portfolio to any person, including the Company with respect to
the Accounts, or suspend or terminate the offering of shares of such
Portfolio, if such action is required by law or by regulatory
authorities having jurisdiction, or is deemed by the Directors, in
their sole discretion, acting in good faith and in light of the
Directors' duties under federal and any applicable state laws,
necessary in the best interests of shareholders of the Portfolio.
1.3 The Company agrees to purchase and redeem the shares of each
Portfolio in accordance with the provisions of this Agreement and the
then current prospectus(es) of the Portfolios. Except as necessary to
implement transactions initiated by Contract holders, or as otherwise
may be required by applicable U.S. federal laws or regulations with
respect to maintaining the Contracts' status under the Internal
Revenue Code of 1986, as amended from time to time and any successor
provisions thereto (the "Code"), the Company shall not redeem shares
of the Portfolios attributable to the Contracts.
1.4 Issuance and transfer of shares of the Portfolios will be by
book-entry only. Stock certificates will not be issued to the Company
or to the applicable Accounts. Shares purchased from the Fund will be
recorded in appropriate book-entry titles for the Accounts by the Fund
or its designee.
1.5 The Fund shall furnish prompt notice, followed by written
confirmation to the Company, of any income, dividends or capital gain
distributions payable on the
Portfolios' shares. The Company hereby elects to receive all such
dividends and distributions as are payable on shares of a Portfolio in
additional shares of that Portfolio. The Fund shall notify the Company
or its delegates of the number of shares of the Portfolios so issued
as payment of such dividends and distributions.
The Company shall maintain a record of the number of shares of the
Portfolios held by the Accounts on behalf of each Contract holder, and
the Company shall maintain appropriate records of Contract holder
information.
The Company shall investigate all inquiries from Contract holders
relating to their interests in the Accounts and the Portfolios, and
shall respond to all communications from Contract holders and other
persons having an interest in the Contracts relating to the Company's
duties hereunder, in such form of correspondence as the Company, the
Fund and the Adviser may mutually agree.
Upon notice from the Fund, identifying one or more Accounts that may
be engaging (or suspected of engaging) in market timing activities
with respect to the Portfolios, the Company will assist the Fund and
the Adviser by providing such information as the Company may determine
to be reasonable and consistent with applicable law to assist the Fund
and the Adviser in their determination of whether market timing
activities have occurred, and the Company will fully cooperate with
the Fund and the Adviser in limiting or preventing any market timing
activities in the Portfolios by the Accounts.
2. Proxy Solicitations and Voting
2.1 The Fund agrees that the terms on which shares of the Portfolios
are offered to the Accounts will not be materially altered
without at least sixty (60) days' prior written notice to the
Company during any period when the Accounts own shares of the
Portfolios.
2.2 If and to the extent required by applicable law or by the terms
of the Contracts, the Company shall:
(i) solicit voting instructions from the Contract holders;
(ii) vote the shares of the Portfolios held by the Accounts in
accordance with instructions received from the Contract
holders; and
(iii) vote the shares of the Portfolios held by the Accounts for
which no timely instructions have been received from the
Contract holders in the same proportion as shares of such
Portfolio for which instructions have been received,
if and to the extent that (i) the SEC continues to interpret the
1940 Act to require pass-through voting privileges for variable
contract holders, and (ii) such interpretation is deemed
applicable to the Contracts. The Company reserves the right to
vote Portfolio shares held in any segregated asset account in its
own right,
to the extent permitted by applicable law. The Company
will calculate voting privileges in a manner consistent with
other separate accounts investing in the Portfolios and in
accordance with applicable law. The Company agrees to hold the
Fund, the Portfolios, the Adviser and DFAS harmless from and
against any liability that may arise as a result of the Company's
voting Portfolio shares held in any segregated account in its own
right.
2.3 The Fund, on behalf of the Portfolios, will comply with all
provisions of the 1940 Act requiring voting by shareholders, and
in particular, the Fund, at its option, will either provide for
annual or special meetings or comply with Section 16(c) of the
1940 Act, as well as with Sections 16(a) and, if and when
applicable, 16(b) of the 1940 Act and the rules thereunder.
Further, the Fund will act in accordance with the SEC's
interpretation of the requirements of Section 16(a) of the 1940
Act with respect to periodic elections of directors and with
whatever rules the SEC may promulgate with respect thereto.
3. Representations and Warranties
3.1 The Company represents and warrants that it is an insurance
company within the meaning of Section 816(a) of the Code, duly
organized and in good standing under applicable law, and that it
has legally and validly established each Account prior to any
issuance or sale thereof as a segregated asset account under
applicable state insurance law, and that it has and will maintain
the capacity to issue all Contracts that may be sold; and that it
is properly licensed, qualified and in good standing to sell the
Contracts in all jurisdictions where the Company does business.
The Company represents and warrants that the Contracts will be
issued and sold in compliance, in all material respects, with all
applicable federal and state laws, and that the sale of the
Contracts shall comply in all material respects with state
insurance suitability requirements. The Company represents and
warrants that at all times it shall comply, in all material
respects, with all laws, rules and regulations applicable to it
under this Agreement; and it will promptly notify the other
parties in the event that it is, for any reason, unable to
perform any of its obligations under this Agreement.
3.2 The Company represents and warrants that the Contracts are or
will be registered under the Securities Act of 1933, as amended
(the "1933 Act").
3.3 The Company represents and warrants that it has or will have
registered each Account as a unit investment trust, in accordance
with the provisions of the 1940 Act or each such Account is, and
will continue to be, exempt from registration under section 3(c)
of the 1940 Act, to serve as a segregated investment account for
the Contracts.
3.4 The Company represents that the Contracts are currently treated
as variable life insurance or variable annuity contracts under
applicable provisions of the Code, and that the Company will
maintain such treatment and that the Company will notify the
Adviser and the Fund promptly upon having a reasonable basis for
believing that the Contracts have ceased to be so treated or that
the Contracts might not be so treated in the future.
3.5 This Agreement has been duly authorized, executed and delivered
by the Company, and is a valid and legally binding contract
enforceable in accordance with its terms. No consent, approval,
authorization or order of any court or governmental authority is
required for the consummation by the Company of the transactions
contemplated by this Agreement. The execution and delivery of
this Agreement did not, and the consummation of the transactions
contemplated by this Agreement will not, violate the Company's
organizational documents or Bylaws, or any resolution, agreement
or arrangement to which the Company is a party or by which the
Company is bound.
3.6 The Company and the Accounts are duly authorized to acquire
shares of the Portfolios as contemplated by the terms of this
Agreement.
3.7 There are no material legal, administrative or other proceedings
pending or, to the Company's knowledge, threatened against the
Company or its property or assets that could result in liability
on its part. The Company knows of no facts that might form the
basis for the institution of such proceedings. Neither the
Company nor the Accounts are parties to or subject to the
provisions of any order, decree or judgment of any court or
governmental body that materially and adversely affects its or
their business or its or their ability to consummate the
transactions herein contemplated.
3.8 Except as noted below, the disclosure contained in the
applicable offering documents for the Accounts does not contain
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, and such disclosure meets
all legal requirements of applicable federal and state laws and
regulations. The Company represents and warrants that all current
and future offering documents with respect to the Accounts and
other materials that mention the Company, the Fund, the
Portfolios, DFAS or the Adviser shall meet the requirements
described in the first sentence of this subparagraph; provided,
however, that the Company shall not be responsible for any
disclosure that is provided to it in the Fund's current
prospectus(es) describing the Portfolios or the Fund's
registration statement as filed with the SEC.
3.9 The Fund represents and warrants that it is lawfully established
and validly existing under the laws of the State of Maryland. The
Fund represents that its operations are and shall at all times
remain in material compliance with the laws of the State of
Maryland to the extent required to perform this Agreement.
3.10 The Fund represents and warrants that the shares of the
Portfolios sold pursuant to this Agreement are registered under
the 1933 Act, and duly authorized for issuance; that the Fund
shall amend its registration statement for the Portfolios under
the 1933 Act and the 1940 Act, from time to time, as required in
order to
effect the continuous offering of the shares of the
Portfolios; that the Fund will sell such shares in compliance
with all applicable federal and state laws; and that the Fund is
and will remain registered under, and complies and will comply in
all material respects with, the 1940 Act. The Fund shall register
and qualify the shares of the Portfolios for sale in accordance
with the laws of the various states only if, and to the extent,
deemed advisable by the Fund or DFAS.
3.11 The Fund represents and warrants that the Portfolios will take
reasonable steps to satisfy (or as to Portfolios that have not
yet commenced business, will invest the money received from the
sale of Portfolio shares so as to satisfy) the diversification
requirements of Section 817(h) of the Code and the Treasury
Regulations promulgated thereunder, and that the Fund will take
all reasonable steps to ensure that the Portfolios continue to
satisfy such requirements. The Fund agrees to notify the Company
upon having a reasonable basis for believing that any Portfolio
has ceased to satisfy such diversification requirements.
3.12 The Fund represents and warrants that the Portfolios qualify (or
as to Portfolios that have not yet commenced business, will
qualify) as regulated investment companies under Subchapter M of
the Code, and that the Fund will take all reasonable steps to
maintain such qualification, subject to the reservation of the
right of the Directors of the Fund to not maintain the
qualification of a Portfolio as a regulated investment company if
the Directors determine this course of action to be beneficial to
shareholders. The Fund agrees to notify the Company upon having a
reasonable basis for believing that any Portfolio has ceased to
so qualify or upon the Directors taking any such action.
3.13 The Adviser represents and warrants that it is an investment
adviser registered with the Securities and Exchange Commission
under the Investment Advisers Act of 1940, duly organized and in
good standing under applicable law, duly qualified to do
business, and that it has all requisite licenses and authority to
carry on its business. Adviser represents and warrants that at
all times it shall comply, in all material respects, with all
laws, rules and regulations applicable to it under this
Agreement; and it will promptly notify the other parties in the
event that it is, for any reason, unable to perform any of its
obligations under this Agreement.
3.14 DFAS represents and warrants that it is and will remain a member
in good standing of the Financial Industry Regulatory Authority
("FINRA"), and is and will be duly registered as a broker-dealer
with the SEC under the Securities Exchange Act of 1934, as
amended (the "1934 Act"). DFAS represents that its operations
are, and shall at all times remain, in material compliance with
the laws of the State of Delaware to the extent required to
perform this Agreement. DFAS further represents and warrants that
it will sell and distribute the shares of the Portfolios in
accordance with any applicable state laws and federal securities
laws, including without limitation, the 1933 Act, the 1934 Act,
and the 0000 Xxx.
3.15 The Parties represent and warrant to each other that all of
their directors, officers, employees, investment advisers, and
other individuals/entities dealing with the
money and/or securities of the Portfolios are and shall continue
to be at all times covered by a blanket fidelity bond or similar
coverage for the benefit of the Fund in an amount not less than
the amount required by the applicable rules of the FINRA and the
federal securities laws, including the 1940 Act, as applicable.
The aforesaid bond shall include coverage for larceny and
embezzlement and shall be issued by a reputable bonding company.
The Parties agree to make all reasonable efforts to assure that
such bond or another bond containing these provisions is
continuously in effect, and each agrees to notify promptly the
other Parties in the event that such coverage no longer applies.
3.16 The Parties represent and warrant to each other and agree to
limit, and not facilitate, a Contract holder's participation in
the Fund's investment process such that: (1) there is not, and
there will not be, any arrangement, plan, contract or agreement
between the Adviser (or a subadviser) and a Contract holder
regarding the availability of the Fund as an Account under the
Contract, or the specific assets to be held by the Fund or a fund
that the Fund may invest its assets; (2) other than a Contract
holder's ability to allocate Contract premiums and transfer
amounts in the Company's Account to and from the Company's
Account corresponding to the Fund, all investment decisions
concerning the Fund will be made by the Adviser, any
subadviser(s) and the Company's Board of Directors in their sole
and absolute discretion; (3) the percentage of the Fund's assets
invested in a particular fund will not be fixed in advance of any
Contract holder's investment and will be subject to change by the
Adviser or a subadviser at any time without notice; (4) a
Contract holder cannot, and will not be able to, direct the
Fund's investment in any particular asset or recommend a
particular investment or investment strategy; (5) there is not,
and will not be, any agreement or plan between the Adviser or a
subadviser and a Contract holder regarding a particular
investment of the Fund; (6) a Contract holder cannot, and will
not be able to, communicate directly or indirectly with the
Adviser or a subadviser concerning the selection, quality or rate
of return on any specific investment or group of investments held
by the Fund; (7) a Contract holder does not have, and will not
have, any current knowledge of the Fund's specific assets other
than as may be required to be presented in periodic reports to
the Fund's shareholders; (8) a Contract holder does not have, and
will not have, any legal, equitable, direct or indirect ownership
interest in any of the assets of the Fund; and (9) a Contract
holder only has, and only will have, a contractual claim against
the insurance company offering the Contract to receive cash from
the insurance company under the terms of his or her Contract.
4. Sales Material and Information
4.1 The Company shall promptly provide the Fund with copies of any
Contract holder complaints respecting the Contracts that relate to the
Fund or to the Portfolios.
4.2 Except with the written consent of the Adviser, the Fund or DFAS, as
appropriate, the Company shall not make any oral or written material
representations concerning the Adviser, DFAS, the Fund or the
Portfolios, other than the
information or representations contained in: (a) a registration
statement or prospectus for the Fund, as amended or supplemented from
time to time; (b) published reports or statements of the Fund which
are in the public domain or are approved by the Fund; or (c) sales
literature or other promotional material of the Fund. Notwithstanding
the foregoing, this provision shall not be interpreted to prevent the
Company from providing information about the Adviser, DFAS and the
Fund or this Agreement to its Directors, regulators, accountants, or
legal counsel in the ordinary course of its business.
4.3 Except with the written consent of the Company, the Adviser, DFAS, or
the Fund shall not make any material representations concerning the
Company, other than the information or representations contained in:
(a) a registration statement or prospectus for the Contracts, as
amended or supplemented from time to time;
(b) published reports or statements of the Contracts or the Accounts
which are in the public domain or are approved by the Company; or
(c) sales literature or other promotional material of the Company.
Notwithstanding the foregoing, this provision shall not be interpreted
to prevent the Adviser, DFAS and the Fund from providing information
about the Company or this Agreement to their Directors, regulators,
accountants, or legal counsel in the ordinary course of their
business.
4.4 No Party shall use any other Party's names, logos, trademarks or
service marks, whether registered or unregistered, without the prior
written consent of such Party.
4.5 The Fund will provide to the Company at least one complete copy of
all registration statements, prospectuses, statements of additional
information, reports, proxy statements, sales literature and other
promotional materials, applications for exemptions, requests for
no-action letters, and all amendments to any of the above, that relate
to the Portfolios or their shares, in final form as filed with the
SEC. If requested by the Company, the Fund shall provide such
documentation (including a final copy of the amended prospectus(es) of
the Portfolios as set in type (including an 8 1/2" x 11" size
camera-ready stat) at the Fund's expense) and other assistance as is
reasonably necessary in order for the Company to have the current
prospectus(es) for the Portfolios printed (or copied on compact disks)
and distributed at the Company's expense.
4.6 The Company will provide to the Fund at least one complete copy of
all offering materials describing the Fund, the Portfolios and the
Contracts, including application and investment election forms, sample
illustrations, reports, solicitations for voting instructions, sales
literature and any other promotional materials, applications for
exemptions, requests for no-action letters, and all amendments to any
of the above, that relate to the Contracts and each Account.
In the event any such documents are required to be filed with any
regulatory authority or body, the Company shall provide such materials
in final form as filed with such regulatory authority or body. The
Company represents and warrants that the Contracts, registration
statements, prospectuses and any other filing in connection therewith
with respect to the Accounts will not materially deviate from the form
of such documents provided to the Fund.
4.7 For purposes of this Section 4, the phrase "sales literature or other
promotional material" shall be construed in accordance with all
applicable securities laws and regulations.
4.8 To the extent required by applicable law, including the
administrative requirements of regulatory authorities, or as mutually
agreed between the Company and DFAS, the Company reserves the right to
modify any of the Contracts in any respect whatsoever. The Company
reserves the right, in its sole discretion, to suspend the sale of any
Contract, in whole or in part, or to accept or reject any application
for the sale of a Contract. The Company agrees to notify the other
Parties promptly upon the occurrence of any event that the Company
believes might necessitate a material modification or suspension.
4.9 The Parties agree to cooperate with each other in reviewing the
arrangements set forth herein from time to time for possible changes
and will make their personnel reasonably available for this purpose.
Any changes as the result of this process must be in writing and
agreed by all parties.
5. Fees and Expenses
5.1 The Fund shall bear the cost of registration and qualification of the
shares of the Portfolios; preparation and filing of the Portfolios'
prospectus(es) and the Fund's registration statement, proxy materials
and reports relating to the Portfolios, including postage for mailing
proxy materials relating to the Portfolios to existing Contract
holders; preparation of all other statements and notices relating to
the Portfolios required by any federal or state law; payment of all
applicable fees, including, without limitation, all fees due under
Rule 24f-2 of the 1940 Act relating to the Portfolios; and all taxes
on the issuance or transfer of the Portfolios' shares.
5.2 The Company shall assure that the Contracts are registered under the
1933 Act, and that each Account is registered as a unit investment
trust in accordance with the 1940 Act. The Company shall bear the
expenses for the costs of preparation and filing of the Company's
prospectuses and registration statements with respect to the
Contracts; preparation of all other statements and notices relating to
each Account or Contracts required by any federal or state law; all
expenses for the solicitation and sale of the Contracts, including all
costs of printing and distributing all copies of advertisements,
Contract prospectuses and statements of additional information,
Contract proxy materials and reports to Contract holders and
prospective purchasers of the Contracts, as required by applicable
state and
federal law; payment of all applicable fees and taxes relating to the
Contracts; all costs of drafting, filing and obtaining approvals of
the Contracts in the various states under applicable insurance laws;
and all other costs associated with ongoing compliance with all such
laws and its obligations hereunder.
6. Indemnification
6.1 Indemnification by the Company
6.1(a) The Company agrees to indemnify, defend and hold harmless the
Fund, the Portfolios, DFAS and the Adviser, and each of their
directors and officers (as applicable), and each person, if any,
who controls any of them within the meaning of Section 15 of the
1933 Act (collectively, the "Indemnified Parties" for purposes of
this Section 6.1) against any and all losses, claims, damages,
liabilities (including amounts paid in settlement with the
written consent of the Company) or litigation (including legal
and other expenses) (except in all cases, excluding consequential
or special damages), to which the Indemnified Parties may become
subject under any statute, regulation, at common law or
otherwise, and:
(i) arise out of or are based upon any untrue statements or
alleged untrue statements of any material fact contained in
the registration statements, prospectuses or sales
literature 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 Section 6.1(a) 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 to the Company by or
on behalf of the Fund for use in the registration statements
or prospectuses for the Contracts (or any amendment or
supplement) or otherwise for use in connection with the sale
of the Contracts or the shares of the Portfolios;
(ii) arise out of, or as a result of, statements or
representations or wrongful conduct of the Company or
persons under its control, with respect to the sale or
distribution of the Contracts or the shares of the
Portfolios;
(iii) arise out of any untrue statement or alleged untrue
statement of a material fact contained in a registration
statement, prospectus, or sales literature covering the Fund
and the Portfolios 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 to the Fund by or on
behalf of the Company;
(iv) arise out of, or as a result of, any failure by the Company
or persons under its control to provide the services and
furnish the materials contemplated 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 or
persons under its control in this Agreement or arise out of
or result from any other material breach of this Agreement
by the Company or persons under its control;
as limited by and in accordance with the provisions of Sections
6.1(b)and 6.1(c) hereof.
6.1(b) The Company shall not be liable under this indemnification
provision with respect to any losses, claims, 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 gross 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 the Fund, whichever is
applicable, or to the extent of such Indemnified Party's gross
negligence.
6.1(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 otherwise
than on account of this indemnification provision. 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, provided that it gives written notice
of such intention to the Indemnified Parties. The Company also
shall be entitled to assume and to control the defense thereof.
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.
6.1(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 shares of the
Portfolios or the Contracts or the operation of the Portfolios.
6.2 Indemnification by DFAS
6.2(a) DFAS agrees to indemnify, defend and hold harmless the Company
and each of 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 6.2) against any and all losses, claims, damages,
liabilities (including amounts paid in settlement with the
written consent of the Fund or DFAS) or litigation (including
legal and other expenses) (except in all cases, excluding
consequential or special damages) to which the Indemnified
Parties may become subject under any statute, regulation, at
common law or otherwise, 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 current prospectus(es) or
sales literature of the Fund and the Portfolios (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 Section 6.2(a) 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
to the Fund by or on behalf of the Company for use in the
registration statement or prospectus(es) for the Portfolios
or in sales literature (or any amendment or supplement) or
otherwise for use in connection with the sale of the shares
of the Portfolios;
(ii) arise out of, or as a result of, statements or
representations or wrongful conduct of DFAS or the Fund or
persons under their control, with respect to the sale or
distribution of the shares of the Portfolios (it is
understood that the persons who are involved in the sale or
distribution of the Contracts are not under the control of
DFAS, the Adviser or the Fund);
(iii) arise out of any untrue statement or alleged untrue
statement of a material fact contained in a registration
statement, prospectus or sales literature 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 statements therein not misleading, if such
statement or
omission was made in reliance upon information furnished to
the Company by or on behalf of the Fund;
(iv) arise out of, or as a result of, any failure by DFAS, the
Fund or persons under their control to provide the services
and furnish the materials contemplated 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 DFAS, the Fund or
persons under their control in this Agreement or arise out
of or result from any other material breach of this
Agreement by DFAS, the Fund or persons under their control;
as limited by and in accordance with the provisions of Sections
6.2(b)and 6.2(c) hereof.
6.2(b) DFAS shall not be liable under this indemnification provision
with respect to any losses, claims, 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 gross negligence in the performance of
such Indemnified Party's duties or by reason of such Indemnified
Party's reckless disregard of obligations and duties under this
Agreement or to the Company or the Accounts, whichever is
applicable, or to the extent of such Indemnified Party's gross
negligence.
6.2(c) DFAS 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 DFAS 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 DFAS of any such
claim shall not relieve DFAS from any liability which it may have
to the Indemnified Party otherwise than on account of this
indemnification provision. In case any such action is brought
against the Indemnified Parties, DFAS will be entitled to
participate, at its own expense, in the defense thereof, provided
that it gives written notice of such intention to the Indemnified
Parties. DFAS also shall be entitled to assume and to control the
defense thereof. After notice from DFAS to such Party of DFAS's
election to assume the defense thereof, the Indemnified Party
shall bear the fees and expenses of any additional counsel
retained by it, and DFAS 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.
6.2(d) The Indemnified Parties will promptly notify DFAS of the
commencement of any litigation or proceedings against them in
connection with the issuance or sale of the Contracts or the
operation of the Accounts.
6.3 Indemnification by the Adviser
6.3(a) The Adviser agrees to indemnify and hold harmless the Company
and each of 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 6.3) against any and all losses, claims, damages,
liabilities (including amounts paid in settlement with the
written consent of the Fund or the Adviser) or litigation
(including legal and other expenses) (except in all cases,
excluding consequential or special damages) to which the
Indemnified Parties may become subject under any statute,
regulation, at common law or otherwise, and:
(i) arise out of or based upon any untrue statement or alleged
untrue statement of any material fact contained in the
registration statement or current prospectus(es) or sales
literature of the Fund and the Portfolios (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 Section 6.3(a) 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 to the Fund or the
Adviser by or on behalf of the Company for use in the
registration statement or prospectus(es) for the Portfolios
or in sales literature (or any amendment or supplement) or
otherwise for use in connection with the sale of the shares
of the Portfolios;
(ii) arise out of, or as a result of, statement or
representations or wrongful conduct of DFAS, the Fund or the
Adviser or persons under their control, with respect to the
sale or distribution of the shares of the Portfolios (it is
understood that the persons who are involved in the sale or
distribution of the Contracts are not under the control of
DFAS, the Adviser or the Fund);
(iii) arise out of any untrue statement or alleged untrue
statement of a material fact contained in a registration
statement, prospectus or sales literature 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 statements therein not misleading, if such
statement or
omission was made in reliance upon information furnished to
the Company by or on behalf of the Fund or the Adviser;
(iv) arise out of, or as a result of, any failure by DFAS, the
Adviser, the Fund or persons under their control to provide
the services and furnish the materials contemplated 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 DFAS, the Fund, the
Adviser or persons under their control in this Agreement or
arise out of or result from any other material breach of
this Agreement by DFAS, the Adviser, the Fund or persons
under their control;
as limited by and in accordance with the provisions of Sections
6.3(b)and 6.3(c) hereof.
6.3(b) The Adviser shall not be liable under this indemnification
provision with respect to any losses, claims, 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 gross negligence in the
performance of such Indemnified Party's duties or by reason of
such Indemnified Party's reckless disregard of obligations and
duties under this Agreement or to the Company or the Accounts,
whichever is applicable, or to the extent of such Indemnified
Party's gross negligence.
6.3(c) The Adviser 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 Fund
or the Adviser 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 Fund or the Adviser of any such claim shall not relieve the
Adviser from any liability which it may have to the Indemnified
Party otherwise than on account of this indemnification
provision. In case any such action is brought against the
Indemnified Parties, the Adviser will be entitled to participate,
at its own expense, in the defense thereof, provided that it
gives written notice of such intention to the Indemnified
Parties. The Adviser also shall be entitled to assume and to
control the defense thereof. After notice from the Adviser to
such Party of the Adviser'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 Adviser 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.
6.3(d) The Indemnified Parties will promptly notify the Fund or the
Adviser of the commencement of any litigation or proceedings
against them in connection with the issuance or sale of the
Contracts or the operation of the Accounts.
7. Potential Conflicts
7.1 The Directors 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 Portfolios. 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 insurance (including federal, state or
other jurisdiction), tax, or securities laws or regulations, or a
public ruling, private letter ruling, no-action or interpretive
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 are being managed; (e) a difference in voting
instructions given by variable annuity contract and variable life
insurance contract owners; or (f) a decision by an insurer to
disregard the voting instructions of contract owners. The Directors
shall promptly inform the Company if they determine that an
irreconcilable material conflict exists and the implications thereof.
7.2 The Company will report any potential or existing conflicts of which
it is aware to the Directors and, on an annual basis, shall provide
the Fund with written notification that the Company is not aware of
any conflict, if such is the case. The Company will assist the
Directors in carrying out their responsibilities under any applicable
provisions of the federal securities laws and/or any exemptive orders
granted by the SEC, including the order obtained by the Fund from the
SEC, dated March 12, 2002 (File No. 812-12760) ("Exemptive Order"), by
providing the Directors with all information reasonably necessary for
the Directors to consider any issues raised. This includes, but is not
limited to, an obligation by the Company to inform the Directors
whenever Contract holder voting instructions are disregarded.
The Company acknowledges that: (i) the Company's disregard of voting
instructions may conflict with the majority of Contract holders'
voting instructions; and (ii) the Company's action could preclude a
majority vote approving a proposed change or could represent a
minority view. If the Company's judgment represents a minority
position or would preclude a majority vote, then the Company may be
required, at the Fund's election, to withdraw the Accounts' investment
in the Portfolios. Other than possible decline in the value of an
Account due to fluctuations in the net asset value of the Portfolios,
no charge or penalty will be imposed as a result of such withdrawal.
7.3 If it is determined by a majority of the Directors, or a majority of
its disinterested Directors, that a material irreconcilable conflict
exists, the Company shall, at its expense and to the extent reasonably
practicable (as determined by a majority of
disinterested Directors), 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
Accounts from any Portfolio and reinvesting such assets in a different
investment medium, including (but not limited to) another Portfolio of
the Fund, or submitting the question whether such segregation should
be implemented to a vote of all affected Contract holders and, as
appropriate, segregating the assets of any appropriate group that
votes in favor of such segregation, or offering to the affected
Contract holders 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 a particular
state insurance regulator's decision applicable to the Company
conflicts with the majority of other insurance regulators, then the
Company will withdraw the affected Account's investment in the
Portfolio(s) and terminate this Agreement with respect to such Account
within six (6) months after the Directors inform the Company in
writing that the Directors have 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 disinterested Directors. Until the end
of the foregoing six (6) month period, DFAS and the Fund shall
continue to accept and implement orders by the Company for the
purchase (and redemption) of shares of the Portfolios.
7.5 For purposes of Sections 7.3 through 7.5 of this Agreement, a
majority of the disinterested Directors shall determine whether any
proposed action adequately remedies any irreconcilable material
conflict. 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 holders materially
adversely affected by the irreconcilable material conflict. In the
event that the Directors determine that any proposed action does not
adequately remedy any irreconcilable material conflict, then the
Company will withdraw an Account's investment in the Portfolios and
terminate this Agreement within six (6) months after the Directors
inform 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.
7.6 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 any Exemptive Order) on terms
and conditions materially different from those contained in any
Exemptive Order, then (a) the Fund and/or the Company, 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 7.1, 7.2, 7.3 and 7.4 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 by the SEC.
8. Term and Termination
8.1 This Agreement may be terminated by any Party with or without cause
on sixty (60) days' advance written notice.
8.2 Notwithstanding any other provision of this Agreement, DFAS, the
Adviser or the Fund may terminate this Agreement for cause on not less
than thirty (30) days' prior written notice to the Company, unless the
Company has cured such cause within thirty (30) days of receiving such
notice, for any material breach by the Company of any representation,
warranty, covenant or obligation hereunder.
8.3 Notwithstanding any other provision of this Agreement, the Company
may terminate this Agreement for cause on not less than thirty (30)
days' prior written notice to DFAS, the Adviser and the Fund, unless
DFAS, the Adviser or the Fund, as appropriate, has cured such cause
within thirty (30) days of receiving such notice, for any material
breach by DFAS, the Adviser or the Fund of any representation,
warranty, covenant or obligation hereunder.
8.4 Notwithstanding any other provision of this Agreement, the Company
may terminate this Agreement by written notice to the Fund and DFAS
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.
8.5 Notwithstanding any other provision of this Agreement, the Company
may terminate this Agreement by written notice to the Fund, the
Adviser and DFAS with respect to any Portfolio in the event such
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 shares as the underlying investment media of the Contracts
issued or to be issued by the Company.
8.6 Notwithstanding any other provision of this Agreement, the Company
may terminate this Agreement by written notice to the Fund, the
Adviser and DFAS with respect to any Portfolio in the event that such
Portfolio ceases to qualify as a "regulated investment company" under
Subchapter M of the Code, or if the Company reasonably believes that
any such Portfolio may fail to so qualify.
8.7 Notwithstanding any other provision of this Agreement, the Company
may terminate this Agreement by written notice to the Fund, the
Adviser and DFAS with respect to any Portfolio in the event that such
Portfolio fails to satisfy the diversification requirements of Section
817 of the Code and the Treasury regulations promulgated thereunder.
8.8 Notwithstanding any other provision of this Agreement, the Fund, the
Adviser or DFAS may terminate this Agreement by written notice to the
Company, if any one or all shall determine, in their sole judgment,
exercised in good faith, that the Company has suffered a material
adverse change in its business, operations, financial condition or
prospects since the date of this Agreement or is the subject of
material adverse publicity.
8.9 Notwithstanding any other provision of this Agreement, the Company
may terminate this Agreement by written notice to the Fund, the
Adviser and DFAS, if the Company shall determine, in its sole
judgment, exercised in good faith, that any of the Fund, the
Portfolios, the Adviser or DFAS has suffered a material adverse change
in its business, operations, financial condition or prospects since
the date of this Agreement or is the subject of material adverse
publicity.
8.10 Notwithstanding any other provision of this Agreement, any Party may
terminate this Agreement for cause on not less than sixty (60) days'
prior written notice to all other Parties, unless any of the other
Parties has cured such cause within sixty (60) days of receiving such
notice, for any one of the following reasons:
(a) change in control of any Party or such Party's ultimate
controlling person; however, a change in the name of the Party
will not constitute a change in control;
(b) a material change in, or other material revision to, the
Contracts or the prospectus(es) of the Portfolios, which material
change or revision is not acceptable to any of the other Parties;
or
(c) any action taken by federal, state or other regulatory
authorities of competent jurisdiction which, in the reasonable
judgment of any of the Parties, either (i) materially and
adversely alters the terms, advantages and/or benefits of the
Contracts to current or prospective purchasers; or (ii)
materially or adversely alters the terms or conditions of such
Party's participation in the subject matter of this Agreement.
8.11 Notwithstanding the termination of this Agreement, each Party shall
continue for so long as any Contracts remain outstanding to perform
such of its duties hereunder as are necessary to ensure the continued
tax status thereof and the payment of benefits thereunder, with
respect to a Portfolio and the corresponding subaccount of each
Account.
9. Notices
Any notice shall be deemed sufficiently given when sent by registered or
certified mail, or via facsimile, to the other Parties at the address of such
Parties set forth below or at such other address as such Parties may from time
to time specify in writing to the other Parties.
If to the Fund:
Xxxxxxxxx X. Xxxxxx, Esq.
Vice President and Secretary
DFA Investment Dimensions Group Inc.
0000 Xxxxx Xxxxxx, 00xx Xxxxx Xxxxx Xxxxxx,
Xxxxxxxxxx 00000
If to the Adviser:
Xxxxxxxxx X. Xxxxxx, Esq.
Vice President and Secretary
Dimensional Fund Advisors LP
0000 Xxx Xxxx Xxxx, Xxxxxxxx Xxx
Xxxxxx, XX 00000
If to DFAS:
Xxxxxxxxx X. Xxxxxx, Esq.
Vice President and Secretary
DFA Securities LLC
0000 Xxx Xxxx Xxxx, Xxxxxxxx Xxx
Xxxxxx, XX 00000
If to the Company:
Ameritas Life Insurance Corp.
0000 "X" Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attn: General Counsel
10. Miscellaneous
10.1 The captions in this Agreement are included for convenience of
reference only and in no way affect the construction or effect of any
provisions hereof.
10.2 If any portion 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.
10.3 This Agreement may be executed simultaneously in two or more
counterparts, each of which taken together shall constitute one and
the same instrument.
10.4 Each Party shall cooperate with each other Party and all appropriate
governmental authorities (including, without limitation, the SEC, the
FINRA, and any applicable insurance, securities or other regulator of
competent jurisdiction), and shall permit such authorities reasonable
access to its books and records as required by applicable law in
connection with any investigation or inquiry relating to this
Agreement.
10.5 Each Party hereto grants to the other Parties the right to audit its
records relating to the terms and conditions of this Agreement upon
reasonable notice during reasonable business hours in order to confirm
compliance with this Agreement.
10.6 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.
10.7 Subject to the requirements of legal process and regulatory
authority, the Fund, the Adviser and DFAS shall treat as confidential
all nonpublic personal information obtained in the performance of its
duties and obligations under the Agreement. Any information about an
individual that is not publicly available, including financial and
health information, shall be held in the strictest confidence and will
not be used for any other purpose except to perform its duties under
the Agreement. Such information shall not be disclosed to any third
party without the express written consent of the affected individual
or as may be required by law. Each party will establish procedures to
protect the security and confidentiality of such information.
Notwithstanding the foregoing, this provision shall not be interpreted
to prevent the Adviser and DFAS from providing information about any
non-public information to its directors, regulators, accountants, or
legal counsel in the ordinary course of its business.
10.8 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.
10.9 In any dispute arising hereunder, each Party waives its right to
demand a trial by jury and hereby consents to a bench trial of all
such disputes.
10.10 The terms of this Agreement shall be construed and the provisions
hereof interpreted under and in accordance with the laws of the State
of California, without regard to the conflicts of law principles
thereof; provided, however, that all performances rendered hereunder
shall be subject to compliance with all applicable state and federal
laws and regulations.
To the extent they are applicable, 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 interpretations thereunder, including
such exemptions from those statutes, rules and regulations as the SEC
may grant, and any applicable FINRA regulations or interpretations,
and the terms hereof shall be interpreted and construed in accordance
therewith.
IN WITNESS WHEREOF, each of the Parties hereto has caused this Agreement to
be duly executed as of the date first set forth above.
Company:
AMERITAS LIFE INSURANCE CORP.
By: /s/ Xxxxxx X. Xxxxx
---------------------------------------------------
Name: Xxxxxx X. Xxxxx
---------------------------------------------------
Title: Senior Vice President, & Chief Financial Officer
---------------------------------------------------
Fund:
DFA INVESTMENT DIMENSIONS GROUP INC.
By: /s/ Xxxx X. Xxxx
---------------------------------------------------
Name: Xxxx X. Xxxx
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Title: Vice President
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Adviser:
DIMENSIONAL FUND ADVISORS LP
By: Dimensional Holdings Inc., its general partner
By: /s/ Xxxxxxx X. Xxxxxx
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Name: Xxxxxxx X. Xxxxxx
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Title: Vice President
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DFAS:
DFA SECURITIES LLC
By: /s/ Xxxxxxx X. Xxxxx
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Name: Xxxxxxx X. Xxxxx
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Title: Vice President
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Schedule 1.1
VA U.S. Targeted Value Portfolio
VA U.S. Large Value Portfolio
VA International Value Portfolio
VA International Small Portfolio
VA Short-Term Fixed Portfolio
VA Global Bond Portfolio
Schedule 1.1(d)
NAV ERROR CORRECTION
-------------------------- ------------------------------------------------------------------------
Is NAV Error > 1 cent per -N-> Error deemed immaterial; No retroactive corrective
share? action required.
-------------------------- ------------------------------------------------------------------------
Y
|
v ------------------------------------------------------------------------
-------------------------- Determine total fund loss and total fund benefit during
Is NAV Error > 1/2 % of -N-> error period. If the fund incurred a net loss, the
NAV? responsible party should reimburse the fund. If the fund
-------------------------- had a net benefit, no action need be taken. A net benefit
Y cannot be carried forward to offset a future fund loss.
| ------------------------------------------------------------------------
v
-------------------------- -------------- ---------------
Account adjustments NAV Overstated NAV Understated
should be made to -------------- ---------------
compensate shareholders /\ /\
for shareholder losses. / \ / \
Pay individual ---------------- --------------- ---------------- ---------------
shareholders any Net Net Purchases Net Purchases Net
additional redemption Redemptions = Fund Benefit = Fund Loss Redemptions
proceeds owed and ---------------- --------------- ---------------- ---------------
either refund excess
subscription monies paid ----------------------------------------------------------------------------
or credit the shareholder Determine total fund loss during error period. Either the responsible
account with additional --> party or the individual shareholders (who experienced a benefit)
shares. If account should reimburse the fund for the amount of the fund loss. Note that
adjustment is less than a there is no netting of fund benefits with fund losses to the extend fund
de minimis amount (e.g. benefits were paid out by the fund to shareholders as account
$25.00), account adjustments.
adjustment need not be ----------------------------------------------------------------------------
made. In addition, the
responsible party should
compensate the fund for
fund losses.
--------------------------
