PARTICIPATION AGREEMENT
Hartford Life Insurance Company- (the "Company"), OppenheimerFunds Distributor,
Inc. (the "Distributor") and OppenheimerFunds Services ("OFS"), a division of
OppenheimerFunds, Inc., hereby agree to an arrangement whereby Class A shares of
certain registered investment companies listed in Schedule B (individually a
"Fund" and collectively, the "Funds") shall be made available to serve as
underlying investment media for Variable Annuity Contracts ("Contracts") to be
issued by the Company.
1. Establishment of Accounts; Availability of Fund Shares.
(a) The Company represents that it has established Separate Accounts as may be
set forth in Schedule A and may establish such other accounts (the "Accounts"),
each of which is a separate account under Connecticut Insurance law, and has
registered or will register each of the Accounts (except for such Accounts for
which no such registration is required) as a unit investment trust under the
Investment Company Act of 1940 (the "1940 Act"), to serve as an investment
vehicle for the Contracts. Each Contract provides for the allocation of net
amounts received by the Company to an Account for investment in the shares of
one of more specified open-end management investment companies available through
that Account as underlying investment media. Selection of a particular
investment management company and changes therein from time to time are made by
the participant or Contract owner, as applicable under a particular Contract.
Distributor shall make Class A shares of the Funds available for purchase by
each Account through the broker/dealer of record, if any, or the Company at net
asset value without sales charge (and without the payment of a sales commission)
on Business Days in accordance with the terms of each Fund's then current
prospectus and statement of additional information. It is acknowledged and
agreed that the purchase and sales of the shares of any Fund shall be subject to
such Fund's then current prospectus and statement of additional information,
federal and state securities laws and applicable rules and regulations of the
National Association of Securities Dealers, Inc
2. (a) Services Provided by the Company. The Company shall maintain the
account records for each Contract owner, including a daily record of the number
of shares of a Fund owned by the Contract owner, the value of each Contract
owner's account, the dividends accrued or paid and capital gains distributions
and return of capital or other distributions on such accounts, and a record of
all exchanges, purchases, and redemptions for each Contract owner account.
Distributor, OFS, and the Funds shall not have any responsibility with respect
to the provision of administrative services, or recordkeeping services for
Contract owners, including tax reporting or tax withholding. The Company shall
maintain one omnibus
account per Account in each Fund registered in the name of the Account,
Distributor, OFS, and the Funds shall not maintain separate accounts for
Contract owners.
(b) Reporting. The Company shall maintain and preserve all records as required
by applicable law, rules and regulations and/or this Agreement to be maintained
and preserved in connection with providing the services described herein, and
will otherwise comply with all laws, rules and regulations applicable thereto.
At OFS' request, the Company shall provide OFS with any and all information
about the Accounts and number of participants, as may be reasonably necessary to
permit OFS or the Funds to comply with any request of the board of directors or
trustees of the Funds or of a governmental body, or self-regulatory
organization. The parties acknowledge that the Company shall have no duty to
provide any information about the participants to the board of directors or
trustees other than the number of participants invested in the Funds. The
Company shall have its recordkeeping system audited annually by an independent
accounting firm qualified to conduct such audits and shall provide OFS with a
copy of the auditor's SAS 70 report within 30 days of in issuance. The Company
shall provide OFS or its designated agent reasonable access to its records
relating to the Accounts invested in the Funds to permit OFS to audit or review
(i) the Company's compliance with the terms of this Agreement, (ii) the accuracy
of the Company's recordkeeping system, and (iii) the accuracy of the invoices
submitted to OFS and Distributor for payment.
3. Pricing Information; Orders; Settlement.
(a) The Distributor will make Class A shares of the Funds available to be
purchased by the Company, on behalf of each Account, and OFS will accept
redemption orders from the Company, on behalf of each Account, at the net asset
value applicable to each order on those days on which the Fund calculates its
net asset value (a "Business Day"). Fund shares shall be purchased and redeemed
in such quantity as determined by the Company to be necessary to meet the
requirements of those Contracts for which the Fund(s) serve as underlying
investment media, provided, however, that the Board of Trustees/Directors of a
Fund (hereinafter the "Trustees") may without notice to the Company, refuse to
sell shares of any Fund to any person, or suspend or terminate the offering of
shares of any Fund if such action is required by law or by regulatory
authorities having jurisdiction or is, in the sole discretion of the Trustees,
acting in good faith and in the best interests of the shareholders of any Fund
and is acting in compliance with their fiduciary obligations under federal
and/or any applicable state laws.
(b) OFS will provide to the Company closing net asset value, dividend and
capital gain information at the close of trading each day that the New York
Stock Exchange (the "Exchange") is open (each such day a "Business Day"), and
use its best efforts to provide or cause to be provided by 6:30 p.m. Eastern
Standard time on each Business Day, but in no event shall communicate such
information later than 7:00 p.m. Eastern
Standard time on such Business Day unless the delay is due to extraordinary
circumstances. The Company will send via facsimile or electronic transmission to
OFS or its specified agent orders to purchase and/or redeem Fund shares by 9:00
a.m. Eastern Standard Time the following business day via the National
Securities Clearing Corporation (NSCC). OFS will receive all orders to purchase
Fund shares using the NSCC's Defined Contribution Clearance & Settlement (DCC&S)
platform. OFS will also provide the Company with account positions and activity
data by 9:00 a.m. Eastern Standard Time on the next following Business Day. OFS
will receive all orders to purchase Fund shares using the NSCC's Defined
Contribution Clearance & Settlement (DCC&S) platform OFS will also provide the
Company with account positions and activity data using the NSCC's Networking
platform. The Company shall pay for Fund shares by the scheduled close of
federal funds transmissions on the same Business Day it places an order to
purchase Fund shares in accordance with this section using the NSCC's Continuous
Net Settlement (CNS) System. Payment for net purchases will be wired by the
Company to an account designated by the Distributor to coincide with the order
for shares of the Fund using the NSCC's Continuous Net Settlement (CNS) System.
Payment shall be in federal funds transmitted by wire from the Fund's designated
Settling Bank to the NSCC. Networking shall mean the NSCC's product that allows
Fund's and Companies to exchange account level information electronically.
Settling Bank shall mean the entity appointed by the Fund to perform such
settlement services on behalf of the Fund and agrees to abide by the NSCC's
Rules and Procedures insofar as they relate to the same day funds settlement.
(c) The Distributor hereby appoints the Company as its agent for the sole
purpose of accepting purchase and redemption orders for Fund shares relating to
the Contracts from Contract owners. Except as provided in the foregoing
sentence, the Company shall not be, nor hold itself out to the public or engage
in any activity as, an agent or distributor for the Funds, or agent for OFS or
Distributor or any of their affiliates. Orders from Contract owners received
from any distributor of the Contracts (including affiliates of the Company) by
the Company, acting as agent for the Distributor, prior to the close of the
Exchange (as indicated by date and time stamping) on any given business day will
be executed by OFS, as transfer agent for the Funds, at the net asset value
determined as of the close of the Exchange on such Business Day, provided that
OFS receives written (or facsimile) notice of such order by 9:00 a.m. Eastern
Standard Time on the next following Business Day. Any orders received by the
Company acting as agent on such day but after the close of the Exchange will be
executed by OFS at the net asset value determined as of the close of the
Exchange on the next business day following the day of receipt of such order,
provided that OFS receives written (or facsimile) notice of such order by 9:00
a.m. Eastern Standard Time on the next Business Day following the day of receipt
of such order.
If the Company is somehow prohibited from submitting purchase and settlement
instructions to OFS for Fund shares via the NSCC's DCC&S platform the following
shall apply to this Section;
The Distributor agrees to sell the Company those shares of the Funds which the
Company orders on behalf of any Account, executing such orders on a daily basis
at the net asset value next computed after receipt and acceptance by the Fund or
its designee of such order. For purposes of this Section, the Company shall be
the designee of the Fund for the receipt of such orders frorn the Account and
receipt by such designee shall constitute receipt by the Fund or OFS; provided
that the Fund or OFS receives notice of such order by 10:00 a.m. Eastern
Standard Time on the next following Business Day. The Company shall pay for Fund
shares by the scheduled close of federal funds transmissions on the same
Business Day it places an order to purchase Fund shares in accordance with this
section. Payment shall be in federal funds transmitted by wire to the Fund's
designated custodian.
(d) Payments for net redemptions of shares of the Fund will be wired by OFS to
an account designated by the Company on the same Business Day the Company places
an order to redeem Fund shares. Payments for net purchases of the Fund shares
will be wired by the Company to an account designated by OFS on the same
Business Day the Company places an order to purchase Fund shares. Payments shall
be in federal funds transmitted by wire. The Fund and OFS agree to redeem for
cash, or in unusual circumstances (such as lack of liquidity in the Fund's
portfolio to meet redemption requirements) shares may be redeemed in kind, upon
the Company's request, any full or fractional shares of the Fund held by the
Company on behalf of a Account, executing such requests on a daily basis at the
net asset value next computed after receipt and acceptance by the Fund or its
designee of the request for redemption. For purposes of this Section, the
Company shall be the designee of the Fund for receipt of requests for redemption
from each Account and receipt by such designee shall constitute receipt by the
Fund; provided the Fund or OFS receives notice of such request for redemption
via the National Securities Clearing Corporation (NSCC) by 9:00 a.m. Eastern
Standard Time on the next following Business Day. The Fund will receive all
orders to redeem Fund shares using the NSCC's Defined Contribution Clearance
&Settlement (DCC&S) platform. The Fund or OFS will also provide the Company with
account positions and activity data using the NSCC's Networking platform.
Payment for Fund shares redeemed shall be made in accordance with this section
using the NSCC's Continuous Net Settlement (CNS) System. Payment shall be in
federal funds transmitted by the NSCC to the Account's Settling Bank as
designated by the Company, on the same Business Day the Fund or OFS receives
notice of the redemption order from the Company provided that the Fund or OFS
receives notice by 9:00 a.m. Eastern Standard Time on such Business Day.
If the Company is somehow prohibited from submitting redemption and settlement
instructions to the Fund for Fund shares via the NSCC's DCC&S platform the
following shall apply to this Section;
The Fund and OFS agree to redeem for cash, or in unusual circumstances (such as
lack of liquidity in the Fund's portfolio to meet redemption requirements)
shares may be redeemed in kind, upon the Company's request, any full or
fractional shares of the Fund held by the Company on behalf of an Account,
executing such requests on a daily basis at the net asset value next computed
after receipt and acceptance by the Fund or its designee of the request for
redemption. For purposes of this Section, the Company shall be the designee of
the Fund for receipt of requests for redemption from each Account and receipt by
such designee shall constitute receipt by the Fund; provided the Fund or OFS
receives notice of such request for redemption by 10:00 a.m. Eastern Standard
Time on the next following Business Day. Payment shall be in federal funds
transmitted by wire to the Account as designated by the Company, on the same
Business Day the Fund or OFS receives notice of the redemption order from the
Company provided that the Fund or OFS receives notice by 10:00 a.m. Eastern
Standard Time on such Business Day.
OFS shall furnish same day notice to the Company of any income, dividends or
capital gain distributions payable on the Fund's shares. The Company hereby
elects to receive all such dividends and distributions as are payable on a
Fund's shares in the form of additional shares of that Fund. The Fund shall
notify the Company of the number of shares so issued as payment of such
dividends and distributions no later than one Business Day after issuance. The
Company reserves the right to revoke this election and to receive in cash all
such dividends and distributions declared after receipt of notice of revocation
by the Fund.
(e) Each party has the right to rely on information or confirmations provided
by the other party (or by any affiliate of the other party), and shall not be
liable in the event that an error is a result of any misinformation supplied by
the other party
(f) The Distributor and OFS shall indemnify and hold the Company harmless, from
the effective date of this Agreement, against any amount the Company is required
to pay to Contract owners due to: (i) an incorrect calculation of a Fund's daily
net asset value, dividend rate, or capital gains distribution rate or (ii)
incorrect or late reporting of the daily net asset value, dividend rate, or
capital gain distribution rate of a Fund, upon written notification by the
Company, with supporting data, to Distributor, provided, however, that no such
amounts shall be corrected if they are not deemed material pursuant to the then
prevailing pricing error guidelines as set forth by the Securities and Exchange
Commission and its staff. In addition, subject to the limits described in this
subparagraph, OFS or the Distributor shall be liable to the Company for
reasonable systems and out of pocket costs incurred by the Company in making a
Contract owners's or a participant's account whole, if such costs or expenses
are a result of OFS's or the Distributor's failure to provide timely or correct
net asset
values, dividend and capital gains or financial information and if such
information is not corrected by 4:00 p.m. East Coast time of the next business
day after releasing such incorrect information provided the incorrect NAV as
well as the correct NAV for each day that the error occurred is provided. If a
mistake is caused in supplying such information or confirmations, which results
in a reconciliation with incorrect information, the amount required to make a
Contract owner's account whole shall be borne by the party providing the
incorrect information, regardless of when the error is corrected. Any gain by a
Contract owner attributable to the incorrect calculation or reporting of the
daily net asset value, dividend rate or capital gains distribution rate shall,
to the extent permissible promptly be returned to the Fund(s) involved;
provided, however, that no such amounts shall be returned if they are not deemed
material pursuant to the then prevailing pricing error guidelines as set forth
by the Securities and Exchange Commission and its staff.
The following limits shall apply to the collective liabilities of the
Distributor and/or OFS, as appropriate, to the Company for systems and out of
pocket costs incurred by the Company if such costs or expenses are a result of
the Distributor or OFS's failure to provide the Company with such correct or
timely information: (i) $1,000 per day per affected Fund for each day that
incorrect information provided by the Distributor or OFS is not corrected, if
such period does not include a month-end or a fiscal quarter-end, (ii) $1,500
per day per affected Fund for each day that such incorrect information provided
by the Distributor or OFS is not corrected, if such period does include a
month-end or a fiscal quarter-end, and (iii) up to $50,000 per occurrence in the
aggregate under (i) or (ii) above. Any incorrect information that has as a
common nexus any single error shall be deemed to be one occurrence for these
purposes provided all corrections are provided at the same time.
(g) The Company shall assume responsibility for any loss to Distributor or to
OFS caused by the cancellation or correction made to an order subsequent to the
date on which such order has been received by the Company and originally relayed
to Distributor, and the Company will immediately pay such loss to Distributor or
OFS upon receipt of written notification with supporting data. Notification and
transmission of any correction or cancellation by the Company to OFS by 11 a.m.
Eastern Time shall not be deemed to have resulted in a loss.
(h) The Company agrees to purchase and redeem the shares of the Funds named in
Schedule B offered by the then current prospectus and statement of additional
information of the Fund in accordance with the provisions of such prospectus and
statement of additional information.
(i) The Company acknowledges that the Funds or their designated agent will
accept instructions only from the Company and that neither the Funds nor their
designated agent will accept instructions directly from a Contract owner or
participant.
4. Fees.
In consideration of services provided by the Company under this Agreement, the
Company shall receive fees as set forth in Schedule C.
5. Expenses.
(a) Except as otherwise provided in this Agreement, all expenses incident to
the performance by the Distributor or OFS under this Agreement shall be paid by
the Distributor, OFS or the Fund as the case may be, including the cost of
registration of Fund shares with the Securities and Exchange Commission (the
"SEC") and in states where required. The Company shall pay no fee or other
compensation to the Distributor or OFS under this Agreement, and the Distributor
or OFS shall pay no fee or other compensation to the Company, except as provided
herein and in Schedule C attached hereto and made a part of this Agreement as
may be amended from time to time with the mutual consent of the parties hereto.
All expenses incident to performance by each party of its respective duties
under this Agreement shall be paid by that party, unless otherwise specified in
this Agreement.
(b) The Distributor shall provide to the Company, at the location designated by
the Company, periodic fund reports to shareholders and other materials that are
required by law to be sent to Contract owners or participants. In addition, the
Distributor shall provide the Company, at the Company's reasonable request, with
a sufficient quantity of Fund prospectuses, statements of additional information
and any supplements to any of these materials, to be used in connection with the
offerings and transactions contemplated by this Agreement. The Fund and/or the
Distributor shall pay for the cost of typesetting, printing and distributing all
Fund prospectuses, statements of additional information, Fund reports to
shareholders and other Fund communications to Contract owners and prospective
Contract owners. The cost for distributing such materials will be paid by the
Fund and/or Distributor.
(c) The Distributor shall provide the company with a sufficient quantity of
Fund proxy material that is required to be sent to Contract owners or
participants. The cost associated with proxy preparation, group authorization
letters, programming for tabulation and necessary materials (including postage)
will be paid by the Fund and/or Distributor.
6. Representations.
(a) The Company agrees that it and its agents shall not, without the written
consent of the Distributor, make representations concerning the Fund, or its
shares except those contained in the then current prospectuses, and statement of
additional information and in current printed sales literature approved by or
deemed approved by the Distributor in accordance with Section 9 (a) of this
Agreement.
(b) The Distributor represents and warrants that (i) Fund shares sold pursuant
to this Agreement shall be registered under the 1933 Act and duly authorized for
issuance in accordance with applicable law and that the Fund is and shall remain
registered under the 1940 Act for as long as the Fund shares are sold; (ii) the
Fund shall amend the registration statement for its shares under the 1933 Act
and the 1940 Act from time to time as required in order to effect the continuous
offering of its shares; and (iii) the Fund shall register and qualify its shares
for sales in accordance with the laws of the various states only if and to the
extent deemed advisable by the Fund or the Distributor.
(c) The Distributor represents that each Fund (a) is currently qualified as a
Regulated Investment Company under Subchapter M of the Code; (b) will make every
effort to maintain such qualification (under Subchapter M or any successor or
similar provision); and (c) will notify the Company immediately upon having a
reasonable basis for believing that such Fund has ceased to so qualify or might
not so qualify in the future.
(d) To the extent that the Fund finances distribution expenses pursuant to Rule
12b-1 under the 1940 Act, the Distributor represents that its Board of Trustees
or Directors, as applicable, including a majority of its Trustees/Directors who
are not interested persons of the Fund, have formulated and approved a plan
under Rule 12b-l to finance distribution expenses.
(e) The Distributor represents and warrants that it is a member in good
standing of the NASD and is registered as a broker-dealer with the SEC. The
Distributor further represents that it will sell and distribute the Fund shares
in accordance in all material respects with all applicable federal and state
securities laws, including without limitation the 1933 Act, the 1934 Act, and
the 1940 Act.
(f) The Distributor represents that each Fund is lawfully organized and validly
existing under the laws of the State of Maryland or the Commonwealth of
Massachusetts and that it does and will comply in all material respects with
applicable provisions of the 0000 Xxx.
(g) The Distributor represents and warrants that all Trustees/Directors,
officers, employees, investment advisors, and other individuals/entities having
access to the funds and/or securities of the Fund are and 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 minimal coverage as required by Rule
17g-l under the 1940 Act or related provisions as may be promulgated from time
to time. The aforesaid Bond includes coverage for larceny and embezzlement and
is issued by a reputable bonding company.
(h) The Company represents and warrants that all of its directors, officers,
employees, investment advisers, and other individuals/entities dealing with the
money and/or securities of the Fund are covered by a blanket fidelity bond or
similar
coverage in an amount not less than $5 million. The aforesaid includes coverage
for larceny and embezzlement and is issued by a reputable bonding company. The
Company represents that it lawfully organized and validly existing under the
laws of the State of Connecticut.
(i) The Distributor represents and warrants that the Adviser is and intends to
remain duly registered in all material respects under all applicable federal and
state securities laws and that the Adviser shall perform its obligations for the
Fund in compliance in all material respects with any applicable state and
federal securities laws.
(j) The Distributor represents and warrants that it has the authority to bind
the Fund with regard to representations, warranties and commitments made under
this Agreement.
(k) The foregoing representations and warranties shall be made, by the party
hereto that makes the representation or warranty as of the date first written
above and at the time of each purchase and each sale of the Fund's shares
pursuant to this Agreement.
7. Termination.
This agreement shall terminate as to the sale and issuance of new Contracts:
(a) at the option of either the Company, the Distributor or OFS, upon ninety
days advance written notice to the other parties;
(b) at the option of the Company, upon one week advance written notice to the
Distributor and OFS, if Fund shares are not available for any reason to meet the
requirement of Contracts as determined by the Company (reasonable advance notice
of election to terminate shall be furnished by Company);
(c) at the option of either the Company, the Distributor or OFS, immediately
upon institution of formal proceedings against an Account, the Company, OFS or
the Distributor by the National Association of Securities Dealers, Inc. (the
"NASD"), the SEC or any other regulatory body;
(d) upon the determination of the Accounts to substitute for the Fund's shares
the shares of another investment company in accordance with the terms of the
applicable Contracts (the Company will give 60 days written notice to OFS and
the Distributor of any decision to replace the Fund's shares);
(e) upon assignment of this Agreement, unless made with the written consent of
all other parties hereto;
(f) if Fund shares are not registered, issued or sold in conformance with
Federal law or Such law precludes the use of Fund shares as an underlying
investment medium for Contracts issued or to be issued by the Company (prompt
notice shall be given by the appropriate party should such situation occur).
8. Continuation of Agreement.
Except as provided in Sections 3(a) and 7(d), termination as the result of any
cause listed in Section 7 shall not affect Distributor's obligation to furnish
Fund shares to Contracts then in force for which its shares serve or may serve
as the underlying medium (hereinafter referred to as "Existing Contracts") for
so long after the termination of this Agreement as the Company desires pursuant
to the terms and conditions of this Agreement unless such further sale of Fund
shares is prohibited by law or the SEC or other regulatory body. Specifically,
without limitation, the owners of the Existing Contracts shall be permitted to
direct reallocation of investments in the Fund, redeem investments in the Fund
and/or invest in the Fund upon the making of additional purchase payments under
the Existing Contracts unless such further sale of Fund Shares is proscribed by
law, regulation or an applicable regulatory body. All of the provisions of this
Agreement except for the fees paid under Section 4 shall remain in effect with
respect to Existing Contracts. The parties understand that because Distributor
and/or Fund will not pay fees on shares sold after termination under this
Agreement, this Agreement will be limited to the use with the San Xxxxxxx
Deferred Compensation Plan.
9. Advertising Materials; Filed Documents.
(a) Advertising and sales literature with respect to the Fund prepared by the
Company or its agents for use in marketing its Contracts, other than any
materials that merely reference the Funds' names, will be submitted to
Distributor or its designee for review before such material is submitted to any
regulatory body for review. No such material shall be used if the Distributor or
its designee reasonably object to such use in writing, transmitted by facsimile
within five business days after receipt of such material. Otherwise Distributor
will be deemed to have approved such material.
(b) The Distributor will provide additional copies of the Fund's financials to
the Company as soon as publicly available and at least one complete copy of all
registration statements, prospectuses, statements of additional information,
annual and semi-annual reports, proxy statements and all amendments or
supplements to any of the above that relate to the Fund promptly after the
filing of such document with the SEC or other regulatory authorities. At the
Distributor's request, the Company will provide to the Distributor at least one
complete copy of all registration statements, prospectuses, statements of
additional information, annual and semi-annual reports, proxy statements, and
all amendments or supplements to any of the above that relate to the Account
promptly after the filing of such document with the SEC or other regulatory
authority.
(c) The Distributor will provide via Excel spreadsheet diskette formal or in
electronic transmission to the Company at least quarterly portfolio information
necessary to update Fund profiles within fourteen (14) business days following
the end of each quarter.
10. Proxy Voting.
(a) The Company shall provide pass-through voting privileges on Fund shares
held by registered separate accounts to all Contract owners to the extent the
SEC continues to interpret the 1940 Act as requiring such privileges. The
Company shall provide pass-through voting privileges on Fund shares held by
unregistered separate accounts to all Contract owners and shall:
A. solicit voting instructions from Contract owners;
B. vote the Fund shares held in the Separate Account in accordance with
instructions received from Contract owners; and
C. so long as and to the extent that the SEC continues to interpret the
1940 Act to require pass through voting privileges for variable
annuity contract owners, vote Fund shares held in the Separate
Account for which no timely instructions have been received, in the
same proportion as Fund shares of such Portfolio for which
instructions have been received from the Company's Contract owners.
The Company reserves the right to vote Fund shares held in any
segregated asset account for its own account, to the extent permitted
by law. Notwithstanding the foregoing, with respect to the Fund
shares held by unregistered Separate Accounts that issue Contracts
issued in connection with employee benefit plans subject to the
provisions of the Employee Retirement Income Security Act of 1974, as
amended, the Company shall vote such Fund shares allocated to such
Contracts only in accordance with the Company's agreements with such
Contract owners.
(b) The Company will distribute to Contract owners, as appropriate, all proxy
material furnished by the Distributor and will vote Fund shares in accordance
with instructions received from such Contract owners. If and to the extent
required by law, the Company, with respect to each group Contract and in each
Account, shall vote Fund shares for which no instructions have been received in
the same proportion as shares for which such instructions have been received.
The Company and its agents shall not oppose or interfere with the solicitation
of proxies for Fund shares held for such Contract owners.
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11. Indemnification.
(a) The Company agrees to indemnify and hold harmless OFS, the Funds and the
Distributor, and their respective directors, officers, employees, agents and
each person, if any, who controls OFS or the Distributor within the meaning of
the Securities Act of 1933 (the "1933 Act") against any losses, claims, damages
or liabilities to which the Distributor or OFS or any such director, officer,
employee, agent, or controlling person of them may become subject, under the
1933 Act or otherwise, insofar as such losses, claims, damages, or liabilities
(or actions in respect thereof) arise out of or are based upon (i) any untrue
statement or alleged untrue statement of any material fact contained in the
Registration Statement, prospectus or sales literature of the Company 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, or arise out of or as a result of conduct, statements or
representations (other than statements or representations contained in the
prospectuses or sales literature of the Fund) of the Company or its agents, with
respect to the sale and distribution of Contracts for which Fund shares are the
underlying investment, (ii) any breach of the Company's representation contained
in this Agreement, (iii) any action or omission to act of the Company or failure
of the Company to comply with the terms of this Agreement as a result of the
Company's bad faith, negligence or willful misconduct. The Company will
reimburse any legal or other expenses reasonably incurred by the Distributor,
the Fund or OFS or any such director, officer, employee, agent, investment
adviser, or controlling person of them in connection with investigating or
defending any such loss, claim, damage, liability or action; provided, however,
that the Company will not be liable in any such case to the extent that any such
loss, claim, damage or liability arises out of or is based upon (i) an untrue
statement or omission or alleged omission made in such Registration Statement or
prospectus in conformity with written materials furnished to the Company by the
Fund specifically for use therein or (ii) the willful misfeasance, bad faith, or
negligence by OFS or the Distributor in the performance of its duties or OFS' or
the Distributor's reckless disregard of obligations or duties under this
Agreement or to the Company, whichever is applicable. This indemnity agreement
will be in addition to any liability, which Company may otherwise have.
(b) The Distributor and OFS agree to indemnify and hold harmless the Company
and its directors, officers, employees, agents and each person, if any, who
controls the Company within the meaning of the 1933 Act against any losses,
claims, damages or liabilities to which the Company or any such director,
officer, employee, agent or controlling person may become subject, under the
1933 Act or otherwise, insofar as such losses, claims, damages or liabilities
(or actions in respect thereof) arise out of or are based upon (i) any untrue
statement or alleged untrue statement of any material fact contained in the
Registration Statement, prospectuses or sales literature of the Fund 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 material fact required to be
stated therein or necessary to make the statements therein not misleading, (ii)
any breach of the Distributor's or OFS's representations contained in this
Agreement, or (iii) any action or omission to act by the Distributor or OFS for
failure of the Distributor or OFS to comply with the terms of this Agreement as
a result of either of
3
their bad faith, negligence or willful misconduct. The Distributor will
reimburse any legal or other expenses reasonably incurred by the Company or any
such director, officer, employee, agent, or controlling person in connection
with investigating or defending any such loss, claim, damage, liability or
action; provided, however, that the Distributor and OFS will not be liable in
any such case to the extent that any such loss, claim, damage or liability
arises out of or is based upon (i) an untrue statement or omission or alleged
omission made in such Registration Statement or prospectuses which are in
conformity with written materials furnished to the Fund by the Company
specifically for use therein or (ii) the willful misfeasance, bad faith, or
negligence of the Company in the performance of its duties or its reckless
disregard of its obligations or duties under this Agreement or to the
Distributor or OFS, whichever is applicable.. This indemnity agreement will be
in addition to any liability, which Distributor, OFS and Fund may otherwise
have.
(c) Promptly after receipt by an indemnified party hereunder of notice of the
commencement of action, such indemnified party will, if a claim in respect
thereof is to be made against the indemnifying party hereunder, notify the
indemnifying party of the commencement thereof; but the omission to so notify
the indemnifying party will not relieve it from any liability which it may have
to any indemnified party otherwise than under this Section 11. 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 11 for any legal or other
expenses subsequently incurred by such indemnified party in connection with the
defense thereof other than reasonable costs of investigation.
12. Miscellaneous.
(a) Amendment and Waiver. Neither this Agreement, nor any provision hereof, may
be amended, waived, discharged or terminated orally, but only by an instrument
in writing signed by all parties hereto.
(b) Notices. All notices and other communications hereunder shall be given or
made in writing and shall be delivered personally, or sent by telex, telecopier
or registered or certified mail, postage prepaid, return receipt requested, or
recognized overnight courier service to the party or parties to whom they are
directed at the following addresses, or at such other addresses as may be
designated by notice from such party to all other parties.
4
To the Company:
Hartford Life Insurance Company
000 Xxxxxxxxx Xxxxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
Attention: Vice President, Investment Products Division
with a copy to:
Xxxxx Xxxxxx, General Counsel
Hartford Life Insurance Company
000 Xxxxxxxxx Xxxxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
To OFS:
OppenheimerFunds Services
0000 Xxxxx Xxxxxx Xxx
Xxxxxxxxx, Xxxxxxxx 00000
Attention: Xxxx Xxxxx
To the Distributor:
OppenheimerFunds Distributor, Inc.
Two World Trade Center, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Xxxxxx X. Xxxxxxx, Executive Vice President and General
Counsel
Any notice, demand or other communication given in a manner prescribed in this
subsection (b) shall be deemed to have been delivered on receipt.
(c) Successors and Assigns. This agreement shall be binding upon and inure to
the benefit of the panties hereto and their respective permitted successors and
assigns.
(d) Counterparts. This Agreement may be executed in any number of counterparts,
all of which taken together shall constitute one agreement, and any party hereto
may execute this Agreement by signing any such counterpart.
(e) Severability. In case any one or more of the provisions contained in this
Agreement should be invalid, illegal or unenforceable in any respect, the
validity, legality and enforceability of the remaining provisions contained
herein shall not in any way be affected or impaired thereby.
5
(f) Entire Agreement. This Agreement constitutes the entire agreement and
understanding between the parties hereto and supersedes all prior agreements and
understandings relating to the subject matter hereof.
(g) Governing Law. This Agreement shall be governed and interpreted in
accordance with the laws of the State of Connecticut.
(h) Non Exclusivity. It is understood by the parties that this Agreement is
not an exclusive arrangement in any respect.
(i) Use of Name. Except as otherwise provided in this Agreement, the Company
shall not use the Xxxxxxxxxxx name or any trademark or service xxxx of
Xxxxxxxxxxx without the Distributor's prior written consent. In the event this
Agreement is terminated, the Company shall not use Xxxxxxxxxxx'x name,
trademark, service xxxx or any other inference that may be reasonably construed
to imply a continuing relationship.
(j) Confidentiality. The terms of this Agreement and the Schedules thereto
will be held confidential by each party except to the extent that either party
or its counsel may deem it necessary to disclose such terms. Subject to law and
regulatory authority, each party hereto shall treat as confidential the names
and addresses of the owners of the Contracts and all other information
reasonably identified as such in writing by any other party hereto, and, except
as contemplated by this Agreement, shall not disclose, disseminate or utilize
such confidential information without the express prior written consent of the
affected party until such time as it may come into the public domain.
(k) Each party hereto shall cooperate with each other party and all appropriate
governmental authorities (including without limitation the SEC, the NASD, NASDR
and state insurance regulators) and shall permit each other and such authorities
(and the parties hereto) reasonable access to its books and records in
connection with any investigation or inquiry relating to this Agreement or the
transactions contemplated hereby. Notwithstanding the foregoing, each party
hereto further agrees to furnish the California Insurance Commissioner with any
information or reports in connection with services provided under this Agreement
which such Commissioner may request in order to ascertain whether the insurance
operations of the Company are being conducted in a manner consistent with the
California laws and regulations.
(l) Each party represents that (a) the execution and delivery of this Agreement
and the consummation of the transactions contemplated herein have been duly
authorized by all necessary corporate or trust action, as applicable, by such
party and when so executed and delivered this Agreement will be the valid and
binding obligation of such party enforceable in accordance with its terms
subject to bankruptcy, insolvency, reorganization, moratorium and similar laws
of general applicability relating to or affecting creditors' rights and to
general equity principles; (b) the party has obtained, and during the term of
this Agreement will maintain, all authorizations, licenses, qualifications or
registrations required to be maintained in connection with the performance of
its duties under this Agreement; and (c) the party will comply in all material
respects with all applicable laws, rules and regulations.
6
13. Acknowledgement.
IN WITNESS WHEREOF, the undersigned have executed this Agreement by their duly
authorized officers effective as of the 20 day of September, 2000.
HARTFORD LIFE INSURANCE COMPANY
By: /s/ Xxxx Xxxxxxxx
-----------------------------------
Name: Xxxx Xxxxxxxx
Title: Assistant actuary
OPPENHEIMERFUNDS SERVICES
By: /s/ Xxxx Xxxxx
-----------------------------------
Name: Xxxx Xxxxx
Title: Vice President
OPPENHEIMERFUNDS DISTRIBUTOR, INC.
By: /s/ Xxxxxx X. Xxxxxxx
----------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Executive Vice President and Director
7
SCHEDULE A
SEPARATE ACCOUNTS
Each Separate Account established by resolution of the Board of Directors of the
Company under the insurance laws of the State of Connecticut to set aside and
invest assets attributable to the Contracts. Currently, those Separate Accounts
are as follows:
401 Market
K, K1, K2, K3, K4
TK, TK1, TK2, TK3, TK4
VK, VK1, VK2, VK3, VK4
UK, XX0, XX0, XX0, XX0
403 AND 457 MARKETS
DCI, DCII, DCIII, DCIV, DCV, DCVI, 457, UFC
8
SCHEDULE B
(List of funds available -- See Section 1(b))
Xxxxxxxxxxx Global Fund (Class A)
Xxxxxxxxxxx Xxxx Xxxxxx Xxxxxx & Xxxxxx Xxxx (Xxxxx X)
Xxxxxxxxxxx Enterprise Fund (Class A)
Xxxxxxxxxxx Strategic Income Fund (Class A)
9
SCHEDULE C
Fees to the Company
1. Service Fee.
Administrative services to Contract owners shall be the responsibility of the
Company solely and shall not be the responsibility of OFS, the Distributor or
the Funds. The Distributor and OFS recognize the Company as the sole shareholder
of Fund shares issued under this Participation Agreement, and that substantial
savings may be derived in administrative expenses, such as significant
reductions in postage expense and shareholder communications, by virtue of
having a sole shareholder for each of the Accounts rather than multiple
shareholders. In consideration of the administrative savings resulting from such
arrangement, OFS agrees to pay to the Company an annual fee of $12.00 per
participant per Xxxxxxxxxxx fund investment account, provided that such fee does
not exceed 0.25% per Xxxxxxxxxxx investment account on an annual basis. OFS
agrees to pay such fee on a quarterly basis. The service fee is intended to
compensate the Company for administrative services only and is not intended to
constitute payment in any manner for investment advisory or distribution
services. Within forty-five (45) days after the end of the year, Company will
send a report to Distributor indicating the number of participants during the
year and the amount, if any, Company was overpaid by Distributor. In the event
of an overpayment, Distributor will deduct any overpaid amount from the next
quarterly payment due. Each payment will be accompanied by a statement showing
the calculation of the fee payable to Company for the quarter and such other
supporting data as may be reasonably requested by Company.
OFS will make such payments to the Company within thirty (30) days after the end
of each calendar quarter. Each payment will be accompanied by a statement
showing the calculation of the fee payable to the Company for the quarter and
such other supporting data as may be mutually agreed upon by OFS and the
Company.
Payment of the service fee shall be made only for those participant accounts
that are actively funded (i.e., accounts holding at least one full share of an
Xxxxxxxxxxx fund). The payment of this fee shall not apply to loan repayment
accounts or forfeiture accounts. The Company shall determine the participant
account fee to be paid hereunder by taking the number of actively funded
Xxxxxxxxxxx fund accounts maintained on its recordkeeping system at the end of
each month for the calendar quarter and dividing by three. The Company shall
then determine whether such per participant account fee for each Xxxxxxxxxxx
fund omnibus investment account exceeds the 0.25% cap by dividing the per
participant account fee for each Xxxxxxxxxxx fund omnibus investment account for
the quarter, as calculated above, by the assets in each such Xxxxxxxxxxx fund
omnibus investment account for the quarter, as calculated above. If the fee
exceeds 0.0625% (0.25% on an annual basis), the Company shall only be paid
0.0625% of assets invested per Xxxxxxxxxxx fund omnibus investment account for
that quarter. The Company will provide OFS an invoice after the end of each
quarter, identifying the broker-dealer of record and representative of record,
if applicable, and outlining the number of subaccounts and/or assets subject to
the aforementioned fees and OFS will make such payment to the Company within 30
business days of receipt of the invoice. Invoices submitted in excess of 60 days
of the time period to which the invoice relates are subject to non-payment.
10
SCHEDULE C (CONTINUED)
Such fee is subject to periodic review of services provided by the Company and
cost savings to OFS and may be revised by OFS at any time upon notice to the
Company.
The parties intend to have good faith discussions concerning the truing up of
calculations at the end of the year to provide for an annual payment of 25 basis
points.
2. 12b-1 Fees.
The prospectus of each Fund provides that the Distributor compensates dealers,
brokers, banks and other financial institutions quarterly providing personal
service and maintenance of accounts of their customers that hold Fund shares. In
accordance with the Funds' respective prospectus and pursuant to Rule 12b-1
under the Investment Company Act of 1940, the Distributor will make payments to
the Company at an annual rate of 0.25% (0.0625% quarterly) of the average net
assets invested in the Funds through the Contracts in each calendar quarter.
Distributor will make such payments to the Company within thirty (30) days after
the end of each calendar quarter. Each payment will be accompanied by a
statement showing the calculation of the fee payable to the Company for the
quarter and such other supporting data as may be mutually agreed upon by the
Distributor and the Company.
11
