Form of
PARTICIPATION AGREEMENT
THIS AGREEMENT is made and entered into this 30th day of April, 2004 by and
among XXXX XXXXXXX LIFE INSURANCE COMPANY, a stock life insurance company
existing under the laws of the Commonwealth of Massachusetts ("JHLICO"), XXXX
XXXXXXX VARIABLE LIFE INSURANCE COMPANY, a stock life insurance company
organized under the laws of the Commonwealth of Massachusetts ("JHVLICO")
(JHLICO and JHVLICO are each referred to herein as a "Company" and collectively
as the "Companies"), each on behalf of itself and its variable annuity and
variable life insurance separate accounts (each an "Account;" collectively, the
"Accounts"), and XXXX XXXXXXX VARIABLE SERIES TRUST I, a business trust
organized under the laws of the Commonwealth of Massachusetts (the "Trust").
WHEREAS, the Trust is registered as an open-end management investment
company under the Investment Company Act of 1940, as amended (the "1940 Act"),
and its shares are registered under the Securities Act of 1933, as amended (the
"1933 Act");
WHEREAS, the Trust serves as an investment vehicle underlying variable life
insurance and variable annuity contracts issued by the Companies (the
"Contracts");
WHEREAS, the beneficial interest in the Trust is divided into separate
series of shares as identified in the Trust's registration statement under the
1933 Act (as amended from time to time) (the "Funds"), each representing the
interest in a particular portfolio of securities and other assets and each of
which may issue multiple classes of shares;
WHEREAS, the Trust operates pursuant to an order obtained from the
Securities and Exchange Commission ("SEC") granting exemptions from certain
provisions of and rules under the 1940 Act to the extent necessary to permit
shares of the Trust to be sold to and held by, among others, variable annuity
and variable life insurance separate accounts ("separate accounts") of both
affiliated and unaffiliated life insurance companies ("Participating Insurance
Companies") and certain qualified pension and retirement plans ("Qualified
Plans") (the "Exemptive Order");
WHEREAS, each of the Companies has registered or will register its
Contracts under the 1933 Act, except to the extent a particular Contract is or
will be exempt from such registration;
WHEREAS, each of the Companies has registered or will register each of its
Accounts as a unit investment trust under the 1940 Act, except to the extent a
particular Account is or will be exempt from such registration; and
WHEREAS, to the extent permitted by applicable insurance laws and
regulations, the Companies intend to purchase shares of the Funds on behalf of
their respective Accounts to fund the Contracts, and the Trust is authorized to
sell such shares to unit investment trusts such as each Account at net asset
value;
NOW, THEREFORE, in consideration of their mutual promises set forth herein,
the Companies and the Trust agree as follows:
1. Purchase and Redemption of Fund Shares
1.1 Subject to the terms of the Underwriting and Indemnity Agreement in effect
from time to time between the Trust and Signator Investors, Inc., organized
under the laws of Delaware ("Signator"), the Trust agrees to make shares of the
Funds available for purchase by the Accounts (including the subaccounts thereof)
at the applicable net asset value per share next computed, in accordance with
the provisions of the then current prospectus and statement of additional
information of the Trust, after receipt by the Trust or its designee of an order
for purchase. The Trust agrees to use reasonable efforts to calculate such net
asset value on each day on which the New York Stock Exchange is open for regular
trading. Notwithstanding the foregoing, the Board of Trustees of the Trust (the
"Board" or the "Trustees") may 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 light of their
fiduciary duties under federal and any applicable state laws, in the best
interests of such Fund and its shareholders (including variable contract
owners).
1.2 Each of the Companies shall submit payment for the purchase of shares of a
Fund on behalf of an Account by 2:00 p.m., New York time on the next Business
Day after an order to purchase such shares is made in accordance with the
provisions of Section 1.1 hereof. "Business Day" shall mean any day on which the
New York Stock Exchange is open for regular trading and on which the Trust
calculates the net asset value of shares of the Funds. Payment shall be in
federal funds transmitted by wire to the Trust's custodian.
1.3 The Trust agrees to redeem for cash (except as otherwise provided in the
Trust's prospectus) any full or fractional shares of any Fund, when requested by
a Company on behalf of an Account, at the net asset value next computed, in
accordance with the provisions of the then current prospectus and statement of
additional information of the Trust, after receipt by the Trust or its designee
of a request for redemption. The Trust shall make payment for such shares in the
manner established from time to time by the Trust. Payment of redemption
proceeds will normally be paid to a Company on behalf of its Account in federal
funds transmitted by wire by 2:00 p.m., New York time on the next Business Day
after receipt by the Trust or its designee of a request for redemption.
1.4 Each of the Companies agrees that all purchases and redemptions by its
Accounts of shares of the Funds will be in accordance with the provisions of
then current prospectus and statement of additional information of the Trust and
in accordance with any procedures that the Trust, Signator or the Trust's
transfer agent may establish from time to time governing purchases and
redemptions of shares of the Funds generally.
1.5 Payments by a Company for the purchase of shares of the Funds by its
Accounts under Section 1.2 and payments by the Trust of the proceeds of the
redemption of shares of the Funds by such Accounts under Section 1.3 may be
netted against one another on any Business Day for the purpose of determining
the amount of any wire transfer on that Business Day.
1.6 Issuance and transfer of the Trust's shares will be by book entry only.
Share certificates will not be issued. Shares ordered from the Trust will be
recorded on the transfer records of the Trust in an appropriate title for each
Account or the appropriate subaccount of each Account.
1.7 The Trust will furnish same day notice by e-mail, fax or telephone (if by
telephone, it must be followed by written confirmation) to the Companies of any
income dividends or capital gain distributions payable on the shares of the
Funds. Each of the Companies hereby elects to receive all such income dividends
and capital gain distributions as are payable on shares of a Fund in additional
shares of that
2
Fund. Each of the Companies reserves the right to revoke this election and to
receive all such income dividends and capital gain distributions in cash. The
Trust will notify the Companies or their designee(s) of the number of shares so
issued as payment of such dividends and distributions.
1.8 The Trust will make the net asset value per share for each Fund available
to the Companies on a daily basis as soon as reasonably practical after the net
asset value per share is calculated and shall use its best efforts to make such
net asset value per share available by 7:00 p.m. New York time.
1.9 For purposes of this Article 1, each of the Companies shall be the designee
of the Trust for receipt of purchase orders and requests for redemption relating
to the Funds from each of its Accounts that result from final orders or requests
from Contract holders or that otherwise result automatically from the operation
of the Contracts, and receipt by a Company will constitute receipt by the Trust,
provided that the Trust receives notice of a purchase order or request for
redemption by 10:00 a.m. New York time on the next following Business Day.
Neither Company shall be a designee of the Trust pursuant to this Section 1.9
with respect to any orders for purchase or redemption of Fund shares that do not
result from orders or requests from Contract owners, or that do not otherwise
result automatically from the operation of the Contracts. Specifically, and
without limitation, neither Company shall be such a designee with respect to (1)
any contribution of assets to an Account or withdrawal of assets from the
Account that does not result from Contract holder orders or requests, unless
such transactions are in accordance with established administrative practices of
the Company for regularly contributing or withdrawing assets from the Account,
(2) any transfer between Funds of the Trust of assets that are not being held to
support Contracts, or (3) any purchase or redemption of shares of a Fund that is
not on behalf of an Account. Each Company agrees to communicate separately to
Signator Investors, Inc. any Account orders for purchase or redemption of Fund
shares as to which it is not entitled to act as the Trust's designee and that
such orders, pursuant to Section 5(d) of the Amended and Restated Underwriting
and Indemnity Agreement by and among the Trust, Signator Investors, Inc. and
JHLICO, dated as of March 24, 2004 (or any successor provision), will be
effected at the net asset value per share next computed, in accordance with the
provisions of the then current prospectus and statement of additional
information of the Trust, after receipt thereof by Signator Investors, Inc. the
Trust or its designee. Neither Company shall permit any Contract owner to revoke
any previously placed order or request once the time for computing the next
applicable Fund share net asset value has passed.
1.10 The Trust agrees that shares of the Funds will be sold only to (a)
Participating Insurance Companies to be held in "segregated asset accounts"
within the meaning of Treas. Reg. Section 1.817-5(e) through which public access
to the Fund is available only pursuant "variable contracts," within the meaning
of Section 817(d) of the Code, (b) Qualified Plans, and (c) other purchasers of
the kind specified in Treas. Reg. Section 1.817-5(f)(3) (or any successor
regulation) ("Other Purchasers") as from time to time in effect; and the
Companies agree not to sell or transfer an Account's shares in a Fund to any
other person without the Trust's written consent.
1.11 Each Company agrees to provide to the Trust such information as the Trust
may from time to time reasonably request to evaluate whether any holders of that
Company's Contracts may be engaging in "market timing" or other frequent
transfer activity that may be contrary to the interests of other participants in
a Fund.
1.12 Each of the Companies has received a copy of the Exemptive Order and agrees
to perform the obligations of a Participating Insurance Company under such
Order.
3
2. Prospectuses and Proxy Statements; Voting
2.1 The Trust will prepare and be responsible for filing with the SEC and any
state regulatory authorities requiring such filing all shareholder reports,
proxy materials and prospectuses and statements of additional information of the
Trust. The Trust will bear the costs of registration and qualification of the
shares of the Funds, preparation and filing of the documents listed in this
Section 2.1, and all taxes to which an issuer is subject on the issuance and
transfer of its shares.
2.2 At the option of each of the Companies, the Trust will either (a) provide
the Company with as many copies of the Trust's current prospectus, statement of
additional information, annual report, semi-annual report, proxy materials and
other shareholder communications, including any amendments or supplements to any
of the foregoing, as the Company may reasonably request; or (b) provide the
Company with camera ready copies of such documents in a form suitable for
printing. Subject to Section 4.1 hereof, (i) expenses of furnishing such
documents for marketing purposes will be borne by the Companies, (ii) expenses
of furnishing prospectuses and prospectus supplements to current Contract owners
will be borne by the Companies, and (iii) expenses of furnishing documents
referred to in clause (a) above (other than prospectuses and supplements
thereto) to current Contract owners will be borne by the Trust. The Companies
assume sole responsibility for ensuring that the Trust's proxy materials are
delivered to Contract owners in accordance with applicable federal and state
securities laws.
2.3 The Trust will use its best efforts to provide the Companies, on a timely
basis, with such information about the Trust, the Funds and the investment
adviser and any subadvisers to any Fund, as the Companies may reasonably request
in connection with the preparation of registration statements, prospectuses and
other materials relating to the Contracts.
2.4 As long as and to the extent that the SEC interprets the 1940 Act to
require pass-through voting privileges for variable contract owners, each of the
Companies (i) will provide pass-through voting privileges to Contract owners
whose Contract values are invested, through Accounts registered with the SEC
under the 1940 Act, in shares of the Funds, (ii) may, to the extent it deems
appropriate, provide pass-through voting privileges to Contract owners whose
contract values are invested, through Accounts which are not so registered with
the SEC, in shares of the Funds, (iii) when it provides pass-through voting
privileges to Contract owners whose Contract values are invested through an
Account in shares of a Fund, will vote shares held in that Account for which no
Contract owner instructions are timely received by the Company in the same
proportion as those shares of the Fund held in that Account for which Contract
owner instructions are timely received, and (iii) will vote shares of a Fund
which it is otherwise entitled to vote on any matter in the same proportion as
the voting instructions which it has timely received from Contract owners with
respect to that matter. Notwithstanding the foregoing, each of the Companies may
vote shares of a Fund in such other manner as may be required or permitted by
Rule 6e-2 or Rule 6e-3(T) under the 1940 Act or otherwise by the SEC or its
staff.
3. Sales Material and Information
3.1 Each of the Companies will use its best efforts to ensure that sales
literature and other promotional material prepared by it or on its behalf in
which the Trust, a Fund, any investment adviser or subadviser to any Fund or
Signator (in its capacity as principal underwriter of the Trust shares) is
named, conforms to all requirements of all applicable federal and state laws and
rules and regulations, including all applicable rules and regulations of the
National Association of Securities Dealers, Inc. (the "NASD").
3.2 Neither of the Companies will give any information or make any
representations or statements on behalf of the Trust or concerning the Trust in
connection with the sale of the Contracts other than the information or
representations contained in the registration statement, prospectus or statement
of
4
additional information for the Trust shares, as such registration statement,
prospectus and statement of additional information may be amended or
supplemented from time to time, or in reports or proxy statements for the Trust,
or in sales literature or other promotional material approved in writing by the
Trust or its designee, except with the written approval of the Trust or its
designee.
3.3 The Trust will use its best efforts to ensure that sales literature and
other promotional material prepared by it or on its behalf in which a Company,
the Accounts or the Contracts are named, conforms to all requirements of all
applicable federal and state laws and rules and regulations, including all
applicable rules and regulations of the NASD.
3.4 The Trust will not give any information or make any representations or
statements on behalf of or concerning the Companies, the Accounts or the
Contracts in connection with the sale of Trust shares other than the information
or representations contained in the registration statements, prospectuses or
statements of additional information for the Contracts, as such registration
statements, prospectuses and statements of additional information may be amended
or supplemented from time to time, or in published reports for each Account
which are in the public domain or approved by a Company for distribution to
Contract owners, or in sales literature or promotional material approved in
writing by a Company or its designee, except with the written permission of the
Company or its designee.
3.5 The Trust will provide to each of the Companies at least one complete copy
of all registration statements, prospectuses, statements of additional
information, shareholder annual, semi-annual and other reports, proxy
statements, applications for exemptions, requests for no-action letters and any
amendments to any of the foregoing, that relate to the Trust or any Fund
promptly after the filing of each such document with the SEC or any other
regulatory authority.
3.6 Each of the Companies will provide to the Trust at least one complete copy
of all registration statements, prospectuses, statements of additional
information, shareholder annual, semi-annual and other reports, solicitations
for voting instructions, applications for exemptions, requests for no-action
letters and any amendments to any of the foregoing, that relate to its Contracts
or any of its Accounts promptly after the filing of each such document with the
SEC or any other regulatory authority.
3.7 Each party hereto will provide to each other party, to the extent it is
relevant to the Contracts or the Trust, a copy of any comment letter received
from the staff of the SEC or the NASD, and such party's response thereto,
following any examination or inspection by the staff of the SEC or the NASD.
3.8 As used herein, the phrase "sales literature and other promotional
material" includes, but is not limited to, advertisements (such as material
published or designed for use in a newspaper, magazine, or other periodical,
radio, television, telephone or tape recording, videotape display, sign or
billboard, motion picture or other public medium), sales literature (i.e., any
written communication distributed or made generally available to customers or
the public, including brochures, circulars, research reports, market letters,
form letters, seminar texts, reprints or excerpts of any other advertisement,
sales literature or published article), educational or training materials or
other communications distributed or made generally available to some or all
agents or employees.
4. Fees and Expenses
4.1 The Trust will pay no fee or other compensation to the Companies under this
Agreement. If the Trust or any Fund (or any class of shares thereof) adopts and
implements a plan pursuant to Rule 12b-1 under the 1940 Act to finance
distribution and other expenses, then, as a principal underwriter of the Trust,
Signator, or an affiliate thereof, may make payments to the Companies to the
extent consistent with applicable laws, regulations and rules and such plan.
5
5. Diversification
5.1 The Trust and each of the Funds will at all times use all reasonable
efforts comply with Section 817(h)(1) of the Internal Revenue Code of 1986, as
amended (the "Code"), and Treas. Reg. 1.817-5, as they may be amended from time
to time (and any revenue rulings, revenue procedures, notices, and other
published announcements of the Internal Revenue Service interpreting these
sections), as if those requirements applied directly to each such Fund relating
to the diversification requirements for variable annuity, endowment or life
insurance contracts. In addition, neither the Trust nor the Funds will knowingly
take any action, or fail to take any action, that results in the inability of
any Account investing in the Funds to treat a portion of each asset of a Fund as
an asset of the Account, in accordance with Treas. Reg. Section 1.817-5(f), for
purposes of satisfying the diversification requirements of Section 817(h)(1) of
the Code and the Treasury Regulations hereunder.
6. Potential Conflicts
6.1 To the extent required by the Exemptive Order or by applicable law, the
Board will monitor the Trust for the existence of any material irreconcilable
conflict between or among the interests of variable contract owners whose
contract values are invested through separate accounts, participants in
Qualified Plans and Other Purchasers investing in the Trust and will determine
what action, if any, should be taken in response to any such conflict. A
material irreconcilable conflict may arise for a variety of reasons, including:
(a) an action by any state insurance regulatory authority; (b) a change in
applicable federal or state insurance, tax, or securities laws or regulations,
or a public ruling, private letter ruling, no-action or interpretative letter,
or any similar action by insurance, tax, or securities regulatory authorities;
(c) an administrative or judicial decision in any relevant proceeding; (d) the
manner in which the investments of any Fund are being managed; (e) a difference
in voting instructions given by variable annuity contract owners, variable life
insurance contract owners and, where applicable, participants in Qualified
Plans; (f) a decision by a Participating Insurance Company to disregard the
voting instructions of variable contract owners; or (g) a decision by a
Qualified Plan, where applicable, to disregard participant voting instructions.
The Trust will promptly inform the Companies if it determines that a material
irreconcilable conflict exists and of the implications thereof.
6.2 Each of the Companies, on behalf of itself, its Accounts and any of its
affiliates investing in a Fund, will report to the Board any potential or
existing conflict as described in Section 6.1 of which it is or becomes aware.
Each Company will assist the Board in carrying out its responsibilities under
the Exemptive Order and under applicable law by providing the Board with all
information reasonably necessary for the Board to consider any issues raised
with respect to such conflict and by furnishing to the Board, at its reasonable
request annually or more frequently, such other materials or reports as the
Board may deem appropriate. Each of the Companies will inform the Board whenever
it determines to disregard Contract owner voting instructions, and each of the
Companies will carry out this and all of its other responsibilities under this
Article 6 with a view only to the interests of its Contract owners.
6.3 If it is determined by a majority of the Board, or a majority of the
disinterested Trustees, that a material irreconcilable conflict exists with
respect to any Fund, each of the Companies, as applicable, shall, at its own
expense, and to the extent reasonably practical (as determined by a majority of
the Trust's disinterested Trustees), take whatever steps are necessary to remedy
or eliminate the material irreconcilable conflict, up to and including: (1)
withdrawing the assets allocable to some or all of its Accounts from the Trust
or any Fund and reinvesting such assets in a different investment medium,
including (but not limited to) another Fund, or submitting the question of
whether such segregation should be implemented to a vote of all affected
Contract owners and, as appropriate, segregating the assets of any appropriate
group (i.e., variable annuity contract owners, variable life insurance contract
owners or Contract owners of one or both Companies) that votes in favor of such
segregation, or offering
6
to the affected Contract owners the option of making such a change; and (2)
establishing a new registered management investment company or managed separate
account. In the event that the Board determines that any proposed action by a
Company does not adequately remedy any material irreconcilable conflict, that
Company will withdraw the affected Account's investment in the Trust or a Fund
within six months after the Board informs the Company in writing of the
foregoing determination, provided, however, that such withdrawal will be limited
to the extent required by any such material irreconcilable conflict as
determined by a majority of the disinterested Trustees.
6.4 If a material irreconcilable conflict arises because of a decision by a
Company to disregard Contract owner voting instructions and that decision
represents a minority position or would preclude a majority vote, the Company
may be required, at the Trust's election, to withdraw the relevant Account's
investment in the Trust or a Fund, as applicable. No charge or penalty will be
imposed as a result of any such withdrawal.
6.5 For purposes of Sections 6.3 and 6.4 of this Agreement, a majority of the
Trustees who are not "interested persons" (as defined in Section 2(a)(19) of the
0000 Xxx) of the Trust will determine whether any proposed action adequately
remedies any material irreconcilable conflict, but in no event will the Trust or
any investment adviser to the Trust be required to establish a new funding
medium for the Contracts. Nor shall a Company be required by Section 6.3 to
establish any new funding medium for the Contracts if an offer to do so has been
declined by vote of a majority of Contract owners materially adversely affected
by the material irreconcilable conflict.
6.6 If and to the extent that Rule 6e-2 and Rule 6e-3(T) under the 1940 Act are
amended, or proposed Rule 6e-3 is adopted, to provide exemptive relief from any
provision of the Act or the rules promulgated thereunder with respect to "mixed
or shared funding" (as understood for purposes of the Exemptive Order) on terms
and conditions materially different from those contained in the Exemptive Order,
then (a) the Trust and/or the Companies as well as the other Participating
Insurance Companies, as appropriate, will 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 2.4, 6.1, 6.2, 6.3 and
6.4 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.
6.7 The Trust hereby notifies the Companies that it may be appropriate to
include in prospectuses for the Contracts disclosure regarding potential
conflicts as described in Section 6.1 hereof.
7. Representations and Warranties
7.1 Representations and Warranties of the Companies.
(a) Each of the Companies represents and warrants that it is a life
insurance company duly organized or existing and in good standing under
applicable law and that each of its Accounts, prior to any issuance or sale of
any Contracts by such Account and during the term of this Agreement, will be
legally and validly established as a separate account pursuant to relevant state
insurance law and either: (i) will be registered as a unit investment trust in
accordance with the provisions of the 1940 Act; or (ii) will be exempt from such
registration.
(b) Each of the Companies represents and warrants that the Contracts issued
by it are or, prior to the purchase of shares of any Fund in connection with
funding such Contracts, will be registered under the 1933 Act, except to the
extent a particular Contract is exempt from such registration, and will be
issued and sold in compliance in all material respects with all applicable
federal and state laws, including all applicable customer suitability
requirements.
7
(c) Each of the Companies represents and warrants that its registration
statements for the Contracts and any amendments or supplement thereto will, when
they become effective, conform in all material respects to the requirements of
the 1933 Act and the 1940 Act and the rules and regulations of the SEC
thereunder and will not contain any untrue statement of a material fact or omit
to state a material fact required to be stated therein or necessary to make the
statements therein not misleading, provided, however, that this representation
and warranty will not apply to any statements or omissions made in reliance upon
and in conformity with information furnished in writing to the Company by or on
behalf of the Trust expressly for use therein.
(d) Each of the Companies represents and warrants that its Contracts are
currently and at the time of issuance will be treated as modified endowment,
annuity or life insurance contracts under applicable provisions of the Code and
agrees that it will make all reasonable efforts to maintain such treatment and
will notify the Trust immediately upon having a reasonable basis for believing
that its Contracts or any of them have ceased to be so treated or might not be
so treated in the future.
(e) Each of the Companies represents and warrants that each Account of that
Company in which Fund shares are held will be, at the time such shares are
acquired, a "segregated asset account" within the meaning of Treas. Reg. Section
1.817-5(e) and agrees that it will make all reasonable efforts to maintain the
Account's status as such and will notify the Trust immediately upon having a
reasonable basis for believing that one or more of its Accounts holding Fund
shares no longer have that status or might not have that status in the future.
(f) Each of the Companies represents and warrants that it will not, without
the prior written consent of the Trust, purchase shares of the Trust with
Account assets derived from the sale of Contracts to individuals or entities
which would cause the investment policies of any Fund to be subject to any
limitations not in the Trust's then current prospectus or statement of
additional information with respect to any Fund.
7.2 Representations and Warranties of the Trust
(a) The Trust represents and warrants that it is lawfully organized and
validly existing under the laws of the Commonwealth of Massachusetts and that it
does and will at all times during the term of this Agreement comply in all
material respects with the 1940 Act.
(b) The Trust represents and warrants that shares of the Funds offered and
sold pursuant to this Agreement will be registered under the 1933 Act, duly
authorized for issuance and sold in compliance with the laws of the Commonwealth
of Massachusetts and all applicable federal and state securities laws and that
the Trust is and will remain during the term of this Agreement registered as an
open-end management investment company under the 1940 Act. The Trust agrees that
it will amend the registration statement for its shares under the 1933 Act and
the 1940 Act from time to time as required in order to permit the continuous
offering of its shares in accordance with the 1933 Act. The Trust will register
and qualify the shares for sale in accordance with the laws of the various
states only if and to the extent deemed advisable by the Trust or Signator.
(c) The Trust represents and warrants that the registration statement for
shares of the Funds and any amendments or supplement thereto will, when they
become effective, conform in all material respects to the requirements of the
1933 Act and the 1940 Act and the rules and regulations of the SEC thereunder
and will not contain any untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the statements
therein not misleading, provided, however, that this representation and warranty
will not apply to any statements or omissions made in reliance upon and in
8
conformity with information furnished in writing to the Trust by or on behalf of
a Company expressly for use therein.
(d) The Trust represents and warrants that each Fund is currently qualified
as a "regulated investment company" under subchapter M of the Code and agrees
that the Trust will use all reasonable efforts to maintain such qualification
(under Subchapter M or any successor or similar provision) and will notify the
Companies promptly upon having a reasonable basis for believing that any Fund
has ceased to so qualify or might not so qualify in the future.
8. Applicable Law
8.1 This Agreement shall be construed and the provisions hereof interpreted
under and in accordance with the laws of the Commonwealth of Massachusetts
without reference to the principles of conflicts or choice of law thereof.
8.2 This Agreement shall be subject to the provisions of the 1933 and 1940
Acts, the Securities Exchange Act of 1934 and the rules and regulations
thereunder, including such exemptions from those statutes, rules and regulations
as the SEC or its staff may grant (including, but not limited to, the Exemptive
Order) and the terms hereof shall be interpreted and construed in accordance
therewith.
9. Termination
9.1 This Agreement may be terminated:
(a) by the Trust or a Company, in its entirety or with respect to one or
more Funds, for any reason or for no reason, upon 60 days' advance written
notice to the other parties; or
(b) by a Company, immediately upon written notice to the Trust, as to any
Fund that ceases to qualify as a "regulated investment company" under Subchapter
M of the Code or under any successor or similar provision, or if the Company
reasonably believes that any Fund may fail to so qualify; or
(c) pursuant to the provisions of Article 6 ("Potential Conflicts") hereof;
or
(d) at the option of the Trust upon written notice to the other parties in
the event formal proceedings are instituted against a Company or Signator by the
NASD, the SEC, or any insurance department or any other regulatory body that
relate to the Company's duties under this Agreement or relates to the sale of
the Contracts, the operation of the Accounts, or the purchase Fund shares; or
(e) at the option of a Company upon written notice to the other parties in
the event that formal proceedings are instituted against the Trust or its
investment adviser by the NASD, the SEC, or any state securities or insurance
department or any other regulatory body that relates to the Trust's duties under
this Agreement or relates to the sale or holding of the Trust's shares to or by
the Company's Account; or
(f) by the Trust by written notice to the Companies, if the Trust shall
determine, in its sole judgment exercised in good faith, that either 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; or
(g) by a Company by written notice to the Trust, if the Company shall
determine, in its sole judgment exercised in good faith, that the Trust or its
investment adviser has suffered a material adverse
9
change in its business, operations, financial condition or prospects since the
date of this Agreement or is the subject of material adverse publicity; or
(h) at the option of any party to this Agreement, by written notice to the
other parties, upon another party's repeated material breach of any provision of
this Agreement or isolated material breach that is not cured within a 30 day
period after notice thereof; or
(i) automatically upon assignment by any party of this Agreement, unless
made with the written consent of the other parties hereto.
9.2 The notices referred to in Section 9.1 above shall specify the Fund or
Funds as to which the Agreement is to be terminated.
9.3 Notwithstanding any termination of this Agreement, the Trust will, at the
option of a Company, continue to make available to the Company additional shares
of each Fund pursuant to the terms and conditions of this Agreement, for all
Contracts in effect on the effective date of termination of this Agreement (the
"Existing Contracts"). Specifically, without limitation, the owners of the
Existing Contracts shall be permitted, to the same extent as prior to the
termination, to reallocate investments in the Trust, redeem investments in the
Trust and/or invest in the Trust upon the making of additional purchase payments
under the Existing Contracts, and all provisions of this Agreement that are
germane to such transactions and the participation in Fund shares by the
Existing Contracts shall remain in effect as to those Contracts. The parties
agree that this Section 9.3 shall not apply to any terminations under Article 6
of this Agreement and that terminations under Article 6 shall be governed by
that Article.
9.4 In the event of any termination of this Agreement as to one or more Funds
pursuant to this Article 9 or pursuant to Article 6, Section 11.5 of this
Agreement shall continue to survive, and termination of this Agreement as to any
Fund shall not be deemed to extinguish any claim arising prior to such
termination for breach of this Agreement or breach of any representation or
warrantee herein.
10. Notices
10.1 Any notice required under this Agreement shall be sufficiently given when
sent by registered or certified mail, by facsimile transmission (provided that a
copy is also sent by registered or certified mail) or by a nationally recognized
overnight delivery service, to the other party at the address of such party set
forth below or at such other address as such party may from time to time specify
in writing to the other party.
If to the Trust:
Xxxx Xxxxxxx Variable Series Trust I
Xxxx Xxxxxxx Xxxxx
X.X. Xxx 000
Xxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxx
Fax No.: (000) 000-0000
10
If to JHLICO:
Xxxx Xxxxxxx Life Insurance Company
Xxxx Xxxxxxx Xxxxx
X.X. Xxx 000
Xxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxxx
Fax No.: (000) 000-0000
If to JHVLICO:
Xxxx Xxxxxxx Variable Life Insurance Company
Xxxx Xxxxxxx Place
P.O. Box 111
Attention: Xxxxxx X. Xxxxxx
Fax No.: (000) 000-0000
11. Miscellaneous
11.1 A copy of the Agreement and Declaration of Trust establishing the Trust (as
amended from time to time) is on file with the Office of the Secretary of the
Commonwealth of Massachusetts, and notice is hereby given that this Agreement is
executed on behalf of the Trust by officers of the Trust as officers and not
individually and that the obligations of the Trust or of any Fund under or
arising out of this Agreement are not binding upon any of the Trustees, officers
or shareholders of the Trust individually but are binding only upon the assets
and property belonging to the Trust or to a particular Fund as the case may be.
11.2 The captions in this Agreement are included for convenience of reference
only and in no way define or delineate any of the provisions hereof or otherwise
affect their construction or effect.
11.3 This Agreement contains the entire understanding of the parties with
respect to the subject matter hereof, may be executed in two or more
counterparts which together will constitute one and the same instrument, may not
be assigned by a Company or the Trust without the written consent of the other,
and will inure to the benefit of and be binding upon the parties and their
respective successors and assigns.
11.4 If any provision of this Agreement is held or made invalid by a court
decision, statute, rule or otherwise, the remainder of the Agreement will not be
affected thereby.
11.5 Each party hereto will cooperate with each other party and all appropriate
governmental authorities (including without limitation the SEC, NASD and state
insurance regulators) and will permit such authorities reasonable access to its
books and records in connection with any investigation or inquiry relating to
this Agreement or the transactions contemplated hereby.
11.6 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, to which the parties hereto are entitled or subject under
state and federal laws.
11
IN WITNESS WHEREOF, each of the parties hereto has caused this Agreement to
be executed in its name and on its behalf by its duly authorized representative
as of the date first written above.
XXXX XXXXXXX LIFE INSURANCE COMPANY
(on behalf of itself and its Accounts)
By:
------------------------------------
Name: Xxxxxxx X. Xxx Xxxx
Title: Senior Vice President
XXXX XXXXXXX VARIABLE LIFE INSURANCE COMPANY
(on behalf of itself and its Accounts)
By:
------------------------------------
Name: Xxxxxxx X. Xxx Xxxx,
Title: President
XXXX XXXXXXX VARIABLE SERIES TRUST I
By:
------------------------------------
Name: Xxxxxxxx X. Xxxxxxxx
Title: President
12
