FUND PARTICIPATION AGREEMENT
HARTFORD LIFE INSURANCE COMPANY
MASSACHUSETTS MUTUAL LIFE INSURANCE COMPANY
HARTFORD INVESTMENT MANAGEMENT COMPANY
HIMCO DISTRIBUTION SERVICES COMPANY
AND
HIMCO VARIABLE INSURANCE TRUST
OCTOBER 10, 2014
PARTICIPATION AGREEMENT
THIS AGREEMENT is made and entered into as of this 10th day of October,
2014, by and among HARTFORD LIFE INSURANCE COMPANY, a Connecticut corporation
(referred to as the "Company") acting through its administrator and
attorney-in-fact, MASSACHUSETTS MUTUAL LIFE INSURANCE COMPANY ("MassMutual"), on
its own behalf and on behalf of its separate accounts, as set forth in SCHEDULE
A (Part 2 thereof) as may be revised from time to time (each account
individually referred to as an "Account" and, collectively, the "Accounts");
HIMCO Variable Insurance Trust, an open-end management investment company
organized as a Delaware statutory business trust (the "Fund") on its own behalf
and on behalf of the portfolios named on SCHEDULE A (Part 1 thereof), each a
series of the Fund (each portfolio individually referred to as a "Portfolio"
and, collectively, the "Portfolios"); HARTFORD INVESTMENT MANAGEMENT COMPANY, a
Delaware Corporation and an investment adviser registered with the SEC
("HIMCO"); and HIMCO DISTRIBUTION SERVICES COMPANY, a Connecticut Corporation
and a broker/dealer registered with the SEC ("HDSC"). HIMCO in its capacity as
investment adviser to the Funds is referred to herein as the "Adviser." HDSC in
its capacity as principal underwriter to the Funds is referred to herein as the
"Distributor."
WHEREAS, each Fund engages in business as an open-end management
investment company and is available to act as an investment vehicle for separate
accounts established by insurance companies to fund variable life insurance
policies and/or variable annuity contracts and for qualified pension and
retirement plans; and
WHEREAS, the Fund is relying on an order obtained by the Hartford Funds
(MUTUAL FUNDS MANAGED BY AN AFFILIATE OF HIMCO) from the SEC, dated November 1,
2000 (File No. IC-24724), granting participating insurance companies and
variable annuity and variable life insurance separate accounts exemptions from
the provisions of sections 9(a), 13(a), 15(a), and 15(b) of the Investment
Company Act of 1940, as amended (hereinafter the "1940 Act"), and Rules
6e-2(b)(15) and 6e-3(T)(b)(15) thereunder, to the extent necessary to permit
Shares to be sold to and held by variable annuity and variable life insurance
separate accounts of life insurance companies that may or may not be affiliated
with one another and qualified pension and retirement plans ("Qualified Plans")
(hereinafter the "Mixed and Shared Funding Exemptive Order"); and
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WHEREAS, the Fund is registered as an open-end management investment
company under the 1940 Act and shares of each Portfolio (the "Shares") are
registered under the Securities Act of 1933, as amended (hereinafter the "1933
Act"); and
WHEREAS, the Adviser is duly registered as an investment adviser under the
Investment Advisers Act of 1940, as amended; and
WHEREAS, the Distributor is duly registered as a broker-dealer under the
Securities Exchange Act of 1934, as amended, (the "1934 Act") and is a member in
good standing with the Financial Industry Regulatory Authority ("FINRA"); and
WHEREAS, the Company is an insurance company that has issued, in
connection with Qualified Plans, certain group variable annuity contracts and
variable funding agreements supported wholly or partially by the Accounts (the
"Contracts"); and
WHEREAS, the Company is the sponsor of each Account, and each Account is a
duly organized, validly existing segregated asset account, established by
resolution of the Board of Directors of the Company under the insurance laws of
the State of Connecticut, to set aside and invest assets attributable to the
Contracts; and
WHEREAS, pursuant to a purchase and sale agreement, dated September 4,
2012 (the "RPG Division Sale Agreement"), MassMutual acquired the Company's
retirement plans group ("RPG") business on January 1, 2013 by means of certain
reinsurance, administrative and other arrangements; and
WHEREAS, in connection with MassMutual's acquisition of the RPG business,
and pursuant to an Administrative Services Agreement between the Company and
MassMutual dated January 1, 2013, the Company appointed MassMutual to act as its
exclusive agent and in its name as attorney-in-fact to provide all required,
necessary and appropriate administrative and other services with respect to the
Contracts and Accounts that are part of the RPG business; and
WHEREAS, to the extent permitted by applicable insurance laws and
regulations, the Company intends to purchase Shares on behalf of the Accounts to
fund the Contracts, and each Fund is authorized to sell such Shares to unit
investment trusts, and to exempt separate accounts, such as the Accounts at net
asset value; and
WHEREAS, except as otherwise provided in regard to a Rule 22c-2 Agreement
between respective parties hereto, this Agreement, including the any Schedules
hereto, is intended to
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constitute the entire agreement by and among the parties with respect to the
specific matters dealt with herein, and supersedes all previous agreements among
the parties, written or oral, with respect to such matters;
NOW, THEREFORE, in consideration of their mutual promises, the Company (by
MassMutual acting as its administrator), the Fund, the Distributor, and the
Adviser agree as follows:
ARTICLE I. DEFINITIONS
1.1. "Business Day" shall mean any day on which the New York Stock
Exchange is open for trading and on which a Portfolio calculates its net asset
value pursuant to the rules of the Securities and Exchange Commission.
1.2. "Code" shall mean the Internal Revenue Code of 1986, as amended, and
any successor thereto.
1.3. "Contract Owners" shall mean the owners of the Contracts related to
the RPG business, as distinguished from all other product owners.
1.4. "Independent Trustees" and "Independent Directors", which may be used
interchangeably herein, shall each mean those members of the Fund's Board of
Directors or Trustees who are not interested persons of the Fund, the
Distributor, the Adviser or any sub-adviser to any of the Portfolios.
1.5. "IRS" shall mean the U.S. Internal Revenue Service.
1.6. "NAV" shall mean a Portfolio's net asset value per share ("NAV").
1.7. "Prospectus" with respect to Shares or with respect to a Contract
through which interests in an Account registered as a unit investment trust
under the 1940 Act are offered and issued, which interests are registered as
securities under the 1933 Act, shall mean each version of the effective
prospectus, including any supplements thereto, filed with the SEC under the 1933
Act. Unless otherwise indicated, the term "Prospectus" shall include any private
placement memo or other similar disclosure document used in connection with the
offer or sale of Contracts through which interests in unregistered Accounts are
offered and issued. With respect to any provision of this Agreement requiring a
party to take action in accordance with a Prospectus, such reference will be to
the version of the Prospectus last filed and effective prior to the taking
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of such action, including any supplements thereto. The term Prospectus shall
include any statement of additional information incorporated by reference
therein.
1.8. "SEC" shall mean the U.S. Securities and Exchange Commission.
1.9. "SAI" shall mean each version of the effective Statement of
Additional Information, including any supplements thereto, filed with the SEC
under the 1933 Act. With respect to any provision of this Agreement requiring a
party to take action in accordance with a SAI, such reference will be to the
version of the SAI last filed and effective prior to the taking of such action,
including any supplements thereto. The term SAI shall include any Prospectus
incorporated by reference therein.
1.10. "Valuation Time" shall mean the time as of which a Fund calculates
net asset value for the Shares of its Portfolios on the relevant Business Day.
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ARTICLE II. SALE OF FUND SHARES
2.1. The Fund and the Distributor agree to sell to the Company those
Shares that an Account orders, executing such orders on each Business Day at the
NAV next computed after receipt by the Fund or its designee of the order for the
Shares. For purposes of this Section 2.1, the Company (more specifically,
MassMutual acting as administrator of the Contracts) shall be the designee of
the Fund for receipt of such orders and receipt by such designee shall
constitute receipt by the Fund, provided that the Fund receives notice of any
such order via the National Securities Clearing Corporation (the "NSCC") by
10:00 a.m. Eastern time on the next following Business Day. The Fund will
receive all orders to purchase Shares using the NSCC's Defined Contribution
Clearance & Settlement ("DCC&S") platform. The Fund will also provide the
Company with account positions and activity data using the NSCC's Networking
platform. The Company (MassMutual acting on the Company's behalf) shall pay for
Shares by the scheduled close of federal funds transmissions on the same
Business Day it places an order to purchase Shares in accordance with this
Section using the NSCC's Fund/SERV 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 the Funds and Company 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.
If the Company is somehow prohibited from submitting purchase and
settlement instructions to the Fund for Shares via the NSCC's DCC&S platform the
following shall apply to this Section:
The Fund and the Distributor agree to sell to the Company (with MassMutual
acting on the Company's behalf) those Shares that an Account orders, executing
such orders on each Business Day at the NAV next computed after receipt by the
Fund or its designee of the order for the Shares. For purposes of this Section
2.1, the Company (more specifically, MassMutual acting as administrator of the
Contracts) shall be the designee of the Fund for receipt of such orders and
receipt by such designee shall constitute receipt by the Fund, provided that the
Fund receives notice of any such order by 10:00 a.m. Eastern time on the next
following Business Day. Such notice may be communicated by electronic
transmission (including email) or
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facsimile to the office or person(s) designated for such notice by each Fund.
The Company (MassMutual acting on its behalf) shall pay for Shares by 5:00 p.m.
Eastern time on the same Business Day it places an order to purchase Shares in
accordance with this Section. Payment shall be in federal funds transmitted by
wire to the Fund's designated custodian.
2.2. (a) The Fund and the Distributor agree to make Shares available for
purchase at the applicable NAV per share by the Company and the Accounts on
those days on which the Fund calculates its Portfolios' NAV pursuant to rules of
the SEC, and the Fund shall calculate such NAV on each day which the New York
Stock Exchange is open for trading. Notwithstanding the foregoing, the Fund may
refuse to sell Shares to any person, or suspend or terminate the offering of
Shares if such action is required by law or by regulatory authorities having
jurisdiction or is, in the sole discretion of the Fund acting in good faith,
necessary or appropriate in the best interests of the shareholders of such
Portfolio. All orders accepted by the Company shall be subject to the terms of
the then current Prospectus of the applicable Portfolio. The Company (more
specifically, MassMutual acting on the Company's behalf) shall use its best
efforts, and shall reasonably cooperate with, the Fund to enforce stated
Prospectus policies regarding transactions in Shares.
(b) The Company acknowledges that the Fund has the right to refuse any
purchase order or to suspend or terminate the offering of Shares for any reason.
(c) The Fund will not sell Shares to any other participating insurance
company separate account unless an agreement containing provisions the substance
of which are the same as Sections 3.1(a), 3.1(b) (except with respect to
designation of applicable law), 4.6, 4.7, 4.8 (Sections 4.6, 4.7 and 4.8 shall
be required to the extent necessary by applicable law), and Article VIII of this
Agreement is in effect to govern such sales.
2.3. Each Fund agrees to redeem for cash, on the Company's (including
MassMutual's) request, any full or fractional Shares of the Fund held by the
Company, executing such requests on each Business Day at the NAV next computed
after receipt by the Fund or its designee of the request for redemption. For
purposes of this Section 2.3, the Company (more specifically, MassMutual acting
as administrator of the Contracts) shall be the designee of the
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Fund for receipt of requests for redemption and receipt by such designee shall
constitute receipt by the Fund, provided that the Fund receives notice of any
such request for redemption via the NSCC by 10:00 a.m. Eastern time on the next
following Business Day. The Fund will receive all orders to redeem Shares using
the NSCC's DCC&S platform. The Fund will also provide the Company with account
positions and activity data using the NSCC's Networking platform. Payment for
Shares redeemed shall be made in accordance with this Section using the NSCC's
Fund/SERV System. Payment shall be in federal funds transmitted by 5:00 p.m.
Eastern time by the NSCC to the Account's Settling Bank as designated by the
Company, on the same Business Day the Fund or the Distributor receives notice of
the redemption order from the Company provided that the Fund or the Distributor
receives notice by 10:00 a.m. Eastern time on such Business Day.
If the Company is somehow prohibited from submitting redemption and
settlement instructions to the Fund for Shares via the NSCC's DCC&S platform the
following shall apply to this Section:
Each Fund agrees to redeem for cash, on the Company's request, any full or
fractional Shares the Fund held by the Company, executing such requests on each
Business Day at the NAV next computed after receipt by the Fund or its designee
of the request for redemption. For purposes of this Section 2.3, the Company
(more specifically, MassMutual acting as administrator of the Contracts) shall
be the designee of the Fund for receipt of requests for redemption and receipt
by such designee shall constitute receipt by the Fund, provided that the Fund
receives notice of any such request for redemption by 9:30 a.m. Eastern time on
the next following Business Day. Such notice may be communicated by electronic
transmission (including email) or facsimile to the office or person(s)
designated for such notice by each Fund.
2.4. The Distributor and the Fund agree that Shares will be sold only to
insurance companies for use in conjunction with variable life insurance policies
or variable annuities or to Qualified Plans, including the Contracts issued in
connection with Qualified Plans. The parties hereto acknowledge that the
arrangement contemplated by this Agreement is not exclusive; as may otherwise be
expressly limited herein, Shares may be sold to other insurance companies and
the cash value of the Contracts may be invested in other investment companies.
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2.5. (a) The Company will place orders to purchase or redeem Shares
separately for each Portfolio. Each order shall describe the net amount of
shares and dollar amount of each Portfolio to be purchased or redeemed.
(b) The Company shall pay for Portfolio shares by 5:00 p.m. Eastern
time on the next Business Day after an order to purchase Portfolio shares is
received in accordance with the provisions of Section 2.1 hereof. Payment shall
be in federal funds transmitted by wire and/or by a credit for any shares
redeemed the same day as the purchase.
The Fund or its designee agrees to provide the Company or its designee, by
2:00 p.m. Eastern Time on each Business Day, the total number of Portfolio
shares held by the Accounts as of the close of the immediately preceding
Business Day.
(c) Each Fund shall pay and transmit the proceeds of redemptions of
Portfolio shares by 11:00 a.m. Eastern Time on the next Business Day after a
redemption order is received in accordance with Section 2.3 hereof; provided,
however, that the Fund may delay payment in extraordinary circumstances to the
extent permitted under Section 22(e) of the 1940 Act. Payment shall be in
federal funds transmitted by wire and/or a credit for any shares purchased the
same day as the redemption. The Fund shall not bear any responsibility for the
proper disbursement or crediting of redemption proceeds by the Company; the
Company alone shall be responsible for such action.
2.6. Issuance and transfer of a Portfolio's shares will be by book entry
only. Stock certificates will not be issued to the Company or the Accounts.
Shares purchased from a Portfolio will be recorded in an appropriate title for
the relevant Account or the relevant sub-account of an Account. Each Fund will
furnish to the Company the CUSIP number assigned to each Portfolio identified in
SCHEDULE A hereto, as it may be amended from time to time.
2.7. The Distributor shall notify the Company in advance, but not later
than same day notice (by electronic communication or telephone, followed by
electronic confirmation), of any income, dividends or capital gain distributions
payable on a Portfolio's shares. The Company hereby elects to receive all such
income dividends and capital gain distributions as are payable on Shares in
additional Shares. The Company reserves the right to revoke this election and to
receive all such income dividends and capital gain distributions in cash. A Fund
shall notify the
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Company by the end of the next following Business Day of the number of shares so
issued as payment of such dividends and distributions.
2.8. Each Fund shall make (i) the NAV for each Portfolio and (ii) income
accrual factors, dividend, and capital gains information available to the
Company on each Business Day as soon as reasonably practicable after the NAV is
calculated and shall use its best efforts to make such NAV available by 6:30
p.m. Eastern time. In the event of an error in the computation of a Portfolio's
NAV or any dividend or capital gain distribution (each, a "pricing error"), the
applicable Fund shall immediately notify the Company as soon as possible after
discovery of the error. Such notification may be verbal, but shall be confirmed
promptly in writing. A pricing error shall be corrected as follows: (a) if the
pricing error results in a difference between the erroneous NAV and the correct
NAV of less than $0.01 per share, then no corrective action need be taken; (b)
if the pricing error results in a difference between the erroneous NAV and the
correct NAV equal to or greater than $0.01 per share, but less than 1/2 of 1% of
the Portfolio's NAV at the time of the error, then the Adviser shall reimburse
the Portfolio for any loss, after taking into consideration any positive effect
of such error; however, no adjustments to Contract Owner accounts need be made;
and (c) if the pricing error results in a difference between the erroneous NAV
and the correct NAV equal to or greater than 1/2 of 1% of the Portfolio's NAV at
the time of the error, then the Adviser shall reimburse the Portfolio for any
loss (without taking into consideration any positive effect of such error) and
shall reimburse the Company for the costs of adjustments made to correct
Contract Owner accounts in accordance with the provisions of the Adviser's
current pricing policy. If an adjustment is necessary to correct a material
error that has caused Contract Owners to receive less than the amount to which
they are entitled, the number of shares of the applicable sub-account of such
Contract Owners will be adjusted and the amount of any underpayments shall be
credited by the Adviser to the Company for crediting of such amounts to the
applicable Contract Owners' accounts. Upon notification by the Adviser of any
overpayment due to a material error, the Company shall promptly remit to the
Adviser any overpayment that has not been paid to Contract Owners. In no event
shall the Company be liable, under this Agreement, to Contract Owners for any
such adjustments or underpayment amounts. A pricing error within categories (b)
or (c) above shall be deemed to be "materially incorrect" or constitute a
"material error" for purposes of this Agreement. The standards set
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forth in this Section 2.8 are based on the parties' understanding of the views
expressed by the staff of the SEC as of the date of this Agreement. In the event
the views of the SEC staff are later modified or superseded by the SEC or
judicial interpretation, the parties shall amend the foregoing provisions of
this Agreement to comport with the appropriate applicable standards, on terms
mutually satisfactory to all parties.
2.9. The Company agrees to notify the Fund of any investment restrictions
imposed by state insurance law and contracts applicable to the Fund. The parties
agree to mutually cooperate with respect to any state insurance law restriction
or requirement applicable to a Portfolio's investments to the extent such
cooperation is permissible under the terms and conditions of the Fund's
prospectuses and other governing laws.
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ARTICLE III. REPRESENTATIONS AND WARRANTIES
3.1. The Company represents and warrants that:
(a) (i) The securities deemed to be issued by the Accounts under the
Contracts are or will be registered under the 1933 Act, or are not so registered
in proper reliance upon an exemption from such registration requirements; (ii)
the Contracts will be issued and sold in compliance in all material respects
with all applicable federal and state laws; and (iii) the Contracts will be sold
only by duly licensed and appointed parties with which the Company has written
agreements that require, among other things, that the sale of the Contracts
shall comply in all material respects with applicable FINRA Conduct Rules;
provided, however, that at the time of execution hereof the parties do not
anticipate relevant new sales activity, other than the continuous offering of
participating interests in the Accounts through existing Contracts.
(b) (i) It is an insurance company duly organized and in good standing
under applicable law; (ii) it has legally and validly established each Account
prior to any issuance or sale of units thereof as a segregated asset account
under Connecticut law (or another valid law of a state within the USA); and
(iii) it has registered each Account as a unit investment trust in accordance
with the provisions of the 1940 Act to serve as a segregated investment account
for the Contracts and will maintain such registration for so long as any
Contracts are outstanding as required by applicable law or, alternatively, the
Company has not registered one or more Accounts in proper reliance upon an
exclusion from such registration requirements.
(c) It has reviewed a copy of the Mixed and Shared Funding Exemptive
Order, and, in particular, has reviewed the conditions to the requested relief
set forth therein. As long as applicable, the Company agrees to be bound by the
responsibilities of a participating insurance company as set forth in the Mixed
and Shared Funding Exemptive Order, including, without limitation, the
requirement that the Company report any potential or existing conflicts of
interest of which it is aware to the Fund's Board of Trustees. The Company will
assist each Board in carrying out its responsibilities in monitoring such
conflicts under the Mixed and Shared Funding Exemptive Order by providing the
Board in a timely manner with all information reasonably necessary for the Board
to consider any issues raised. This includes, but is not limited to, an
obligation by the Company to inform each applicable Board whenever Contract
Owner voting instructions are disregarded and by confirming in writing, at a
Fund's
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request, that the Company is unaware of any such potential or existing
material irreconcilable conflicts; provided, however, that the parties hereby
acknowledge that any duty to inform a Board as contemplated hereby shall
actually be a duty of MassMutual in its capacity as administrator with respect
to the Contracts.
(d) For purposes other than diversification under Section 817 of the
Code, that the Contracts are currently and at the time of issuance will be
treated as annuity contracts or life insurance policies under applicable
provisions of the Code, and that it will make every effort to maintain such
treatment and that it will notify the Fund, the Distributor and the Adviser
immediately upon having a reasonable basis for believing that the Contracts have
ceased to be so treated or that they might not be so treated in the future. In
addition, the Company represents and warrants that each Account is a "segregated
asset account" and that interests in each Account are offered exclusively
through the purchase of or transfer into a "variable contract" or a "pension
plan contract" that is treated as a variable contract within the meaning of such
terms under Section 817 of the Code and the regulations thereunder. The Company
will use every effort to continue to meet such definitional requirements, and it
will notify the Fund, the Distributor and the Adviser immediately upon having a
reasonable basis for believing that such requirements have ceased to be met or
that they might not be met in the future. The Company, and MassMutual in its
capacity as administrator for the Company, each represents and warrants that it
will not initiate a purchase of Fund shares with assets derived from Qualified
Plans except, indirectly, through Contracts purchased in connection with such
plans.
(e) The Company agrees to comply with its obligations under
applicable anti-money laundering ("AML") laws, rules and regulations, including
but not limited to its obligations under the United States Bank Secrecy Act of
1970, as amended by the USA PATRIOT Act of 2001 (the "Patriot Act") and other
laws, and the rules, regulations, and official guidance issued thereunder
(collectively the "BSA"). To the extent required by law, the Company agrees to
undertake inquiry and due diligence regarding the customers to whom the Company
offers and/or sells Shares or on whose behalf the Company purchases Shares and
the inquiry and due diligence is reasonably designed to determine that the
Company is not prohibited from dealing with any such customer by (i) any
sanctions administered by the Office of Foreign
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Asset Control of the U.S. Department of the Treasury ("OFAC"); (ii) and of the
Special Measures directed from time to time by Treasury.
(f) It is currently in compliance, and will remain in compliance, with all
applicable laws, rules and regulations relating to consumer privacy, including,
but not limited to, the Xxxxx-Xxxxx-Xxxxxx Act.
(g) (i) It operates in compliance with and will continue to operate in
compliance duties and obligations described by SEC Rule 22c-2.
(ii) It has adopted, and will at all times during the term of this
Agreement maintain, reasonable and appropriate procedures ("Late Trading
Procedures") designed to ensure that any and all orders relating to the
purchase, sale or exchange of Shares communicated to the applicable Fund to be
treated in accordance as having been received on a Business Day have been
received by the Valuation Time on such Business Day and were not modified after
the Valuation Time, and that all orders received from Contract Owners but not
rescinded by the Valuation Time were communicated to the Fund or its agent as
received for that Business Day. Each transmission of orders by the Company shall
constitute a representation by the Company that such orders are accurate and
complete and relate to orders received by the Company by the Valuation Time on
the Business Day for which the order is to be priced and that such transmission
includes all orders relating to Fund shares received from Contract Owners but
not rescinded by the Valuation Time. The Company agrees to provide each Fund or
its designee with a copy of the Late Trading Procedures and such certifications
and representations regarding the Late Trading Procedures as the Fund or its
designee may reasonably request. The Company will endeavor to promptly notify
the Funds in writing of any material change to the Late Trading Procedures.
(iii) It has adopted, and will at all times during the term of this
Agreement maintain, reasonable and appropriate procedures ("Market Timing
Procedures") designed to minimize excessive trading in its Contracts. The
Company agrees to provide each Fund or its designee with a copy of the Market
Timing Procedures and such certifications and representations regarding the
Market Timing Procedures as the Fund or its designee may reasonably request. The
Company will endeavor to promptly notify the Funds of any material change to the
Market Timing Procedures. The parties agree to reasonably cooperate for the
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purpose of minimizing excessive trading in the Contracts and have entered into
the "shareholder information agreement" under Rule 22c-2 attached to this
Agreement as SCHEDULE D.
3.2. The Fund and the Distributor represent and warrant that:
(a) (i) The Portfolio shares sold pursuant to this Agreement shall
be registered under the 1933 Act; (ii) the Portfolio shares sold pursuant to
this Agreement shall be duly authorized for issuance and sold in compliance with
all applicable federal securities laws including without limitation the 1933
Act, the 1934 Act, and the 1940 Act; (iii) the Fund is and shall remain
registered under the 1940 Act; and (iv) the Fund shall amend the registration
statement for its Portfolios' shares under the 1933 Act and the 1940 Act from
time to time as required in order to effect the continuous offering of the
shares.
(b) The Fund has adopted a plan pursuant to Rule 12b-1 under the
1940 Act for certain classes of its shares. The parties acknowledge that the
Fund reserves the right to modify or terminate its existing plan or to adopt
additional plans pursuant to Rule 12b-1 under the 1940 Act (including with
respect to its shares for which it has not currently adopted a Rule 12b-1 plan)
and to impose an asset-based or other charge to finance distribution expenses as
permitted by applicable law and regulation. The Fund and the Adviser agree to
comply with applicable provisions and SEC interpretation of the 1940 Act with
respect to any distribution plan.
(c) The Fund shall register and qualify the shares for sale in
accordance with the laws of the various states if and to the extent required by
applicable law. The Fund makes no representation as to whether any aspect of its
operations complies with the insurance laws and regulations of any state.
(d) The Fund is lawfully organized and validly existing under the
laws of the State of Delaware (or of another state within the USA) and that it
does and will comply in all material respects with the 1940 Act.
(e) The Fund and the Distributor shall comply with all applicable
laws and regulations designed to prevent money laundering and, if required by
such laws or regulations, share with the Company information about individuals,
entities, organizations and countries suspected of possible terrorist or money
laundering activities.
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3.3. The Adviser represents and warrants that it is and shall remain duly
registered under all applicable federal and state securities laws and that it
shall perform its obligations for each Fund and Portfolio in compliance in all
material respects with any applicable state and federal securities laws.
3.4. The Distributor represents and warrants that it is and shall remain
duly registered under all applicable federal and state securities laws and that
it shall perform its obligations for the Fund and each Portfolio in compliance
in all material respects with the laws of any applicable state and federal
securities laws.
3.5. The Fund and the Adviser represent and warrant that:
(a) All of their respective officers, employees, investment
advisers, and other individuals or entities dealing with the money and/or
securities of the Fund are, and shall continue to be at all times, covered by
one or more blanket fidelity bonds or similar coverage for the benefit of the
Fund in an amount not less than the minimal coverage required by Rule 17g-1
under the 1940 Act or related provisions as may be promulgated from time to
time. The aforesaid bonds shall include coverage for larceny and embezzlement
and shall be issued by a reputable bonding company.
(b) They will use their best efforts to the extent possible to
provide the Company with 60 days' notice of any material change affecting the
Portfolios (including, but not limited to, any material change in the
registration statement or prospectus affecting the Portfolios) and any proxy
solicitation affecting the Portfolios and consult with the Company and other
participating insurance companies in order to implement any such change in an
orderly manner, recognizing the expenses of changes and attempting to minimize
such expenses by implementing them in conjunction with regular annual updates of
the Prospectus for the Contracts.
(c) The Fund will at all times remain permitted, under applicable
securities industry regulation and authoritative guidance, to rely on a Mixed
and Shared Funding Exemptive Order from the SEC granting participating insurance
companies and variable insurance products separate accounts exemptions from the
provisions of the 1940 Act and the rules thereunder to the extent necessary to
permit Shares to be sold to and held by variable insurance product separate
accounts of both affiliated and unaffiliated life insurance companies.
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ARTICLE IV. PROSPECTUSES AND PROXY STATEMENTS; VOTING
4.1. At least annually, the Distributor shall provide the Company with as
many copies of a Fund's current Prospectus as the Company may reasonably
request, with expenses to be borne in accordance with SCHEDULE B hereof. If
requested by the Company in lieu thereof, the Distributor or Fund shall provide
such documentation (including an electronic version of the current prospectus)
and other assistance as is reasonably necessary in order for the Company once
each year (or more frequently if the prospectus for the Fund is amended) to have
the prospectus for the Contracts and the Prospectus for the Fund printed
together in one document.
4.2. If applicable state or federal laws or regulations require that the
SAI for the Fund be distributed to all Contract Owners, then the Fund and/or the
Distributor shall provide the Company with copies of the Fund's SAI in such
quantities, with expenses to be borne in accordance with SCHEDULE B hereof, as
the Company may reasonably require to permit timely distribution thereof to
Contract Owners. The Distributor and/or the Fund shall also provide an SAI to
any Contract Owner or prospective owner who requests such SAI from the Fund.
4.3. The Fund and/or the Distributor shall provide the Company with copies
of the Fund's proxy material, reports to shareholders and other communications
to shareholders in such quantity, with expenses to be borne in accordance with
SCHEDULE B hereof, as the Company may reasonably require to permit timely
distribution thereof to Contract Owners.
4.4. It is understood and agreed that, except with respect to information
regarding the Company provided in writing by that party, the Company shall not
be responsible for the content of the Prospectus or SAI for a Fund. It is also
understood and agreed that, except with respect to information regarding the
Fund, the Distributor, the Adviser or the Portfolios provided in writing by the
Fund, the Distributor the Adviser or the Portfolios, neither the Fund, the
Distributor the Adviser nor the Portfolios are responsible for the content of
the prospectus or SAI for the Contracts.
4.5. Each Fund or its designee will use its best efforts to the extent
possible to provide the Company with 60 days' notice of any change for a Fund or
Portfolio, including but not limited to: (a) fund objective changes; (b)
anticipated fund reorganizations or substitutions; (c) no action or exemptive
requests granted by the SEC; (d) Fund and/or Portfolio name changes; (e)
17
Fund or Portfolio adviser, sub-adviser and/or portfolio manager changes; and/or
(f) conditions or undertakings that affect the Company's rights or obligations
under this Agreement.
4.6. If and to the extent required by law the Company (more specifically,
MassMutual on the Company's behalf) shall:
(a) solicit voting instructions from Contract Owners;
(b) vote the Portfolio shares held in the Accounts in accordance
with instructions received from Contract Owners; and
(c) vote Portfolio shares held in the Accounts for which no
instructions have been received in the same proportion as Portfolio shares for
which instructions have been received from Contract Owners, so long as and to
the extent that the SEC continues to interpret the 1940 Act to require
pass-through voting privileges for variable contract Owners; provided, that such
Shares may be voted differently, as determined by the Company, to an extent
permitted by applicable regulation or authoritative interpretation.
Notwithstanding the foregoing, the Company (more specifically, MassMutual on the
Company's behalf) shall vote Portfolio shares held in exempt Accounts that issue
Contracts in connection with employee benefit plans subject to the provisions of
the Employee Retirement Income Security Act of 1974, as amended, in accordance
with the Company's agreements with such Contract Owners The Company reserves the
right to vote Portfolio shares in its own right, to the extent permitted by law.
4.7. The Company shall be responsible for assuring that each of the
Company's separate accounts holding Shares calculates voting privileges as
directed by the applicable Fund and agreed to by the Company and the Fund. Each
Fund agrees to promptly notify the Company of any changes of interpretations or
amendments of the Mixed and Shared Funding Exemptive Order.
4.8. The Fund will comply with all provisions of the 1940 Act requiring
voting by shareholders, and in particular each Fund will either provide for
annual meetings (except insofar as the SEC may interpret Section 16 of the 1940
Act not to require such meetings) or, as each Fund currently intends, comply
with Section 16(c) of the 1940 Act (although no Fund is one of the trusts
described in Section 16(c) of that Act) as well as with Sections 16(a) and, if
and when applicable, 16(b). Further, each Fund will act in accordance with the
SEC's interpretation of the
18
requirements of Section 16(a) with respect to periodic elections of directors or
trustees and with whatever rules the SEC may promulgate with respect thereto.
19
ARTICLE V. SALES MATERIAL AND INFORMATION
5.1. (a) The Company shall not give any information or make any
representations or statements on behalf of a Fund or Portfolio in connection
with the sale of the Contracts other than the information or representations
contained in the registration statement, including a Fund's Prospectus or SAI,
as the same may be amended or supplemented from time to time, or in sales
literature or other promotional material approved by a Fund, the Distributor
and/or the Adviser, except with the prior written consent of the Fund,
Distributor and/or Adviser, as applicable.
(b) The Company and the Underwriters shall furnish, or cause to be
furnished, to each Fund, as applicable, prior to use each piece of sales
literature or other promotional material prepared by the Company in which a
Fund, the Distributor, the Adviser and/or any of their respective affiliates is
named or described at least 5 business days prior to its use. No piece of such
sales literature or other promotional material shall be used by the Company
without the prior approval of the Fund, Distributor and/or Adviser, which
approval will not be unreasonably withheld. No sales literature or promotional
material will be used if the Fund, the Distributor or the Adviser reasonably
objects to its use within 5 business days following receipt of such material.
Notwithstanding the forgoing, the Company may refer to a Fund or Portfolio as
part of a list of mutual funds available under the Contracts without such prior
approval or furnishing such material to the Fund, Distributor and/or the
Adviser. Furthermore, the Company may, without prior approval or furnishing such
material to the Fund, Distributor and/or Adviser, disclose in marketing material
or reports any fact or make any reference to any information concerning a Fund
or Portfolio that is contained in and accurately derived from the Fund's
registration statement, including a Fund's Prospectus or SAI, as the same may be
amended or supplemented from time to time, or in sales literature or other
promotional material approved by a Fund, the Distributor and/or the Adviser Each
Fund, the Distributor and the Adviser each agrees that it will use its best
efforts to respond promptly to any request by the Company for such prior
approval. Neither the Fund, Distributor or the Adviser will be responsible for
errors or omissions in, or the content of, the Company's material except to the
extent that the error or omission resulted from information provided by or on
behalf of the Fund, Distributor or the Adviser.
20
5.2. (a) Each Fund, the Distributor and the Adviser shall not give any
information or make any representations on behalf of the Company or concerning
the Company, the Accounts, or the Contracts other than the information or
representations contained in a registration statement, including the prospectus
or SAI, for the Contracts, as the same may be amended or supplemented from time
to time, or in sales literature or other promotional material approved by the
Company or their designees, except with the prior written consent of the
Company.
(b) Each Fund, the Distributor and the Adviser shall furnish, or
cause to be furnished, to the Company prior to use each piece of sales
literature or other promotional material prepared by the Fund, the Distributor
and the Adviser in which the Company and/or any of its affiliates are named or
described. No piece of such sales literature or other promotional material shall
be used by the Fund, the Distributor and the Adviser without the prior approval
of the Company, which approval will not be unreasonably withheld. The Company
agrees that it will use its best efforts to respond promptly to any request by a
Fund, the Distributor or the Adviser for such prior approval.
5.3. For purposes of this Article V and Article IX, 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, signs or billboards, motion pictures, or other public media;
e.g., on-line networks such as the Internet or other electronic media), sales
literature (i.e., any written communication distributed or made generally
available to customers or the public, including brochures, circulars, research
reports, market letters, form letters, seminar texts, reprints or excerpts of
any other advertisement, sales literature, or published article), educational or
training materials or other communications distributed or made generally
available to some or all agents or employees, and shareholder reports, and proxy
materials (including solicitations for voting instructions) and any other
material constituting sales literature or advertising under the FINRA rules, the
1933 Act or the 0000 Xxx.
5.4. At the request of any party to this Agreement, each other party will
make available to the requesting party's independent auditors and/or
representatives of the appropriate regulatory agencies, all records, data and
access to operating procedures that may be reasonably
21
requested in connection with compliance and regulatory requirements related to
this Agreement or any party's obligations under this Agreement.
22
ARTICLE VI. FEES AND EXPENSES
6.1. Each Fund, the Distributor and the Adviser shall pay no fee or other
compensation to the Company under this Agreement, and the Company shall pay no
fee or other compensation to a Fund, the Distributor or the Adviser under this
Agreement; provided, however, that:
(a) the parties hereto will bear expenses as reflected in SCHEDULE B
and other provisions of this Agreement;
(b) the Distributor shall pay the Company the Rule 12b-1 fees set
forth in SCHEDULE C hereof, such Rule 12b-1 fees subject to and payable
pursuant to the distribution plans adopted by each Fund pursuant to Rule
12b-1 under the 1940 Act, and as contemplated by Section 3.2(b) of this
Agreement for activities primarily intended to result in the servicing of
Contracts or of the sale/servicing of Fund shares to the Accounts through
which such Contracts were issued.; and
(c) the Adviser shall pay the Company the Services Fees as set forth
in SCHEDULE C.
23
ARTICLE VII. DIVERSIFICATION AND QUALIFICATION
7.1. Each Fund, the Distributor and the Adviser represent and warrant that
the Fund and each Portfolio thereof will at all times comply with Section 817(h)
of the Code and Treasury Regulation ss.1.817-5 or any other regulations
promulgated under Section 817(h), as amended from time to time, and any Treasury
interpretations thereof, relating to the diversification requirements for
variable annuity, endowment, or life insurance contracts and any amendments or
other modifications or successor provisions to such Section or Regulations. Each
Fund, the Distributor or the Adviser will notify the Company immediately upon
having a reasonable basis for believing that a Fund or any Portfolio has ceased
to comply with the Section 817(h) diversification or might not so comply in the
future. To the extent that a Fund or Portfolio ceases to so qualify, the Fund
and the Adviser will use their best efforts to take all steps necessary to
adequately diversify the affected Portfolio so as to achieve compliance within
the grace period afforded by Treasury Regulation ss.1.817-5.
7.2. Each Fund, the Distributor and the Adviser represent and warrant that
each Fund and each Portfolio is currently qualified as a Regulated Investment
Company under Subchapter M of the Code, and that each Portfolio will maintain
such qualification (under Subchapter M or any successor or similar provisions)
as long as this Agreement is in effect. Each Fund, the Distributor or the
Adviser will notify the Company immediately upon having a reasonable basis for
believing that a Fund or any Portfolio has ceased to comply with the Subchapter
M qualification requirements or might not so comply in the future.
7.3. Without in any way limiting the effect of Sections 9.2 and 9.3 hereof
and without in any way limiting or restricting any other remedies available to
the Company, the Adviser or the Distributor will pay all costs associated with
or arising out of any failure, or any anticipated or reasonably foreseeable
failure, of a Fund or any Portfolio to comply with Sections 7.1 or 7.2 hereof,
including all costs associated with reasonable and appropriate corrections or
responses to any such failure; such costs may include, but are not limited to,
the costs involved in creating, organizing, and registering a new investment
company as a funding medium for the Contracts and/or the costs of obtaining
whatever regulatory authorizations are required to substitute shares of another
investment company for those of the failed Portfolio (including but not limited
to an order pursuant to Section 26(c) of the 1940 Act). In addition, the
Distributor or the Adviser shall
24
bear the costs of bringing Contracts into compliance with section 817(h) of the
Code following a diversification failure, and the costs of adverse tax
consequences to affected Contract holders if the Contracts cannot be brought
into compliance.
7.4. The Company agrees that if the IRS asserts in writing in connection
with any governmental audit or review of the Company (or, to its knowledge, of
any Contract Owner) that any Portfolio has failed to comply with the
diversification requirements of Section 817(h) of the Code or the Company
otherwise becomes aware of any facts that could give rise to any claim against a
Fund, the Distributor or the Adviser as a result of such a failure or alleged
failure that :
(a) The Company shall promptly notify the Fund, the Distributor and
the Adviser of such assertion or potential claim;
(b) The Company shall consult with the Fund, the Distributor and the
Adviser as to how to minimize any liability that may arise as a result of such
failure or alleged failure;
(c) The Company shall use their best efforts to minimize any
liability of the Fund, the Distributor and the Adviser resulting from such
failure, including, without limitation, demonstrating, pursuant to Treasury
Regulations, Section 1.817-5(a)(2), to the commissioner of the IRS that such
failure was inadvertent;
(d) Any written materials to be submitted by the Company or the
Underwriters to the IRS, any Contract Owner or any other claimant in connection
with any of the foregoing proceedings or contests (including, without
limitation, any such materials to be submitted to the IRS pursuant to Treasury
Regulations, Section 1.817-5(a)(2)) shall be provided by the Company to the
Fund, the Distributor and the Adviser (together with any supporting information
or analysis) within at least two (2) business days prior to submission;
(e) The Company shall provide the Fund, the Distributor and the
Adviser with such cooperation as the Fund, the Distributor and the Adviser shall
reasonably request (including, without limitation, by permitting the Fund, the
Distributor and the Adviser to review the relevant books and records of the
Company) in order to facilitate review by the Fund, the Distributor and the
Adviser of any written submissions provided to it or its assessment of the
validity or amount of any claim against it arising from such failure or alleged
failure;
(f) The Company shall not with respect to any claim of the IRS or
any Contract Owner that would give rise to a claim against the Fund, the
Distributor and the Adviser
25
(i) compromise or settle any claim, (ii) accept any adjustment on audit, or
(iii) forego any allowable administrative or judicial appeals, without the
express written consent of the Fund, the Distributor and the Adviser, which
shall not be unreasonably withheld; provided that, the Company shall not be
required to appeal any adverse judicial decision unless the Fund and the Adviser
shall have provided an opinion of independent counsel to the effect that a
reasonable basis exists for taking such appeal; and further provided that the
Fund, the Distributor and the Adviser shall bear the costs and expenses,
including reasonable attorney's fees, incurred by the Company in complying with
this clause (f).
26
ARTICLE VIII. POTENTIAL CONFLICTS AND COMPLIANCE WITH MIXED AND
SHARED FUNDING EXEMPTIVE ORDER
8.1. The Fund's Board will monitor the Fund for the existence of any
material irreconcilable conflict between the interests of the contract owners of
all accounts investing in the Fund. A material irreconcilable conflict may arise
for a variety of reasons, including, but not limited to: (a) an action by any
state insurance regulatory authority; (b) a change in applicable federal or
state insurance, tax, or securities laws or regulations, or a public ruling,
private letter ruling, no-action or interpretative letter, or any similar action
by insurance, tax, or securities regulatory authorities; (c) an administrative
or judicial decision in any relevant proceeding; (d) the manner in which the
investments of any Portfolio is being managed; or (e) a difference in voting
instructions given by variable annuity contract and variable life insurance
contract owners. The Board shall promptly inform the Company if it determines
that a material irreconcilable conflict exists and the implications thereof.
8.2. The Company will report any potential or existing conflicts of which
it is aware to the applicable Board. The Company will assist the Board in
carrying out its responsibilities under the Mixed and Shared Funding Exemptive
Order, by providing the Board at least annually upon request with all
information reasonably necessary for the Board to consider any issues raised.
This includes, but is not limited to, an obligation by the Company to (i) inform
the Board whenever Contract Owner voting instructions are to be disregarded and
(ii) provide such other information and reports as the Board may reasonably
request. Such responsibilities shall be carried out by the Company with a view
only to the interests of the Company's Contract Owners.
8.3. If it is determined by a majority of a Board, or a majority of its
Independent Trustees, that a material irreconcilable conflict exists due to
issues relating to the Contracts, the Company and other participating insurance
companies, if any, shall, at their expense and to the extent reasonably
practicable (as determined by a majority of the Independent Trustees), take
whatever steps are necessary to remedy or eliminate the material irreconcilable
conflict, up to and including: (1) withdrawing the assets allocable to some or
all of the separate accounts from a Fund or any Portfolio and reinvesting such
assets in a different investment medium, including (but not limited to) another
Fund or Portfolio, or submitting the question whether such segregation should be
implemented to a vote of all affected contract owners and, as appropriate,
27
segregating the assets of any appropriate group (i.e., annuity contract owners,
life insurance contract owners, or variable contract owners of one or more
participating insurance companies) that votes in favor of such segregation, or
offering to the affected contract owners the option of making such a change; and
(2) establishing a new registered management investment company or managed
separate account. Such actions will be taken by the Company with a view only to
the interests of the Company's Contract Owners.
8.4. If a material irreconcilable conflict arises because of a decision by
the Company to disregard Contract Owner voting instructions and that decision
represents a minority position or would preclude a majority vote, the Company
may be required, at the affected Fund's election, to withdraw the Account's
investment in the Fund and terminate this Agreement with respect to such
Account; provided, however, that such withdrawal and termination shall be
limited to the extent required by the foregoing material irreconcilable conflict
as determined by a majority of the Independent Trustees. No charge or penalty
will be imposed as a result of such withdrawal. Any such withdrawal and
termination must take place within six (6) months after a Fund gives written
notice that this provision is being implemented, and until the end of that
six-month period the Adviser, the Distributor and the Fund shall continue to
accept and implement orders by the Company for the purchase (and redemption) of
Shares.
8.5. If a material irreconcilable conflict arises because a particular
state insurance regulator's decision applicable to the Company conflicts with
the majority of other state regulators, then the Company will withdraw the
Account's investment in a Fund and terminate this Agreement within six (6)
months after the Board informs the Company in writing that it has determined
that such decision has created an irreconcilable material conflict; provided,
however, that such withdrawal and termination shall be limited to the extent
required by the foregoing material irreconcilable conflict as determined by a
majority of the Independent Trustees. No charge or penalty will be imposed as a
result of such withdrawal. Until the end of the foregoing six-month period, a
Fund shall continue to accept and implement orders by the Company for the
purchase (and redemption) of Shares.
8.6. For purposes of Sections 8.3 through 8.5 of this Agreement, a
majority of the Independent Trustees shall determine whether any proposed action
adequately remedies any material irreconcilable conflict, but in no event will a
Fund be required to establish a new
28
funding medium for the Contracts. The Company shall not be required by Section
8.3 to establish a new funding medium for the Contracts if an offer to do so has
been declined by vote of a majority of Contract Owners affected by the
irreconcilable material conflict. In the event that the Board determines that
any proposed action does not adequately remedy any material irreconcilable
conflict, then the Company will withdraw the Account's investment in the Fund
and terminate this Agreement within six (6) months after the Board informs the
Company in writing of the foregoing determination; provided, however, that such
withdrawal and termination shall be limited to the extent required by any such
material irreconcilable conflict as determined by a majority of the Independent
Trustees.
8.7. If and to the extent that Rule 6e-2 and Rule 6e-3(T) are amended, or
Rule 6e-3 is adopted, to provide exemptive relief from any provision of the 1940
Act or the rules promulgated thereunder with respect to mixed or shared funding
(as defined in the Mixed and Shared Funding Exemptive Order) on terms and
conditions materially different from those contained in the Mixed and Shared
Funding Exemptive Order, then (a) each Fund and/or the participating insurance
company(ies), 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 4.6, 4.7, 8.1, 8.2, 8.3,
8.4, and 8.5 of this Agreement shall continue in effect only to the extent that
terms and conditions substantially identical to such Sections are contained in
such Rule(s) as so amended or adopted.
8.8 The parties hereto agree that the conditions or undertakings required
by the Mixed and Shared Funding Exemptive Order that may be imposed on any party
hereto by virtue of such order by the SEC: (i) shall apply only upon the sale of
shares of the applicable Portfolios to the Account(s) (and then only to the
extent required under the 1940 Act); (ii) will be incorporated herein by
reference; and (iii) all parties hereto agree to comply with such conditions and
undertakings to the extent applicable to each such party notwithstanding any
provision of this Agreement to the contrary.
29
ARTICLE XI. INDEMNIFICATION
9.1. INDEMNIFICATION BY THE COMPANY
(a) The Company agrees to indemnify and hold harmless the Fund, each
Portfolio, the Distributor and the Adviser and each of their respective officers
and directors or trustees and each person, if any, who controls the Fund, the
Portfolios, the Distributor or the Adviser within the meaning of Section 15 of
the 1933 Act (collectively, the "Indemnified Parties" for purposes of this
Section 9.1) against any and all losses, claims, expenses, damages, liabilities
(including amounts paid in settlement with the written consent of the Company)
or litigation (including reasonable legal and other expenses) to which the
Indemnified Parties may become subject under any statute or regulation, at
common law or otherwise, insofar as such losses, claims, expenses, damages or
liabilities (or actions in respect thereof) or settlements are related to the
sale or acquisition of the Fund's shares or the Contracts and:
(i) arise out of or are based upon any untrue statements or
alleged untrue statements of any material fact contained in the registration
statement, prospectus or SAI covering the Contracts or contained in the
Contracts or sales literature or other promotional material for the Contracts
(or any amendment or supplement to any of the foregoing), or arise out of or are
based upon the omission or the alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading in light of the circumstances in which they were made, PROVIDED that
this Agreement to indemnify shall not apply as to any Indemnified Party if such
statement or omission or such alleged statement or omission was made in reliance
upon and in conformity with information furnished in writing to the Company by
or on behalf of the Adviser, Distributor or Fund for use in the registration
statement, prospectus or SAI for the Contracts or in the Contracts or sales
literature or other promotional material (or any amendment or supplement to any
of the foregoing) or otherwise for use in connection with the sale of the
Contracts or Fund shares; or
(ii) arise out of or as a result of statements or
representations (other than statements or representations contained in the
registration statement, Prospectus, SAI or sales literature or other promotional
material of the Fund not supplied by the Company or persons under its control)
or wrongful conduct of the Company or persons under its control, with respect to
the sale or distribution of the Contracts or Fund Shares; or
30
(iii) arise out of any untrue statement or alleged untrue
statement of a material fact contained in a registration statement, Prospectus,
SAI, or sales literature or other promotional material of a Fund, or any
amendment thereof or supplement thereto, or the omission or alleged omission to
state therein a material fact required to be stated therein or necessary to make
the statement or statements therein not misleading in light of the circumstances
in which they were made, if such a statement or omission was made in reliance
upon and in conformity with information furnished in writing to the Fund by or
on behalf of the Company or persons under its control; or
(iv) arise as a result of any failure by the Company to provide
the services and furnish the materials required under the terms of this
Agreement; or
(v) arise out of or result from any material breach of this
Agreement by the Company, including without limitation Section 3.1 and Section
8.6 hereof, as limited by and in accordance with the provisions of Sections
9.1(b) and 9.1(c) hereof.
(b) The Company shall not be liable under this indemnification provision
with respect to any losses, claims, expenses, damages, liabilities or litigation
to which an Indemnified Party would otherwise be subject by reason of such
Indemnified Party's willful misfeasance, bad faith, or negligence in the
performance of such Indemnified Party's duties or by reason of such Indemnified
Party's reckless disregard of its obligations or duties under this Agreement or
to any of the Indemnified Parties.
(c) The Company shall not be liable under this indemnification provision
with respect to any claim made against an Indemnified Party unless such
Indemnified Party shall have notified the Company in writing within a reasonable
time after the summons or other first legal process giving information of the
nature of the claim shall have been served upon such Indemnified Party (or after
such Indemnified Party shall have received notice of such service on any
designated agent), but failure to notify the Company of any such claim shall not
relieve the Company from any liability that it may have to the Indemnified Party
against whom such action is brought otherwise than on account of this
indemnification provision, except to the extent that the Company has been
prejudiced by such failure to give notice. In case any such action is brought
against the Indemnified Parties, the Company shall be entitled to participate,
at its own expense, in the defense of such action. The Company also shall be
entitled to assume the defense thereof, with counsel satisfactory to the party
named in the action. After notice from the Company to such party of the
Company's election to assume the
31
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.
(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 Fund shares or the Contracts or the operation of a Fund.
9.2. INDEMNIFICATION BY THE ADVISER
(a) The Adviser, on behalf of itself and the Fund, agrees to
indemnify and hold harmless the Company, and its directors and officers and each
person, if any, who controls the Company within the meaning of Section 15 of the
1933 Act (collectively, the "Indemnified Parties" for purposes of this Section
9.2) against any and all losses, claims, expenses, damages, liabilities
(including amounts paid in settlement with the written consent of the Adviser)
or litigation (including reasonable legal and other expenses) to which the
Indemnified Parties may become subject under any statute or regulation, at
common law or otherwise, insofar as such losses, claims, damages, liabilities or
expenses (or actions in respect thereof) or settlements are related to the sale
or acquisition of a Fund's shares or the Contracts and:
(i) arise out of or are based upon any untrue statement or
alleged untrue statement of any material fact contained in the registration
statement or Prospectus or SAI or sales literature or other promotional material
of a Portfolio prepared by the Fund or the Adviser (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 in
light of the circumstances in which they were made, PROVIDED that this Agreement
to indemnify shall not apply as to any Indemnified Party if such statement or
omission or such alleged statement or omission was made in reliance upon and in
conformity with information furnished in writing to the Adviser or the Fund by
or on behalf of the Company for use in the registration statement, Prospectus or
SAI for the Fund or in sales literature or other promotional material (or any
amendment or supplement to
32
any of the foregoing) or otherwise for use in connection with the sale of the
Contracts or Fund shares; or
(ii) arise out of or as a result of statements or
representations (other than statements or representations contained in the
registration statement, prospectus, SAI or sales literature or other promotional
material for the Contracts not supplied by the Adviser or persons under its
control) or wrongful conduct of a Fund or the Adviser or persons under their
control, with respect to the sale or distribution of the Contracts or Fund
shares; or
(iii) arise out of any untrue statement or alleged untrue
statement of a material fact contained in a registration statement, prospectus,
SAI, or sales literature or other promotional material covering the Contracts,
or any amendment thereof or supplement thereto, or the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statement or statements therein not misleading in light of
the circumstances in which they were made, if such statement or omission was
made in reliance upon and in conformity with information furnished in writing to
the Company by or on behalf of the Adviser or a Fund, or persons under their
control; or
(iv) arise as a result of any failure by a Fund or the Adviser
to provide the services and furnish the materials required under the terms of
this Agreement (including a failure, whether unintentional or in good faith or
otherwise, to comply with the diversification and other qualification
requirements specified in Article VII of this Agreement); or
(v) arise out of or result from any material breach of this
Agreement by the Adviser or the Fund including without limitation any breach of
a representation or warranty by the Adviser or the Fund in this Agreement, as
limited by and in accordance with the provisions of Sections 9.2(b) and 9.2(c)
hereof; or
(vi) arise out of or result from the incorrect or untimely
calculation or reporting by a Fund or the Adviser of the daily net asset value
per share (subject to Section 2.8 of this Agreement) or dividend or capital gain
distribution rate; as limited by and in accordance with the provisions of
Sections 9.2(b) and 9.2(c) hereof.
(b) The Adviser shall not be liable under this indemnification
provision with respect to any losses, claims, expenses, damages, liabilities or
litigation to which an Indemnified Party would otherwise be subject by reason of
(i) any violation of insurance law, compliance
33
with which is a responsibility of the Company under this Agreement or as to
which the Company failed to inform the Adviser or (ii) such Indemnified Party's
willful misfeasance, bad faith, or negligence in the performance of such
Indemnified Party's duties or by reason of such Indemnified Party's reckless
disregard of its obligations or duties under this Agreement or to any of the
Indemnified Parties.
(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 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 Adviser of any
such claim shall not relieve the Adviser from any liability that it may have to
the Indemnified Party against whom such action is brought otherwise than on
account of this indemnification provision, except to the extent that the Adviser
has been prejudiced by such failure to give notice. 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. The Adviser also shall
be entitled to assume the defense thereof, with counsel satisfactory to the
party named in the action. 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.
(d) The Company agrees to promptly notify the Adviser of the
commencement of any litigation or proceedings against it or any of its officers
or directors in connection with the issuance or sale of the Contracts or the
operation of the Account.
9.3. INDEMNIFICATION BY THE DISTRIBUTOR
(a) The Distributor agrees to indemnify and hold harmless the
Company, the Fund, each Portfolio and the Adviser, and their directors and
officers and each person, if any, who controls the Company, the Fund, each
Portfolio and the Adviser within the meaning of Section 15 of the 1933 Act
(collectively, the "Indemnified Parties" for purposes of this Section
34
9.3) against any and all losses, claims, expenses, damages, liabilities
(including amounts paid in settlement with the written consent of the
Distributor) or litigation (including reasonable legal and other expenses) to
which the Indemnified Parties may become subject under any statute or
regulation, at common law or otherwise, insofar as such losses, claims, damages,
liabilities or expenses (or actions in respect thereof) or settlements are
related to the sale or acquisition of a Fund's shares or the Contracts and:
(i) arise out of or are based upon any untrue statement or
alleged untrue statement of any material fact contained in the registration
statement or Prospectus or SAI or sales literature or other promotional material
of a Fund prepared by the Distributor (or any amendment or supplement to any of
the foregoing), or arise out of or are based upon the omission or the alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading in light of the
circumstances in which they were made, PROVIDED that this Agreement to indemnify
shall not apply as to any Indemnified Party if such statement or omission or
such alleged statement or omission was made in reliance upon and in conformity
with information furnished in writing to the Distributor by or on behalf of the
Company for use in the registration statement, Prospectus or SAI for a Fund or
in sales literature or other promotional material (or any amendment or
supplement to any of the foregoing) or otherwise for use in connection with the
sale of the Contracts or Fund shares; or
(ii) arise out of or as a result of statements or
representations (other than statements or representations contained in the
registration statement, prospectus, SAI or sales literature or other promotional
material for the Contracts not supplied by the Distributor or persons under its
control) or wrongful conduct of the Distributor or persons under its control,
with respect to the sale or distribution of the Contracts or Fund shares; or
(iii) arise out of any untrue statement or alleged untrue
statement of a material fact contained in a registration statement, prospectus,
SAI, or sales literature or other promotional material covering the Contracts,
or any amendment thereof or supplement thereto, or the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statement or statements therein not misleading in light of
the circumstances in which they were made, if such statement or omission was
made in reliance
35
upon information furnished in writing to the Company by or on behalf of the
Distributor or a person under its control; or
(iv) arise as a result of any failure by the Distributor to
provide the services and furnish the materials required under the terms of this
Agreement; or
(v) arise out of or result from any material breach of this
Agreement by the Distributor including without limitation Section 3.2; or as
limited by and in accordance with the provisions of Sections 9.3(b) and 9.3(c)
hereof.
(b) The Distributor shall not be liable under this indemnification
provision with respect to any losses, claims, expenses, damages, liabilities or
litigation to which an Indemnified Party would otherwise be subject by reason of
such Indemnified Party's willful misfeasance, bad faith, or negligence in the
performance of such Indemnified Party's duties or by reason of such Indemnified
Party's reckless disregard of its obligations or duties under this Agreement or
to any of the Indemnified Parties.
(c) The Distributor shall not be liable under this indemnification
provision with respect to any claim made against an Indemnified Party unless
such Indemnified Party shall have notified the Distributor in writing within a
reasonable time after the summons or other first legal process giving
information of the nature of the claim shall have been served upon such
Indemnified Party (or after such Indemnified Party shall have received notice of
such service on any designated agent), but failure to notify the Distributor of
any such claim shall not relieve the Distributor from any liability that it may
have to the Indemnified Party against whom such action is brought otherwise than
on account of this indemnification provision, except to the extent that the
Distributor has been prejudiced by such failure to give notice. In case any such
action is brought against the Indemnified Parties, the Distributor will be
entitled to participate, at its own expense, in the defense thereof. The
Distributor also shall be entitled to assume the defense thereof, with counsel
satisfactory to the party named in the action. After notice from the Distributor
to such party of the Distributor's election to assume the defense thereof, the
Indemnified Party shall bear the fees and expenses of any additional counsel
retained by it, and the Distributor will not be liable to such party under this
Agreement for any legal or other expenses subsequently incurred by such party
independently in connection with the defense thereof other than reasonable costs
of investigation.
36
(d) The Indemnified Parties agree to promptly notify the Distributor
of the commencement of any litigation or proceedings against it or any of its
officers or directors in connection with the issuance or sale of the Contracts
or Fund shares, the operation of the Account, or operation of the Fund, as
applicable.
37
ARTICLE X. APPLICABLE LAW
10.1. This Agreement shall be construed and the provisions hereof
interpreted under and in accordance with the laws of the State of Connecticut,
without regard to the Connecticut conflict of laws provisions.
10.2. This Agreement shall be subject to the provisions of the 1933, 1934
and 1940 Acts, and the rules and regulations and rulings thereunder, including
such exemptions from those statutes, rules and regulations as the SEC may grant
(including, but not limited to, the Mixed and Shared Funding Exemptive Order)
and the terms hereof shall be interpreted and construed in accordance therewith.
38
ARTICLE XI. TERMINATION
11.1. This Agreement shall terminate:
(a) at the option of any party, with or without cause, with respect
to some or all Portfolios, upon ninety (90) days' prior written notice delivered
to the other parties; or
(b) at the option of the Company by written notice to the other
parties with respect to any Portfolio based upon the Company's determination
that shares of such Portfolio are not reasonably available to meet the
requirements of the Contracts, as determined by the Company; or
(c) at the option of the Company by written notice to the other
parties with respect to any Portfolio in the event any of the Portfolio's shares
are not registered, issued or sold in accordance with applicable state and/or
federal law or such law precludes the use of such shares as the underlying
investment media of the Contracts issued or to be issued by the Company; or
(d) at the option of the Fund, the Distributor or the Adviser in the
event that formal administrative proceedings are instituted against the Company
by FINRA, the SEC, the Insurance Commissioner or like official of any state or
any other regulatory body regarding the Company's duties under this Agreement or
related to the sale (if any) and administration of the Contracts, the operation
of any Account, or the purchase of Fund shares, if, in each case, the Fund,
Distributor or Adviser, as the case may be, reasonably determines in its sole
judgment exercised in good faith, that any such administrative proceedings will
have a material adverse effect upon the ability of the Company to perform its
obligations under this Agreement; or
(e) at the option of the Company in the event that formal
administrative proceedings are instituted against the Fund, the Distributor or
the Adviser by FINRA, the SEC, or any state securities or insurance department
or any other regulatory body, if the Company reasonably determines in its sole
judgment exercised in good faith, that any such administrative proceedings will
have a material adverse effect upon the ability of the Fund, the Distributor or
the Adviser to perform their obligations under this Agreement; or
(f) at the option of the Company by prior written notice to the Fund
with respect to any Portfolio if the Company reasonably and in good faith
believes that the Portfolio
39
will fail to meet the Section 817(h) diversification requirements or Subchapter
M qualifications specified in Article VII hereof; or
(g) at the option of any non-defaulting party hereto in the event of
a material breach of this Agreement by any party hereto (the "defaulting party")
other than as described in Section 11.1(a)-(h); provided, that the
non-defaulting party gives written notice thereof to the defaulting party, with
copies of such notice to all other non-defaulting parties, and if such breach
shall not have been remedied within thirty (30) days after such written notice
is given, then the non-defaulting party giving such written notice may terminate
this Agreement by giving thirty (30) days' written notice of termination to the
defaulting party; or
(h) At the option of the Fund or the Adviser if the Contracts cease
to qualify or to be otherwise treated as annuity contracts or life insurance
contracts, as applicable, under the Code, or if the Fund or Adviser reasonably
believe that the Contracts may fail to so qualify; or
(i) At the option of the Fund or the Adviser, if the Contracts are
not registered (if registration is required), issued or sold in accordance with
applicable federal and/or state law; or
(j) At the option of the party from which consent was not obtained,
in the event this Agreement is assigned without the prior written consent of all
parties hereto; or
(k) At the option of the Fund, by a vote of the majority of the
Fund's Board, Adviser or Company, upon a reasonable determination by the Fund's
Board that a material irreconcilable conflict exists among the interests of (i)
all Contract Owners of all Separate Accounts, or (ii) the interests of
Participating Companies investing in the Fund; or
(l) At any time upon written agreement of all parties to this
Agreement.
11.2. This Agreement may be terminated as to one or more Portfolios (but
less than all Portfolios) by delivery of an amended SCHEDULE A deleting such
Portfolio pursuant to Section 13.12 hereof, in which case termination as to such
deleted Portfolio shall take effect sixty (60) days after the date of such
delivery. The execution and delivery of an amended SCHEDULE A that deletes one
or more Portfolios shall constitute a termination of this Agreement only with
respect to such deleted Portfolio and shall not affect the obligations of the
Company and the Fund hereunder with respect to the other Portfolios set forth in
SCHEDULE A, as amended from time to time.
40
11.3. NOTICE REQUIREMENT
No termination of this Agreement shall be effective unless and until the
party terminating this Agreement gives prior written notice to all other parties
of its intent to terminate, which notice shall set forth the basis for the
termination. Furthermore,
(a) in the event any termination is based upon the provisions of
Article VIII, or the provisions of Section 11.1(a) of this Agreement, the prior
written notice shall be given in advance of the effective date of termination as
required by those provisions unless such notice period is shortened by mutual
written agreement of the parties;
(b) in the event any termination is based upon the provisions of
Section 11.1(d), 11.1(e) or 11.1(g) of this Agreement, the prior written notice
shall be given at least sixty (60) days before the effective date of
termination; and
(c) in the event any termination is based upon the provisions of
Section 11.1(b), 11.1(c), 11.1(f), 11.1(h), 11.1(i), 11.1(j) or 11.1(k), the
prior written notice shall be given in advance of the effective date of
termination, which date shall be determined by the party sending the notice.
11.4. EFFECT OF TERMINATION
Notwithstanding any termination of this Agreement, other than as a result
of a failure by either a Fund or a Portfolio or the Company to meet Section
817(h) of the Code diversification requirements, each Fund, the Distributor and
the Adviser shall, at the option of the Company, continue to make available
additional shares of the Fund or Portfolio pursuant to the terms and conditions
of this Agreement, for all Contracts in effect on the effective date of
termination of this Agreement (hereinafter referred to as "Existing Contracts").
Specifically, without limitation, the owners of the Existing Contracts shall be
permitted to reallocate investments in a Fund or Portfolio, redeem investments
in a Fund or Portfolio and/or invest in a Fund or Portfolio upon the making of
additional purchase payments under the Existing Contracts. The parties agree
that this Section 11.4 shall not apply to any terminations under Article VIII
and the effect of such Article VIII terminations shall be governed by Article
VIII of this Agreement.
41
11.5. SURVIVING PROVISIONS
Notwithstanding any termination of this Agreement, each party's
obligations under Article IX to indemnify other parties shall survive and not be
affected by any termination of this Agreement. In addition, with respect to
Existing Contracts, all provisions of this Agreement shall also survive and not
be affected by any termination of this Agreement.
42
ARTICLE XIV. NOTICES
Any notice shall be sufficiently given when sent by registered or
certified mail to the other party at the address of such party set forth below
or at such other address as such party may from time to time specify in writing
to the other parties. If to the Company :
Massachusetts Mutual Life Insurance Company
As Administrator for Hartford Life Insurance Company
000 Xxxxxx Xxxxxx Xxxx. Xxxxxxx, XX 00000
Attention: RS Fund Operations, MIP M200-INVEST
Telephone (000) 000-0000
Facsimile No.: 860562-2283
With a copy to:
Law Department, Retirement Services
Massachusetts Mutual Life Insurance Company
000 Xxxxxx Xxxxxx Xxxx.
Xxxxxxx, Xxxxxxxxxxx 00000
If to the Adviser:
HIMCO
Xxx Xxxxxxxx Xxxxx
Xxxxxxxx, XX 00000
Attention General Counsel
If to the Distributor:
HIMCO Distribution Services Company
Xxx Xxxxxxxx Xxxxx
Xxxxxxxx, XX 00000
Attention General Counsel
If to a Fund:
HVIT Funds
Xxx Xxxxxxxx Xxxxx
Xxxxxxxx, XX 00000
Attention General Counsel
43
ARTICLE XII. MISCELLANEOUS
12.1. CONFIDENTIALITY. The parties hereto agree that each shall treat
confidentially all information provided by one party to one or more of the other
parties regarding its business and operations. All confidential information
provided by a party hereto, including non-public personal information within the
meaning of SEC Regulation S-P and/or the Xxxxx-Xxxxx-Xxxxxx Act, whichever is
applicable, shall be used by any other party hereto solely for the purpose of
rendering services pursuant to this Agreement and, except as may be required in
carrying out this Agreement, shall not be disclosed to any third party without
the prior written consent of such providing party. Without limiting the
foregoing, no party hereto shall disclose any information that another party has
designated as proprietary. The foregoing shall not be applicable to any
information that is required to be disclosed by any auditor of the parties
hereto, by judicial or administrative process or otherwise by applicable law or
regulation.
12.2. CAPTIONS. The captions in this Agreement are included for
convenience of reference only and in no way define or delineate any of the
provisions hereof or otherwise affect their construction or effect.
12.3. COUNTERPARTS. This Agreement may be executed simultaneously in two
or more counterparts, each of which taken together shall constitute one and the
same instrument.
12.4. INTERPRETATION. In connection with the operation of this Agreement,
and two or more of the parties hereto may agree from time to time on such
provisions interpretative of or in addition to the provisions of this Agreement
with respect to any party as may in their joint opinion be consistent with the
general tenor of this Agreement. Any such interpretative or additional
provisions shall be in a writing signed by all parties and shall be annexed
hereto, provided that no such interpretative or additional provisions shall
contravene any applicable federal or state regulations or any provision of the
articles of incorporation or analogous governing document of any party. No
interpretative or additional provisions made as provided in the preceding
sentence shall be deemed to be an amendment of this Agreement or affect any
other party.
12.5. SURVIVAL OF TERMS. If any provision of this Agreement shall be held
or made invalid by a court decision, statute, rule or otherwise, the remainder
of the Agreement shall not be affected thereby.
44
12.6. ASSIGNMENT. This Agreement shall be binding on and shall inure to
the benefit of each Fund severally, the Distributor, the Adviser, the Company,
and each Underwriter and their respective successors and assigns, provided that
neither the Company, the Distributor, the Adviser, any Underwriter nor any Fund
may assign this Agreement or any of its rights or obligations hereunder without
the prior written consent of the other parties; provided, further, that it is
hereby understood and acknowledged that third-party servicing agents may
carry-out certain duties of respective parties hereto, but in such cases the
parties hereto retain liability and ultimate obligations of performance
hereunder.
12.7. Each party to this Agreement will maintain all records required by
law and such records will be preserved, maintained and made available to the
extent required by law and in accordance with the 1940 Act and the rules
thereunder. Each party hereto shall cooperate with each other party and all
appropriate governmental authorities (including without limitation the SEC,
FINRA and state insurance regulators) and shall permit such authorities
reasonable access to its books and records in connection with any investigation
or inquiry relating to this Agreement or the transactions contemplated hereby.
12.8. The rights, remedies and obligations contained in this Agreement are
cumulative and are in addition to any and all rights, remedies and obligations,
at law or in equity, which the parties hereto are entitled to under state and
federal laws.
12.9. The Company and the Underwriters agree that the obligations assumed
by the Fund, the Distributor and the Adviser pursuant to this Agreement shall be
limited in any case to the applicable Fund or Portfolio, the Distributor and/or
the Adviser and their respective assets and the Company and the Underwriters
shall not seek satisfaction of any such obligation from any other Fund or
Portfolio, from the shareholders of any Fund or Portfolio, or from the
Distributor or the Adviser, the Trustees, officers, employees or agents of the
Fund, the Distributor or the Adviser, or any of them.
12.10. The Fund, the Distributor and the Adviser agree that the
obligations assumed by the Company and by the Underwriters pursuant to this
Agreement shall be limited in any case to the Company and its assets and to the
Underwriters and their assets and neither the Fund, the Distributor nor the
Adviser shall seek satisfaction of any such obligation from the shareholders
45
of the Company or the Underwriters, the directors, officers, employees or agents
of the Company or the Underwriters, or any of them.
12.11. No provision of this Agreement may be waived, amended or terminated
except by a statement in writing signed by the party against which enforcement
of such waiver, amendment or termination is sought; provided, SCHEDULE A may be
amended from time to time to add one or more Funds or one or more Portfolios of
one or more Funds, by each applicable Fund's execution and delivery to the other
parties of an amended SCHEDULE A, and the execution of such amended SCHEDULE A
by the other parties, in which case such amendment shall take effect immediately
upon execution by the other parties. SCHEDULE A may also be amended from time to
time to delete one or more Funds or one or more Portfolios (but less than all of
the Portfolios) of one or more Funds, by each applicable Fund's execution and
delivery to the other parties of an amended SCHEDULE A, in which case such
amendment shall take effect thirty (30) days after such delivery, unless
otherwise agreed by the parties in writing.
12.12. No provision of this Agreement may be deemed or construed to modify
or supersede any contractual rights, duties, or indemnifications, as between the
Adviser and one or more Funds, and the Distributor and one or more Funds.
12.13. The parties mutually acknowledge that this Agreement represents the
collective drafting efforts of each party and therefore any ambiguity shall not
be interpreted against the interests of any party.
12.14 Without limiting the generality of anything contained elsewhere in
this Agreement, the parties hereto acknowledge that actions, duties and money
transfers described herein, including any Schedule hereto, as being actions or
duties to be taken or executed by, or monies paid or received by, the Company,
may in fact be performed, paid or received by MassMutual acting as administrator
pursuant to written agreements with the Company.
46
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 specified on the cover page of this Agreement.
HARTFORD LIFE INSURANCE COMPANY
By MASSACHUSETTS MUTUAL LIFE INSURANCE COMPANY, Its Administrator
By: /s/ Xxxx Xxxxxxx
------------------------------------------
Name: Xxxx Xxxxxxx
------------------------------------------
Title: Senior Vice President
------------------------------------------
HARTFORD INVESTMENT MANAGEMENT COMPANY
By: /s/ Xxxxxxx Xxxxxx
------------------------------------------
Name: Xxxxxxx Xxxxxx
------------------------------------------
Title: Executive Vice President
------------------------------------------
HIMCO DISTRIBUTION SERVICES COMPANY
By: /s/ Xxxxxxx Xxxxxx
------------------------------------------
Name: Xxxxxxx Xxxxxx
------------------------------------------
Title: CEO, President
------------------------------------------
HIMCO VARIABLE INSURANCE TRUST
(WITH RESPECT TO EACH INVESTMENT COMPANY LISTED ON SCHEDULE A)
By: /s/ Xxxxxxx Xxxxxx
------------------------------------------
Name: Xxxxxxx Xxxxxx
------------------------------------------
Title: President
------------------------------------------
47
SCHEDULE A
PART 1 - PORTFOLIOS UNDER THE HIMCO VARIABLE INSURANCE TRUST:
HIMCO VARIABLE INSURANCE TRUST
HIMCO VIT Index Fund
PART 2 - SEPARATE ACCOUNTS:
EXEMPT SEPARATE ACCOUNTS OF THE COMPANY:
Hartford Life Insurance Company Separate Account Fourteen
Hartford Life Insurance Company Separate Account 457
Hartford Life Insurance Company DC Variable Account III
Hartford Life Insurance Company DC Variable Account IV
Hartford Life Insurance Company DC Variable Account V
Hartford Life Insurance Company DC Variable Account VI
Hartford Life Insurance Company Separate Account UFC
Hartford Life Insurance Company Group Annuity Separate Account K
Hartford Life Insurance Company Group Annuity Separate Account K-1
Hartford Life Insurance Company Group Annuity Separate Account K-2
Hartford Life Insurance Company Group Annuity Separate Account K-3
Hartford Life Insurance Company Group Annuity Separate Account K-4
Hartford Life Insurance Company Group Annuity Separate Account TK
Hartford Life Insurance Company Group Annuity Separate Account TK-1
Hartford Life Insurance Company Group Annuity Separate Account TK-2
Hartford Life Insurance Company Group Annuity Separate Account TK-3
Hartford Life Insurance Company Group Annuity Separate Account TK-4
Hartford Life Insurance Company Group Annuity Separate Account UK
Hartford Life Insurance Company Group Annuity Separate Account UK-2
Hartford Life Insurance Company Group Annuity Separate Account UK-3
Hartford Life Insurance Company Group Annuity Separate Account UK-4
Hartford Life Insurance Company Group Annuity Separate Account XX
Xxxxxxxx Life Insurance Company Group Annuity Separate Account VK-1
Hartford Life Insurance Company Group Annuity Separate Account VK-2
Hartford Life Insurance Company Group Annuity Separate Account VK-3
Hartford Life Insurance Company Group Annuity Separate Account VK-4
Hartford Life Insurance Company Separate Account 401
Hartford Life Insurance Company Separate Account A
Hartford Life Insurance Company Separate Account 9
REGISTERED SEPARATE ACCOUNTS OF THE COMPANY:
Hartford Life Insurance Company DC Variable Account I
Hartford Life Insurance Company Separate Account Two **
Hartford Life Insurance Company Separate Account Eleven
** HLIC Separate Account Two is used by both Retirement and Individual Annuity
businesses
SCHEDULE B
EXPENSES
Each Fund and/or the Distributor and/or Adviser, and the Company (more
specifically, MassMutual on the Company's behalf), will coordinate the functions
and pay the costs of completing these functions based upon an allocation of
costs in the tables below. If Contract documents are printed and bound together
with Fund documents, costs shall be allocated to reflect a Fund's share of the
total costs determined according to the number of pages of the Fund's respective
portions of the documents.
----------------------------- -------------------------- -------------------------- --------------------------
ITEM FUNCTION PARTY RESPONSIBLE FOR PARTY RESPONSIBLE FOR
COORDINATION EXPENSE
----------------------------- -------------------------- -------------------------- --------------------------
HIMCO VIT Funds Prospectus Printing of combined Company In force - Fund
prospectuses Prospective -
Company
----------------------------- -------------------------- -------------------------- --------------------------
Distribution (including Company Fund
postage) to New and In
force Contract Owners
----------------------------- -------------------------- -------------------------- --------------------------
Distribution (including Company Company
postage) to Prospective
Contract Owners
----------------------------- -------------------------- -------------------------- --------------------------
Product Prospectus Printing and Distribution Company Company
for In force and
Prospective Contract
Owners
----------------------------- -------------------------- -------------------------- --------------------------
----------------------------- -------------------------- -------------------------- ----------------------
ITEM FUNCTION PARTY RESPONSIBLE FOR PARTY RESPONSIBLE FOR
COORDINATION EXPENSE
----------------------------- -------------------------- -------------------------- ----------------------
HIMCO VIT Funds Prospectus If Required by Fund, Distributor or Adviser Fund, Distributor or
Update & Distribution Distributor or Adviser Adviser
----------------------------- -------------------------- -------------------------- ----------------------
If Required by Company Company (Distributor or Company
Adviser to provide
Company with document in
PDF format)
----------------------------- -------------------------- -------------------------- ----------------------
Product Prospectus Update & If Required by Fund, Company Fund, Distributor
Distribution Distributor or or Adviser
Adviser
----------------------------- -------------------------- -------------------------- ----------------------
If Required by Company Company
Company
----------------------------- -------------------------- -------------------------- ----------------------
HIMCO VIT Funds Printing Distributor or Fund, Distributor or
SAI Adviser Adviser
----------------------------- -------------------------- -------------------------- ----------------------
Distribution Company Fund, Distributor or
(including postage) Adviser
----------------------------- -------------------------- -------------------------- ----------------------
Product SAI Printing Company Company
----------------------------- -------------------------- -------------------------- ----------------------
Distribution Company Company
----------------------------- -------------------------- -------------------------- ----------------------
Proxy Material for HIMCO VIT Printing if proxy Distributor or Adviser Fund, Distributor
Funds required by Law or Adviser
----------------------------- -------------------------- -------------------------- ----------------------
Distribution Company Fund, Distributor
(including labor) if or Adviser
proxy required
by Law
----------------------------- -------------------------- -------------------------- ----------------------
Printing & distribution Company Company
if required by Company
----------------------------- -------------------------- -------------------------- ----------------------
HIMCO VIT Funds Printing of reports Distributor or Fund, Distributor
Annual & Semi- Adviser or Adviser
Annual Report
----------------------------- -------------------------- -------------------------- ----------------------
----------------------------- -------------------------- -------------------------- ----------------------
ITEM FUNCTION PARTY RESPONSIBLE FOR PARTY RESPONSIBLE FOR
COORDINATION EXPENSE
----------------------------- -------------------------- -------------------------- ----------------------
Distribution Company Fund, Distributor
or Adviser
----------------------------- -------------------------- -------------------------- ----------------------
Other communication If Required by the Company Fund, Distributor
to New and Fund, Distributor or or Adviser
Prospective clients Adviser
----------------------------- -------------------------- -------------------------- ----------------------
If Required by Company Company
Company
----------------------------- -------------------------- -------------------------- ----------------------
Other communication to In Distribution Company Fund, Distributor
force (including labor and or Adviser
printing) if required
by the Fund,
Distributor or
Adviser
----------------------------- -------------------------- -------------------------- ----------------------
Distribution Company Company
(including labor and
printing) if required
by Company
----------------------------- -------------------------- -------------------------- ----------------------
Errors in Share Price Cost of error to Company Fund or Adviser
calculation pursuant participants
to Section 1.10
----------------------------- -------------------------- -------------------------- ----------------------
Cost of reasonable Company Fund or Adviser
expenses related to
administrative work
to correct error
----------------------------- -------------------------- -------------------------- ----------------------
----------------------------- -------------------------- -------------------------- ----------------------
ITEM FUNCTION PARTY RESPONSIBLE FOR PARTY RESPONSIBLE FOR
COORDINATION EXPENSE
----------------------------- -------------------------- -------------------------- ----------------------
Operations of the Fund All operations and Distributor or Fund or Adviser
related expenses, Adviser
including the cost of
registration and
qualification of
shares, taxes on the
issuance or transfer
of shares, cost of
management of the
business affairs of the
Fund, and expenses
paid or assumed by
the fund pursuant to
any Rule 12b-1 plan
----------------------------- -------------------------- -------------------------- ----------------------
Operations of the Federal registration Company Company
Accounts of units of separate
account (24f-2 fees)
----------------------------- -------------------------- -------------------------- ----------------------
SCHEDULE C
In consideration of the services provided by the Company (as may be carried out
by MassMutual), the Fund/the Distributor/the Adviser, as applicable agrees to
pay the Company an amount equal to the following basis points per annum on the
average aggregate amount invested by the Company's Separate Account(s) in each
Portfolio under the Fund Participation Agreement, such amounts to be paid within
30 days of the end of each month.
PORTFOLIO SHARE CLASS SERVICE FEES* RULE 12b-1 FEES**
---------------- --------------------- -------------------- --------------------
IA 15 bps N/A
---------------- --------------------- -------------------- --------------------
IB 15 bps 25 bps
---------------- --------------------- -------------------- --------------------
*Service Fees: Paid by the Adviser for various administrative services performed
by the Company (as may be carried out by Mass Mutual as administrator). Such
services may include, without limitation: printing or mailing of literature or
account information, and sub-TA or other account or recordkeeping services.
**Rule 12b-1 Fees: Paid by the Fund pursuant to a Rule 12b-1 Plan for expenses
related to the distribution of fund shares.
SCHEDULE D
RULE 22c-2 SHAREHOLDER INFORMATION AGREEMENT
THIS AGREEMENT is entered into as of October 10, 2014 by and between (i)
Hartford Life Insurance Company ("we" or "us") and (ii) HIMCO Distribution
Services Company ("you") in your capacity as the principal underwriter of the
series/portfolios of HIMCO Variable Insurance Trust (each a "Fund" and together
the "Funds").
WHEREAS, Rule 22c-2 under the Investment Company Act of 1940, as amended,
requires mutual funds to enter into "shareholder information agreements" with
financial intermediaries that hold fund shares on behalf of other investors in
"omnibus accounts" and submit orders to purchase or redeem fund shares on behalf
of such investors directly to the fund, its transfer agent or principal
underwriter; and
WHEREAS, shares of one or more of the Funds are purchased and redeemed on
an omnibus basis directly by our Accounts (as defined below) in connection with
for one or more Contracts (as defined below).
NOW, THEREFORE, in consideration of the premises and mutual covenants
contained below, the parties hereby agree as follows:
1. DEFINITIONS. As used in this Agreement, the following terms have the
following meanings, unless a different meaning is clearly required by the
context:
(a) "ACCOUNT" means an insurance company separate account sponsored or
administered by us.
(b) "BUSINESS DAY" means any day that the New York Stock Exchange is open
for trading.
(c) "CONFIDENTIAL INFORMATION" includes, but is not limited to: (i)
"Nonpublic Personal Information" as defined in Title V of the Xxxxx-Xxxxx-Xxxxxx
Act of 1999 or any successor federal or state statute, and the rules and
regulations thereunder, all as may be amended or supplemented from time to time,
(ii) "Protected Health Information" as such term is defined in the Health
Insurance Portability and Accountability Act of 1996, or any successor federal
or state statute, and the rules and regulations thereunder, all as may be
amended or supplemented from time to time; and (iii) "Shareholder Information"
as such term is defined below.
(d) "CONTRACT" means a variable annuity contract, variable life insurance
policy or variable funding agreement issued through an Account.
(e) "FUND POLICIES" means policies established by the Fund and
communicated to us in writing for the purpose of eliminating or reducing
potentially harmful market timing or frequent trading in shares of the Fund as
described in the Fund's prospectus or statement of additional information as
amended from time to time. This term "Fund" does not include any "excepted
funds" as defined in Rule 22c-2(b), 17 C.F.R. 270.22c-2(b).
(f) "INDIRECT INTERMEDIARY" means a "financial intermediary" as defined by
Rule 22c-2(c)(5)(iii)(excluding any exempted financial intermediary pursuant to
Rule 22c-2(c)(1)(iv)) that transmits purchase and redemption orders directly to
us on behalf of Shareholders with respect to a Contract invested in a Fund
through an Account.
(g) "SHAREHOLDER" means (1) the holder of interests in a Contract or (2) a
participant in an employee benefit plan with a beneficial interest in a
Contract.
(h) "SHAREHOLDER-INITIATED TRANSFER PURCHASE" means a transaction that is
initiated or directed by a Shareholder that results in a transfer of assets
within a Contract to a Fund, but does not include transactions that are
executed: (i) automatically pursuant to contractual or systematic programs or
enrollments such as transfers of assets within a Contract to a Fund as a result
of "dollar cost averaging" programs, asset allocation programs and automatic
rebalancing programs; (ii) pursuant to a Contract death benefit; (iii) a step-up
(or comparable benefit) in Contract value (or comparable benefit base) pursuant
to a Contract death benefit or guaranteed minimum withdrawal benefit; or (iv)
allocation of assets to a Fund through a Contract as a result of payments such
as loan repayments, scheduled contributions, or retirement plan salary reduction
contributions, or planned premium payments to the Contract.
(i) "SHAREHOLDER-INITIATED TRANSFER REDEMPTION" means a transaction that
is initiated or directed by a Shareholder that results in a transfer of assets
within a Contract out of a Fund, but does not include transactions that are
executed: (i) automatically pursuant to contractual or systematic programs or
enrollments such as transfers of assets within a Contract out of a Fund as a
result of annuity payouts, loans, systematic withdrawal programs, asset
allocation programs and automatic rebalancing programs; (ii) as a result of any
deduction of charges or fees under a Contract; (iii) within a Contract out of a
Fund as a result of scheduled withdrawals or surrenders from a Contract; or (iv)
as a result of the payment of a death benefit from a Contract.
(j) "WRITTEN" means any communication other than an oral communication
transmitted in paper, electronically or by facsimile.
2. AGREEMENT TO PROVIDE REQUESTED SHAREHOLDER INFORMATION. Effective as of the
date of this Agreement, we agree to use our best efforts to provide the
following information to you solely for the purpose of facilitating your
compliance with Rule 22c-2. Nothing herein, nor any action by us, shall be
construed as, or inferred to mean that we have undertaken any duty or
obligation, whether express or implied, at law or in equity, to detect abusive
trading activities pursuant to the Fund Policies. We agree to provide to you,
upon prior written request, the following information that is on our books and
records (collectively, "Shareholder Information") for all Shareholders that
engaged in any purchase, redemption, transfer or exchange transactions in the
Fund shares through an Account during the period covered by the request, if
known:
(a) the taxpayer identification number ("TIN"), Individual/International
Taxpayer Identification Number ("ITIN") or other government issued identifier
("GII");
(b) the individual Contract number or participant account number
associated with the Shareholder;
(c) the amount and date(s) and transaction type (purchase, redemption,
transfer, or exchange); and
(d) any other data mutually agreed upon in writing.
Unless otherwise specifically requested by you, this Paragraph 2 shall be
understood to require us to provide only Shareholder Information relating to
Shareholder-Initiated Transfer Purchases and Shareholder-Initiated Transfer
Redemptions.
All requests must contain the relevant fund account number, CUSIP, trade amount
and date. Requests must be made to us directly via e-mail at:
XXXxxxXxx00x0Xxxxxxxx@xxxxxxxxxx.xxx
or such other address we may communicate to you in writing from time to time
(including without limitation communications by the administrator signatory
hereto).
3. PERIOD COVERED BY REQUEST AND FREQUENCY OF REQUESTS. Requests to provide
Shareholder Information shall set forth the specific period for which it is
sought. In no event shall such period begin more than six months prior to the
date of the request for information or cover a period greater than thirty (30)
days. You will not request information more often than once in any twelve-month
period except for good cause. For purposes of this Agreement, good cause will
exist where you have a reasonable belief that Shareholder transactions submitted
to the Fund indicate potential market timing or excessive trading activity or
other violation of Fund Policies.
4. FORM AND TIMING OF RESPONSE; PROCEDURES REGARDING INDIRECT INTERMEDIARIES.
(a) We agree to provide the requested Shareholder Information that is on our
books and records to you promptly, but in any event not later than 10 Business
Days after receipt of a good order request given in accordance with Paragraph 2
above, which shall contain the fund account number, CUSIP, trade amount and
date. If you so request, we agree to use best efforts to promptly determine
whether any specific person, identified by you from the requested Shareholder
Information, is itself an Indirect Intermediary. Upon your further request,
which must be given in accordance with Paragraph 2 above, we agree to use best
efforts either to: (i) provide (or arrange to have provided) the requested
Shareholder Information from the Indirect Intermediary; or (ii) if the Indirect
Intermediary refuses to provide the requested Shareholder Information and you so
direct us in writing, restrict or prohibit further purchases of Fund shares by
such Indirect Intermediary through the Account. We agree to inform you whether
we plan to perform (i) or (ii).
(b) Responses required by this paragraph must be communicated in writing and in
a format mutually agreed upon by the parties.
(c) To the extent reasonably practicable, the format for any Shareholder
Information provided to you will be consistent with the NSCC Standardized Data
Reporting Format.
5. LIMITATION ON USE OF INFORMATION. You agree that you shall not use the
information received pursuant to this Agreement, including any Confidential
Information, for any purpose other than to comply with Rule 22c-2. You and your
affiliates shall observe applicable state and federal privacy laws, rules and
regulations with respect to Confidential Information. You shall
safeguard all Confidential Information and promptly notify us of any voluntary
or involuntary dissemination thereof. Neither you nor any of your affiliates or
subsidiaries may use any information provided pursuant to this Agreement for
marketing or solicitation purposes.
6. AGREEMENT TO RESTRICT TRADING. We agree to execute reasonable, clear and
unequivocal written instructions from you given on behalf of the Fund to
restrict or prohibit further purchases of Fund shares by a Shareholder that has
been identified by you as having engaged in transactions of the Fund's shares
(directly or indirectly through an Account) that violate Fund Policies. Unless
you specifically direct us otherwise, such restrictions and prohibitions shall
apply only to Shareholder-Initiated Transfer Purchases and Shareholder-Initiated
Transfer Redemptions. We will execute such restrictions with respect to the
Shareholder, but only for the Contract through which such transactions in the
Fund's shares occurred. We will not impose any restriction, and nothing in this
Agreement shall require that we impose any restriction, on a Shareholder based
on any transactions other than transactions in the Fund's shares through an
Account. Instructions must be received by us via email at the following address:
XXXxxxXxx00x0Xxxxxxxx@xxxxxxxxxx.xxx , or such other address that we may
communicate to you in writing from time to time. Other correspondence may be
sent to us at the following address, or such other address that we may
communicate to you in writing from time to time:
Massachusetts Mutual Life Insurance Company
0000 Xxxxx Xxxxxx, XXX X000-XXXXX
Xxxxxxxxxxx, XX 00000
7. FORM OF INSTRUCTIONS. Instructions given in accordance with Paragraph 6 shall
be given to us via e-mail in a mutually agreed upon file format. The
instructions in the file must include:
(a) the fund account number;
(b) the Shareholder's TIN, ITIN or GII, if known;
(c) the specific individual Contract owner number or participant account
number (if known) associated with the Shareholder;
(d) the specific restriction(s) to be executed with respect to such
Shareholder, including how long such restriction(s) are to remain in place; and
(e) a brief written statement that may be provided to the Shareholder,
explaining how the Shareholder's transfer activity violated Fund Policies.
If the TIN is not known, the instructions must include an equivalent identifying
number of the Shareholder(s) or account(s) or other agreed upon information to
which the instruction relates.
8. TIMING OF RESPONSE. We agree to use reasonable efforts to execute
instructions given in accordance with Paragraphs 6 and 7 promptly, but in any
event not later than 10 Business Days after receipt of such instructions. We
will provide written confirmation to you or your designee as soon as reasonably
practicable that instructions have been executed.
9. CONSTRUCTION OF THE AGREEMENT; FUND PARTICIPATION AGREEMENTS. The parties
have entered into one or more Fund Participation Agreements between or among
them for the purchase and redemption of shares of the Funds by the Accounts in
connection with the Contracts. This Agreement supplements those Fund
Participation Agreements. To the extent the terms of this Agreement conflict
with the terms of a Fund Participation Agreement, the terms of this Agreement
shall control.
10. TERMINATION. This Agreement will terminate upon the termination of the Fund
Participation Agreements.
11. AMENDMENT. This Agreement may be modified or amended, and the terms of this
Agreement may be waived, only by a writing signed by the parties.
12. BINDING EFFECT. This Agreement shall be binding upon, and inure to the
benefit of, the parties hereto and their respective successors and assigns.
13. COUNTERPARTS. This Agreement may be executed in one or more counterparts
each of which, when taken together, shall constitute a single instrument.
HARTFORD LIFE INSURANCE COMPANY
BY MASSACHUSETTS MUTUAL LIFE INSURANCE COMPANY,
ITS ADMINISTRATOR
By: /s/ Xxxx Xxxxxxx
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Name: Xxxx Xxxxxxx
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Title: Senior Vice President
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HIMCO DISTRIBUTION SERVICES COMPANY
By: /s/ Xxxxxxx Xxxxxx
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Name:
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Title:
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Address for communications:
HDSC x/x XXXXX
Xxx Xxxxxxxx Xxxxx
Xxxxxxxx, XX 00000
Attention General Counsel
