Ex 26(h)(7)(i)
PARTICIPATION AGREEMENT
Among
XXX XXX WORLDWIDE INSURANCE TRUST,
XXX XXX SECURITIES CORPORATION.
XXX XXX ASSOCIATES CORPORATION
and
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THIS AGREEMENT, made and entered into to be effective on January 1,
2007, by and among MINNESOTA LIFE INSURANCE COMPANY, (hereinafter the
"Company"), a Minnesota corporation, on its own behalf and on behalf of each
segregated asset account of the Company set forth on Schedule A hereto and
incorporated herein by this reference, as such Schedule A may from time to
time be amended by mutual written agreement of the parties hereto (each such
account hereinafter referred to as the "Account"), and XXX XXX WORLDWIDE
INSURANCE TRUST, an unincorporated business trust organized under the laws of
the Commonwealth of Massachusetts (hereinafter the "Fund"), XXX XXX
SECURITIES CORPORATION (hereinafter the "Underwriter"), a Delaware
corporation and XXX XXX ASSOCIATES CORPORATION (hereinafter the "Adviser"), a
Delaware corporation.
WHEREAS, the Fund engages in business as an open-end management
investment company and is available to act as the investment vehicle for
separate accounts established for variable life insurance policies and
variable annuity contracts (hereafter referred to collectively as the
"Variable Insurance Products") to be offered by insurance companies which
have entered into participation agreements with the Fund and the Underwriter
(hereinafter the "Participating Insurance Companies"); and
WHEREAS, the beneficial interest in the Fund is divided into several
series of shares, each representing the interest in a particular managed
portfolio of securities and other assets (each such series hereinafter
referred to as a "Portfolio"); and
WHEREAS, the Fund has obtained an order from the Securities and Exchange
Commission (hereinafter the "SEC") (File No. 811-5083), 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 of the Fund to be sold
to and held by variable annuity and variable life insurance separate accounts
of both affiliated and unaffiliated life insurance companies (hereinafter the
"Shared Funding Order"); and
WHEREAS, the Fund is registered as an open-end management investment
company under the 1940 Act and its shares are registered under the Securities
Act of 1933, as amended (hereinafter the "1933 Act"); and
WHEREAS, the Company has registered or will register certain variable
life insurance and variable annuity contracts under the 1933 Act, unless such
contracts are exempt from registration thereunder; and
WHEREAS, each Account is a duly organized, validly existing segregated
asset account, established by resolution of the Board of Directors of the
Company, on the date shown for such Account on Schedule A hereto, to set
aside and invest assets attributable to the aforesaid variable life insurance
and variable annuity contracts; and
WHEREAS, the Company has registered or will register each Account as a
unit investment trust under the 1940 Act, unless such Account is exempt from
registration thereunder; and
WHEREAS, the Underwriter is registered as a broker-dealer with the SEC
under the Securities Exchange Act of 1934, as amended (hereinafter the "1934
Act"), and is a member in good standing of the National Association of
Securities Dealers, Inc. (hereinafter the "NASD"); and
WHEREAS, the Adviser is duly registered as an investment adviser under
the Investment Advisers Act of 1940 and any applicable state securities law;
and
WHEREAS, to the extent permitted by applicable insurance laws and
regulations, the Company intends to purchase shares in the Portfolios on
behalf of each Account to fund certain of the aforesaid variable life and
variable annuity contracts and the Underwriter is authorized to sell such
shares to unit investment trusts such as each Account at net asset value;
NOW, THEREFORE, in consideration of their mutual promises, the Company,
the Fund, the Underwriter and the Adviser agree as follows:
ARTICLE I
SALE OF FUND SHARES
1.1. The Underwriter agrees to sell to the Company those shares of the
Portfolios (which are listed on Schedule B attached hereto and incorporated
herein by this reference, as such Schedule B may from time to time be amended
by mutual written agreement of the parties hereto) which each Account orders,
executing such orders on a daily basis at the net asset value per share next
computed after receipt by the Fund or its designee of the order for the
shares of the Portfolios, at the time of computation as stated in the Fund's
registration statement ("Cutoff Time"), subject to the terms and conditions
of this Agreement. The Cutoff Time generally is 4:00 p.m. (Eastern Time) on
that Business Day. For purposes of this Section 1.1, the Company shall be
the designee of the Fund for receipt of such orders from each Account and
receipt by such designee shall constitute receipt by the Fund; provided that
the Fund receives notice of such
order by 9:00 a.m. Eastern time on the next following Business Day. "Business
Day" shall mean any day on which the New York Stock Exchange is open for
business and on which the Fund calculates the Portfolios' net asset values
pursuant to the rules of the SEC. In no event shall the Company accept any
order with respect to the Fund or any portfolio thereof after the Cutoff Time
or any other time that may be established by law, rule, or regulation,
including the rules of an appropriate Self-Regulatory Organization.
1.2. The Fund agrees to make Portfolio shares available for purchase at
the applicable net asset value per share by the Company and its Accounts on
those days on which the Fund calculates net asset values pursuant to the
rules of the SEC and the Fund shall use reasonable efforts to calculate such
net asset values on each day on which the New York Stock Exchange is open for
trading. Notwithstanding the foregoing, the Board of Trustees of the Fund
(hereinafter the "Board") may refuse to sell shares of any Portfolio to any
person, or suspend or terminate the offering of shares of any Portfolio, if
such action is required by law or by regulatory authorities having
jurisdiction, or if it is, in the sole discretion of the Board, desirable or
advisable, and in the best interests of the shareholders of such Portfolio.
1.3. The Fund and the Underwriter agree that shares of the Fund will be
sold only to Participating Insurance Companies and their separate accounts or
other accounts (e.g., qualified retirement plans) as may be permitted so that
the Variable Insurance Products continue to qualify as a "life insurance,
annuity or variable contract" under Section 817(h) of the Internal Revenue
Code of 1986, as amended (hereinafter the "Code"). No shares of any
Portfolio will be sold to the general public.
1.4. The Fund and the Underwriter will not sell Fund shares to any
insurance company, separate account or other account unless an agreement
containing provisions substantially the same as Article I, Section 2.5 of
Article II, Sections 3.4 and 3.5 of Article III, Article V and Article VIII
of this Agreement is in effect to govern such sales.
1.5. Subject to its rights under Section 18(f) of the 1940 Act, the
Fund agrees to redeem for cash, on the Company's request, any full or
fractional shares of a Portfolio held by the Company, executing such requests
on a daily basis at the net asset value per share next computed after receipt
by the Fund or its designee of the request for redemption. For purposes of
this Section 1.5, the Company shall be the designee of the Fund for receipt
of requests for redemption from each Account and receipt by such designee
shall constitute receipt by the Fund; provided that the Fund receives notice
of such request for redemption by 9:00 a.m., Eastern Time, on the next
following Business Day. Payment of redemption proceeds for any whole or
fractional shares shall be made within seven days of actual receipt of the
redemption request by the Fund, or within such greater or lesser period as
may be permitted by law or rule, regulation, interpretive position or order
of the SEC.
1.6. The Company agrees that purchases and redemptions of Portfolio
shares offered by the then-current prospectus of the Fund shall be made in
accordance with the provisions of such prospectus. The Company agrees that
all net amounts available in the Accounts which are listed in Schedule A
attached hereto and incorporated herein by this reference, as such Schedule A
may from time to time be amended by mutual written agreement of the parties
hereto (the
"Contracts"), shall be invested in the Portfolios and in such other funds
advised by the Adviser as are listed in Schedule B, or in the Company's
general account; provided that such amounts may also be invested in an
investment company other than the Fund if (a) such other investment company,
or series thereof, has investment objectives or policies that are
substantially different from the investment objectives and policies of all
the Portfolios of the Fund; or (b) the Company gives the Fund and the
Underwriter 45 days' written notice of its intention to make such other
investment company available as a funding vehicle for the Contracts; or (c)
such other investment company was available as a funding vehicle for the
Contracts prior to the date of this Agreement and the Company so informs the
Fund and Underwriter prior to their signing this Agreement (a list of such
funds appearing on Schedule C to this Agreement); or (d) the Fund or
Underwriter consents in writing to the use of such other investment company.
1.7. The Company shall pay for Portfolio shares on the next Business
Day after an order to purchase such shares is made in accordance with the
provisions of this Article I. Payment shall be in federal funds transmitted
by wire. For purposes of Sections 2.10 and 2.11, upon receipt by the Fund of
the federal funds so wired, such funds shall cease to be the responsibility
of the Company and shall become the responsibility of the Fund.
1.8. Issuance and transfer of the Fund's shares will be by book entry
only. Stock certificates will not be issued to the Company or any Account.
Shares ordered from the Fund will be recorded in an appropriate title for
each Account or the appropriate subaccount of each Account.
1.9. The Fund shall furnish same day notice (by wire or telephone,
followed by written confirmation) to the Company of any income dividends or
capital gain distributions payable on the Portfolios' shares. The Company
hereby elects to receive all such income dividends and capital gain
distributions as are payable on the Portfolio shares in additional shares of
that Portfolio. The Company reserves the right to revoke this election and to
receive all such income dividends and capital gain distributions in cash. The
Fund shall notify the Company of the number of shares so issued as payment of
such dividends and distributions.
1.10. The Fund shall make the net asset value per share for each
Portfolio available to the Company on a daily basis as soon as reasonably
practical after the net asset value per share is calculated (normally by 6:30
p.m., Eastern Time) and shall use its best efforts to make such net asset
value per share available by 7:00 p.m., Eastern Time. This time for
transmission shall not be considered the Cutoff Time.
ARTICLE II
REPRESENTATIONS AND WARRANTIES
2.1. The Company represents and warrants that the Contracts are or will
be registered under the 1933 Act or exempt therefrom; that the Contracts will
be issued and sold in compliance in all material respects with all applicable
federal and state laws and that the sale of the Contracts shall comply in all
material respects with state insurance suitability requirements. The Company
further represents and warrants that it is an insurance company duly
organized and in good standing under applicable law and that it has legally
and validly established each Account prior
to any issuance or sale thereof as a segregated asset account under the
Insurance Code and Regulations of the State of Minnesota, and has registered
or, prior to any issuance or sale of the Contracts, will, unless exempt from
registration, register 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.
2.2. The Company represents that the Contracts will be eligible for
treatment as life insurance or annuity contracts under applicable provisions
of the Code and that it will make every effort to maintain such treatment and
that it will notify the Fund and the Underwriter promptly upon having
determined that the Contracts may have ceased to be so treated or that they
might not be so treated in the future.
2.3. The Company represents and warrants that all of its
directors/trustees, employees, investment advisers and other
individuals/entities dealing with money and/or securities of the Fund are and
shall continue to be at all times covered by a blanket fidelity bond or
similar coverage for the benefit of the Fund, in an amount not less than $5
million. The aforesaid bond shall include coverage for larceny and
embezzlement and shall be issued by a reputable bonding company. The Company
shall notify the Fund, the Underwriter and the Adviser in the event that such
coverage no longer applies.
2.4. The Fund represents and warrants that Fund shares sold pursuant to
this Agreement are registered under the 1933 Act, duly authorized for
issuance and sale in compliance in all material respects with the terms of
this Agreement and all applicable federal and state securities laws, and
that, while shares of the Portfolios are being offered for sale, the Fund is
and shall remain registered under the 1940 Act. The Fund shall amend its
Registration Statement under the 1933 Act and the 1940 Act from time to time
as required in order to effect the continuous offering of Portfolio shares.
The Fund shall register or otherwise qualify the shares for sale in
accordance with the laws of the various states only if and to the extent
deemed advisable by the Fund or the Underwriter.
2.5. The Fund represents that each Portfolio is qualified as a
Regulated Investment Company under Subchapter M of the Code and that it will
make every effort to maintain such qualification (under Subchapter M or any
successor or similar provision) and that it will notify the Company promptly
upon having determined that any Portfolio may have ceased to so qualify or
that it might not so qualify in the future.
2.6. The Fund currently does not intend to make any payments to finance
distribution expenses pursuant to Rule 12b-1 under the 1940 Act or otherwise,
although it may make such payments in the future. To the extent that it
decides to finance distribution expenses pursuant to Rule 12b-1, the Fund
undertakes to have a board of trustees, a majority of whom are not interested
persons of the Fund, formulate and approve any plan under Rule 12b-1 to
finance distribution expenses.
2.7. The Fund makes no representation as to whether any aspect of its
operations (including, but not limited to, fees, expenses and investment
policies) complies with the insurance laws or regulations of the various
states except that the Fund represents that the Fund
has disclosed or made available, in writing, all information requested by
Company and represents and warrants that such written information is true and
accurate in all material respects as of the effective date of this Agreement.
Without prior written notice to the Company, the Fund will not make any
changes in fundamental investment policies or advisory fees, and shall at all
times remain in compliance with federal securities law as it applies to
insurance products. The Company will use its best efforts to provide the Fund
with copies of amendments to provisions of state insurance laws and
regulations related to separate accounts and variable products, which may
affect Fund operations.
2.8. The Fund represents that it is lawfully organized and validly
existing under the laws of the Commonwealth of Massachusetts and that it does
and will comply in all material respects with the 1940 Act.
2.9. The Underwriter represents and warrants that it is a member in
good standing of the NASD and is registered as a broker-dealer with the SEC.
The Underwriter further represents that it will sell and distribute Portfolio
shares to the Company in accordance with all applicable state and federal
securities laws, including, without limitation, the 1933 Act, the 1934 Act
and the 0000 Xxx.
2.10. The Adviser represents and warrants that it is and shall remain
duly registered in all material respects under all applicable federal and
state securities laws and that it shall perform its obligations for the Fund
in compliance in all material respects with any applicable state and federal
securities laws.
2.11. The Fund, the Underwriter and the Adviser represent and warrant
that all of their directors/trustees, officers, employees, investment
advisers and other individuals/entities dealing with money and/or securities
of the Fund are and shall continue to be at all times covered by a blanket
fidelity bond or similar coverage for the benefit of the Fund, in an amount
not less than the minimum coverage as required by Rule 17g-1 of the 1940 Act
or related provisions as may from time to time be promulgated. The aforesaid
bond shall include coverage for larceny and embezzlement and shall be issued
by a reputable bonding company. The Fund shall notify the Company in the
event such coverage no longer applies.
ARTICLE III
PROSPECTUSES AND PROXY STATEMENTS; VOTING
3.1. The Underwriter shall provide the Company (at the Underwriter's
expense) with as many copies of the Fund's current prospectus as the Company
may reasonably request. If requested by the Company in lieu thereof, the Fund
shall provide such documentation (including a final copy of the new
prospectus as set in type at the Fund's expense) 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
(or private offering memorandum, if a Contract and its associated Account are
exempt from registration) for the Contracts and the Fund's prospectus printed
together in one document (such printing to be at the Company's expense).
3.2. The Fund's prospectus shall state that the Statement of Additional
Information for the Fund is available from the Underwriter (or in the Fund's
discretion, from the Fund), and the Underwriter (or the Fund), at its
expense, shall provide such Statement of Additional Information free of
charge to the Company and to any owner of a Contract or prospective owner who
requests such Statement.
3.3. The Fund, at its expense, shall provide the Company with copies of
its proxy statements, reports to shareholders, and other communications to
shareholders in such quantity as the Company shall reasonably require for
distributing to Contract owners. At the Fund's request, the Company shall
assist in the distribution of the materials contemplated by this Article 3.3
to Contract owners, provided, however, that Fund shall be responsible for all
postage and tabulation expenses and costs payable to the United States Postal
Service or other vendor for such distribution.
3.4. If and to the extent required by law, the Company shall:
(i) solicit voting instructions from Contract owners;
(ii) vote Portfolio shares in accordance with instructions received
from Contract owners; and
(iii) vote Portfolio shares for which no instructions have been
received in the same proportion as shares of such Portfolio for
which instructions have been received,
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. The
Company reserves the right to vote Fund shares held in any segregated asset
account in its own right, to the extent permitted by law. The Company shall
be responsible for assuring that each of its separate accounts participating
in the Fund calculates voting privileges in a manner consistent with the
standards set forth in the Shared Funding Order and rules and regulations of
the SEC, which standards will also be provided to other Participating
Insurance Companies.
3.5. The Fund will comply with all provisions of the 1940 Act requiring
voting by shareholders, and in particular, the Fund will either provide for
annual meetings or comply with Section 16(c) of the 1940 Act (although the
Fund is not 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, the Fund
will act in accordance with the SEC's interpretation of the requirements of
Section 16(a) with respect to periodic elections of trustees and with
whatever rules the SEC may promulgate with respect thereto.
ARTICLE IV
SALES MATERIAL AND INFORMATION
4.1. The Company shall furnish, or shall cause to be furnished, to the
Fund or its designee, each piece of sales literature or other promotional
material in which the Fund, the
Underwriter or the Adviser is named, at least fifteen Business Days prior to
its use. No such material shall be used unless approved in writing by the
Fund or the Underwriter. The Fund and the Underwriter will use reasonable
best efforts to provide the Company with written response within ten Business
Days of receipt of such materials. Any piece which merely names the Fund,
the Underwriter or the Adviser as participating in the Variable Insurance
Products may be used after ten Business Days of receipt by the Fund and the
Underwriter if the Company has not received a written response from the Fund
or the Underwriter.
4.2. The Company shall not give any information or make any
representations or statements on behalf of the Fund or concerning the Fund in
connection with the sale of the Contracts other than the information or
representations contained in the registration statement or prospectus for the
Fund, as such registration statement and prospectus may from time to time be
amended or supplemented, or in reports or proxy statements for the Fund, or
in sales literature or other promotional material provided to the Company by
the Fund or its designee or by the Underwriter, except with the written
permission of the Fund or the Underwriter, pursuant to Section 4.1 hereof.
4.3. The Company agrees that neither the Fund, the Underwriter nor the
Adviser will be responsible for any errors or omissions in communications
prepared for Contract owners except to the extent that the error or omission
resulted from information provided by or on behalf of the Underwriter or the
Fund. In no event shall the Fund, any portfolio of the Fund, the
shareholders of any such portfolio or any officers or trustees of the Fund
have any liability or responsibility with respect to any sales literature or
promotional material.
4.4. The Fund, the Underwriter or their designee shall furnish, or
shall cause to be furnished, to the Company or its designee, each piece of
sales literature or other promotional material in which the Company and/or
its separate account(s), is named at least fifteen Business Days prior to its
use. No such material shall be used unless approved in writing by the Company
or its designee. The Company will use reasonable best efforts to provide the
Fund with written response within ten Business Days of receipt of such
materials. Any piece which merely states that the Fund, the Underwriter or
the Adviser are participating in the Variable Insurance Products may be used
after ten Business Days after receipt by the Company if the Fund or the
Underwriter have not received a written response from the Company.
4.5. The Fund and the Underwriter shall not give any information or
make any representations on behalf of the Company or concerning the Company,
each Account, or the Contracts other than the information or representations
contained in a registration statement or prospectus for the Contracts, as
such registration statement and prospectus may from time to time be amended
or supplemented, or in published reports which are in the public domain or
approved by the Company for distribution to Contract owners, or in sales
literature or other promotional material approved by the Company or its
designee, except with the permission of the Company.
4.6. The Fund will provide to the Company at least one complete copy of
all registration statements, prospectuses, Statements of Additional
Information, reports, proxy statements, sales literature and other
promotional materials, applications for exemptions, requests
for no-action letters, and all amendments to any of the above, that relate to
any of the Portfolios or their shares, promptly following the filing of such
document with the SEC or other regulatory authorities.
4.7. The Company will provide to the Fund at least one complete copy of
all registration statements, prospectuses, Statements of Additional
Information, reports, solicitations for voting instructions, sales literature
and other promotional materials, applications for exemptions, requests for
no-action letters, and all amendments to any of the above, that relate to the
Contracts or each Account, promptly following the filing of such document
with the SEC or other regulatory authorities; and, if a Contract and its
associated Account are exempt from registration, the equivalents to the above.
4.8. For purposes of this Agreement, the phrase "sales literature or
other promotional material" includes, but is not limited to, any of the
following that refer to the Fund or any affiliate of the Fund: advertisements
(such as material published or designed for use in a newspaper, magazine, or
other periodical, radio, television, telephone or tape recording, videotape
or electronic display, signs or billboards, motion pictures, or other public
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.
ARTICLE V
FEES AND EXPENSES
5.1. The Fund and the Underwriter shall pay no fee or other
compensation to the Company under this Agreement, except that if the Fund or
any Portfolio adopts and implements a plan pursuant to Rule 12b-1 to finance
distribution expenses, then the Underwriter may make payments to the Company
or to the underwriter for the Contracts if and in amounts agreed to by the
Underwriter in writing and such payments will be made out of existing fees
otherwise payable to the Underwriter, past profits of the Underwriter or
other resources available to the Underwriter. No such payments shall be made
directly by the Fund. Currently, no such payments are contemplated. The
foregoing notwithstanding, this Article 5.1 shall not prohibit, nor be
construed so as to prohibit, the payment of postage and tabulation expense
and costs to the United States Postal Service or other vendor as contemplated
by Article 3.3.
5.2. Except as otherwise expressly provided in the Agreement, all
expenses incident to performance by the Fund under this Agreement shall be
paid by the Fund. The Fund shall see to it that all Portfolio shares are
registered and authorized for issuance in accordance with applicable federal
law and, if and to the extent deemed advisable by the Fund, in accordance
with applicable state laws prior to their sale. The Fund shall bear the
expenses for the cost of registration and qualification of the Portfolios'
shares, preparation and filing of the Fund's prospectus and registration
statement, proxy materials and reports, setting the prospectus in type,
setting in type and printing the proxy materials and reports to shareholders
(including the costs of printing a prospectus that constitutes an annual
report), the preparation of all statements and
notices required by any federal or state law, the postage and tabulation
charges associated with the distribution of all such materials, and all taxes
on the issuance or transfer of the Portfolios' shares.
5.3. The Company shall bear the expenses of printing and distributing
the Fund's prospectus to owners of Contracts issued by the Company and of
distributing the Fund's proxy materials and reports to such Contract owners.
ARTICLE VI
DIVERSIFICATION
6.1. The Fund will at all times invest money from the Contracts in such
a manner as to ensure that the Contracts will be treated as variable
contracts under the Code and the regulations issued thereunder. Without
limiting the scope of the foregoing, the Fund will at all times comply with
Section 817(h) of the Code and Treasury Regulation 1.817-5, relating to the
diversification requirements for variable annuity, endowment or life
insurance contracts and any amendments or other modifications to such Section
or Regulation. In the event of a breach of this Article VI by the Fund, it
will take all reasonable steps (a) to notify Company of such breach and (b)
to adequately diversify the Fund so as to achieve compliance with the grace
period afforded by Regulation 1.817-5.
ARTICLE VII
ADDITIONAL AGREEMENTS
7.1. The Company agrees that it will offer or sell Fund shares in
compliance with all applicable federal and state law and regulation
including, without limitation, the Securities Exchange Act of 1934 ("Exchange
Act"), the 1940 Act and the 0000 Xxx.
7.2. The Company additionally agrees to comply with (1) all applicable
compensation disclosure requirements, including any requirements related to
revenue sharing; (2) all suitability requirements; (3) all applicable law,
rule and regulation related to the protection of the privacy and safeguarding
of information of beneficial owners of Fund shares and their accounts,
including, without limitation, Regulation S-P; and (4) the Bank Secrecy Act,
as amended, and other applicable anti-money laundering law, regulation, rules
or interpretations thereunder, including without limitation those applicable
to customer identification procedures, the filing of suspicious activity
reports and the adoption and maintenance of an anti-money laundering program.
In addition, the Company will comply with all requirements to verify whether
its customers or potential customers may not purchase Fund shares by reason
of being a person, country or other entity forbidden to do so by the Office
of Foreign Assets Control of the U.S. Department of Treasury or any similar
list maintained by the United States government or its agencies or
instrumentalities or any applicable self-regulatory organization.
7.3. Upon request of one of the other parties to this Participation
Agreement, the Company will provide a certification of its compliance with
the Bank Secrecy Act or other anti-money laundering law or regulation or
rule, that is satisfactory to such other party.
ARTICLE VIII
POTENTIAL CONFLICTS
8.1. The Board will monitor the Fund for the existence of any material
irreconcilable conflict between the interests of the contract owners of all
separate accounts investing in the Fund. A material irreconcilable conflict
may arise for a variety of reasons, including: (a) an action by any state
insurance regulatory authority; (b) a change in applicable federal or state
insurance, tax or securities laws or regulations, or a public ruling, private
letter ruling, no-action or interpretive letter or any similar action by
insurance, tax, or securities regulatory authorities; (c) an administrative
or judicial decision in any relevant proceeding; (d) the manner in which the
investments of a Portfolio are being managed; (e) a difference in voting
instructions given by variable annuity contract and variable life insurance
contract owners; or (f) a decision by a Participating Insurance Company to
disregard the voting instructions of 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 to the
Board. The Company will assist the Board in carrying out its responsibilities
under the Shared Funding Order, by providing the Board 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 the
Board whenever any of the events in Section 8.1, as they pertain to the
Company, occur (e.g., a decision to disregard contract owner voting
instructions).
8.3. If it is determined by a majority of the Board, or a majority of
its disinterested trustees, that a material irreconcilable conflict exists,
the Company and other Participating Insurance Companies shall, at their
expense and to the extent reasonably practicable (as determined by a majority
of the disinterested trustees), take whatever steps are necessary to remedy
or eliminate the material irreconcilable conflict, up to and including: (1)
withdrawing the assets allocable to some or all of the separate accounts from
the Fund or any Portfolio and reinvesting such assets in a different
investment medium, including (but not limited to) another Portfolio of the
Fund, or submitting the question whether such segregation should be
implemented to a vote of all affected Contract owners and, as appropriate,
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.
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 Fund's election, to withdraw the affected
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 disinterested trustees of the
Board. Any such withdrawal and termination must take place within six months
after the Fund gives written notice that this provision is being
implemented, and until the end of that six month period the Fund and the
Underwriter shall continue to accept and implement orders by the Company for
the purchase (and redemption) of shares of the Fund.
8.5. If a material irreconcilable conflict arises because a particular
state insurance regulator's decision applicable to the Company conflicts with
that of other state regulators, then the Company will withdraw the affected
Account's investment in the Fund and terminate this Agreement with respect to
such Account within six months after the Board informs the Company in writing
that it has determined that such decision has created a material
irreconcilable conflict; provided, however, that such withdrawal and
termination shall be limited to the extent required by the foregoing material
irreconcilable conflict as determined by a majority of the disinterested
trustees of the Board. Until the end of that six month period, the Fund and
the Underwriter shall continue to accept and implement orders by the Company
for the purchase (and redemption) of shares of the Fund.
8.6. For purposes of Sections 8.3 through 8.6 of this Agreement, a
majority of the disinterested trustees of the Board shall determine whether
any proposed action adequately remedies a material irreconcilable conflict,
but in no event will the Fund be required to establish a new 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 materially adversely
affected by the material irreconcilable conflict. In the event that the Board
determines that any proposed action does not adequately remedy a material
irreconcilable conflict, then the Company will withdraw the Account's
investment in the Fund and terminate this Agreement within six 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 disinterested trustees of the Board.
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 Shared Funding Order) on terms and
conditions materially different from those contained in the Shared Funding
Order, then (a) the Fund and/or the Participating Insurance Companies, 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 3.4, 3.5, 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.
ARTICLE IX
INDEMNIFICATION
9.1. INDEMNIFICATION BY THE COMPANY
9.1(a). The Company agrees to indemnify and hold harmless the Fund, the
Underwriter and the Adviser and each trustee/director and officer thereof and
each person, if any, who controls the Fund, the Underwriter, 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, damages, liabilities (including
amounts paid in settlement with the written consent of the Company), expenses
or litigation (including legal and other expenses) (hereinafter referred to
collectively as a "Loss"), to which the Indemnified Parties may become
subject under any statute or regulation, at common law or otherwise, insofar
as a Loss is 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 statement or
alleged untrue statement of any material fact contained in the
registration statement, prospectus or private offering
memorandum for the Contracts or contained in the Contracts or
sales literature or other promotional materials 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 statement therein
not misleading, 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 written information
furnished to the Company by or on behalf of the Indemnified
Party for use in the registration statement or prospectus for
the Contracts or in the Contracts or in sales literature or
any other promotional materials (or any amendment or supplement
to any of the foregoing); or
(ii) arise out of or as a result of statements or representations
(other than statements or representations contained in the
registration statement, prospectus or sales literature or other
promotional materials 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
(iii)arise out of any untrue statement or alleged untrue statement
of a material fact contained in a registration statement,
prospectus or sales literature or other promotional materials of
the Fund (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 if such statement or omission was made in reliance
upon or in conformity with written information furnished to the
Fund, the Underwriter or the Adviser by or on behalf of the
Company; or
(iv) arise as a result of any failure by the Company to provide
the services and furnish the materials under the terms of this
Agreement; or
(v) arise out of or result from any material breach of any
representation and/or warranty made by the Company in this
Agreement or arise out of or result from any other material
breach of this Agreement by the Company, as
limited by and in accordance with the provisions of Sections 9.1
(b) and 9.1(c) hereof.
9.1(b). The Company shall not be liable under this indemnification
provision with respect to any Loss incurred or assessed against an
Indemnified Party as such may arise from such Indemnified Party's willful
misfeasance, bad faith or gross negligence in the performance of such
Indemnified Party's duties or by reason of such Indemnified Party's reckless
disregard of obligations or duties under this Agreement or to the Fund, the
Underwriter or the Adviser, whichever is applicable.
9.1(c). The Company shall not be liable under this indemnification
provision with respect to any claim made against an Indemnified Party unless
such Indemnified Party shall have notified the Company in writing within a
reasonable time after the summons or other first legal process giving
information of the nature of the claim shall have been served upon such
Indemnified Party (or after such Indemnified Party shall have received notice
of such service on any designated agent), but failure to notify the Company
of any such claim shall not relieve the Company from any liability which it
may have to the Indemnified Party against whom such action is brought
otherwise than on account of this indemnification provision. In case any such
action is brought against the Indemnified Parties, the Company shall be
entitled to participate, at its own expense, in the defense thereof. 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 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.
9.1(d). The Indemnified Parties will promptly notify the Company of the
commencement of any litigation or proceedings against them in connection with
this Agreement, the issuance or sale of Portfolio shares or the Contracts or
the operation of the Fund.
9.2. INDEMNIFICATION BY THE FUND
9.2(a). The Fund agrees to indemnify and hold harmless the Company, and
each of its directors/trustees 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 Loss to which the Indemnified Parties may become subject under
any statute or regulation, at common law or otherwise, insofar as a Loss is
related to the operations of the Fund and:
(i) arise as a result of any failure by the Fund to provide the
services and furnish the materials under the terms of this
Agreement (including a failure to comply with the
diversification requirements specified in Article VI of this
Agreement); or
(ii) arise out of or result from any material breach of any
representation and/or warranty made by the Fund in this
Agreement or arise out of or result from any other material
breach of this Agreement by the Fund, as limited by and in
accordance with the provisions of Sections 9.2(b) and 9.2(c)
hereof.
9.2(b). The Fund shall not be liable under this indemnification
provision with respect to any Loss incurred or assessed against an
Indemnified Party as such may arise from such Indemnified Party's willful
misfeasance, bad faith or gross negligence in the performance of such
Indemnified Party's duties or by reason of such Indemnified Party's reckless
disregard of obligations and duties under this Agreement or to the Company,
an Account, the Fund, the Underwriter or the Adviser, whichever is applicable.
9.2(c). The Fund shall not be liable under this indemnification
provision with respect to any claim made against an Indemnified Party unless
such Indemnified Party shall have notified the Fund in writing within a
reasonable time after the summons or other first legal process giving
information of the nature of the claim shall have been served upon such
Indemnified Party (or after such Indemnified Party shall have received notice
of such service on any designated agent), but failure to notify the Fund of
any such claim shall not relieve the Fund from any liability which it may
have to the Indemnified Party against whom such action is brought otherwise
than on account of this indemnification provision. In case any such action is
brought against the Indemnified Parties, the Fund shall be entitled to
participate, at its own expense, in the defense thereof. The Fund also shall
be entitled to assume the defense thereof, with counsel satisfactory to the
party named in the action. After notice from the Fund to such party of the
Fund'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
Fund 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.
9.2(d). The Company will promptly notify the Fund of the commencement
of any litigation or proceedings against the Indemnified Parties in
connection with this Agreement, the issuance or sale of Portfolio shares or
the Contracts, the operation of each Account or the acquisition of shares of
the Fund.
9.3. INDEMNIFICATION BY THE UNDERWRITER
9.3(a) The Underwriter agrees to indemnify and hold harmless the
Company and each of its directors/trustees 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
9.3) against any Loss to which the Indemnified Parties may become subject
under any statute or regulation, at common law or otherwise, insofar as a
Loss is 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 statement or
alleged untrue statement of any material fact contained in the
registration statement or prospectus or sales literature or
other promotional materials of the Fund (or any amendment or
supplement to any of the foregoing), or arise out of or
are based upon the omission or the alleged omission to state
therein a material fact required to be stated therein or
necessary to make the statements therein not misleading,
provided that this 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 written information furnished to the Fund, the
Underwriter or the Adviser by or on behalf of the Indemnified
Party for use in the registration statement or prospectus of
the Fund or in sales literature or other promotional materials
(or any amendment or supplement to any of the foregoing); or
(ii) arise out of or as a result of statements or representations
(other than statements or representations contained in the
registration statement, prospectus or sales literature or other
promotional materials for the Contracts not supplied by the
Underwriter or persons under its control) or wrongful conduct
of the Fund or Underwriter 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 or private offering memorandum for the Contracts or
contained in the Contracts or sales literature or other
promotional materials for the Contracts (or any amendment or
supplement to any of the foregoing) or arise out of or are based
upon 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, if such
statement or omission was made in reliance upon or in conformity
with written information furnished to the Company by or on
behalf of the Fund or the Underwriter; or
(iv) arise as a result of any failure by the Underwriter to provide
the services and furnish the materials under the terms of this
Agreement (including a failure, whether unintentional or in good
faith or otherwise, to comply with the diversification
requirements specified in Article VI of this Agreement); or
(v) arise out of or result from any material breach of any
representation and/or warranty made by the Underwriter in this
Agreement or arise out of or result from any other material
breach of this Agreement by the Underwriter, as limited by and
in accordance with the provisions of Sections 9.3(b) and 9.3(c)
hereof.
9.3(b). The Underwriter shall not be liable under this indemnification
provision with respect to any Loss incurred or assessed against an
Indemnified Party as such may arise from such Indemnified Party's willful
misfeasance, bad faith or gross negligence in the performance of such
Indemnified Party's duties or by reason of such Indemnified Party's reckless
disregard of
obligations and duties under this Agreement or to the Company or an Account,
whichever is applicable.
9.3(c). The Underwriter 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 Underwriter 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
Underwriter of any such claim shall not relieve the Underwriter from any
liability which it may have to the Indemnified Party against whom such action
is brought otherwise than on account of this indemnification provision. In
case any such action is brought against the Indemnified Parties, the
Underwriter shall be entitled to participate, at its own expense, in the
defense thereof. The Underwriter also shall be entitled to assume the defense
thereof, with counsel satisfactory to the Party named in the action. After
notice from the Underwriter to such Party of the Underwriter'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 Underwriter 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.
9.3(d). The Company will promptly notify the Underwriter of the
commencement of any litigation or proceedings against the Indemnified Parties
in connection with this Agreement, the issuance or sale of Portfolio shares
or the Contracts or the operation of each Account.
9.4. INDEMNIFICATION BY THE ADVISER
9.4(a) The Adviser agrees to indemnify and hold harmless the Company
and each of its directors/trustees 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 9.4)
against any Loss to which the Indemnified Parties may become subject under
any statute or regulation, at common law or otherwise, insofar as a Loss is
related to the sale or acquisition of the Fund's shares or the Contracts and:
(i) arise out of or as a result of statements or representations
(other than statements or representations contained in the
registration statement, prospectus or sales literature or other
promotional materials for the Contracts not supplied by the
Adviser, or persons under its control) or wrongful conduct of
the Adviser or persons under its control, with respect to the
sale or distribution of the Contracts or Fund shares; or
(ii) arise out of any untrue statement or alleged untrue statement
of a material fact contained in a registration statement,
prospectus or private offering memorandum for the Contracts or
contained in the Contracts or sales literature or other
promotional materials for the Contracts (or any amendment or
supplement to any of the foregoing) 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, if such statement or omission was made in reliance
upon or in conformity with written information furnished to the
Company by or on behalf of the Adviser; or
(iii)arise as a result of any failure by the Adviser to provide
the services and furnish the materials under the terms of this
Agreement (including a failure by the Fund, whether
unintentional or in good faith or otherwise, to comply with the
diversification requirements specified in Article VI of this
Agreement); or
(iv) arise out of or result from any material breach of any
representation and/or warranty made by the Adviser in this
Agreement or arise out of or result from any other material
breach of this Agreement by the Adviser, as limited by and in
accordance with the provisions of Sections 9.4(b) and 9.4(c)
hereof.
9.4(b). The Adviser shall not be liable under this indemnification
provision with respect to any Loss incurred or assessed against an
Indemnified Party as such may arise from such Indemnified Party's willful
misfeasance, bad faith or gross negligence in the performance of such
Indemnified Party's duties or by reason of such Indemnified Party's reckless
disregard of obligations and duties under this Agreement or to the Company or
an Account, whichever is applicable.
9.4(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 which it
may have to the Indemnified Party against whom such action is brought
otherwise than on account of this indemnification provision. In case any such
action is brought against the Indemnified Parties, the Adviser shall 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.
9.4(d). The Company will promptly notify the Adviser of the
commencement of any litigation or proceedings against the Indemnified Parties
in connection with this Agreement, the issuance or sale of Portfolio shares
or the Contracts or the operation of each Account.
9.5. Except as otherwise expressly provided in the Agreement, no party
shall be liable to any other party for special, consequential, punitive or
exemplary damages, or damages of a like kind or nature; and, without limiting
the foregoing, with respect to Section 1.10 of Article I and Sections 9.2,
9.3 and 9.4 of Article IX as such Sections relate to errors in calculation or
untimely reporting of net asset value per share or dividend or capital gain
rate, the liability of a party to any other party shall be limited to the
amount required to correct the value of the Account as if there had been no
incorrect calculation or reporting or untimely reporting of the net asset
value per share or dividend or capital gain rate.
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 New York.
10.2. This Agreement shall be subject to the provisions of the 1933
Act, the 1934 Act and the 1940 Act and the rules and regulations and rulings
thereunder, including such exemptions from those statutes, rules and
regulations as the SEC may grant (including, but not limited to, the Shared
Funding Order) and the terms of this Agreement shall be interpreted and
construed in accordance therewith.
ARTICLE XI
TERMINATION
11.1. This Agreement shall continue in full force and effect until the
first to occur of:
(a) termination by any party for any reason by sixty (60) days'
advance written notice delivered to the other parties; or
(b) termination by the Company by written notice to the Fund and
the Underwriter 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;
or
(c) termination by the Company by written notice to the Fund and
the Underwriter 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) termination by the Company by written notice to the Fund,
the Underwriter and the Adviser with respect to any Portfolio
in the event that such Portfolio ceases to qualify as a
"regulated investment company" under
Subchapter M of the Code or under any successor or similar
provision, or if the Company reasonably believes that the Fund
will fail to so qualify; or
(e) termination by the Company by written notice to the Fund,
the Underwriter and the Adviser with respect to any Portfolio
in the event that such Portfolio fails to meet the
diversification requirements specified in Article VI hereof; or
(f) termination by either the Fund or the Underwriter by written
notice to the Company, if either one or both of the Fund or the
Underwriter shall determine, in their sole judgment exercised
in good faith, that the Company and/or its affiliated companies
has suffered a material adverse change in its business,
operations, financial condition or prospects since the date of
this Agreement or is the subject of material adverse publicity;
or
(g) termination by the Company by written notice to the Fund and
the Underwriter, if the Company shall determine, in its sole
judgment exercised in good faith, that either the Fund or the
Underwriter has suffered a material adverse change in its
business, operations, financial condition or prospects since
the date of this Agreement or is the subject of material
adverse publicity; or
(h) termination by the Fund or the Underwriter by written notice
to the Company, if the Company gives the Fund and the
Underwriter the written notice specified in Section 1.6(b)
hereof and at the time such notice was given there was no
notice of termination outstanding under any other provision of
this Agreement; provided, however, that any termination under
this Section 11.1(h) shall be effective forty-five days after
the notice specified in Section 1.6(b) was given.
11.2. EFFECT OF TERMINATION. Notwithstanding termination of this
Agreement, the Fund and the Underwriter shall, if the Company and the
Underwriter mutually agree, continue to make available additional shares of
the Fund 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 retain
investments in the Fund, reinvest dividends and redeem investments in the
Fund. The parties agree that this Section 11.2 shall not apply to any
terminations under Section 1.2 of Article I or under Article VIII, and the
effect of such Article VIII terminations shall be governed by Article VIII of
this Agreement.
11.3 The Company shall not redeem Fund shares attributable to the
Contracts (as opposed to Fund shares attributable to the Company's assets
held in the Account) except (i) as necessary to implement Contract Owner
initiated or approved transactions; or (ii) as required by state and/or
federal laws or regulations or judicial or other legal precedent of general
application (hereinafter referred to as a "Legally Required Redemption"); or
(iii) as a result of action by the Fund's Board, acting in good faith, upon
sixty (60) days' advance written notice to the Company
and Contract Owners. Upon request, the Company will promptly furnish to the
Fund and the Underwriter the opinion of counsel for the Company (which
counsel shall be reasonably satisfactory to the Fund and the Underwriter) to
the effect that any redemption pursuant to clause (ii) above is a Legally
Required Redemption, or is as permitted by an order of the SEC pursuant to
Section 26(b) of the 1940 Act. In the event that the Company is to redeem
shares pursuant to clause (iii) above, the Fund will promptly furnish to the
Company the opinion of counsel for the Fund (which counsel shall be
reasonably satisfactory to the Company) to the effect that any such
redemption is not in violation of the 1940 Act or any rule or regulation
thereunder, or is as permitted by an order of the SEC. Furthermore, except in
cases where permitted under the terms of the Contracts, the Company shall not
prevent Contract Owners from allocating payments to a Portfolio that was
otherwise available under the Contracts without first giving the Fund or the
Underwriter 90 days' advance written notice of its intention to do so.
11.4 Notwithstanding any termination of this Agreement, each party's
obligation under Article IX to indemnify the other parties shall survive.
ARTICLE XII
NOTICES
Any notice shall be sufficiently given when sent by registered or
certified mail or next-day delivery to the other parties at the address of
such parties set forth below or at such other address as any party may from
time to time specify in writing to the other parties.
If to the Company:
000 Xxxxxx Xxxxxx Xxxxx
Xxxxx Xxxx XX 00000
Attention: General Counsel
If to the Fund:
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: President, with a copy to the General Counsel
If to the Underwriter:
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: President, with a copy to the General Counsel
If to the Adviser:
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: President, with a copy to the General Counsel
ARTICLE XIII
MISCELLANEOUS
13.1. All persons dealing with the Fund must look solely to the
property of the Fund for the enforcement of any claims against the Fund as
neither the Board, officers, agents or shareholders assume any personal
liability for obligations entered into on behalf of the Fund.
13.2. Subject to the requirements of legal process and regulatory
authority, each party hereto shall treat as confidential the names and
addresses of the owners of the Contracts and all information reasonably
identified as confidential in writing by any other party hereto and, except
as permitted by this Agreement, shall not disclose, disseminate or utilize
such names and addresses and other confidential information without the
express written consent of the affected party, until such time as it may come
into the public domain.
13.3. 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.
13.4. This Agreement may be executed simultaneously in two or more
counterparts, each of which taken together shall constitute one and the same
instrument.
13.5. 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.
13.6. Each party hereto shall cooperate with each other party and all
appropriate governmental authorities (including, without limitation, the SEC,
the NASD 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.
13.7. 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.
13.8. This Agreement or any of the rights and obligations hereunder may
not be assigned by any party without the prior written consent of all parties
hereunder; provided, however, that the Underwriter may assign this Agreement
or any rights or obligations hereunder to any affiliate of or company under
common control with the Underwriter, if such assignee is duly licensed and
registered to perform the obligations of the Underwriter under this Agreement.
13.9. Upon the Fund's written request, the Company shall furnish, or
shall cause to be furnished, to the Fund or its designee, copies of the
following reports:
(a) the Company's annual statement (prepared under statutory
accounting principles) and annual report (prepared under
generally accepted accounting principles ("GAAP"), if any);
(b) the Company's semi-annual statements (statutory) (and GAAP,
if any);
(c) any financial statement, proxy statement, notice or report of
the Company sent to stockholders and/or policyholders; and
(d) any registration statement (without exhibits) and financial
reports of the Company filed with the SEC or any state
insurance regulator.
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 and its seal to be hereunder affixed hereto as of the date
specified below.
MINNESOTA LIFE INSURANCE COMPANY Attest:
By: By:
-------------------------- --------------------------
Name: Name:
------------------------ ------------------------
Title: Title:
----------------------- -----------------------
XXX XXX WORLDWIDE INSURANCE TRUST Attest:
By: By:
-------------------------- --------------------------
Name: Name:
------------------------ ------------------------
Title: Title:
----------------------- -----------------------
XXX XXX SECURITIES CORPORATION Attest:
By: By:
-------------------------- --------------------------
Name: Name:
------------------------ ------------------------
Title: Title:
----------------------- -----------------------
XXX XXX ASSOCIATES CORPORATION Attest:
By: By:
-------------------------- --------------------------
Name: Name:
------------------------ ------------------------
Title: Title:
----------------------- -----------------------
SCHEDULE A
The Minnesota Life Variable Universal Life Account
SCHEDULE B
PORTFOLIOS AND OTHER FUNDS
ADVISED BY ADVISER
I. PORTFOLIOS
Worldwide Hard Assets Fund - Initial Class
Worldwide Emerging Markets Fund - Initial Class
Worldwide Real Estate Fund - Initial Class
Worldwide Absolute Return Fund - Initial Class
Worldwide Bond Fund - Initial Class
II. OTHER FUNDS ADVISED BY THE ADVISER
Xxx Xxx Funds
Xxx Xxx Funds, Inc.
SCHEDULE C
OTHER INVESTMENT COMPANIES AVAILABLE
AS FUNDING VEHICLE FOR THE CONTRACTS
NONE
