Ex-99.B(h)(5)(ii)
PARTICIPATION AGREEMENT
By and Among
XXXXX FARGO VARIABLE TRUST
And
HARTFORD LIFE AND ANNUITY INSURANCE COMPANY
And
XXXXXXXX INC.
THIS AGREEMENT, made and entered into this 13th day of July, 2000, by and
among Hartford Life and Annuity Insurance Company, a Connecticut corporation
(the "Company"), on its own behalf and on behalf of each separate account of the
Company named in Exhibit A to this Agreement, as may be amended from time to
time (each separate account, a "Separate Account"), and Xxxxx Fargo Variable
Trust, an open-end diversified management investment company organized under the
laws of the State of Delaware (the "Trust"), and Xxxxxxxx Inc., an Arkansas
corporation (the "Trust Underwriter").
WHEREAS, the Trust engages in business as an open-end diversified,
management investment company and was established for the purpose of serving as
the investment vehicle for separate accounts established for variable life
insurance contracts and variable annuity contracts to be offered by insurance
companies which have entered into participation agreements substantially similar
to this Agreement ("Participating Insurance Companies"); and
WHEREAS, beneficial interests in the Trust are divided into several series
of shares, each
representing the interest in a particular managed portfolio of securities and
other assets (each, a "Fund"); and
WHEREAS, an order from the U.S. Securities and Exchange Commission (the
"SEC" or "Commission"), dated September 28, 1998 (File No. 812-11158), grants
Participating Insurance Companies and variable annuity separate accounts and
variable life insurance separate accounts relief from the provisions of Sections
9(a), 13(a), 15(a) and 15(b) of the Investment Company Act of 1940, as amended
(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 Trust to be sold to and held by
variable annuity separate accounts and variable life insurance separate accounts
of both affiliated and unaffiliated Participating Insurance Companies and
qualified pension and retirement plans ("Mixed and Shared Funding Order"), and
WHEREAS, the Trust 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 (the "1933 Act"); and
WHEREAS, the Company has registered or will register certain variable
annuity and variable life insurance contracts named in Exhibit A to this
Agreement, as it may be amended from time to time, under the 1933 Act, unless
such contracts are exempt from registration thereunder (the "Contracts"); and
WHEREAS, the Separate Accounts are duly organized, validly existing
segregated asset accounts, 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, the Company has registered or will register the Separate Accounts
as unit
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investment trusts under the 1940 Act, unless exempt from registration
thereunder; and
WHEREAS, the Trust 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 "NASD");
WHEREAS, to the extent permitted by applicable insurance laws and
regulations, the Company intends to purchase shares in the Funds named in
Exhibit B on behalf of the Separate Accounts to fund the Contracts, and the
Trust Underwriter is authorized to sell such shares to unit investment trusts
such as the Separate Accounts at net asset value;
NOW, THEREFORE, in consideration of their mutual promises, the Company, the
Trust, and the Trust Underwriter agree as follows:
Sale of Trust Shares
The Trust Underwriter agrees to sell to the Company those shares of the Trust
which the Company orders on behalf of the Separate Accounts, executing such
orders on a daily basis at the net asset value next computed after receipt
and acceptance by the Trust or its designee of the order for the shares of
the Trust. For purposes of this Section 1.1, the Company shall be the
designee of the Trust for receipt of such orders from each Separate Account
and receipt by such designee shall constitute receipt by the Trust;
provided that the Trust receives notice of such order by 9:30 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 trading and on which the
relevant Fund calculates its net asset value as set forth in the Trust's
prospectus and pursuant to the rules of the SEC.
The Trust agrees to make its shares available indefinitely for purchase at the
applicable net asset value per share by Participating Insurance Companies
and their separate accounts on
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those days on which the Trust calculates its net asset value pursuant to
rules of the SEC; provided, however, that the Board of Trustees of the
Trust (hereinafter the "Trustees") may refuse to sell shares of any Fund to
any person, or suspend or terminate the offering of shares of any Fund, if
such action is required by law or by regulatory authorities having
jurisdiction, or is, in the sole discretion of the Trustees, acting in good
faith and in light of their fiduciary duties under federal and any
applicable state laws, necessary in the best interests of the shareholders
of any Fund. The Trust shall use reasonable efforts to calculate its Funds'
net asset values on each day that the New York Stock Exchange is open for
trading.
The Trust and the Trust Underwriter agree that shares of the Trust will be sold
only to Participating Insurance Companies and their separate accounts, and
to qualified pension and retirement plans. No shares of the Trust will be
sold to the general public.
The Trust and the Trust Underwriter will not sell Trust shares to any insurance
company or separate account unless an agreement containing provisions
substantially the same as Articles I, III, V, VII, and Section 2.8 of
Article II of this Agreement are in effect to govern such sales.
The Trust will not accept a purchase order from qualified pension or retirement
plan if such purchase would make the plan shareholder an owner of 10
percent or more of the assets of a Fund unless such plan executes an
agreement with the Trust governing participation in such Fund that includes
the conditions set forth herein to the extent applicable. A qualified
pension or retirement plan will execute an application containing an
acknowledgment of this condition at the time of its initial purchase of
shares of any Fund.
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The Trust agrees to redeem for cash, upon the Company's request, any full or
fractional shares of the Trust held by the Company, executing such requests
on a daily basis at the net asset value next computed after receipt and
acceptance by the Trust or its designee of the request for redemption. For
purposes of this Section 1.6, the Company shall be the designee of the
Trust for receipt of requests for redemption from each Separate Account and
receipt by such designee shall constitute receipt by the Trust; provided
the Trust receives notice of request for redemption by 9:30 a.m. Eastern
Time on the next following Business Day. Payment shall be in federal funds
transmitted by wire to the Company's account as designated by the Company
in writing from time to time.
Each purchase, redemption, and exchange order placed by the Company shall be
placed separately for each Fund and shall not be netted with respect to any
Fund. However, with respect to payment of the purchase price by the
Company and of redemption proceeds by the Trust, the Company and the Trust
shall net purchase and redemption orders with respect to each Fund and
shall transmit one net payment for all Funds in accordance with Section
1.8.
The Company agrees that purchases and redemptions of Fund 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 under the variable life insurance contracts with the form
number(s) which are listed on Exhibit A attached hereto and incorporated
herein by this reference, as such Exhibit A may be amended from time to
time hereafter by mutual written agreement of all the parties hereto (the
"Contracts") shall be invested in the Funds, in such other Funds managed by
Xxxxx Fargo
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Bank as may be mutually agreed to in writing by the parties hereto, or in
the Company's general account, provided that such amounts may also be
invested in an investment company other than the Trust 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 Funds of the Trust which are actually used by the
Company to fund the Contracts; or (b) the Company gives the Fund and the
Trust Underwriter 45 days written notice of its intention to make such
other investment company available as a funding vehicle for the Contacts;
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 Trust Underwriter prior to their signing this
Agreement (a list of such funds appearing on Exhibit C to this Agreement);
or (d) the Fund or Trust Underwriter consents to the use of such other
investment company.
In the event of net purchase, the Company shall pay for shares by 2:00 p.m.
Eastern Time on the next Business Day after an order to purchase the Shares
is deemed to be received in accordance with the provisions of Section 1.1
hereof. In the event of net redemptions, the Trust shall pay the
redemption proceeds in accordance with the terms of the then-current
prospectus for the Trust. All such payments shall be in federal funds
transmitted by wire. For purposes of Section 2.4 and Section 2.10, upon
receipt by the Trust 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.
Issuance and transfer of the Trust's shares will be by book entry only. Stock
certificates will not
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be issued to the Company or any Separate Account. Purchase and redemption
orders for Trust shares will be recorded in an appropriate title for each
Separate Account or the appropriate subaccount of each Separate Account.
The Trust shall furnish notice to the Company of any income, dividends, or
capital gain distributions payable on the Trust's shares on the same or
next following business day of payment (by wire or telephone, followed by
written confirmation). The Company hereby elects to receive all such
dividends and distributions as are payable on the Fund shares in the form
of additional shares of that Fund. The Company reserves the right to revoke
this election and to receive all such dividends and distributions in cash.
The Trust shall notify the Company of the number of shares so issued as
payment of such dividends and distributions.
The Trust shall make the net asset value per share for each Fund available to
the Company on a daily basis as soon as reasonably practical after the net
asset value per share is calculated and shall use its best efforts to make
such net asset value per share available by 5:30 p.m. Pacific Time, each
business day.
Representations and Warranties
The Company represents and warrants that the Contracts are or will be registered
under the 1933 Act, unless exempt therefrom, and that the Contracts will be
issued in compliance with all applicable federal and state laws. The
Company further represents and warrants that the Company will include a
provision in its agreements with broker-dealers obligating such broker-
dealers to ensure that their registered representatives shall not make
recommendations to an applicant to purchase a Contract in the absence of
reasonable grounds to believe that the purchase is suitable for such
applicant, as outlined in the
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suitability requirements of the 1934 Act and the NASD Conduct Rules. The
Company further represents and warrants that: (i) it is an insurance
company duly organized and in good standing under applicable law; (ii) it
has legally and validly established each Separate Account as a segregated
asset account under applicable state law and has registered each Separate
Account as a unit investment trust in accordance with the provisions of the
1940 Act, unless exempt therefrom, to serve as segregated investment
accounts for the Contracts; and (iii) it will maintain such registration,
if required, for so long as any Contracts are outstanding. The Company
shall amend any registration statement under the 1933 Act for the Contracts
and any registration statement under the 1940 Act for the Separate Accounts
from time to time as required in order to effect the continuous offering of
the Contracts or as may otherwise be required by applicable law. The
Company shall register and qualify the Contracts for sale in accordance
with the securities laws of the various states only if, and to the extent,
deemed necessary by the Company.
Subject to Article VI hereof, the Company represents that the Contracts are
currently and at the time of issuance will be treated as life insurance,
endowment, or annuity contracts under applicable provisions of the Internal
Revenue Code and that it will maintain such treatment and that it will
notify the Trust and the Trust Underwriter 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.
The Company represents that any prospectus offering a Contract that is a life
insurance contract where it is reasonably probable that such Contract would
be a "modified endowment
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contract," as that term is defined in Section 7702A of the Internal Revenue
Code will identify such Contract as a modified endowment contract (or
policy).
The Company represents and warrants that all of its directors, officers,
employees, investment advisers, and other individuals/entities dealing with
the money and/or securities of the Trust are covered by a blanket fidelity
bond or similar coverage in an amount not less than $5 million. The
aforesaid includes coverage for larceny and embezzlement and is issued by a
reputable bonding company. The Company agrees that any amounts received
under such bond in connection with claims that derive from arrangements
described in this Agreement will be held by the Company for the benefit of
the Trust. The Company agrees to see that this bond or another bond
containing these provisions is always in effect, and agrees to notify the
Trust and the Trust Underwriter in the event that such coverage no longer
applies.
The Trust represents and warrants that Trust shares sold pursuant to this
Agreement shall be registered under the 1933 Act and duly authorized for
issuance in accordance with applicable law, and that the Trust is and shall
remain registered under the 1940 Act for as long as the Trust shares are
sold. The Trust shall amend the registration statement for its shares
under the 1933 and the 1940 Acts from time to time as required in order to
effect the continuous offering of its shares. The Trust shall register and
qualify the shares for sale in accordance with the laws of the various
states only if, and to the extent, deemed advisable by the Trust or the
Trust Underwriter.
The Trust represents that it is currently qualified as a Regulated Investment
Company under Subchapter M of the Internal Revenue Code, and that it will
make every effort to maintain
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such qualification (under Subchapter M or any successor or similar
provision). The Trust will notify the Company immediately upon having a
reasonable basis for believing that the Trust no longer qualifies.
The Trust makes no representations as to whether any aspect of its operations,
including but not limited to, investment policies, fees and expenses,
complies with the insurance and other applicable laws of the various
states, except that the Trust represents that it is and shall at all times
remain in compliance with the laws of the state of Delaware to the extent
required to perform this Agreement.
The Trust represents and warrants that its Board of Trustees, a majority of whom
are not interested persons of the Trust if and to the extent required by
applicable law, will formulate and approve any plan under Rule 12b-1 ("Rule
12b-1 Plan") to finance distribution expenses. The Trust shall notify the
Company immediately upon determining to finance distribution expenses
pursuant to Rule 12b-1
The Trust represents that it is lawfully organized and validly existing under
the laws of Delaware and that it does and will comply with applicable
provisions of the 1940 Act.
The Trust represents and warrants that it and all of its trustees, officers,
employees and other individuals/entities having access to the funds and/or
securities of the Trust are and continue to be at all times covered by a
blanket fidelity bond or similar coverage for the benefit of the Trust in
an amount not less than the minimal coverage as required currently by Rule
17g-1 of the 1940 Act or related provisions as may be promulgated from time
to time. The aforesaid bond includes coverage for larceny and embezzlement
and is issued by a reputable bonding company.
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The Trust 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
Trust Underwriter further represents that it will sell and distribute the
Trust's shares in accordance with all applicable federal and state
securities laws, including without limitation the 1933 Act, the 1934 Act,
and the 1940 Act.
The Trust Underwriter represents and warrants that the Trust's investment
manager, Xxxxx Fargo Bank, is exempt from registration as an investment
adviser under all applicable federal and state securities laws and that the
investment manager will perform its obligations to the Trust in accordance
with any applicable state and federal securities laws.
Prospectuses and Proxy Statements; Voting
The Trust Underwriter shall provide the Company, at the Trust's expense, with as
many copies of the Trust's current prospectus as the Company may reasonably
request. If requested by the Company in lieu thereof, the Trust shall
provide such documentation including a final copy of a current prospectus
set in type at the Trust's expense and other assistance as is reasonably
necessary in order for the Company at least annually (or more frequently if
the Trust's prospectus is amended more frequently) to have the new
prospectus for the Contracts and the Trust's new prospectus printed
together in one document; in such case at the Company's expense.
The Trust's prospectus shall state that the statement of additional information
for the Trust is available from the Trust Underwriter (or, in the Trust's
discretion, the Prospectus shall state that such statement is available
from the Trust).
The Trust, at its expense, shall provide the Company with copies of its proxy
material, if any, reports to shareholders and other communications to
shareholders in such quantity as the
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Company shall reasonably require and the Trust shall bear the costs of
printing and distributing them to existing Contract owners or participants.
The Trust hereby notifies the Company that it is appropriate to include in the
prospectuses pursuant to which the Contracts are offered disclosure
regarding the potential risks of mixed and shared funding.
To the extent required by law the Company shall:
solicit voting instructions from Contract owners or participants;
vote the Trust shares held in each Separate Account in accordance
with instructions received from Contract owners or
participants; and
vote Trust shares held in each Separate Account for which no
timely instructions have been received, in the same
proportion as Trust shares of such Fund for which
instructions have been received from the Company's Contract
owners or participants;
for so long as and to the extent that the 1940 Act requires pass-through
voting privileges for variable contract owners. The Company reserves the
right to vote Trust shares held in any segregated asset account in its own
right, to the extent permitted by law. Participating Insurance Companies
shall be responsible for assuring that each of their separate accounts
participating in the Trust calculates voting privileges in a manner
consistent with other Participating Insurance Companies and as required by
the Mixed and Shared Funding Order. The Trust will notify the Company of
any changes of interpretation or amendment to the Mixed and Shared Funding
Order.
The Trust will comply with all provisions of the 1940 Act requiring voting by
shareholders, and in particular, the Trust will either provide for annual
meetings (except to the extent that the Commission may interpret Section 16
of the 1940 Act not to require such meetings)
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or comply with Section 16(c) of the 1940 Act (although the Trust 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) of the 1940 Act. Further,
the Trust will act in accordance with the Commission's interpretation of
the requirements of Section 16(a) with respect to periodic elections of
Trustees and with whatever rules the Commission may promulgate with respect
thereto.
Sales Material and Information
The Company shall furnish, or shall cause to be furnished, to the Trust or the
Trust Underwriter, each piece of sales literature or other promotional
material in which the Trust or the Trust's investment manager, sub-advisers
or Trust Underwriter is named, at least five business days prior to its
use. No such material shall be used if the Trust or the Trust Underwriter
reasonably objects in writing to such use within five business days after
receipt of such material.
The Company represents and agrees that sales literature for the Contracts
prepared by the Company or its affiliates will be consistent in all
material respects with every law, rule, and regulation of any regulatory
agency or self-regulatory agency that applies to the Contracts or to the
sale of the Contracts, including, but not limited to, NASD Conduct Rule
2210 and IM-2210-2 thereunder.
The Company shall not give any information or make any representations or
statements on behalf of the Trust or concerning the Trust in connection
with the sale of the Contracts other than the information or
representations contained in the registration statement or prospectus for
the Trust shares as such registration statement and prospectus may be
amended or supplemented from time to time, or in reports or proxy
statements for the
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Trust, or in sales literature or other promotional material approved by the
Trust or by the Trust Underwriter, except with the permission of the Trust
or the Trust Underwriter. The Trust and the Trust Underwriter agree to
respond to any request for approval on a prompt and timely basis. The
Company shall adopt and implement procedures reasonably designed to ensure
that information concerning the Trust, the Trust Underwriter, or any of
their affiliates which is intended for use by brokers or agents selling the
Contracts (i.e., information that is not intended for distribution to
Contract owners or prospective Contract owners) is so used, and neither the
Trust, the Trust Underwriter, nor any of their affiliates shall be liable
for any losses, damages, or expenses relating to the improper use of such
broker only materials by agents of the Company or its affiliates who are
unaffiliated with the Trust or the Trust Underwriter. The parties hereto
agree that this Section 4.3 is not intended to designate nor otherwise
imply that the Company is an underwriter or distributor of the Trust's
shares.
The Trust or the Trust Underwriter 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, its Separate Account,
or the Contracts are named, at least five business days prior to its use.
No such material shall be used if the Company reasonably objects in writing
to such use within five business days after receipt of such material.
The Trust represents and agrees that sales literature for the Trust prepared by
the Trust or its affiliates in connection with the sale of the Contracts
will be consistent in all material respects with every law, rule, and
Regulation of any regulatory agency or self regulatory agency that applies
to the Trust or to the sale of Trust shares, including, but not limited to,
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NASD Conduct Rule 2210 and IM-2210-2 thereunder.
The Trust and the Trust Underwriter shall not give any information or make any
representations on behalf of the Company or concerning the Company, each
Separate 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 be amended or
supplemented from time to time, or in published reports for each Separate
Account which are in the public domain or approved by the Company for
distribution to Contract owners or participants, or in sales literature or
other promotional material approved by the Company, except with the
permission of the Company. The Company agrees to respond to any request for
approval on a prompt and timely basis. The Trust and the Trust Underwriter
shall xxxx information produced by or on behalf of the Trust "FOR BROKER
USE ONLY" which is intended for use by brokers or agents selling the
Contracts (i.e., information that is not intended for distribution to
Contract owners or prospective Contract owners) is so used, and neither the
Company nor any of its affiliates shall be liable for any losses, damages,
or expenses arising on account of the use by brokers of such information
with third parties in the event that is not so marked.
The Trust will provide to the Company at least one complete copy of all
registration statements, prospectuses, statements of additional
information, reports, proxy statements, sales literature and other
promotional materials, applications for exemptions, requests for no-action
letters, and all amendments to any of the above, that relate to the Trust
or its shares, contemporaneously with the filing of such document with the
SEC or other regulatory authorities.
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The Company will provide to the Trust, upon request, at least one complete copy
of all registration statements that relate to the Contracts or each
Separate Account. The Company shall promptly inform the Trust of the
results of any examination by the SEC (or other regulatory authorities)
that relates to the Funds in the Contracts.
For purposes of this Article IV, the phrase "sales literature or 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),
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, registration statements, prospectuses, statements of
additional information, shareholder reports, and proxy materials and any
other material constituting sales literature or advertising under NASD
Conduct Rules, the 1940 Act or the 1933 Act.
Fees and Expenses
The Trust and Trust Underwriter shall pay no fee or other compensation to the
Company under this Agreement, except subject a Rule 12b-1 Plan to finance
distribution expenses, in which case, subject to obtaining any required
exemptive orders or other regulatory approvals, the Trust Underwriter may
make payments to the Company or to the underwriter for the Contracts if and
in amounts agreed to by the Trust Underwriter in writing. Each party,
however, shall, in accordance with the allocation of expenses
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specified in this Agreement, reimburse other parties for expenses initially
paid by one party but allocated to another party. In addition, nothing
herein shall prevent the parties hereto from otherwise agreeing to perform,
and arranging for appropriate compensation for, other services relating to
the Trust and/or to the Separate Accounts.
All expenses incident to performance by the Trust of this Agreement shall be
paid by the Trust to the extent permitted by law. All Trust shares will be
duly authorized for issuance and registered in accordance with applicable
federal law and to the extent deemed advisable by the Trust, in accordance
with applicable state law, prior to sale. The Trust shall bear the
expenses for the cost of registration and qualification of the Trust's
shares, preparation and filing of the Trust's prospectus and registration
statement, Trust proxy materials and reports, printing proxy materials and
annual reports for existing Contract owners, setting in type the Trust's
prospectuses, the preparation of all statements and notices required by any
federal or state law, all taxes on the issuance or transfer of the Trust's
shares, and any expenses permitted to be paid or assumed by the Trust
pursuant to any Rule 12b-1 Plan under the 1940 Act duly adopted by the
Trust.
The Company shall bear all expenses associated with the registration,
qualification, and filing of the Contracts under applicable federal
securities and state insurance laws; the cost of preparing, printing, and
distributing the Contracts' prospectuses and statements of additional
information; and the cost of printing and distributing annual individual
account statements for Contract owners as required by state insurance laws.
Diversification
The Trust represents and warrants that, at all times, the Funds will comply with
Section 817 of the Code and all regulations thereof, relating to the
diversification requirements for
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variable annuity, endowment, or life insurance contracts and any amendments
or other modifications to such Section or Regulations. In the event a Fund
ceases to so qualify, the Trust will take all reasonable steps (a) to
notify Hartford immediately of such event and (b) to adequately diversify
the Fund so as to achieve compliance within the grace period afforded by
Treasury Regulation 1.817-5.
Potential Conflicts
If and to the extent that the Trust engages in mixed and shared funding as
contemplated by exemptive relief provided by the SEC and applicable to the
Trust, this Article VII shall apply.
The Board of Trustees of the Trust (the "Trust Board") will monitor the Trust
for the existence of any material irreconcilable conflict among the
interests of the Contract owners of all separate accounts investing in the
Trust. A material irreconcilable conflict may arise for a variety of
reasons, including: (a) an action by any state insurance regulatory
authority; (b) a change in applicable federal or state insurance, tax, or
securities laws or regulations, or a public ruling, private letter ruling,
no-action or interpretative letter, or any similar action by insurance,
tax, or securities regulatory authorities; (c) an administrative or
judicial decision in any relevant proceeding; (d) the manner in which the
investments of any Fund are being managed; (e) a difference in voting
instructions given by variable annuity contract owners, variable life
insurance contract owners, and trustees of qualified pension or retirement
plans; (f) a decision by a Participating Insurance Company to disregard the
voting instructions of Contract owners; or (g) if applicable, a decision by
a qualified pension or retirement plan to disregard the voting instructions
of plan participants. The Trust Board shall promptly inform the Company if
it determines that a material
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irreconcilable conflict exists and the implications thereof. A majority of
the Trust Board shall consist of Trustees who are not "interested persons"
of the Trust.
The Company has reviewed a copy of the Mixed and Shared Funding Order, and in
particular, has reviewed the conditions to the requested relief set forth
therein. The Company agrees to assist the Trust Board in carrying out its
responsibilities under the Mixed and Shared Funding Order, by providing the
Trust Board with all information reasonably necessary for the Trust Board
to consider any issues raised. This includes, but is not limited to, an
obligation by the Company to inform the Trust Board whenever Contract owner
voting instructions are disregarded. The Trust Board shall record in its
minutes or other appropriate records, all reports received by it and all
action with regard to a conflict.
If it is determined by a majority of the Trust Board, or a majority of its
disinterested Trustees, that a material irreconcilable conflict exists, the
Company shall, at its 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: (a) withdrawing the assets allocable to some
or all of the Separate Accounts from the relevant Fund and reinvesting such
assets in a different investment medium, including another Fund, or in the
case of insurance company participants submitting the question as to
whether such segregation should be implemented by a vote of all affected
Contract owners and, as appropriate, segregating the assets of any
appropriate group (i.e., annuity Contract owners or life insurance 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
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a change; and (b) establishing a new registered management investment
company or managed separate account.
If the Company's disregard of voting instructions could conflict with the
majority of Contract owner voting instructions, and the Company's judgment
represents a minority position or would preclude a majority vote, the
Company may be required, at the Trust's election, to withdraw the Separate
Account's investment in the Trust and terminate this Agreement with respect
to such Separate Account, and no charge or penalty will be imposed as a
result of such withdrawal. Any such withdrawal and termination shall take
place within 30 days after written notice is given that this provision is
being implemented, subject to applicable law but in any event consistent
with the terms of the Mixed and Shared Funding Order. Until such withdrawal
and termination is implemented, the Trust Underwriter and the Trust shall
continue to accept and implement orders by the Company for the purchase and
redemption of shares of the Trust. Such withdrawal and termination shall be
limited to the extent required by the foregoing material irreconcilable
conflict as determined by a majority of disinterested Trustees.
If a particular state insurance regulator's decision applicable to the Company
conflicts with the majority of other state insurance regulators, then the
Company will withdraw the Separate Account's investment in the Trust and
terminate this Agreement with respect to such Separate Account within 30
days after the Trust informs the Company of a material irreconcilable
conflict, subject to applicable law but in any event consistent with the
terms of the Mixed and Shared Funding Order. Until such withdrawal and
termination is implemented, the Trust Underwriter and the Trust shall
continue to accept and implement
-20-
orders by the Company for the purchase and redemption of shares of the
Trust. Such withdrawal and termination shall be limited to the extent
required by the foregoing material irreconcilable conflict as determined by
a majority of disinterested Trustees.
For purposes of Sections 7.4 through 7.7 of this Agreement, a majority of the
disinterested members of the Trust Board shall determine whether any
proposed action adequately remedies any material irreconcilable conflict,
but in no event will the Trust or the Trust Underwriter be required to
establish a new funding medium for the Contracts. The Company shall not be
required by Section 7.4 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.
The Trust Board's determination of the existence of a material irreconcilable
conflict and its implication will be made known in writing to the Company.
The Company shall at least annually submit to the Trust Board such reports,
materials, or data as the Trust Board may reasonably request so that the
Trustees may fully carry out the duties imposed upon the Trust Board by the
Mixed and Shared Funding Order, and said reports, materials and data shall
be submitted more frequently if deemed appropriate by the Trust Board.
If and to the extent that Rule 6e-2 and Rule 6e-3(T) are amended, or Rule 6e-
3(T) 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 Order) on terms and
conditions materially different from those contained in the Mixed and
Shared Funding Order, the Trust and/or the Company, as appropriate, shall
-21-
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.
Indemnification
Indemnification By The Company
------------------------------
The Company agrees to indemnify and hold harmless the Trust, the
Trust Underwriter, and each of the Trust's or the Trust Underwriter's
directors, officers, employees, or agents and each person, if any, who
controls the Trust or the Trust Underwriter within the meaning of such
terms under the federal securities laws (collectively, the "indemnified
parties" for purposes of this Section 8.1) against any and all losses,
claims, 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, 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, acquisition, or redemption
of the Trust's shares or the Contracts and:
arise out of or are based upon any untrue statements or alleged
untrue statements of any material fact contained in the
registration statements, prospectuses or statements of
additional information for 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 to the Company by or
on behalf of the Trust for use in the registration
statement, prospectus or statement of information for the
Contracts, or in the Contracts or sales literature (or any
amendment or supplement) or otherwise for use in connection
with the sale of the Contracts or Trust shares; or
arise out of or as a result of statements or representations by
or on behalf of the Company (other than statements or
representations contained in the Trust registration
statement, Trust prospectus or sales literature or other
promotional material of the Trust 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
-22-
or distribution of the Contracts or Trust shares; or
arise out of or result from any untrue statement or alleged
untrue statement of a material fact contained in the Trust's
registration statement, prospectus, statement of additional
information, or sales literature or other promotional
material of the Trust or any amendment thereof, or
supplement thereto or the omission or alleged omission to
state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading
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 to the Trust by or
on behalf of the Company or persons under its control; or
arise as a result of any failure by the Company to provide the
services and furnish the materials or to make any payments
under the terms of this Agreement; or
arise out of 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 by the Company
of this Agreement;
except to the extent provided in Sections 8.1(b) and 8.4 hereof. This
indemnification shall be in addition to any liability which the Company may
otherwise have.
No party shall be entitled to indemnification by the Company if
such loss, claim, damage, liability or litigation is due to the willful
misfeasance, bad faith, gross negligence, or reckless disregard of duty by
the party seeking indemnification.
The indemnified parties will promptly notify the Company of the
commencement of any litigation or proceedings against them in connection
with the issuance or sale of the Trust shares or the Contracts or the
operation of the Trust.
Indemnification By the Trust Underwriter
----------------------------------------
The Trust Underwriter agrees to indemnify and hold harmless the
Company and each of its directors, officers, employees, or agents and each
person, if any, who controls the Company within the meaning of such terms
under the federal securities laws (collectively, the "indemnified parties"
for purposes of this Section 8.2) against any and all losses, claims,
damages, liabilities (including amounts paid in settlement with the written
consent of the Trust Underwriter), or litigation (including reasonable
legal and other expenses) to which the indemnified parties may become
subject under any statute, regulation, at common law or otherwise, insofar
as such losses, claims, damages,
-23-
liabilities or expenses (or actions in respect thereof) or settlements are
related to the sale, acquisition, or redemption of the Trust's shares or
the Contracts and:
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 statement of
additional information for the Trust, or sales literature or
other promotional material of the Trust (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 to the Trust
Underwriter or the Trust by or on behalf of the Company for
use in the registration statement, prospectus, or statement
of additional information for the Trust or in sales
literature of the Trust (or any amendment or supplement
thereto) or otherwise for use in connection with the sale of
the Contracts or Trust shares; or
arise out of or as a result of statements or representations
(other than statements or representations contained in the
Contracts or in the Contract or Trust registration
statement, the Contract or Trust prospectus, statement of
additional information, or sales literature or other
promotional material for the Contracts or of the Trust not
supplied by the Trust Underwriter or persons under the
control of the Trust Underwriter) or wrongful conduct of the
Trust Underwriter or persons under the control of the Trust
Underwriter, with respect to the sale or distribution of the
Contracts or Trust shares; or
arise out of or result from any untrue statement or alleged
untrue statement of a material fact contained in a
registration statement, prospectus, statement of additional
information, 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 to the
Company by or on behalf of the Trust Underwriter or persons
under the control of the
-24-
Trust Underwriter; or
arise as a result of any failure by the Trust 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 and procedures related
thereto specified in Article VI of this Agreement); or
arise out of or result from any material breach of any
representation and/or warranty made by the Trust Underwriter
in this Agreement or arise out of or result from any other
material breach of this Agreement by the Trust Underwriter;
except to the extent provided in Sections 8.2(b) and 8.4 hereof. This
indemnification shall be in addition to any liability which the Trust
Underwriter may otherwise have.
No party shall be entitled to indemnification by the Trust
Underwriter if such loss, claim, damage, liability or litigation is due to
the willful misfeasance, bad faith, gross negligence, or reckless disregard
of duty by the party seeking indemnification.
The indemnified parties will promptly notify the Trust
Underwriter of the commencement of any litigation or proceedings against
them in connection with the issuance or sale of the Contracts or the
operation of each Separate Account.
Indemnification By the Trust
----------------------------
The Trust agrees to indemnify and hold harmless the Company and
each of its directors, officers, employees, or agents and each person, if
any, who controls the Company within the meaning of such terms under the
federal securities laws (collectively, the "indemnified parties" for
purposes of this Section 8.3) against any and all losses, claims, damages,
liabilities (including amounts paid in settlement with the written consent
of the Trust), or litigation (including reasonable legal and other
expenses) to which the indemnified parties may become subject under any
statute, 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 operations of the Trust and:
arise as a result of any failure by the Trust 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 and procedures related thereto specified in
Article VI of this Agreement); or
arise out of or result from any material breach of any
representation and/or
-25-
warranty made by the Trust in this Agreement or arise out of
or result from any other material breach of this Agreement
by the Trust;
except to the extent provided in Sections 8.3(b) and 8.4 hereof. This
indemnification shall be in addition to any liability which the Trust may
otherwise have.
No party shall be entitled to indemnification by the Trust if
such loss, claim, damage, liability or litigation is due to the willful
misfeasance, bad faith, gross negligence, or reckless disregard of duty by
the party seeking indemnification.
The indemnified parties will promptly notify the Trust of the
commencement of any litigation or proceedings against it in connection with
the issuance or sale of the Contracts or the operation of each Separate
Account.
Indemnification Procedure
-------------------------
Any person obligated to provide indemnification under this Article VIII
("indemnifying party" for the purpose of this Section 8.4) shall not be
liable under the indemnification provisions of this Article VIII with
respect to any claim made against a party entitled to indemnification under
this Article VIII ("indemnified party" for the purpose of this Section 8.4)
unless such indemnified party shall have notified the indemnifying party 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 party shall have received
notice of such service on any designated agent), but failure to notify the
indemnifying party of any such claim shall not relieve the indemnifying
party from any liability which it may have to the indemnified party against
whom such action is brought under the indemnification provision of this
Article VIII, except to the extent that the failure to notify results in
the failure of actual notice to the indemnifying party and such
indemnifying party is damaged solely as a result of failure to give such
notice. In addition, any failure by the indemnified party to notify the
-26-
indemnifying party of any such claim shall not relieve the indemnifying
party from any liability which it may have to the indemnified party against
whom the action is brought otherwise than on account of this
indemnification provision. In case any such action is brought against the
indemnified party, the indemnifying party will be entitled to participate,
at its own expense, in the defense thereof. The indemnifying party also
shall be entitled to assume the defense thereof, with counsel satisfactory
to the party named in the action. After notice from the indemnifying party
to the indemnified party of the indemnifying party'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 indemnifying party 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,
unless (i) the indemnifying party and the indemnified party shall have
mutually agreed to the retention of such counsel or (ii) the named parties
to any such proceeding (including any impleaded parties) include both the
indemnifying party and the indemnified party and representation of both
parties by the same counsel would be inappropriate due to actual or
potential differing interests between them. The indemnifying party shall
not be liable for any settlement of any proceeding effected without its
written consent but if settled with such consent or if there be a final
judgment for the plaintiff, the indemnifying party agrees to indemnify the
indemnified party from and against any loss or liability by reason of such
settlement or judgment. A successor by law of the parties to this Agreement
shall be entitled to the benefits of the indemnification contained in this
Article VIII. The indemnification provisions contained
-27-
in this Article VIII shall survive any termination of this Agreement.
Applicable Law
This Agreement shall be construed and the provisions hereof interpreted under
and in accordance with the laws of the State of Delaware without giving
effect to conflicts of laws provisions thereof.
This Agreement shall be subject to the provisions of the 1933, 1934, and 1940
Acts, and the rules, 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 Order) and the
terms hereof shall be interpreted and construed in accordance therewith.
Termination
This Agreement shall terminate automatically in the event of its assignment,
unless made with written consent of each party; or:
at the option of any party upon six months advance written notice
to the other parties; or
at the option of the Company if shares of the Funds delineated in
Exhibit B are not reasonably available to meet the requirements of the
Contracts as determined by the Company; or
at the option of the Trust upon institution of formal proceedings
against the Company by the NASD, the SEC, the insurance commission of any
state or any other regulatory body, which would have a material adverse
effect on the Company's ability to perform its obligations under this
Agreement; or
at the option of the Company upon institution of formal
proceedings against the Trust or the Trust Underwriter by the NASD, the
SEC, or any state securities or insurance department or any other
regulatory body, which would have a material adverse effect on the Trust
Underwriter's or the Trust's ability to perform its obligations under this
Agreement; or
at the option of the Trust or the Trust Underwriter by written
notice to the Company, if the Company gives the Trust and the Trust
Underwriter the written notice specified in Section 1.8(b) hereof and at
the time such notice was given there was no
-28-
notice of termination outstanding under any other provision of this
Agreement; provided, however, any termination under this Section 10.1(e)
shall be effective sixty (60) days after the notice specified in Section
1.8(b) was given; or
at the option of the Company or the Trust upon a determination by
a majority of the Trust Board, or a majority of the disinterested Trustees,
that a material irreconcilable conflict exists among the interests of (i)
all contract owners of variable insurance products of all separate
accounts, or (ii) the interests of the Participating Insurance Companies
investing in the Trust as delineated in Article VII of this Agreement; or
at the option of the Company if the Trust ceases to qualify as a
Regulated Investment Company under Subchapter M of the Internal Revenue
Code, or under any successor or similar provision, or if the Company
reasonably believes that the Trust may fail to so qualify; or
at the option of the Company if the Trust fails to meet the
diversification requirements specified in Article VI hereof or if the
Company reasonably believes that the Trust will fail to meet such
requirements; or
at the option of any party to this Agreement, upon another
party's failure to cure a material breach of any provision of this
Agreement within thirty days; or
at the option of the Company, if the Company determines in its
sole judgment exercised in good faith, that either the Trust or the Trust
Underwriter has suffered a material adverse change in its business,
operations, or financial condition since the date of this Agreement or is
the subject of material adverse publicity which is likely to have a
material adverse impact upon the business and operations of the Company or
the Contracts (including the sale thereof); or
at the option of the Trust or Trust Underwriter, if the Trust or
Trust Underwriter respectively, shall determine in its sole judgment
exercised in good faith, that the Company has suffered a material adverse
change in its business, operations, or financial condition since the date
of this Agreement or is the subject of material adverse publicity which is
likely to have a material adverse impact upon the business and operations
of the Trust or Trust Underwriter; or
subject to the Trust's compliance with Article VI hereof, at the
option of the Trust in the event any of the Contracts are not issued or
sold in accordance with applicable requirements of federal and/or state
law. Termination shall be effective immediately upon such occurrence
without notice.
-29-
Notice Requirement
------------------
In the event that any termination of this Agreement is based upon
the provisions of Article VII, such prior written notice shall be given in
advance of the effective date of termination as required by such
provisions.
In the event that any termination of this Agreement is based upon
the provisions of Sections 10.10.1(b) - (d) or 10.1(g) - (i), prompt
written notice of the election to terminate this Agreement for cause shall
be furnished by the party terminating the Agreement to the non-terminating
parties, with said termination to be effective upon receipt of such notice
by the non-terminating parties.
In the event that any termination of this Agreement is based upon
the provisions of Sections 10.1(j) or 10.1(k), prior written notice of the
election to terminate this Agreement for cause shall be furnished by the
party terminating this Agreement to the non-terminating parties. Such
prior written notice shall be given by the party terminating this Agreement
to the non-terminating parties at least 30 days before the effective date
of termination.
It is understood and agreed that the right to terminate this Agreement pursuant
to Section 10.1(a) may be exercised for any reason or for no reason.
Effect of Termination
---------------------
Notwithstanding any termination of this Agreement pursuant to
Section 10.1 of this Agreement and subject to Section 1.3 of this
Agreement, the Company may require the Trust and the Trust Underwriter to
continue to make available additional shares of the Trust for so long after
the termination of this Agreement as the Company desires pursuant to the
terms and conditions of this Agreement as provided in paragraph (b) below,
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 the Trust, redeem investments in the Trust
and/or invest in the Trust upon the making of additional purchase payments
under the Existing Contracts. The parties agree that this Section 10.4
shall not apply to any terminations under Article VII and the effect of
such Article VII terminations shall be governed by Article VII of this
Agreement.
If shares of the Trust continue to be made available after
termination of this Agreement pursuant to this Section 10.4, the provisions
of this Agreement shall remain in effect except for Section 10.l(a).
The Company shall not redeem Fund shares attributable to the Contracts (as
opposed to Fund
-30-
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 or as permitted by an SEC
exemptive order (hereinafter referred to as a "Legally Required
Redemption"). Upon request, the Company will promptly furnish to the Trust
and the Trust Underwriter the opinion of counsel for the Company (which
counsel shall be reasonably satisfactory to the Trust and the Trust
Underwriter) to the effect that any redemption pursuant to clause (ii)
above is a Legally Required Redemption. Furthermore, except in cases where
permitted under the terms of the Contracts, the Company shall not prevent
Contract Owners from allocating payments to a Fund that was otherwise
available under the Contracts without first giving the Trust or the Trust
Underwriter 90 days notice of its intention to do so.
Notices
Any notice shall be deemed duly given only if sent by hand, evidenced by written
receipt or by certified mail, return receipt requested, to the other party
at the address of such party set forth below or at such other address as
such party may from time to time specify in writing to the other party.
All notices shall be deemed given three business days after the date
received or rejected by the addressee.
If to the Trust: C. Xxxxx Xxxxxxx, Esq.
Vice President & Senior Counsel
Xxxxx Fargo Bank
Legal Department
000 Xxxxxx Xxxxxx - 0xx Xxxxx
Xxx Xxxxxxxxx, XX 00000-0000
If to the Company: Hartford Life and Annuity Insurance Company
-31-
000 Xxxxxxxxx Xx.
Xxxxxxxx, XX 00000
Attention: Senior Vice President - IPD
cc: General Counsel
cc: International Corporate Marketing Group
000 Xxxxxx Xx. Xxxxx 000
Xxxxxxx Xxxx, XX 00000
Attention: President
If to the Trust Underwriter: Xxxxxxxx Inc.
000 Xxxxxx Xxxxxx
Xxxxxx Xxxx, XX 00000
Attention: Xxxxxxx X. Xxxxx, Vice President
Miscellaneous
All persons dealing with the Trust must look solely to the property of the Trust
for the enforcement of any claims against the Trust as neither the
Trustees, officers, agents or shareholders assume any personal liability
for obligations entered into on behalf of the Trust.
Subject to law and regulatory authority, each party hereto shall treat as
confidential all information reasonably identified as such in writing by
any other party hereto (including without limitation the names and
addresses of the owners of the Contracts) and, except as contemplated by
this Agreement, shall not disclose, disseminate, or utilize such
confidential information until such time as it may come into the public
domain without the express prior written consent of the affected party.
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.
This Agreement may be executed simultaneously in two or more counterparts, each
of which
-32-
taken together shall constitute one and the same instrument.
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.
This Agreement shall not be assigned by any party hereto without the prior
written consent of all the parties.
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 each other and 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.
Each party represents that the execution and delivery of this Agreement and the
consummation of the transactions contemplated herein have been duly
authorized by all necessary corporate or trust action, as applicable, by
such party and when so executed and delivered this Agreement will be the
valid and binding obligation of such party enforceable in accordance with
its terms.
The parties to this Agreement may amend the exhibits to this Agreement from time
to time to reflect changes in or relating to the Contracts, the Separate
Accounts or the Funds of the Trust.
The Trust has filed a Certificate of Trust with the Secretary of State of The
State of Delaware. The Company acknowledges that the obligations of or
arising out of the Trust's Declaration of Trust are not binding upon any of
the Trust's Trustees, officers, employees, agents or shareholders
individually, but are binding solely upon the assets and property of
-33-
the Trust in accordance with its proportionate interest hereunder. The
Company further acknowledges that the assets and liabilities of each Fund
are separate and distinct and that the obligations of or arising out of
this instrument are binding solely upon the assets or property of the Fund
on whose behalf the Trust has executed this instrument. The Company also
agrees that the obligations of each Fund hereunder shall be several and not
joint, in accordance with its proportionate interest hereunder, and the
Company agrees not to proceed against any Fund for the obligations of
another Fund.
Except as otherwise expressly provided in this Agreement, neither the Trust nor
the Trust Underwriter nor any affiliate thereof shall use any trademark,
trade name, service xxxx or logo of the Company or any of its affiliates,
or any variation of any such trademark, trade name service xxxx or logo,
without the Company's prior written consent, the granting of which shall be
at the Company's sole option. Except as otherwise expressly provided in
this Agreement, neither the Company nor any affiliate thereof shall use any
trademark, trade name, service xxxx or logo of the Trust or of the Trust
Underwriter, or any variation of any such trademark, trade name, service
xxxx or logo, without the prior written consent of either the Trust or of
the Trust Underwriter, as appropriate, the granting of which shall be at
the sole option of the Trust or of the Trust Underwriter, as applicable.
-34-
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
date first above written.
Xxxxx Fargo Variable Trust
By: /s/ C. Xxxxx Xxxxxxx
--------------------- _________________________
Name: C. Xxxxx Xxxxxxx
Title: Secretary
Hartford Life and Annuity Insurance Company
By: /s/ Xxxxx X. Xxx Xxxxx
----------------------- _________________________
Name: Xxxxx X. Xxx Xxxxx _________________________
Title: Assistant Vice President _________________________
Xxxxxxxx Inc.
By: /s/ Xxxxxxx X. Xxxxx, Xx.
------------------------ _________________________
Name: Xxxxxxx X. Xxxxx, Xx.
Title: Vice President
EXHIBIT A
Separate Accounts and Contracts
Subject to the Participation Agreement
--------------------------------------
Separate Account: ICMG Registered Variable Life Separate Account One
(established October 9, 1995)
Contracts: GVL-95(P) Group Flexible Premium Variable Life Insurance
Contract
A-1
EXHIBIT B
Funds Subject to the Participation Agreement
--------------------------------------------
Xxxxx Fargo Equity Income Fund
Xxxxx Fargo Asset Allocation Fund
Xxxxx Fargo Growth Fund
Xxxxx Fargo Equity Value Fund
Xxxxx Fargo Money Market Fund
Xxxxx Fargo Small Cap Growth Fund
Xxxxx Fargo Corporate Bond Fund
Xxxxx Fargo Large Company Growth Fund
B-1
