AMENDMENT NO. 1
to the
FUND PARTICIPATION AGREEMENT
AMENDMENT to the Fund Participation Agreement dated as of the 1st day
of October, 2006 (the "Agreement"), by and between DWS Variable Series II
("Fund"), Deutsche Investment Management Americas Inc. ("Adviser"), DWS
Distributors, Inc. ("Underwriter") and Union Central Life Insurance Company ("
Company").
WHEREAS, the parties wish to revise Schedule B to the Agreement in its
entirety;
NOW, THEREFORE, the parties hereby agree as follows:
Schedule B to the Agreement is hereby amended, and restated in
its entirety, by the Schedule B attached to this Amendment.
Except as expressly set forth above, all other terms and provisions of
the Agreement shall remain in full force and effect.
The Effective Date of this Amendment No. I is November 5, 2007.
IN WITNESS WHEREOF, the parties have caused their duly authorized
officers to execute this Amendment as of the date and year first above written.
DWS VARIABLE SERIES II UNION CENTRAL LIFE INSURANCE COMPANY
By: /s/ Xxxxxx X. Xxxxxxx By: /s/ Xxxxxx de Xxxxx
Name: Xxxxxx X. Xxxxxxx Name: Xxxxxx de Xxxxx
Title: Vice President Title: Second Vice President
DEUTSCHED INVESTMENT MANAGEMENT
AMERICAS INC.
By: /d/ Xxxxxxx Xxxxx
Name: Xxxxxxx Xxxxx
Title: COO
DWS Distributors, Inc.
By /s/ Xxxxxxx Xxxxxxx
Name: Xxxxxxx Xxxxxxx
Title: CEOP & Chairman
SCHEDULE B
(Revised effective November 5, 2007)
To the Participation Agreement by and among DWS Variable Series II, Deutsche
Investment Management Americas Inc., DWS Distributors, Inc. and Union Central
Life Insurance Company
Designated Portfolios. Class A shares DWS Variable Series II
DWS Money Market VIP
DWS Global Thematic VIP
DWS Dreman Small Mid Cap Value VIP
PARTICIPATION AGREEMENT
THIS AGREEMENT, dated as of the 1s1 day of October, 2006 by
and among THE UNION CENTRAL LIFE INSURANCE COMPANY (the "Company"), an Ohio life
insurance company, on its own behalf and on behalf of each segregated asset
account of the Company set forth on Schedule A hereto as may be amended from
time to time (each separate account hereinafter referred to as the "Account"),
DWS VARIABLE SERIES II (the "Fund"), a Massachusetts business trust created
under a Declaration of Trust, as amended, DWS XXXXXXX DISTRIBUTORS, INC. (the
"Underwriter"), a Delaware corporation, and DEUTSCHE INVESTMENT MANAGEMENT
AMERICAS INC., a Delaware corporation (the "Adviser").
WHEREAS, the Fund engages in business as an open-end
management investment company and is or will be available to act as the
investment vehicle for separate accounts established for variable life insurance
and variable annuity contracts (the "Variable Insurance Products") to be offered
by insurance companies which have entered into participation agreements with the
Fund and Underwriter ("Participating Insurance Companies");
WHEREAS, the beneficial interest in the Fund is divided into
several series of shares of beneficial interest without par value, and, with
respect to certain series, classes thereof ("Shares"), and additional series of
Shares, and classes thereof, may be established, each such series of Shares
designated a "Portfolio" and representing the interest in a particular managed
portfolio of securities and other assets;
WHEREAS, the Fund has obtained an order from the Securities
and Exchange Commission (the "SEC") 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 (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 (the
"Mixed and Shared Funding Exemptive Order");
WHEREAS, the Fund is registered as an open-end management
investment company under the 1940 Act and Shares of the Portfolios are
registered under the Securities Act of 1933, as amended (the "1933 Act");
WHEREAS, the Adviser, which serves as investment adviser to
the Fund, is duly registered as an investment adviser under the Investment
Advisers Act of 1940, as amended, and any applicable state securities laws;
WHEREAS, the Company has issued or will issue certain variable
life insurance and/or variable annuity contracts supported wholly or partially
by the Account (the "Contracts"), and said Contracts are listed in Schedule A
hereto, as it may be amended from time to time by mutual written agreement;
WHEREAS, the Account is duly established and maintained as a
segregated asset account, established by resolution of the Board of Directors of
the Company, to set aside and invest assets attributable to the aforesaid
Contracts;
WHEREAS, the Underwriter, which serves as distributor to the
Fund, is registered as a broker dealer with the SEC under the Securities
Exchange Act of 1934, as amended (the "1934 Act"), and is a member in good
standing of the National Association of Securities Dealers, Inc. (the "NASD");
and
WHEREAS, to the extent permitted by applicable insurance laws
and regulations, the Company intends to purchase shares in the Portfolios, and
classes thereof, listed in Schedule B hereto, as it may be amended from time to
time by mutual written agreement (the "Designated Portfolios") on behalf of the
Account to fund the aforesaid Contracts, and the Underwriter is authorized to
sell such Shares to the Account at net asset value;
NOW, THEREFORE, in consideration of their mutual promises, the
Company, the Fund, the Adviser and the Underwriter agree as follows:
ARTICLE I. Sale of Fund Shares
1.1. The Fund has granted to the Underwriter exclusive authority to
distribute the Fund's Shares, and has agreed to instruct, and has so instructed,
the Underwriter to make available to the Company for purchase, on behalf of the
Account, Fund Shares of those Designated Portfolios selected by the Underwriter.
Pursuant to such authority and instructions, and subject to Article X hereof,
the Underwriter agrees to make available to the Company for purchase on behalf
of the Account, Shares of those Designated Portfolios listed on Schedule B to
this Agreement, such purchases to be effected at net asset value in accordance
with Section 1.3 of this Agreement. Notwithstanding the foregoing, (i) Fund
series (other than those listed on Schedule B) in existence now or that may be
established in the future will be made available to the Company only as the
Underwriter may so provide, and (ii) the Board of Trustees of the Fund (the
"Board") may refuse to sell shares of any Designated Portfolio to any person, or
suspend or terminate the offering of Fund Shares of any Designated Portfolio or
class thereof, if such action is required by law or by regulatory authorities
having jurisdiction or if, in the sole discretion of the Board acting in good
faith and in light of its fiduciary duties under federal and any applicable
state laws, suspension or termination is in the best interests of the
shareholders of such Designated Portfolio.
1.2. The Fund shall redeem, at the Company's request, any full or
fractional Designated Portfolio Shares held by the Company on behalf of the
Account, such redemptions to be effected at net asset value in accordance with
Section 1.3 of this Agreement. Notwithstanding the foregoing, (i) the Company
shall not redeem Fund Shares attributable to Contract owners except in the
circumstances permitted in Section 10.3 of this Agreement, and (ii) the Fund may
suspend the right of redemption or postpone the date of payment or satisfaction
upon redemption of Fund Shares of any Designated Portfolio to the extent
permitted by the 1940 Act, any rules, regulations or orders thereunder.
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1.3. Purchase and Redemption Procedures
(a) The Fund hereby appoints the Company as an agent of the Fund
for the limited purpose of receiving purchase and redemption requests on behalf
of the Account for Shares of those Designated Portfolios made available
hereunder, based on allocations of amounts to the Account or subaccounts thereof
under the Contracts and other transactions relating to the Contracts or the
Account. Receipt of any such request (or relevant transactional information
therefore) on any day the New York Stock Exchange is open for trading and on
which the Fund calculates its net asset value pursuant to the rules of the SEC
(a "Business Day") by the Company as such limited agent of the Fund prior to the
time that the Fund calculates its net asset value as described from time to time
in the Fund Prospectus (which as of the date of execution of this Agreement is
4:00 p.m. Eastern Time) shall constitute receipt by the Fund on that same
Business Day, provided that the Fund receives notice of such request by 9:30
a.m. Eastern Time on the next following Business Day.
(b) The Company shall pay for Shares of each Designated Portfolio
on the same day that it notifies the Fund of a purchase request for such Shares.
Payment for Designated Portfolio Shares shall be made in federal funds
transmitted to the Fund by wire to be received by the Fund by 12:00 p.m. Eastern
Time on the same Business Day the Fund is notified of the purchase request for
Designated Portfolio Shares pursuant to Section 1.3(a) (unless the Fund
determines and so advises the Company that sufficient proceeds are available
from redemption of Shares of other Designated Portfolios effected pursuant to
redemption requests tendered by the Company on behalf of the Account). If
federal funds are not received on time, such funds will be invested, and
Designated Portfolio Shares purchased thereby will be issued, as soon as
practicable and the Company shall promptly, upon the Fund's request, reimburse
the Fund for any charges, costs, fees, interest or other expenses incurred by
the Fund in connection with any advances to, or borrowing or overdrafts by, the
Fund, or any similar expenses incurred by the Fund, as a result of portfolio
transactions effected by the Fund based upon such purchase request. Upon receipt
of federal funds so wired, such fluids shall cease to be the responsibility of
the Company and shall become the responsibility of the Fund.
(c) The Fund will redeem Designated Portfolio Shares requested
on behalf of the Account, and make payment therefore, in accordance with the
provisions of the then current registration statement of the Fund. Payment for
Designated Portfolio Shares redeemed by the Account or the Company normally
shall be made in federal funds transmitted by wire to the Company or any other
designated person on the same Business Day that the Fund is properly notified of
the redemption order for such Shares pursuant to Section 1.3(a) (unless
redemption proceeds are to be applied to the purchase of Shares of other
Designated Portfolios in accordance with Section 1.3(b) of this Agreement). The
Fund shall not bear any responsibility whatsoever for the proper disbursement or
crediting of redemption proceeds by the Company, the Company alone shall be
responsible for such action.
(d) No Designated Portfolio Shares shall be purchased or held
hereunder in or for the benefit of the Company's general account.
1.4. The Fund shall use its best efforts to make the net asset value
per share for each Designated Portfolio available to the Company by 6:30 p.m.
Eastern Time each Business Day, and in any event, as soon as reasonably
practicable after the net asset value per share for such
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Designated Portfolio is calculated, and shall calculate such net asset value in
accordance with the Fund's Prospectus. Any material error in the calculation or
reporting of net asset value per share, dividend or capital gain information
shall be reported to the Company promptly upon discovery by the Fund. A material
error in the calculation of net asset value per share shall be corrected in
accordance with the procedures for correcting net asset value errors adopted by
the Fund's Board of Trustees and in effect at the time of the error. The Fund
represents and warrants that its procedures for correcting net asset value
errors, including determinations of materiality, currently comply, and will
continue to comply, with the 1940 Act and generally industry-wide accepted SEC
staff interpretations concerning pricing errors in effect at the time of an
error.
1.5. The Fund shall furnish notice (by wire or telephone followed by
written confirmation) to the Company as soon as reasonably practicable of any
income dividends or capital gain distributions payable on any Designated
Portfolio Shares, normally no later than the time the net asset value per share
of the Designated Portfolios has been provided on the ex-date. The Company, on
its behalf and on behalf of the Account, hereby elects to receive all such
dividends and distributions as are payable on any Designated Portfolio Shares in
the form of additional Shares of that Designated Portfolio. The Company reserves
the right, on its behalf and on behalf of the Account, to revoke this election
and to receive all such dividends and capital gain distributions in cash. The
Fund shall notify the Company of the number of Designated Portfolio Shares so
issued as payment of such dividends and distributions.
1.6. Issuance and transfer of Fund Shares shall be by book entry only.
Stock certificates will not be issued to the Company or the Account. Purchase
and redemption orders for Fund Shares shall be recorded in an appropriate ledger
for the Account or the appropriate subaccount of the Account.
1.7. The parties hereto acknowledge that the arrangement contemplated
by this Agreement is not exclusive; the Fund's Shares may be sold to other
insurance companies (subject to Section 1.8 hereof) and to certain qualified
retirement plans, and the cash value of the Contracts may be invested in other
investment companies.
1.8. The Underwriter and the Fund shall sell Fund Shares only to
Participating Insurance Companies and their separate accounts and to persons or
plans ("Qualified Persons") that qualify to purchase Shares of the Fund under
Section 817(h) of the Internal Revenue Code of 1986, as amended (the "Code"),
and the regulations thereunder without impairing the ability of the Account to
consider the portfolio investments of the Fund as constituting investments of
the Account for the purpose of satisfying the diversification requirements of
Section 817(h). The Underwriter and the Fund shall not sell Fund Shares to any
insurance company or separate account unless an agreement complying with Article
VI of this Agreement is in effect to govern such sales. The Company hereby
represents and warrants that it and the Account are Qualified Persons. The Fund
reserves the right to cease offering Shares of any Designated Portfolio in the
discretion of the Fund.
ARTICLE II, Representations, Warranties and Covenants
2.1. The Company represents and warrants that the Contracts (a) are
or, prior to issuance, will be registered under the 1933 Act or, alternatively
(b) are not registered because they are properly exempt from registration under
the 1933 Act or will be offered exclusively in transactions that are properly
exempt from registration under the 1933 Act. The Company
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further represents and warrants that the Contracts will be issued and sold in
compliance in all material respects with all applicable federal securities and
state securities and insurance 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, that it has legally and
validly established the Account prior to any issuance or sale thereof as a
segregated asset account under applicable insurance laws, and that it (a) has
registered or, prior to any issuance or sale of the Contracts, will register the
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, or
alternatively (b) has not registered the Account in proper reliance upon an
exclusion from registration under the 1940 Act. The Company shall register and
qualify the Contracts or interests therein as securities in accordance with the
laws of the various states only if and to the extent deemed advisable by the
Company.
2.2. The Fund represents and warrants that Fund Shares sold pursuant to
this Agreement shall be registered under the 1933 Act, duly authorized for
issuance and sold in compliance in all material respects with all applicable
federal securities laws and that the Fund is and shall remain registered under
the 0000 Xxx. The Fund shall amend the registration statement for its Shares
under the 1933 Act and the 1940 Act from time to time as required in order to
effect the continuous offering of the shares of the Designated Portfolios. The
Fund shall register and qualify such 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 after taking into consideration any state insurance law
requirements that the Company advises the Fund may be applicable.
2.3. The Fund 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 Fund represents that the investment policies, fees and
expenses of the Designated Portfolios, are and shall at all times remain in
compliance with the insurance laws of the state of organization of the Company
set forth on the first page (the "State") to the extent required to perform this
Agreement provided that the Company provides the Fund and the Adviser notice as
to any requirements of such State insurance law that affect the Designated
Portfolios.
2,4. The Fund represents that it is a Massachusetts business trust duly
organized and validly existing under the laws of the Commonwealth of
Massachusetts and that the Designated Portfolios do and will comply in all
material respects with all applicable provisions of the 1940 Act.
2.5. 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 the shares of
the Designated Portfolios in accordance with any applicable state and federal
securities laws.
2.6. The Adviser represents and warrants that it is and shall remain
duly registered as an investment adviser 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.
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2.7. The Fund, the Adviser and the Underwriter represent and warrant
that all of their trustees, directors, officers, employees, investment advisers,
and other individuals or entities dealing with the money and/or securities of
the Fund are and shall continue to be at all times covered by a blanket fidelity
bond or similar coverage for the benefit of the Fund in an amount not less than
the minimum coverage as required currently by Rule 17g-1 of the 1940 Act or such
related provisions as may be promulgated from time to time. The aforesaid bond
shall include coverage for larceny and embezzlement and shall be issued by a
reputable bonding company.
2.8. The Company represents and warrants that all of its directors,
officers, employees, investment advisers, and other individuals or entities
employed or controlled by the Company dealing with the money and/or securities
of the Account are covered by a blanket fidelity bond or similar coverage for
the benefit of the Account, in an amount not less than $10 million. The
aforesaid bond includes coverage for larceny and embezzlement and is issued by a
reputable bonding company. The Company agrees to hold for the benefit of the
Fund and to pay to the Fund any amounts lost from larceny, embezzlement or other
events covered by the aforesaid bond to the extent such amounts properly belong
to the Fund pursuant to the terms of this Agreement. The Company agrees to make
all reasonable efforts to see that this bond or another bond containing these
provisions is always in effect, and agrees to notify the Fund and the
Underwriter in the event that such coverage no longer applies.
2.9, The Company represents and warrants that all shares of the
Designated Portfolios purchased by the Company will be purchased on behalf of
one or more unmanaged separate accounts that offer interests therein that are
registered under the 1933 Act and upon which a registration fee has been or will
be paid or that are unregistered because the interests are exempt from
registration under the 1933 Act, and the Company acknowledges that the Fund
intends to rely upon this representation and warranty for purposes of
calculating SEC registration fees payable with respect to such Shares of the
Designated Portfolios pursuant to Form 24F-2 or any similar form or SEC
registration fee calculation procedure that allows the Fund to exclude Shares so
sold for purposes of calculating its SEC registration fee. The Company will
certify the amount of any Shares of the Designated Portfolios purchased by the
Company on behalf of any separate account offering interests not subject to
registration under the 1933 Act. The Company agrees to cooperate with the Fund
on no less than an annual basis to certify as to its continuing compliance with
this representation and warranty.
2.10. The Company represents and warrants as follows:
1. The Company has in place an anti-money laundering program
("AML program") that does now and will continue to comply with applicable laws
and regulations, including the relevant provisions of the USA PATRIOT Act (Pub.
L. No. 107-56 (2001)) and the regulations issued thereunder by the U.S. Treasury
Department and the rules of the National Association of Securities Dealers,
Inc., as applicable.
2. The Company has in place - and has conducted due diligence
pursuant to - policies, procedures and internal controls reasonably designed (a)
to verify the identity of the Contract owners that invest in the Account, and
(b) to identify those Contract owners' sources of funds, and have no reason to
believe that any of the invested funds were derived from illegal activities.
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3. The Company has, after undertaking reasonable inquiry, no
information or knowledge that (a) any Contract owner that invests in the
Account, or (b) any person or entity controlling, controlled by or under common
control with such Contract owner is an individual or entity or in a country or
territory that is on an Office of Foreign Assets Control ("OFAC") list or
similar list of sanctioned or prohibited persons maintained by a U.S.
governmental or regulatory body.
The Company further agrees promptly to notify the Fund and the Underwriter
should it become aware of any change in the above representations and
warranties.
The Company agrees to require any broker-dealer/insurance agency that
distributes the Contracts to have an AML Program in substantial compliance with
the foregoing.
In addition, the Underwriter and the Fund hereby provide notice to the Company
that the Underwriter and/or the Fund reserve the right to make inquiries of and
request additional information from the Company regarding its AML program.
2.11. The Company will develop, implement and maintain policies and
procedures reasonably designed to prevent the use of the Accounts by persons
engaged in short-term trading or excessive trading, which policies and
procedures shall be reasonably acceptable to the Fund, the Adviser and the
Underwriter. If the Company proposes to modify such policies and procedures
following their implementation, the Company will first discuss its proposal with
the Fund, the Adviser and the Underwriter and will not materially modify such
policies and procedures without the written consent of the Fund, the Adviser and
the Underwriter.
In addition to the foregoing, the Company will develop, implement and
maintain procedures as necessary or appropriate to further any specific policies
and procedures of the Fund, the Adviser or the Underwriter for one or more
Designated Portfolios in regard to shortterm trading or excessive trading.
The Company represents and warrants that it has reserved sufficient
flexibility in the Contracts to impose such limitations and restrictions on
transfers and purchases of the underlying investments for the Contracts,
including specifically the Designated Portfolios, as may be necessary to
implement the policies and procedures referred in this Section 2.11.
If, notwithstanding the foregoing, the Fund, the Adviser or the
Underwriter notifies the Company that a pattern or patterns of transactions
involving short-term trading or excessive trading in one or more Accounts is
having or may have, in their sole discretion, an adverse effect on a Designated
Portfolio, the Company will promptly take such actions and implement such
procedures as are appropriate to prevent such trading. The parties hereto
acknowledge that, if necessary, such actions and procedures may include the
identification of Account participants engaged in such trading and the
imposition of complete or partial restrictions on their requests to purchase
shares of the Designated Portfolio.
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The Company acknowledges that all orders accepted by the Company for
the Accounts are subject to the obligations of the Company in this Section
2.11, including the obligation to prevent the use of the Accounts for
short-term trading or excessive trading, and that the Fund, the Adviser or the
Underwriter may take such actions as it deems to be in the best interests of
shareholders of the Designated Portfolios to enforce such obligations and to
otherwise prevent such trading in shares of the Designated Portfolios,
including, among other things, the right to revoke, reject or cancel purchase
orders for shares of the Designated Portfolios made by the Company. Any such
revocation, rejection or cancellation may be made in whole or in part, it
being understood that the Fund, the Adviser and the Underwriter are not
required to isolate objectionable trades.
The Fund, the Adviser and the Underwriter shall not be responsible for
any losses or costs incurred by the Company, the Account or Account
participants as a result of the revocation, rejection or cancellation orders
made by the Company in furtherance of the enforcement of their policy to
prevent short-term trading and excessive trading in shares of the Designated
Portfolios.
2.12. The Company shall comply with any applicable privacy and notice
provisions of 15 U.S.C. xx.xx. 6801-6827 and any applicable regulations
promulgated thereunder (including but not limited to 17 C.F.R. Part 248) as
they may be amended.
2.13. Neither the Fund, any Designated Portfolio, the Underwriter, nor
any of their affiliates shall be liable for any information provided to the
Company pursuant to this Agreement which information is based on incorrect
information supplied by the Company or any other Participating Insurance
Company to the Fund or the Underwriter. The Company agrees that the Fund, the
Underwriter and the Adviser shall bear no responsibility for any act of any
unaffiliated fund or the investment adviser or underwriter thereof.
ARTICLE III. Prospectuses and Proxy Statements: Voting
3.1. The Underwriter shall provide the Company with as many copies of
the Fund's current prospectus (describing only the Designated Portfolios listed
on Schedule B) 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 on computer diskette or other electronic means
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 a
Designated Portfolio is amended) to have the prospectus for the Contracts and
the prospectus for the Designated Portfolios printed together in one document.
Expenses with respect to the foregoing shall be borne as provided under Article
V.
3.2. The Fund's prospectus shall state that the current Statement of
Additional Information ("SAI") for the Fund is available from the Company (or in
the Fund's discretion, from the Fund), and the Fund shall provide a copy of such
SAI to any owner of a Contract who requests such SAI and to the Company in such
quantities as the Company may reasonably request. Expenses with respect to the
foregoing shall be borne as provided under Article V.
3.3. The Fund shall provide the Company with copies of its proxy
material, reports to shareholders, and other communications to shareholders of
the Designated Portfolios in such
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quantity as the Company shall reasonably require for distributing to Contract
owners. Expenses with respect to the foregoing shall be borne as provided under
Article V.
3.4. The Company shall:
(i) solicit voting instructions from Contract owners;
(ii) vote the shares of each Designated Portfolio in accordance
with instructions received from Contract owners; and
(iii) vote shares of each Designated Portfolio for which no
instructions have been received in the same proportion as fund shares of such
Designated 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 or to the extent
otherwise required by law. The Company reserves the right to vote shares of each
Designated Portfolio held in any segregated asset account in its own right, to
the extent permitted by law.
3.5. The Fund reserves the right, upon prior written notice to the
Company (given at the earliest practicable time), to take all actions, including
but not limited to, the dissolution, termination, merger and sale of all assets
of the Fund or any Designated Portfolio upon the sole authorization of the
Board, to the extent permitted by the laws of the Commonwealth of Massachusetts
and the 1940 Act.
3.6. Participating Insurance Companies shall be responsible for
assuring that each of their separate accounts participating in a Designated
Portfolio calculates voting privileges as required by the Mixed and Shared
Funding Exemptive Order and consistent with any reasonable standards that the
Fund may adopt and provide in writing.
3.7. It is understood and agreed that, except with respect to
information regarding the Fund, the Underwriter, the Adviser or Designated
Portfolios provided in writing by the Fund, the Underwriter or the Adviser, none
of the. Fund, the Underwriter or the Adviser is responsible for the content of
the prospectus or statement of additional information for the Contracts. It is
understood and agreed that, except with respect to any information regarding the
Company and the Contracts provided in writing by the Company, the Company is not
responsible for the content of the prospectus or statement of additional
information for the Fund.
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 that the Company develops or uses and in which the Fund (or a
Designated Portfolio thereof) or the Adviser or the Underwriter is named. No
such material shall be used until approved by the Fund or its designee, and the
Fund will use its best efforts for it or its designee to review such sales
literature or promotional material within ten Business Days after receipt of
such material. The Fund or its designee reserves the right to reasonably object
to the continued use of any such sales literature or other promotional material
in which the Fund (or a Designated Portfolio thereof) or the Adviser or the
Underwriter is named, and no such material shall be used if the Fund or its
designee so objects.
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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 or SAI for
the Fund Shares, as such registration statement and prospectus or SAI may be
amended or supplemented from time to time, or in reports or proxy statements for
the Fund, or in sales literature or other promotional material approved by the
Fund or its designee or by the Underwriter, except with the permission of the
Fund or the Underwriter or the designee of either.
4.3. The Fund and the Underwriter, or their designee, shall furnish, or
shall cause to be, furnished, to the Company, each piece of sales literature or
other promotional material that it develops or uses and in which the Company,
and/or its Account, is named. No such material shall be used until approved by
the Company, and the Company will use its best efforts to review such sales
literature or promotional material within ten Business Days after receipt of
such material. The Company reserves the right to reasonably object to the
continued use of any such sales literature or other promotional material in
which the Company and/or its Account is named, and no such material shall be
used if the Company so objects.
4.4. The Fund and the Underwriter shall not give any information or
make any representations on behalf of the Company or concerning the Company, the
Account, or the Contracts other than the information or representations
contained in a registration statement, prospectus (which shall include an
offering memorandum, if any, if the Contracts issued by the Company or interests
therein are not registered under the 1933 Act), or SAI for the Contracts, as
such registration statement, prospectus, or SAI may be amended or supplemented
from time to time, or in published reports for the Account 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.
4.5. The Fund will provide to the Company at least one complete copy of
any prospectuses and SAls, and all amendments to any of the above, that relate
to the Designated Portfolio(s) reasonably promptly after the filing of such
document(s) with the SEC or NASD or other regulatory authorities. Upon request,
the Fund will provide to the Company copies of SEC exemptive orders and
no-action letters and sales literature and other promotional material that
relate to the Designated Portfolios and to the performance of this Agreement by
the parties.
4.6. The Company will provide to the Fund at least one complete copy of
any prospectuses (which shall include an offering memorandum, if any, if the
Contracts issued by the Company or interests therein are not registered under
the 0000 Xxx) and SAls, and all amendments to any of the above, that relate to
the Contracts or the Account reasonably promptly after the filing of such
document(s) with the SEC or NASD or other regulatory authorities. Upon request,
the Company will provide to the Fund copies of SEC exemptive orders and noaction
letters, solicitations of voting instructions and sales literature and other
promotional material that relate to the Contracts or the Account and the
performance of this Agreement by the parties. The Company shall provide to the
Fund and the Underwriter any complaints received from the Contract owners
pertaining to the Fund or the Designated Portfolios.
4.7. The Fund will provide the Company with as much notice as is
reasonably practicable of any proxy solicitation for any Designated Portfolio,
and of any material change in the Fund's registration statement, particularly
any change resulting in a change to the registration
-10-
statement or prospectus for any Account. The Fund will work with the Company so
as to enable the Company to solicit proxies from Contract owners, or to make
changes to its prospectus or registration statement, in an orderly manner. The
Fund will make reasonable efforts to attempt to have changes affecting Contract
prospectuses become effective simultaneously with the annual updates for such
prospectuses.
4.8. For purposes of this Article IV, the phrase "sales literature and
other promotional materials" 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, Internet website (or other electronic
media), 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, reports, market letters, form letters,
seminar texts, reprints or excerpts of any other advertisement, sales
literature, or published article), educational or training materials or other
communications distributed or made generally available to some or all agents or
employees, and registration statements, prospectuses, SATs, shareholder reports,
proxy materials, and any other communications distributed or made generally
available with regard to the Fund.
ARTICLE V. Fees and Expenses
5.1. The Fund, the Adviser and the Underwriter shall pay no fee or
other compensation to the Company under this Agreement, although the parties
hereto will bear certain expenses in accordance with Schedule C and other
provisions of this Agreement.
5.2. All expenses incident to performance by the Fund under this
Agreement shall be paid by the Fund, except and as further provided in Schedule
C. The cost of setting the Fund's prospectus in type, setting in type and
printing the Fund's 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 relating to the Fund required by any
federal or state law, and all taxes on the issuance or transfer of the Fund's
Shares shall be borne by the parties hereto as set forth in Schedule C.
5.3. The expenses of distributing the Fund's prospectus to new and
existing owners of Contracts issued by the Company and of distributing the
Fund's proxy materials and reports to Contract owners shall be borne by the
parties hereto as set forth in Schedule C.
ARTICLE VI. Diversification and Qualification
6.1. The Fund will invest the assets of each Designated Portfolio in
such a manner as to ensure that the Contracts will be treated as annuity or life
insurance contracts, whichever is appropriate, under the Code and the
regulations issued thereunder (or any successor provisions). Without limiting
the scope of the foregoing, the Fund will, with respect to each Designated
Portfolio, comply with Section 817(h) of the Code and Treasury Regulation ss.
1.817-5, and any Treasury interpretations thereof, relating to the
diversification requirements for variable annuity, endowment, or life insurance
contracts, and any amendments or other modifications or successor provisions to
such Section or Regulations. In the event of a breach of this Article VI by the
Fund, it will take all reasonable steps (a) to notify the Company of such breach
and (b) to
-11-
adequately diversify the affected Designated Portfolio so as to achieve
compliance within the grace period afforded by Treasury Regulation ss.1.817-5.
6.2. The Fund represents that each Designated Portfolio is or will be
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 provisions) and that it will notify the Company
immediately upon having a reasonable basis for believing that a Designated
Portfolio has ceased to so qualify or that it might not so qualify in the
future.
6.3. The Company represents that the Contracts are currently, and at
the time of issuance shall be, treated as life insurance or annuity insurance
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 immediately upon having a reasonable basis for believing the
Contracts have ceased to be so treated or that they might not be so treated in
the future. The Company agrees that any prospectus offering a contract that is a
"modified endowment contract" as that term is defined in Section 7702A of the
Code (or any successor or similar provision), shall identify such contract as a
modified endowment contract.
ARTICLE VII. Potential Conflicts
7.1. The Board will monitor the Fund for the existence of any material
irreconcilable conflict among the interests of the Contract owners of all
separate accounts investing in the Fund. An irreconcilable material conflict may
arise for a variety of reasons, including: (a) an action by any state insurance
regulatory authority; (b) a change in applicable insurance laws or regulations;
(c) a tax ruling or provision of the Internal Revenue Code or the regulations
thereunder; (d) any other development relating to the tax treatment of insurers,
Contract or policy owners or beneficiaries of variable annuity contracts or
variable life insurance policies; (e) the manner in which the investments of any
Designated Portfolio are being managed; (f) a difference in voting instructions
given by variable annuity contract holders, on the one hand, and variable life
insurance policy owners, on the other hand, or by the contract holders or policy
owners of different Participating Insurance Companies; or (g) a decision by a
Participating Insurance Company to disregard the voting instructions of its
Contract owners. The Board shall promptly inform the Company by written notice
if it determines that an irreconcilable material conflict exists and the
implications thereof.
7.2. The Company and the Adviser will report any potential or existing
conflicts of which it is aware to the Board. The Company will assist the Board
in carrying out its responsibilities under the Mixed and Shared Funding
Exemptive 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 Contract
owner voting instructions are disregarded. At least annually, and more
frequently if deemed appropriate by the Board, the Company shall submit to the
Adviser, and the Adviser shall at least annually submit to the Board, such
reports, materials and data as the Board may reasonably request so that the
Board may fully carry out the obligations imposed upon it by the conditions
contained in the Mixed and Shared Funding Exemptive Order; and said reports,
materials and data shall be submitted more frequently if deemed appropriate by
the Board. The responsibility to report such information and conflicts to the
Board will be carried out with a view only to the interests of the Contract
owners.
-12-
7.3. If it is determined by a majority of the Board, or a majority of
its disinterested members, 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 Board members), take whatever steps are necessary to remedy or
eliminate the irreconcilable material conflict, up to and including: (1)
withdrawing the assets allocable to some or all of the separate accounts from
the Fund or any Designated Portfolio and reinvesting such assets in a different
investment medium, including (but not limited to) another Designated 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.
7.4. 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 any Designated Portfolio 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 members of the Board.
The Company will bear the cost of any remedial action, including such withdrawal
and termination. Any such withdrawal and termination must take place within six
(6) months after the Fund gives written notice that this provision is being
implemented, and until the end of that six month period the Fund shall continue
to accept and implement orders by the Company for the purchase (and redemption)
of shares of such Designated Portfolio.
7.5.. If a material irreconcilable conflict arises because a particular
state insurance regulator's decision applicable to the Company conflicts with
the majority of other state regulators, then the Company will withdraw the
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 an irreconcilable
material conflict; provided, however, that such withdrawal and termination shall
be limited to the extent required by the foregoing material irreconcilable
conflict as determined by a majority of the disinterested members of the Board.
Until the end of the foregoing six month period, the Fund shall continue to
accept and implement orders by the Company for the purchase (and redemption) of
shares of such Designated Portfolios.
7.6. For purposes of Sections 7.3 through 7.6 of this Agreement, a
majority of the disinterested members of the Board shall determine whether any
proposed action adequately remedies any irreconcilable material conflict, but in
no event will the Fund be required to establish a new finding medium for the
Contracts. The Company shall not be required by Section 7.3 to establish a new
funding medium for the Contract if an offer to do so has been declined by vote
of a majority of Contract owners materially adversely affected by the
irreconcilable material conflict. In the event that the Board determines that
any proposed action does not adequately remedy any irreconcilable material
conflict, then the Company will withdraw an Account's investment in any
Designated Portfolio and terminate this Agreement
-13-
within six (6) months after the Board informs the Company in writing of the
foregoing determination; provided, however, that such withdrawal and termination
shall be limited to the extent required by any such material irreconcilable
conflict as determined by a majority of the disinterested members of the Board.
7.7. If and to the extent the Mixed and Shared Funding Exemption Order
or any amendment thereto contains terms and conditions different from Sections
3.4, 3.6, 7.1, 7.2, 7.3, 7.4, and 7.5 of this Agreement, then the Fund and/or
the Participating Insurance Companies, as appropriate, shall take such steps as
may be necessary to comply with the Mixed and Shared Funding Exemptive Order,
and Sections 3.4, 3.6, 7.1, 7.2, 7.3, 7.4 and 7.5 of this Agreement shall
continue in effect only to the extent that terms and conditions substantially
identical to such Sections are contained in the Mixed and Shared Funding
Exemptive Order or any amendment thereto. If and to the extent that Rule 6e-2
and Rule 6e-3(T) are amended, or Rule 6e-3 or any similar rule is adopted, to
provide exemptive relief from any provision of the 1940 Act or the rules
promulgated thereunder with respect to mixed or shared funding (as defined in
the Mixed and Shared Funding Exemptive Order) on terms and conditions materially
different from those contained in the Mixed and Shared Funding Exemptive Order,
then (a) 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 or any similar rule, as adopted, to the extent such
rules are applicable; and (b) Sections 3.4, 3.6, 7.1., 7.2, 7.3, 7.4, and 7.5 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 VIII. Indemnification 8.1. Indemnification By the Company
(a) The Company agrees to indemnify and hold harmless the
Fund, the Adviser and the Underwriter and each of its trustees, directors and
officers, and each person, if any, who controls the Fund, the Adviser or
Underwriter within the meaning of Section 15 of the 1933 Act or who is under
common control with the Underwriter (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 legal and other expenses), to which the
Indemnified Parties may become subject under any statute or regulation, at
common law or otherwise, insofar as such losses, claims, damages, liabilities or
expenses (or actions in respect thereof) or settlements are related to the sale
or acquisition of the Shares of the Designated Portfolios or the Contracts; and:
(i) arise out of or are based upon any
untrue statement or alleged untrue statements of any material fact contained in
the registration statement, prospectus (which shalt include an offering
memorandum, if any), or SAI for the Contracts or contained in the Contracts or
sales literature 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, provided that this
agreement to indemnify shall not apply as to any Indemnified Party if such
statement or omission or such alleged statement or omission was made in reliance
upon and in conformity with information furnished in writing to the Company by
or on behalf of the Fund for use in the registration statement, prospectus or
SAI for the
-14-
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
Fund Shares; or
(ii) arise out of or are based upon any
untrue statement or alleged untrue statements of any material fact contained in
the registration statement, prospectus (which shall include an offering
memorandum, if any), or SAI covering insurance products sold by the Company or
any insurance company which is an affiliate thereof, or any amendments or
supplements thereto, 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 information furnished in writing to the Company by
or on behalf of the Fund for use in the registration statement, prospectus or
SAI covering insurance products sold by the Company or any insurance company
which is an affiliate thereof, or any amendments or supplements thereto; or
(iii) arise out of or as a result of statements or representations (other than
statements or representations contained in the registration statement,
prospectus, SAI, or sales literature of the Fund not supplied by the Company or
persons under its control) or wrongful conduct of the Company or its agents or
persons under the Company's authorization or control, or any affiliate thereof,
with respect to the sale or distribution of the Contracts or Fund Shares; or
(iv) arise out of any untrue statement or alleged untrue statement of a material
fact contained in a registration statement, prospectus, SAI, or sales literature
of the Fund or any amendment thereof or supplement thereto or the omission or
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading if such a statement
or omission was made in reliance upon information furnished to the Fund by or on
behalf of the Company; or
(v) arise out of or are based upon any
untrue statements or alleged untrue statements of any material fact contained in
any registration statement, prospectus, statement of additional information or
sales literature for any fund not affiliated with the Fund ("Unaffiliated
Fund"), 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 statements therein not misleading, or otherwise pertain to or arise in
connection with the availability of any Unaffiliated Fund as an underlying
funding vehicle in respect of the Contracts, or arise out of or are based upon
any act or omission on the part of the investment adviser or underwriter of an
Unaffiliated Fund; or
(vi) arise out of or result from any
material breach of any representation, warranty or agreement made by the Company
in this Agreement (including a failure, whether unintentional or in good faith
or otherwise, to comply with the qualification requirements specified in Article
VI of this Agreement);
as limited by and in accordance with the provisions of Sections 8.1(b), 8.1(c)
and 8.1(d) hereof.
-15-
(b) The Company shall not be liable under this indemnification
provision with respect to any losses, claims, damages, liabilities or litigation
to which an Indemnified Party would otherwise be subject by reason of such
Indemnified Party's willful misfeasance, bad faith, or gross negligence in the
performance of such Indemnified Party's duties, or by reason of such Indemnified
Party's reckless disregard of its obligations or duties either under this
Agreement or to the Company, the Fund, the Adviser, the Underwriter or the
Account, whichever is applicable.
(c) The Company shall not be liable under this indemnification
provision with respect to any claim made against an Indemnified Party unless
such Indemnified Party shall have notified the Company in writing within a
reasonable time after the summons or other first legal process giving
information of the nature of the claim shall have been served upon such
Indemnified Party (or after such Indemnified Party shall have received notice of
such service on any designated agent), but failure to notify the Company of any
such claim shall not relieve the Company from any liability that it may have to
the Indemnified Party against whom such action is brought otherwise than on
account of this indemnification provision, except to the extent that the Company
has been materially prejudiced by such failure to give notice. In case any such
action is brought against an Indemnified Party, the Company shall be entitled to
participate, at its own expense, in the defense of such action. The Company also
shall be entitled to assume the defense thereof, with counsel satisfactory to
the party named in the action and to settle the claim at its own expense;
provided, however, that no such settlement shall, without the Indemnified
Parties' written consent, include any factual stipulation referring to the
Indemnified Parties or their conduct. 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, but, in case the Company does not elect to assume the defense of
any such suit, the Company will reimburse the Indemnified Parties in such suit,
for the reasonable fees and expenses of any counsel retained by them.
(d) The Indemnified Parties will promptly notify the Company of
the commencement of any litigation or proceedings against them in connection
with the issuance or sale of the Fund Shares or the Contracts or the operation
of the Fund.
8.2. Indemnification by the Underwriter
(a) The Underwriter agrees to indemnify and hold harmless the
Company and each of its directors and officers and each person, if any, who
controls the Company within the meaning of Section 15 of the 1933 Act
(collectively, the "Indemnified Parties" for purposes of this Section 8.2)
against any and all losses, claims, damages, liabilities (including amounts paid
in settlement with the written consent of the Underwriter) or litigation
(including legal and other expenses) to which the Indemnified Parties may become
subject under any statute or regulation, at common law or otherwise, insofar as
such losses, claims, damages, liabilities or expenses (or actions in respect
thereof) or settlements are related to the sale or acquisition of Shares of the
Designated Portfolios 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
-16-
statement or prospectus or XXx or sales literature 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 information furnished to the
Underwriter or Fund by or on behalf of the Company for use in the registration
statement, prospectus or SAI for the Fund or in sales literature (or any
amendment or supplement) or otherwise for use in connection with the sale of the
Contracts or Fund Shares; or
(ii) arise out of or as a result of
statements or representations (other than statements or representations
contained in the registration statement, prospectus, SAI or sales literature 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, SAI or sales literature 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, if such statement or
omission was made in reliance upon information furnished to the Company by or on
behalf of the Fund or the Underwriter; or
(iv) arise out of or result from any
material breach of any representation, warranty or agreement made by the
Underwriter, the Adviser or the Fund in this Agreement (including a failure of
the Fund, whether unintentional or in good faith or otherwise, to comply with
the diversification and other qualification requirements specified in Article VI
of this Agreement);
as limited by and in accordance with the provisions of Sections 8,2(b), 8.2(c)
and 8.2(d) hereof.
(b) The Underwriter shall not be liable under this
indemnification provision with respect to any losses, claims, damages,
liabilities or litigation to which an Indemnified Party would otherwise be
subject by reason of such Indemnified Party's willful misfeasance, bad faith, or
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
either under this Agreement or to the Company, the Fund, the Adviser, the
Underwriter or the Account, whichever is applicable.
(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, except to the (
-17-
extent that the Underwriter has been prejudiced by such failure to give notice.
In case any such action is brought against the Indemnified Party, the
Underwriter will 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 and to settle the
clain at its own expense; provided, however, that no such settlement shall,
without the Indemnified parties' written consent, include any factual
stipulation to the Indemnified Parties or their conduct. 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, but, in case the Underwriter does
not elect to assume the defense of any such suit, the Underwriter will reimburse
the Indemnified Parties in such suit; for the reasonable fees and expenses of
any counsel retained by them.
(d) The Indemnified Parties agree promptly to notify the
Underwriter of the cowntencement of any litigation or proceedings against them
in connection with the issuance or Sale of the Contracts or the operation of the
Account.
8.3. Indemnification By the Fund
(a) The Fund agrees to indemnify and hold harmless the Company
and each of its directors and officers and each person, if any, who controls the
Company within the vocaning of Section 15 of the 1933 Act (collectively, the
"Indemnified Parties" for purposes of this Section 8.3) against any and all
losses, claims, expenses, damages, liabilities (including counts paid in
settlement with the written consent of the Fund) or litigation (including legal
aril other expenses) to which the Indemnified Parties may be required to pay or
may become subject under any statute or regulation, at common law or otherwise,
insofar as such losses, claims, expenses, damages, liabilities or expenses (or
actions in respect thereof) or settlements, are related to the operations of the
Fund and arise out of or result from any material breach of ,y representation,
warranty or agreement made by the Fund in this Agreement (including a fail';
whether unintentional or in good faith or otherwise, to comply with the
diversification and other qualification requirements specified in Article VI of
this Agreement);
as limited by and in accordance with the provisions of Sections 8.3(b), 8.3(c)
and 83(d) hereof.
(b) The Fund shall not be liable under this indemnification
provision with respect to any losses, claims, damages, liabilities or litigation
to which an Indemnified Party would otherwise be subject by reason of such
Indemnified Party's willful misfeasance, bad faith, or 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 either under this Agreement
or to the Company, the Fund, the Adviser, the Underwriter or the Account,
whichever is applicable.
(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 upon such Party (or after
such Indemnified have been served mnified Party hall hav reeived notice
Indemnified e of such service on any y designated agent), but failure to notify
the Fund of any such claim shall not relieve the Fund
-18-
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,
except to the extent the Fund has been prejudiced by such failure to give
notice. In case any such action is brought against the Indemnified Parties, the
Fund will 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 and to settle the claim at
its own expense; provided, however, that no such settlement shall, without the
Indemnified Parties' written consent include any factual stipulation referring
to the Indemnified Parties or their conduct. 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, but, in case the Fund does not elect to assume the defense of any
such suit, the Fund will reimburse the Indemnified Parties in such suit, for the
reasonable fees and expenses of any counsel retained by them.
(d) The Indemnified Parties agree promptly to notify the Fund
of the commencement of any litigation or proceeding against it or any of its
respective officers or trustees in connection with the Agreement, the issuance
or sale of the Contracts, the operation of any Account, or the sale or
acquisition of Shares of the Fund.
ARTICLE IX. Applicable Law
9.1. This Agreement shall be construed and the provisions hereof
interpreted under and in accordance with the laws of the Commonwealth of
Massachusetts.
9.2. This Agreement shall be subject to the applicable provisions
of the 1933, 1934 and 1940 Acts, and the rules and regulations and rulings
thereunder, including such exemptions from those statutes, rules and regulations
as the SEC may grant (including, but not limited to, any Mixed and Shared
Funding Exemptive Order) and the terms hereof shall be interpreted and construed
in accordance therewith. If, in the future, the Mixed and Shared Funding
Exemptive Order should no longer be necessary under applicable law, then Article
VII shall no longer apply.
ARTICLE X. Termination
10.1. This Agreement shall continue in full force and effect until the
first to occur of:
(a) termination by any party, for any reason with respect to
some or all Designated Portfolios, by three (3) months advance written notice
delivered to the other parties; or
(b) termination by the Company by written notice to the Fund,
the Adviser and the Underwriter based upon the Company's reasonable and good
faith determination that Shares of any Designated Portfolio are not reasonably
available to meet the requirements of the Contracts; or
(c) termination by the Company by written notice to the Fund,
the Adviser and the Underwriter in the event any of the Designated Portfolio's
Shares are not registered,
-19-
issued or sold in accordance with applicable state and/or federal securities
laws 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 Fund, the Adviser or Underwriter in the
event that formal administrative proceedings are instituted against the Company
or any affiliate by the NASD, the SEC, the Insurance Commissioner or like
official of any state or any other regulatory body regarding the Company's
duties under this Agreement or related to the sale of the Contracts, the
operation of any Account, or the purchase of the Fund's Shares; provided,
however, that the Fund, the Adviser or Underwriter determines in its sole
judgment exercised in good faith, that any such administrative proceedings will
have a material adverse effect upon the ability of the Company to perform its
obligations under this Agreement; or
(e) termination by the Company in the event that formal
administrative proceedings are instituted against the Fund, the Adviser or
Underwriter by the NASD, the SEC, or any state securities or insurance
department or any other regulatory body; provided, however, that the Company
determines in its sole judgment exercised in good faith, that any such
administrative proceedings will have a material adverse effect upon the ability
of the Fund or Underwriter to perform its obligations under this Agreement; or
(f) termination by the Company by written notice to the Fund,
the Adviser and the Underwriter with respect to any Designated Portfolio in the
event that such Portfolio ceases to qualify as a Regulated Investment Company
under Subchapter M or fails to comply with the Section 817(h) diversification
requirements specified in Article VI hereof, or if the Company reasonably
believes that such Designated Portfolio may fail to so qualify or comply; or
(g) termination by the Fund, the Adviser or Underwriter by
written notice to the Company in the event that the Contracts fail to meet the
qualifications specified in Article VI hereof; or
(h) termination by any of the Fund, the Adviser or the
Underwriter by written notice to the Company, if any of the Fund, the Adviser or
the Underwriter respectively, shall determine, in their sole judgment exercised
in good faith, that the Company has suffered a material adverse change in its
business, operations, financial condition, insurance company rating or prospects
since the date of this Agreement or is the subject of material adverse
publicity; or
(i) termination by the Company by written notice to the Fund,
the Adviser and the Underwriter, if the Company shall determine, in its sole
judgment exercised in good faith, thane Fund, the Adviser 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, and that material adverse change or publicity will
have a material effect on the Fund's or the Underwriter's ability to perform its
obligation under this Agreement; or
(j) termination by the Company upon any substitution of the
Shares of another investment company or series thereof for Shares of a
Designated Portfolio of the Fund in accordance with the terms of the Contracts,
provided that the Company has given at least 45 days prior written notice to the
Fund and Underwriter of the date of substitution; or (d)
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(k) termination by any party in the event that the Fund's
Board of Trustees determines that a material irreconcilable conflict exists as
provided in Article VII; or
(1) at the option of the Company, as one party, or the Fund,
the Adviser and the Underwriter, as one party, upon the other party's material
breach of any provision of this Agreement upon 30 days' written notice and the
opportunity to cure within such notice period; or
(m) at the option of the Fund or the Adviser in the event the
Contracts are not treated as life insurance or annuity contracts under
applicable provisions of the Code.
10.2. Notwithstanding any termination of this Agreement, the Fund and
the Underwriter shall, at the option of the Company, continue, for a one year
period from the date of termination and from year to year thereafter if deemed
appropriate by the Fund and the Adviser, to make available additional Shares of
a Designated Portfolio pursuant to the terms and conditions of this Agreement,
for all Contracts in effect on the effective date of termination of this
Agreement (hereinafter referred to as "Existing Contracts"), unless the
Underwriter elects to compel a substitution of other securities for the Shares
of the Designated Portfolios. Specifically, the owners of the Existing Contracts
may be permitted to reallocate investments in the Designated Portfolios, redeem
investments in the Designated Portfolios and/or invest in the Designated
Portfolios upon the making of additional purchase payments under the Existing
Contracts (subject to any such election by the Underwriter). The parties agree
that this Section 10.2 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. The parties further agree that this Section 10.2 shall not apply
to any terminations under Section 10.1(d),(g) or (m) of this Agreement.
10.3. 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, (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"), (iii) as permitted
by an order of the SEC pursuant to Section 26(c) of the 1940 Act, but only if a
substitution of other securities for the Shares of the Designated Portfolios is
consistent with the terms of the Contracts, or (iv) as permitted under the terms
of the Contract. Upon request, the Company will promptly furnish to the Fund and
the Underwriter reasonable assurance that any redemption pursuant to clause (ii)
above is a Legally Required Redemption. Furthermore, except in cases where
permitted under the terms of the Contacts, the Company shall not prevent
Contract owners from allocating payments to a Designated Portfolio that is
otherwise available under the Contracts without first giving the Fund or the
Underwriter 45 days notice of its intention to do so.
10.4. Notwithstanding any termination of this Agreement, each party's
obligation under Article VIII to indemnify the other parties shall survive.
ARTICLE XI. Notices
11.1 Any notice shall be sufficiently given when sent by registered or
certified mail to the other party at the address of such party set forth below
or at such other address as such party may from time to time specify in writing
to the other party.
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If to the Fund:
DWS Variable Series II
Two International Place
Boston, MA 02110-4103
Attn.: Secretary
If to the Company:
The Union Central Life Insurance Company
Attn: Investment Products
0000 Xxxxxxxx Xxxx
Xxxxxxxxxx, XX 00000
With a copy to: Ameritas Life Insurance Corp.
0000 "0" Xxxxxx
Xxxxxxx, XX 00000
Attn: General Counsel
If to Underwriter:
DWS Xxxxxxx Distributors, Inc.
Xxx Xxxxxxxxxxxxx Xxxxx
Xxxxxx, XX 00000-0000
Attn.: Secretary
If to the Adviser:
Deutsche Investment Management Americas Inc.
Xxx Xxxxxxxxxxxxx Xxxxx
Xxxxxx, XX 00000-0000
Attn.: Secretary
ARTICLE XII. Miscellaneous
12.1. 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
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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 such information has come into the public domain.
12.2. The captions in this Agreement are included for convenience of
reference only and in no way define or delineate any of the provisions hereof or
otherwise affect their construction or effect.
12.3. This Agreement may be executed simultaneously in two or more
counterparts, each of which taken together shall constitute one and the same
instrument.
12.4. This Agreement incorporates the entire understanding and
agreement among the parties hereto, and supersedes any and all prior
understandings and agreements between the parties hereto with respect to the
subject matter hereof.
12.5. 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.
12.6. 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.
Notwithstanding the generality of the foregoing, each party hereto further
agrees to furnish the State Insurance Commissioner with any information or
reports in connection with services provided under this Agreement which such
Commissioner may request in order to ascertain whether the variable annuity
operations of the Company are being conducted in a manner consistent with the
State variable annuity laws and regulations and any other applicable law or
regulations.
12.7. 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.
12.8. 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
hereto.
12.9. The Company shall furnish, or shall cause to be furnished, to the
Fund or its designee upon request 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) filed
with any state or federal regulatory body or otherwise made available to the
public, as soon as practicable and in any event within 90 days after the end of
each fiscal year; and (b) any registration statement (without exhibits) and
financial reports of the Company filed with the Securities and Exchange
Commission or any state insurance regulatory, as soon as practicable after the
filing thereof.
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12.10. All persons are expressly put on notice of the Fund's Agreement
and Declaration of Trust and all amendments thereto, all of which are on file
with the Secretary of the Commonwealth of Massachusetts, and the limitation of
shareholder and trustee liability contained therein. This Agreement has been
executed by and on behalf of the Fund by its representatives as such
representatives and not individually, and the obligations of the Fund with
respect to a Designated Portfolio hereunder are not binding upon any of the
trustees, officers or shareholders of the Fund individually, but are binding
upon only the assets and property of such Designated Portfolio. All parties
dealing with the Fund with respect to a Designated Portfolio shall look solely
to the assets of such Designated Portfolio for the enforcement of any claims
against the Fund hereunder.
12.11. The Company is expressly put on notice that prospectus
disclosure regarding the potential risks of mixed and shared funding may be
appropriate.
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 first above written.
COMPANY: THE UNION CENTRAL LIFE INSURANCE COMPANY
By: /s/ Xxxxxx de Xxxxx
Title: 2nd Vice President, IPG
FUND: DWS VARIABLE SERIES II
By: /s/ Xxxxxx X. Xxxxxxx
Title: Vice President
UNDERWRITER: DWS XXXXXXX DISTRIBUTORS, INC.
By: /s/ Xxxxxx X. Xxxxxxx
Title: Assist. Secretary
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ADVISER: DEUTSCHE INVESTMENT MANAGEMENT AMERICAS INC.
By: /s/ Xxxxxx X. Xxxxxxx
Title: Director
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SCHEDULE A
Name of Separate Account and Contracts Funded by Separate Account
Carillon Account VAI
VA II SA
Advantage VA III
Carillon Life Account
Executive Edge (VUL)
Excel Choice (VUL)
Excel Accumulator (VUL)
SCHEDULE B
DESIGNATED PORTFOLIOS
AND CLASSES THEREOF
Designated Portfolio Class
DWS Money Market VIP, A
a series of DWS Variable Series II
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SCHEDULE C
EXPENSES
--------------------------------------------------------------------------------
ITEM FUNCTION PARTY
RESPONSIBLE
FOR EXPENSE
--------------------------------------------------------------------------------
FUND PROSPECTUS
--------------------------------------------------------------------------------
Update Typesetting Fund
--------------------------------------------------------------------------------
New Sales: Printing Company
Distribution Company
--------------------------------------------------------------------------------
Existing Owners: Printing Fund
Distribution Fund
--------------------------------------------------------------------------------
STATEMENTS OF Same as Prospectus
ADDITIONAL
INFORMATION
--------------------------------------------------------------------------------
PROXY MATERIALS OF THE Fund
FUND Typesetting Fund
Printing Fund
Distribution
--------------------------------------------------------------------------------
ANNUAL REPORTS AND
OTHER COMMUNICATIONS
WITH SHAREHOLDERS OF
THE FUND
-------------------------------------------------------------------------------
All Typesetting Fund
-------------------------------------------------------------------------------
Marketing Printing Company
Distribution Company
-------------------------------------------------------------------------------
Existing Owners: Printing Fund
Distribution Fund
-------------------------------------------------------------------------------
OPERATIONS OF FUND All operations and related expenses Fund
including the cost of registration and
qualification of the Fund's shares,
preparation and filing of the Fund's
prospectus and registration statement, proxy
materials and reports, the preparation of all
statements and notices required by any
federal or state law and all taxes on the
issuance of the Fund's shares, and all costs
of management of the business affairs of the
Fund.
--------------------------------------------------------------------------------
(1)Solely as it relates to the contracts listed on Schedule A, as it is
attached to the same Agreement as this Schedule C.
-27-
