Exhibit (8)(nn)(i)
PARTICIPATION AGREEMENT
(Jefferson National Life Insurance Company)
This Participation Agreement ("Agreement"), dated as of the ____ day of
___________, 2009_, is made by and between JEFFERSON NATIONAL LIFE INSURANCE
COMPANY ("Company"), on behalf of itself and each of the separate accounts
identified on Exhibit A, which is attached hereto, as the parties hereto may
amend from time to time ("Variable Accounts"), XXXXXXX & XXXX, INC. ("W&R"),
distributor for Ivy Funds Variable Insurance Portfolios, Inc., and IVY FUNDS
VARIABLE INSURANCE PORTFOLIOS, INC. ("Ivy Funds VIP").
WHEREAS, Ivy Funds VIP is registered with the Securities and Exchange Commission
("SEC") as an open-end management investment company under the Investment
Company Act of 1940, as amended ("1940 Act"), and currently consists of the
separately managed series identified on Exhibit B, which is attached hereto and
may be unilaterally amended from time to time by W&R and/or Ivy Funds VIP in
their sole and exclusive discretion upon written notice to Company (each a
"Portfolio"); and
WHEREAS, the Portfolios are currently sold to one or more separate accounts of
life insurance companies to fund benefits under variable life insurance policies
and/or variable annuity contacts ("Participating Insurance Companies"); and
WHEREAS, Company, W&R and Ivy Funds VIP mutually desire the inclusion of the
Portfolios as underlying investment media for each of the variable life
insurance policies and/or variable annuity contracts issued by Company
identified on Exhibit A, which is attached hereto, as the parties hereto may
amend from time to time (collectively, the "Contracts"); and
WHEREAS, the Contracts allow for the allocation of net amounts received by
Company to separate sub-accounts of the Variable Accounts for investment in
shares of the Portfolios and other similar funds; and
WHEREAS, selection of a particular sub-account (corresponding to a particular
Portfolio) is made by the owner of a Contract ("Contract Owner") and such
Contract Owner may reallocate their investment options among the sub-accounts of
the Variable Accounts in accordance with the terms of the Contracts.
NOW THEREFORE, Company, W&R and Ivy Funds VIP, in consideration of the promises
and undertakings described herein, agree as follows:
1. SCOPE OF AGREEMENT. The scope of this Agreement is limited to the purchase
of Portfolio shares by the Variable Accounts on behalf of purchasers of
the Contracts.
2. REPRESENTATIONS OF COMPANY.
(a) Company represents and warrants that the Variable Accounts have been
established and are in good standing under the laws of their states
of organization; and the Variable
Accounts have been registered as unit investment trusts under the
1940 Act and will remain so registered, or are exempt from
registration under the 1940 Act;
(b) Company represents and warrants that it is an insurance company duly
organized and in good standing under the laws of its state of
incorporation and that it has legally and validly established each
Variable Account as a segregated asset account under applicable
state insurance laws and the regulations thereunder.
(c) Company represents and warrants that (i) prior to and at the time of
any issuance or sale of Portfolio shares, the Contracts will be
registered under the Securities Act of 1933, as amended ("1933
Act"), unless exempt from such registration, (ii) prior to and at
the time of any issuance or sale of Portfolio shares, the Contracts
will be duly authorized for issuance and sold in compliance with all
applicable federal and state laws, including, without limitation,
the 1933 Act, the Securities Exchange Act of 1934 ("1934 Act"), the
1940 Act and the law(s) of Company's state(s) of organization and
domicile, (iii) each Variable Account does and will comply in all
material respects with the requirements of the 1940 Act and the
rules thereunder, unless exempt from such requirements, (iv) each
Variable Account's 1933 Act registration statement relating to the
Contracts, together with any amendments thereto, will at all times
comply in all material respects with the requirements of the 1933
Act and the rules thereunder, (v) Company will amend the
registration statement for its Contracts under the 1933 Act and for
its Variable Accounts under the 1940 Act from time to time as
required in order to effect the continuous offering of its Contracts
or as may otherwise be required by applicable law, and (vi) each
Variable Account prospectus, Statement of Additional Information
("SAI"), and then-current stickers, will at all times comply in all
material respects with the applicable requirements of the 1933 Act
and the rules thereunder.
(d) Company represents that each Variable Account is a "segregated asset
account" and that interests in each Variable Account are offered
exclusively through the purchase of a "variable contract", within
the meaning of such terms under Section 817 of the Internal Revenue
Code of 1986, as amended ("Code"), and Section 1.817-5(f)(2) of the
Federal Tax Regulations, that it shall make every effort to continue
to meet such definitional requirements, and that it shall notify W&R
and Ivy Funds VIP immediately upon having a reasonable basis for
believing that such requirements have ceased to be met or that they
may not be met in the future.
(e) Company represents that the Contracts are currently, and at the time
of issuance will be, treated as annuity contracts or life insurance
policies, whichever is appropriate under applicable provisions of
the Code, and that it shall make every effort to maintain such
treatment. Company will promptly notify W&R and Ivy Funds VIP upon
having a reasonable basis for believing that the Contracts have
ceased to be treated as annuity contracts or life insurance polices,
or that the Contracts may not be so treated in the future.
(f) Company represents that it has established such rules and procedures
as are necessary to ensure compliance with applicable federal, state
and self-regulatory requirements relating to
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the offering of the Contracts. W&R and Ivy Funds VIP explicitly
disclaim any and all responsibility for the offer, sale,
distribution and/or servicing of the Contracts, except as otherwise
specified in this Agreement.
(g) Company shall during the term of this Agreement comply with all
laws, rules and regulations applicable to it in connection with the
performance of each of its obligations under this Agreement or
applicable to the performance of its business, including, but not
limited to, the applicable requirements of the USA Patriot Act of
2001 (the "AML Act") and related laws, rules and regulations.
(h) To the extent one or more third parties are engaged by Company to
offer the Contracts and/or perform services that Company is
responsible for under this Agreement (such parties include, but are
not limited to, affiliates of Company) ("Agents"), Company shall
determine that each such Agent is capable of performing such
services, shall take measures as may be necessary to ensure that
Agents perform such services in accordance with the requirements of
this Agreement and applicable law and shall bear full responsibility
for, and assume all liability for (including any obligation for
indemnification as provided in Paragraph 13 hereof), the actions and
inactions of such Agents as if such services had been provided by
Company.
(i) From time to time, W&R and/or Ivy Funds VIP may implement policies,
procedures or requirements in an effort to comply with applicable
legal requirements and/or avoid potential adverse effects on the
Portfolios. Company agrees to cooperate in good faith with W&R
and/or Ivy Funds VIP in the implementation of any reasonable
policies, procedures and/or requirements and agrees to comply with
any and all requirements, restrictions and limitations described in
the Portfolios' Prospectus, including any restrictions or
prohibitions relating to frequent purchases and redemptions of
Portfolio shares. W&R and Ivy Funds VIP acknowledge that Company
enforces market timing restrictions via automated hold times and
each of W&R and Ivy Funds VIP consider this to be a reasonable
approach to restricting frequent purchases and redemptions of
Portfolio shares. Company will implement the hold times requested by
W&R and Ivy Funds VIP. Such cooperation shall include, but not be
limited to, providing, promptly upon request by W&R and/or Ivy Funds
VIP, names, taxpayer identification numbers and transaction
information relating to Contract Owners issuing instructions to the
Company resulting in the purchase, redemption, transfer or exchange
of Portfolio shares, executing any instructions from W&R and/or Ivy
Funds VIP to restrict or prohibit any further purchases or exchanges
of Portfolio shares relating to any Contract Owner who has been
identified by or on behalf of Ivy Funds VIP as having engaged in
transactions of Portfolio shares that violate policies established
by Ivy Funds VIP for the purpose of eliminating or reducing any
dilution of the value of the outstanding securities issued by the
Portfolio, facilitating the imposition of any applicable redemption
fee on such person or persons, and taking such other remedial steps
as are requested by W&R and/or Ivy Funds VIP, all to the extent
permitted or required by applicable law.
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(j) Company represents that, during the term of this Agreement, it will
have in force adequate insurance coverage insuring the Company
against potential liabilities associated with the underwriting and
distribution of the Contracts.
3. AUTHORITY OF COMPANY. Subject to the terms and conditions of this
Agreement, Company shall be authorized to, and agrees, to act as a limited
agent of W&R for purposes of Rule 22c-1 under the 1940 Act and to the
extent permitted by applicable law, for the sole purpose of receiving
instructions for the purchase and redemption of Portfolio shares (from
Contract Owners or participants making investment allocation decisions
under the Contracts) prior to the close of business of the New York Stock
Exchange ("NYSE"), normally 3:00 p.m. Central Time ("Pricing Time") each
Business Day. "Business Day" shall mean any day on which the NYSE is open
for trading and on which the Portfolios calculate their net asset value as
set forth in the Portfolios' most recent Prospectuses and SAIs. Except as
particularly stated in this paragraph, Company shall have no authority to
act on behalf of W&R or Ivy Funds VIP or to incur any cost or liability on
its behalf.
4. AVAILABLE PORTFOLIOS.
(a) AVAILABILITY. Ivy Funds VIP will make shares of the Portfolios
available to Company and its Variable Accounts for purchase and
redemption at the applicable net asset value and with no sales
charges on those days on which the Portfolios calculate their net
asset value pursuant to the rules of the SEC, subject to the terms
and conditions of this Agreement. Notwithstanding the foregoing, the
Board of Directors of Ivy Funds VIP ("Board") may refuse to sell
shares of any Portfolio to any person or suspend or terminate the
offering of shares of any Portfolio (a) if such action is required
by law or by regulatory authorities having jurisdiction, (b) if, in
the sole discretion of the Board, acting in good faith and in light
of their fiduciary duties under federal and any applicable state
laws, the Board deems such action to be in the best interests of the
shareholders of such Portfolio, or (c) if such action is required by
any policies that the Board has adopted and that apply to all
Participating Insurance Companies. Further, it is acknowledged and
agreed that the availability of Portfolio shares shall be subject to
Ivy Funds VIP's current Prospectus and SAI and to federal and state
laws, rules and regulations.
(b) ADDITION, DELETION OR MODIFICATION OF PORTFOLIOS. The parties hereto
may, from time to time, add other Portfolios to provide additional
funding media for the Contracts, or to delete, combine or modify
existing Portfolios, by amending Exhibit B hereto. Upon such
amendment to Exhibit B, any applicable reference to a Portfolio, Ivy
Funds VIP or its shares herein shall include a reference to any such
additional Portfolio.
(c) NO SALES TO THE GENERAL PUBLIC. Ivy Funds VIP represents and
warrants that shares of the Portfolios will be sold only to
insurance companies and/or their separate accounts funding variable
life insurance policies and/or variable annuity contracts or to
other persons or entities permitted under Section 817 of the Code,
or regulations promulgated thereunder. Ivy Funds VIP represents and
warrants that no shares of any Portfolio have been or will be sold
to the general public.
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5. PROCESSING OF PORTFOLIO PURCHASE AND REDEMPTION REQUESTS.
(a) PRICING INFORMATION. Ivy Funds VIP or its agents will use reasonable
best efforts to provide closing net asset value, change in net asset
value, dividend or daily accrual rate information and capital gain
information by 6:00 p.m. Central Time each Business Day to Company.
Company shall use this data to calculate unit values for its
Variable Accounts. Unit values shall be used to process that same
Business Day's Variable Account transactions. In the event
adjustments to transactions previously effected on behalf of a
Variable Account are required to correct any material error in the
computation of the net asset value of a Portfolio's shares, Ivy
Funds VIP or its agent shall notify Company as soon as practicable
after discovering the need for those adjustments which result in a
reimbursement to a Variable Account in accordance with Ivy Funds
VIP's then current policies on reimbursement, which Ivy Funds VIP
represents are consistent with applicable SEC standards. If an
adjustment is to be made in accordance with such policies to correct
an error which has caused a Variable Account to receive an amount
different than that to which it is entitled, Ivy Funds VIP or its
agent shall make all necessary adjustments to the number of shares
owned in the Variable Account and distribute to the Variable Account
the amount of such underpayment for credit by the Company to
affected Contract Owners. The Company agrees to use its best efforts
to minimize any costs incurred under this paragraph and shall
provide W&R with acceptable documentation of any such costs
incurred.
(b) PLACING OF ORDERS BY COMPANY. Orders for purchases or redemptions
shall be placed by Company with W&R or its specified agent in a
manner and format determined by W&R no later than 8:30 a.m. Central
Time on the following Business Day. The Company may place purchase
and/or redemption orders on the following Business Day for shares of
the Portfolios that it receives prior to the Pricing Time each
Business Day. The Company will not aggregate pre-Pricing Time trades
with post-Pricing Time trades. All orders may be communicated by the
Company through the National Securities Clearing Corporation's
("NSCC") Fund/SERV system. The following information may be supplied
by the Company at the time each order is placed: (i) total purchases
for each Portfolio (including all purchase, exchange and transfer
orders received by the Company resulting in purchases of Portfolio
shares); (ii) total redemptions for each Portfolio (including all
redemption, exchange and transfer orders received by the Company
resulting in redemptions of Portfolio shares); and (iii) such other
information required by NSCC or reasonably requested by W&R.
Alternatively, the Company may place a net purchase or net
redemption order for each Portfolio via facsimile.
(c) PROCESSING OF ORDERS. To the extent permitted by applicable law,
orders for shares of Portfolios received by Company prior to the
Pricing Time on a Business Day and received by W&R by 8:30 a.m.
Central time on the following Business Day shall be executed at the
time they are received by W&R and at the net asset value price
determined as of the close of trading on the previous Business Day,
provided that Company represents it has received such orders prior
to the close of the NYSE on the previous Business Day. In connection
with this Section 5(c), Company represents and warrants that it will
not submit any order for shares of a Portfolio or engage in any
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practice, nor will it allow any person acting on its behalf to
submit any order for shares of a Portfolio or engage in any
practice, that would violate or cause a violation of Section 22 of
the 1940 Act or Rule 22c-1 thereunder. W&R will not accept any order
made on a conditional basis or subject to any delay or contingency.
Company shall only place purchase orders for shares of Portfolios on
behalf of its customers whose addresses recorded on Company's books
are in a state or other jurisdiction in which the Portfolios are
registered or qualified for sale, or are exempt from registration or
qualification as confirmed in writing by W&R.
(d) PAYMENT FOR SHARES. Payment for net purchases shall be wired to a
custodial account designated in writing by W&R and payment for net
redemptions will be wired to an account designated in writing by
Company. Company will wire payment for net purchases to a custodian
account designated by Ivy Funds VIP by 5:00 p.m. Central Time on the
same day as the order for Portfolio shares is placed. Ivy Funds VIP
will wire payment for net redemptions to an account designated by
Company by 5:00 p.m. Central Time on the same day as the order is
placed. Net purchase orders are subject to cancellation at the
option of W&R and/or Ivy Funds VIP in the event that payment is not
received within two (2) business days following receipt of the order
by Ivy Funds VIP. Company shall indemnify W&R and Ivy Funds VIP for
any losses incurred in connection with a cancelled order. Company
and Ivy Funds VIP may agree to net all Portfolio activity on a given
day into one net wire to be appropriately allocated by the receiving
party.
(e) DIVIDEND AND CAPITAL GAIN DISTRIBUTIONS. Dividends and capital gain
distributions shall be reinvested in additional Portfolio shares at
net asset value. Notwithstanding the above, W&R shall not be held
responsible for providing Company with ex-date net asset value,
change in net asset value, dividend or capital gain information when
the NYSE is closed, when an emergency exists making the valuation of
net assets not reasonably practicable, or during any period when the
SEC has by order permitted the suspension of pricing shares for the
protection of shareholders. Ivy Funds VIP shall furnish, on or
before the ex-dividend date, notice to Company of any income
dividends or capital gain distributions payable on the shares of the
Portfolios. Company hereby elects to receive all such income
dividends and capital gain distributions as are payable on a
Portfolio's shares in additional shares of the Portfolio. Ivy Funds
VIP shall notify Company of the number of shares so issued as
payment of such dividends and distributions.
(f) ISSUANCE OF SHARES. Issuance and transfer of Portfolio shares will
be by book entry only. Share certificates will not be issued to
Company for any Variable Account. Portfolio shares will be recorded
in the appropriate title for each Variable Account.
(g) COMPANY REPORTING. Upon request, Company shall provide W&R with the
following reports in a mutually agreeable format no later than ten
(10) calendar days following the date of such request. Such reports
will set forth a listing of each order received from Contract Owners
during the request period resulting in the purchase or sale of
Portfolio shares, including the following information with respect
to each such order
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and such additional information as W&R shall reasonably request: (i)
the transaction date, which shall be the Business Day the order was
received by the Company, if the order was received prior to the
Pricing Time, or the Business Day following the Business Day the
order was received by the Company, if the order was received after
the Pricing Time; (ii) the transaction type (e.g., purchase,
redemption, exchange, transfer, etc.); (iii) the Portfolio CUSIP
number; (iv) the dollar amount of the transaction; (v) the name of
the agent assigned to the Contract Owner's account/policy; and (vi)
the agent's city, state and zip code. Company agrees to provide W&R,
upon request, written reports indicating the number of Contract
Owners and such other information (including books and records) in
such mutually agreeable format or in such format as may be necessary
or advisable to enable W&R to comply with any law, regulation or
order.
6. EXPENSES. All expenses incident to the performance by Company, W&R and/or
Ivy Funds VIP of their respective obligations under this Agreement shall
be paid by the party subject to the obligation. W&R shall pay compensation
to Company under this Agreement as provided on Exhibit C.
7. PROSPECTUSES, SAIs, PROXIES AND REPORTS.
(a) DELIVERY TO COMPANY. W&R shall promptly provide Company (or its
designee), or cause Company (or its designee) to be provided with:
(1) a camera-ready copy of the Portfolios' Prospectus and any
supplements, for use by Company in producing a combined
prospectus for each Contract incorporating both the Contract
Prospectus and the Portfolios' Prospectus;
(2) a .pdf version of the Portfolios' Prospectus, SAI and any
supplements;
(3) periodic reports required under the 1940 Act ("Periodic
Reports") in such quantity as Company shall reasonably require
for distribution to Contract Owners; and
(4) copies of any Portfolio proxy materials in such quantity as
Company shall reasonably require for distribution to Contract
Owners.
(b) DELIVERY TO CONTRACT OWNERS. Ivy Funds VIP shall bear the costs of
printing Portfolio proxy materials (or similar materials such as
voting solicitation instructions, as well as any costs associated
with any proxy tabulating firm hired), Periodic Reports,
Prospectuses and SAIs intended for delivery to Contract Owners.
Company shall bear the costs of delivering such materials to
Contract Owners. Company assumes sole responsibility for ensuring
that such materials are delivered to Contract Owners in accordance
with applicable federal and state securities laws.
(c) USE OF PORTFOLIO MATERIALS BY COMPANY. If Company elects to include
any materials provided by W&R or Ivy Funds VIP, specifically
Prospectuses, SAIs, Periodic Reports and proxy materials, on its web
site or in any other computer or electronic format, Company assumes
sole responsibility for maintaining such materials in
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the form provided by W&R or Ivy Funds VIP and for promptly replacing
such materials with all updates provided by W&R or Ivy Funds VIP.
W&R or Ivy Funds VIP agree to provide all such materials requested
by Company in a Portable Document Format (PDF) in a timely fashion
at no additional cost, together with such other formats at Company's
cost as may be mutually agreed upon.
(d) PROXY VOTING. If and to the extent required by law, Company shall:
(i) solicit voting instructions from Contract Owners; (ii) vote the
Portfolio(s) shares in accordance with the instructions received
from Contract Owners; and (iii) vote Portfolio(s) shares for which
no instructions have been received in the same proportion as the
vote of all other holders of such shares, provided however, that the
Company reserves the right to vote Portfolio shares held in any
segregated asset account in its own right, to the extent permitted
by law. Company and its agents will in no way recommend action in
connection with or oppose or interfere with the solicitation of
proxies for the Portfolio shares held for the benefit of such
Contract Owners.
8. COMPANY'S USE OF PORTFOLIO INFORMATION. Company and its agents shall make
no representations concerning the Portfolios or Portfolio shares except
those contained in the Portfolios' then current Prospectuses, SAIs or
other documents produced by W&R (or an entity on its behalf) which contain
information about the Portfolios. Company agrees to submit to W&R for
prior review and approval any communication with the public containing any
Portfolio information. Company agrees to allow at least ten (10) Business
Days for W&R to review any advertising and sales literature drafted by
Company (or agents on its behalf) with respect to the Portfolios prior to
using such material or submitting such material to any regulator. If W&R
does not reply to the Company within ten (10) Business Days, the submitted
piece shall be deemed approved by W&R.
9. REPRESENTATIONS OF W&R AND/OR IVY FUNDS VIP.
(a) W&R represents that the Portfolios are currently qualified as
regulated investment companies under Subchapter M of the Code and
that Ivy Funds VIP shall make every effort to maintain such
qualification. W&R shall promptly notify Company upon having a
reasonable basis for believing that any of the Portfolios has ceased
to so qualify, or that they may not qualify as such in the future.
(b) W&R represents that each of the Portfolios currently complies with
the diversification requirements pursuant to Section 817(h) of the
Code and Section 1.817-5(b) of the Federal Tax Regulations and that
Ivy Funds VIP will make every effort to maintain the Portfolios'
compliance with such diversification requirements, unless the
Portfolios are otherwise exempt from Section 817(h) and/or except as
otherwise disclosed in the Portfolios' Prospectus. W&R will notify
Company promptly upon having a reasonable basis for believing that a
Portfolio has ceased to so qualify, or that a Portfolio might not so
qualify in the future. Ivy Funds VIP agrees to provide Company with
a certificate or statement indicating compliance by each Portfolio
with Section 817(h) of the Code, such certificate or statement to be
sent to Company no later than thirty (30) days following the end of
each calendar quarter.
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(c) W&R represents and warrants that Ivy Funds VIP is duly organized and
validly existing under the laws of Maryland and that each Portfolio
does and will comply in all material respects with the 1940 Act and
the rules and regulations thereunder.
(d) W&R represents and warrants that the Portfolio shares offered and
sold pursuant to this Agreement will be registered under the 1933
Act and each Portfolio shall be registered under the 1940 Act prior
to and at the time of any issuance or sale of such shares. W&R shall
amend the Portfolios' registration statement under the 1933 Act and
the 1940 Act from time to time as required in order to effect the
continuous offering of Portfolio shares. Ivy Funds VIP shall
register and qualify its shares for sale in accordance with the laws
of the various states only if and to the extent deemed advisable by
Ivy Funds VIP or W&R.
(e) Ivy Funds VIP represents and warrants that it, its directors,
officers, employees and others dealing with the money or securities,
or both, of a Portfolio shall at all times be covered by a blanket
fidelity bond or similar coverage for the benefit of the Portfolio
in an amount not less than the minimum coverage required by Rule
17g-1 or other regulations under the 1940 Act. Such bond shall
include coverage for larceny and embezzlement and be issued by a
reputable bonding company.
(f) W&R represents and warrants that it is currently and will continue
to be a registered-broker dealer and member in good standing with
the Financial Industry Regulatory Authority ("FINRA").
10. MONTHLY CONFIRMATIONS. Ivy Funds VIP or its agent shall provide Company a
monthly statement of account or electronic access to account information,
which shall confirm all transactions in Portfolio shares made during that
particular month by a Variable Account.
11. MIXED AND SHARED FUNDING.
(a) GENERAL. The parties understand that the SEC has granted an order to
Ivy Funds VIP exempting it from certain provisions of the 1940 Act
and rules thereunder so that Ivy Funds VIP may be available for
investment by certain other entities, including, without limitation,
separate accounts funding variable annuity contracts or variable
life insurance contracts, separate accounts of insurance companies
unaffiliated with Company, and trustees of qualified pension and
retirement plans (collectively, "Mixed and Shared Funding"). The
parties recognize that the SEC has imposed terms and conditions for
such orders. Ivy Funds VIP hereby notifies Company that it may be
appropriate to include in the prospectus pursuant to which a
Contract is offered disclosure regarding the potential risks of
Mixed and Shared Funding.
(b) INFORMATION REQUESTED BY BOARD. Company and Ivy Funds VIP (or its
agent) will at least annually submit to the Board such reports,
materials or data as the
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Board may reasonably request so that the Board may fully carry out
the obligations imposed upon it by the provisions hereof or any
exemptive order granted by the SEC to permit Mixed and Shared
Funding, and said reports, materials and data will be submitted at
any reasonable time deemed appropriate by the Board.
12. TERMINATION.
(a) EVENTS OF TERMINATION. This Agreement shall terminate as to the sale
and issuance of Portfolio(s) shares:
(1) at the option of Company, W&R or Ivy Funds VIP upon at least
sixty (60) days advance written notice to the other;
(2) at any time with respect only to an applicable Portfolio(s),
upon W&R's election, if Ivy Funds VIP determines that
liquidation of the Portfolio(s) is in the best interest of the
Portfolio(s) and its (their) beneficial owners. Reasonable
advance notice of election to liquidate shall be furnished by
W&R to permit the substitution of Portfolio shares with the
shares of another investment company;
(3) if the Contracts are not treated as annuity contracts or life
insurance policies by the applicable regulators or under
applicable rules or regulations;
(4) if the Variable Accounts are not deemed "segregated asset
accounts" by the applicable regulators or under applicable
rules or regulations;
(5) with respect only to the applicable Portfolio(s), upon a
decision by Company based on reasonable cause, in accordance
with applicable law, to substitute such Portfolio shares with
the shares of another investment company for Contracts for
which the Portfolio shares have been selected to serve as the
underlying investment medium. Company shall give at least
sixty (60) days written notice to Ivy Funds VIP and W&R of any
decision to substitute Portfolio shares;
(6) upon sixty (60) days notice upon assignment of this Agreement
unless such assignment is made with the written consent of
each other party;
(7) in the event Portfolio shares are not registered, issued or
sold pursuant to Federal law, or such law precludes the use of
Portfolio shares as an underlying investment medium of
Contracts issued or to be issued by Company. Prompt written
notice shall be given by either party to the other in the
event the conditions of this provision occur; and
(8) at the option of any party to this Agreement, upon another
party's material breach of any provision of this Agreement.
(b) NOTICE REQUIREMENT. In the event of any termination of this
Agreement at the option of one of the parties, prompt written notice
of the election to terminate this
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Agreement shall be furnished by the party terminating the Agreement
to the non-terminating parties.
(c) PORTFOLIOS TO REMAIN AVAILABLE; EFFECT OF TERMINATION.
Notwithstanding any termination of this Agreement by Company, Ivy
Funds VIP will, at the option of Company, continue to make available
additional shares of any Portfolio offered under a Contract pursuant
to the terms and conditions of this Agreement, for any Contract that
is in effect on the effective date of termination of this Agreement
and that offers the particular Portfolio(s) as an investment option
under the Contract as of that date (hereinafter referred to as
"Existing Contracts"), unless W&R or the Board determines that doing
so would not serve the best interests of the shareholders of the
affected Portfolio(s) or would be inconsistent with applicable law
or regulation. Specifically, without limitation, the owners of the
Existing Contracts will be permitted to reallocate investments in
the Portfolio(s) (as in effect on such date), redeem investments in
the Portfolio(s) and/or invest in the Portfolio(s) upon the making
of additional purchase payments under the Existing Contracts. The
parties agree that this Section 12 will not apply to any (i)
terminations under Section 11 and the effect of such terminations
will be governed by Section 11 of this Agreement or (ii) any
rejected purchase and/or redemption order as described in Section
2(i) hereof. If Company elects to continue to make available
Portfolio shares to Contract Owners after the effective date of
termination of this Agreement in accordance with this Section 12(c),
all provisions of this Agreement will survive any termination of
this Agreement solely with respect to transactions in such Portfolio
shares under the Existing Contracts.
13. NOTICES.
(a) DELIVERY. All notices sent under this Agreement shall be given in
writing, and shall be delivered personally, or sent by fax, or by a
nationally-recognized overnight courier, postage prepaid. All such
notices shall be deemed to have been duly given when so delivered
personally or sent by fax, with receipt confirmed, or one (1)
business day after the date of deposit with such
nationally-recognized overnight courier. All such notices to
Company, W&R or Ivy Funds VIP shall be delivered to:
Jefferson National Life Insurance Company
0000 Xxxxxxxxx Xxxxxx Xxxxx
Xxxxx 0000
Xxxxxxxxxx, Xxxxxxxx 00000
Attention: General Counsel
Xxxxxxx & Xxxx, Inc.
0000 Xxxxx Xxxxxx
Xxxxxxxx Xxxx, Xxxxxx 00000
Attention: Legal Department
Ivy Funds Variable Insurance Portfolios, Inc.
0000 Xxxxx Xxxxxx
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Xxxxxxxx Xxxx, Xxxxxx 00000
Attention: Secretary
All such notices to Company, W&R and Ivy Funds VIP shall be delivered to
their respective addresses as listed above, or such other address as
Company, W&R and/or Ivy Funds VIP may have furnished in writing to the
other parties in accordance herewith.
(b) NOTICE OF CERTAIN PROCEEDINGS AND OTHER CIRCUMSTANCES.
(1) Ivy Funds VIP or W&R will immediately notify Company of (i)
the issuance by any court or regulatory body of any stop
order, cease and desist order, or other similar order with
respect to Ivy Funds VIP's registration statement under the
1933 Act or Ivy Funds VIP's Prospectus, (ii) any request by
the SEC for any amendment to such registration statement or
Ivy Funds VIP Prospectus that may affect the offering of
shares of Ivy Funds VIP, (iii) the initiation of any
proceedings for that purpose or for any other purpose relating
to the registration or offering of Ivy Funds VIP Shares, or
(iv) any other action or circumstances that may prevent the
lawful offer or sale of shares of any Portfolio in any state
or jurisdiction, including, without limitation, any
circumstances in which (a) such shares are not registered and,
in all material respects, issued and sold in accordance with
applicable state and federal law, or (b) such law precludes
the use of such shares as an underlying investment medium of
the Contracts issued or to be issued by Company. Ivy Funds VIP
and W&R will make every reasonable effort to prevent the
issuance, with respect to any Portfolio, of any such stop
order, cease and desist order or similar order and, if any
such order is issued, to obtain the lifting thereof at the
earliest possible time.
(2) Company will immediately notify Ivy Funds VIP of (i) the
issuance by any court or regulatory body of any stop order,
cease and desist order, or other similar order with respect to
each Variable Account's registration statement under the 1933
Act relating to the Contracts or each Variable Account
Prospectus, (ii) any request by the SEC for any amendment to
such registration statement or Variable Account Prospectus
that may affect the offering of shares of Ivy Funds VIP, (iii)
the initiation of any proceedings for that purpose or for any
other purpose relating to the registration or offering of each
Variable Account's interests pursuant to the Contracts, or
(iv) any other action or circumstances that may prevent the
lawful offer or sale of said interests in any state or
jurisdiction, including, without limitation, any circumstances
in which said interests are not registered and, in all
material respects, issued and sold in accordance with
applicable state and federal law. Company will make every
reasonable effort to prevent the issuance of any such stop
order, cease and desist order or similar order and, if any
such order is issued, to obtain the lifting thereof at the
earliest possible time.
14. INDEMNIFICATION.
(a) INDEMNIFICATION BY COMPANY.
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(1) Company agrees to reimburse and/or indemnify and hold harmless
W&R, Ivy Funds VIP, and each of their directors, officers,
employees, agents and each person, if any, who controls or is
controlled by W&R within the meaning of the 1933 Act
(collectively, "Affiliated Party") against any losses, claims,
damages or liabilities ("Losses") to which W&R or any such
Affiliated Party may become subject, under the 1933 Act or
otherwise, insofar as such Losses arise out of or are based
upon, but not limited to:
(i) any untrue statement or alleged untrue statement of any
material fact contained in information furnished by
Company;
(ii) the omission or the alleged omission to state in the
Registration Statements or Prospectuses of the Variable
Accounts, or Contract, or in any sales literature or
other public communication generated by Company on
behalf of the Variable Accounts or Contracts, a material
fact required to be stated therein or necessary to make
the statements therein not misleading;
(iii) statements or representations of Company or its agents
or third parties, with respect to the offer, sale or
distribution of Contracts for which Portfolio shares are
an underlying investment, or negligent or wrongful
conduct of Company or its agents or third parties with
respect to offers or sales of Contracts or Portfolio
shares;
(iv) the failure of Company to comply with applicable legal
or self-regulatory requirements to which it is subject;
(v) a material breach of this Agreement or of any of the
representations or warranties contained herein; or
(vi) any failure to register the Contracts or the Variable
Accounts under federal or state securities laws, state
insurance laws or to otherwise comply with such laws,
rules, regulations or orders.
(2) Provided however, that Company shall not be liable in any such
case to the extent any such Losses arise out of or are based
upon an act, statement, omission or representation or alleged
act, alleged statement, alleged omission or alleged
representation which was made in reliance upon and in
conformity with written information furnished to Company by or
on behalf of W&R specifically for its use.
(3) Company shall reimburse any legal or other expenses reasonably
incurred by W&R, Ivy Funds VIP, or any Affiliated Party in
connection with investigating or defending any such Losses,
provided, however, that Company shall have prior approval of
the use of said counsel or the expenditure of said fees.
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(4) This indemnity agreement shall be in addition to any liability
which Company may otherwise have and shall survive termination
of this Agreement.
(b) INDEMNIFICATION BY W&R AND/OR IVY FUNDS VIP.
(1) W&R and/or Ivy Funds VIP, as applicable, agree to indemnify
and hold harmless Company and each of its directors, officers,
employees, agents and each person, (collectively, "Company
Affiliated Party"), who controls Company within the meaning of
the 1933 Act against any Losses to which Company or any such
Company Affiliated Party may become subject, under the 1933
Act or otherwise, insofar as such Losses arise out of or are
based upon; but not limited to:
(i) any untrue statement or alleged untrue statement of any
material fact contained in any information furnished by
W&R or Ivy Funds VIP, including but not limited to, the
Registration Statements, Prospectuses or sales
literature of the Portfolios;
(ii) the omission or the alleged omission to state in the
Registration Statements or Prospectuses of the
Portfolios or in any sales literature generated by W&R,
Ivy Funds VIP or their affiliates a material fact
required to be stated therein or necessary to make the
statements therein not misleading;
(iii) W&R's failure to keep the Portfolios fully diversified
and qualified as regulated investment companies as
required by the applicable provisions of the Code, the
1940 Act, and the applicable regulations promulgated
thereunder;
(iv) the failure of W&R or Ivy Funds VIP to comply with
applicable legal or self-regulatory requirements to
which they are subject;
(v) a material breach of this Agreement or of any of the
representations or warranties contained herein; or
(vi) any failure to register the Portfolios under federal or
state securities laws or to otherwise comply with such
laws, rules, regulations or orders.
(2) Provided however, that W&R and Ivy Funds VIP shall not be
liable in any such case to the extent that any such Losses
arise out of or are based upon an act, statement, omission or
representation or alleged act, alleged statement, alleged
omission or alleged representation which was made in reliance
upon or in conformity with written information furnished to
W&R or Ivy Funds VIP by Company specifically for their use.
(3) W&R and/or Ivy Funds VIP, as applicable, shall reimburse any
reasonable legal or other expenses reasonably incurred by
Company or any Company Affiliated Party in connection with
investigating or defending any such Losses, provided,
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however, that W&R and Ivy Funds VIP shall have prior approval
of the use of said counsel or the expenditure of said fees.
(4) This indemnity agreement will be in addition to any liability
which W&R and/or Ivy Funds VIP, as applicable, may otherwise
have and shall survive termination of this Agreement.
(c) NOTICE AND DEFENSE OF CLAIMS. Each party shall promptly notify the
other party(ies) in writing of any situation which presents or
appears to involve a claim which may be the subject of
indemnification under this Agreement and the indemnifying party
shall have the option to defend against any such claim. In the event
the indemnifying party so elects, it shall notify the indemnified
party and shall assume the defense of such claim, and the
indemnified party shall cooperate fully with the indemnifying party,
at the indemnifying party's expense, in the defense of such claim.
Notwithstanding the foregoing, the indemnified party shall be
entitled to participate in the defense of such claim at its own
expense through counsel of its own choosing. Neither party shall
admit to wrong-doing nor make any compromise in any action or
proceeding which may result in a finding of wrongdoing by the other
party without the other party's prior written consent, which shall
not be unreasonably withheld. Any notice given by the indemnifying
party to an indemnified party or participation in or control of the
litigation of any such claim by the indemnifying party shall in no
event be deemed to be an admission by the indemnifying party of
culpability, and the indemnifying party shall be free to contest
liability among the parties with respect to the claim.
15. SUBSTITUTION APPLICATIONS. W&R may request or Company may initiate the
filing of a substitution application pursuant to Section 26(c) of the 1940
Act to substitute shares of a Portfolio held by a Company Variable Account
for another investment media ("Substitution Application"). The costs
associated with a Substitution Application shall be allocated as follows:
(a) In the event W&R requests Company to submit a Substitution
Application, W&R shall reimburse Company for all reasonable costs
incurred by Company in preparing and filing the Substitution
Application and any amendment thereto. W&R shall be obligated to
reimburse Company under this provision irrespective of whether the
Substitution Application requested by W&R is granted by the SEC or
the substitution is effectuated. W&R shall not have any liability to
reimburse any other costs or expenses incurred in connection with
effecting the substitution.
(b) In the event Company initiates a Substitution Application, Company
shall bear all costs associated with the Substitution Application
irrespective of whether the Substitution Application is granted or
the substitution is effectuated.
(c) In the event Company initiates a Substitution Application in
accordance with Section 12(a)(5), Company shall bear the costs
incurred in the transfer.
16. CONFIDENTIALITY.
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(a) COMPANY. Ivy Funds VIP acknowledges that the identities of the
customers of Company or any of its affiliates (collectively, the
"the Company Protected Parties" for purposes of this Section 16),
information maintained regarding those customers, and all computer
programs and procedures or other information developed by the
Company Protected Parties or any of their employees or agents in
connection with Company's performance of its duties under this
Agreement are the valuable property of the Company Protected
Parties. Ivy Funds VIP agrees that if it comes into possession of
any list or compilation of the identities of or other information
about the Company Protected Parties' customers, or any other
information or property of the Company Protected Parties, other than
such information as may be independently developed or compiled by
Ivy Funds VIP from information supplied to it by the Company
Protected Parties' customers who also maintain accounts directly
with Ivy Funds VIP, Ivy Funds VIP will hold such information or
property in confidence and refrain from using, disclosing or
distributing any of such information or other property except: (a)
with Company's prior written consent; or (b) as required by law or
judicial process.
(b) IVY FUNDS VIP. Company acknowledges that the identities of the
customers of Ivy Funds VIP or any of its affiliates (collectively,
the "Ivy Funds VIP Protected Parties" for purposes of this Section
16), information maintained regarding those customers, and all
computer programs and procedures or other information developed by
the Ivy Funds VIP Protected Parties or any of their employees or
agents in connection with Ivy Funds VIP's performance of its duties
under this Agreement are the valuable property of the Ivy Funds VIP
Protected Parties. Company agrees that if it comes into possession
of any list or compilation of the identities of or other information
about the Ivy Funds VIP Protected Parties' customers or any other
information or property of the Ivy Funds VIP Protected Parties,
other than such information as may be independently developed or
compiled by Company from information supplied to it by the Ivy Funds
VIP Protected Parties' customers who also maintain accounts directly
with Company, Company will hold such information or property in
confidence and refrain from using, disclosing or distributing any of
such information or other property except: (a) with Ivy Funds VIP's
prior written consent; or (b) as required by law or judicial
process.
(c) BOTH PARTIES. Each party acknowledges that any breach of the
agreements in this Section 16 would result in immediate and
irreparable harm to the other parties for which there would be no
adequate remedy at law and agree that in the event of such a breach,
the other parties will be entitled to equitable relief by way of
temporary and permanent injunctions, as well as such other relief as
any court of competent jurisdiction deems appropriate.
17. TRADEMARKS AND FUND NAMES.
(a) Except as may otherwise be provided in a license agreement among Ivy
Funds VIP and Company, neither Company or any of its respective
affiliates, shall use any trademark, trade name, service xxxx or
logo of W&R, Ivy Funds VIP or any of their respective affiliates, or
any variation of any such trademark, trade name, service xxxx or
logo,
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without W&R's or Ivy Funds VIP's prior written consent, as
applicable, the granting of which shall be at the sole option of W&R
or Ivy Funds VIP, as applicable.
(b) Except as otherwise expressly provided in this Agreement, neither
Ivy Funds VIP, its investment adviser, its principal underwriter, or
any affiliates thereof shall use any trademark, trade name, service
xxxx or logo of Company or any of its affiliates, or any variation
of any such trademark, trade name, service xxxx or logo, without
Company's prior written consent, the granting of which shall be at
Company's sole option.
18. FORCE MAJEURE. Each party shall be excused from the performance of any of
its obligations to the other where such nonperformance is occasioned by
any event beyond its control which shall include, without limitation, any
applicable order, rule or regulation of any federal, state or local body,
agency or instrumentality with jurisdiction, work stoppage, accident,
natural disaster, war, acts of terrorism or civil disorder, provided that
the party so excused shall use all reasonable efforts to minimize its
nonperformance and overcome, remedy, cure or remove such event as soon as
is reasonably practicable, and such performance shall be excused only for
so long as, in any given case, the force or circumstances making
performance impossible shall exist.
19. NO WAIVER. The forbearance or neglect of any party to insist upon strict
compliance by another party with any of the provisions of this Agreement,
whether continuing or not, or to declare a forfeiture of termination
against the other parties, shall not be construed as a waiver of any of
the rights or privileges of any party hereunder. No waiver of any right or
privilege of any party arising from any default or failure of performance
by any party shall affect the rights or privileges of the other parties in
the event of a further default or failure of performance.
20. GOVERNING LAW AND VENUE. This Agreement shall be construed and the
provisions hereof interpreted under and in accordance with the laws of
[New York/Delaware], without respect to its choice of law provisions and
in accordance with the 1940 Act. In the case of any conflict, the 1940 Act
shall control.
21. AUTHORIZATION. Each party hereby represents and warrants to the other that
the persons executing this Agreement on its behalf are duly authorized and
empowered to execute and deliver the Agreement and that the Agreement
constitutes its legal, valid and binding obligation, enforceable against
it in accordance with its terms. Except as particularly set forth herein,
neither party assumes any responsibility hereunder, and will not be liable
to the other for any damage, loss of data, delay or any other loss
whatsoever caused by events beyond its reasonable control.
22. RELATIONSHIP OF PARTIES. Nothing in this Agreement shall be deemed to
create a partnership or joint venture by and among the parties hereto.
23. ENTIRE AGREEMENT AND AMENDMENT. This Agreement, including all exhibits
hereto, constitutes the entire agreement and understanding between the
parties with respect to the matters addressed herein. Except as otherwise
provided in this Agreement, this
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Agreement may not be amended or modified except by a written amendment
executed by each of the parties.
24. COOPERATION. Each party shall cooperate with each other party and all
appropriate government authorities (including without limitation the SEC,
FINRA and state securities and insurance regulators) and shall permit such
authorities having jurisdiction reasonable access to its books and records
in connection with any investigation or inquiry relating to this Agreement
or the transactions contemplated hereby.
25. NON-EXCLUSIVE AGREEMENT. The parties of this Agreement acknowledge and
agree that this Agreement shall not be exclusive in any respect.
26. COUNTERPARTS. This Agreement may be executed by facsimile or other
electronic signature and it may be executed in one or more counterparts,
each of which shall be deemed an original, but all of which together shall
constitute one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their duly authorized representatives as of the date first above
written.
JEFFERSON NATIONAL LIFE INSURANCE COMPANY
---------------------------------------------
By:
Title: Chief Operating Officer
XXXXXXX & XXXX, INC.
---------------------------------------------
By: Xxxxxx X. Xxxxx
Title: President
IVY FUNDS VARIABLE INSURANCE PORTFOLIOS, INC.
---------------------------------------------
By: Xxxxx X. Xxxxxxxx
Title: President
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EXHIBIT A
Variable Accounts of Company
----------------------------
--------------------------------------------------------------------------------
Name SEC File No.
--------------------------------------------------------------------------------
Jefferson National Life Annuity Account G 811-07501
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Variable Life Insurance Policies/Variable Annuity Contracts
--------------------------------------------------------------------------------
Name SEC File No.
--------------------------------------------------------------------------------
Monument Advisor 333-124048
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
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EXHIBIT B
Ivy Funds Variable Insurance Portfolios, Inc.
Portfolios Available to Variable Accounts
-----------------------------------------
Asset Strategy
Balanced
Bond
Dividend Opportunities
Energy
Growth
High Income
Mid Cap Growth
Science and Technology
Value
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EXHIBIT C
Fees or Other Compensation
--------------------------
Company shall provide the administrative services set out in Schedule A hereto
and made a part hereof, as the same may be amended from time to time. For such
services, W&R agrees to pay to Company as follows:
(a) Assets Under Management. Each quarter, W&R shall calculate and pay to
Company a fee that shall be equal to thirty five (35) basis points, on an
annualized basis, of the average daily account value of all assets in the
Portfolios in connection with the Contracts ("Aggregated Assets"),
provided, however, that the fee is subject to change pursuant to Paragraph
(b) below. The fee (the "Total Fee") shall include and not be in addition
to the payment by W&R of the 12b-1 fees received by W&R from Ivy Funds VIP
relating to the Aggregated Assets.
(b) Changes in Law. If a change in the law requires a reduction in the fees
paid by a pooled investment vehicle pursuant to Rule 12b-1 of the
Investment Company Act of 1940 (or its functional equivalent), and if Ivy
Funds VIP is required to reduce the 12b-1 fees it pays that are based upon
the value of the Aggregated Assets as a result of such change in the law,
then there shall be a corresponding reduction in the amount of the Total
Fee due pursuant to above.
The parties to this Agreement recognize and agree that W&R's payments hereunder
are for administrative services and personal Contract Owner services (as
described in Schedule A) only and do not constitute payment in any manner for
investment advisory services or for costs of distribution of Contracts or of
Portfolio shares, and are not otherwise related to investment advisory or
distribution services or expenses. The Company represents and warrants that the
fees to be paid by W&R for services to be rendered by Company pursuant to the
terms of this Agreement are to compensate Company for providing administrative
services to Ivy Funds VIP and for providing personal services to Contract Owners
as described in Schedule A, and are not designed to reimburse or compensate
Company for providing any other services with respect to the Contracts or any
Variable Account.
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SCHEDULE A
ADMINISTRATIVE SERVICES FOR
IVY FUNDS VARIABLE INSURANCE PORTFOLIOS, INC.
Company shall provide certain administrative services respecting the operations
of Ivy Funds VIP and certain personal services to Contract Owners investing in
Ivy Funds VIP, as set forth below. This Schedule, which may be amended from time
to time as mutually agreed upon by Company and W&R, constitutes an integral part
of the Agreement to which it is attached. Capitalized terms used herein shall,
unless otherwise noted, have the same meaning as the defined terms in the
Agreement to which this Schedule relates.
A. RECORDS OF PORTFOLIO SHARE TRANSACTIONS; MISCELLANEOUS RECORDS.
1. Company shall maintain master accounts with Ivy Funds VIP, on behalf
of each Portfolio, which accounts shall bear the name of Company as
the record owner of Portfolio shares on behalf of each Variable
Account investing in the Portfolio.
2. Company shall maintain a daily journal setting out the number of
shares of each Portfolio purchased, redeemed or exchanged by
Contract Owners each day, to, among other things, assist W&R, Ivy
Funds VIP and/or Ivy Funds VIP's transfer agent in tracking and
recording Portfolio share transactions, and to facilitate the
computation of each Portfolio's net asset value per share. Company
shall provide reasonable assistance to W&R, Ivy Funds VIP and Ivy
Funds VIP's transfer agent as may be necessary to cause various
Portfolio share transactions effected by Contract Owners to be
properly reflected on the books and records of Ivy Funds VIP.
3. In addition to the foregoing records, and without limitation,
Company shall maintain and preserve all records as required by law
to be maintained and preserved in connection with providing
administrative services hereunder.
B. ORDER PLACEMENT AND PAYMENT.
1. Company shall determine the net amount to be transmitted to the
Variable Accounts as a result of redemptions of each Portfolio's
shares based on Contract Owner redemption requests and shall
disburse or credit to the Variable Accounts all proceeds of
redemptions of Portfolio shares. Company shall notify Ivy Funds VIP
of the cash required to meet redemption payments.
2. Company shall determine the net amount to be transmitted to Ivy
Funds VIP as a result of purchases of Portfolio shares based on
Contract Owner purchase payments and transfers allocated to the
Variable Accounts investing in each Portfolio. Company shall
transmit net purchase payments to Ivy Funds VIP's custodian.
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C. ACCOUNTING SERVICES. Company shall perform miscellaneous accounting
services as may be reasonably requested from time to time by W&R, which
services shall relate to the business contemplated by this Agreement, as
amended from time to time. Such services shall include, without
limitation, periodic reconciliation and balancing of Company's books and
records with those of Ivy Funds VIP with respect to such matters as cash
accounts, Portfolio share purchase and redemption orders placed with Ivy
Funds VIP, dividend and distribution payments by Ivy Funds VIP, and such
other accounting matters that may arise from time to time in connection
with the operations of Ivy Funds VIP as related to the business
contemplated by this Agreement.
D. BOARD REPORTS. Company acknowledges that W&R may, from time to time, be
called upon by the Board, to provide various types of information
pertaining to the operations of Ivy Funds VIP and related matters, and
that W&R also may, from time to time, decide to provide such information
to the Board in its own discretion. Accordingly, Company agrees to provide
W&R with such assistance as W&R may reasonably request so that W&R can
report such information to the Ivy Funds VIP's Board in a timely manner.
Company acknowledges that such information and assistance shall be in
addition to the information and assistance required of Company pursuant to
Ivy Funds VIP's mixed and shared funding SEC exemptive order, described in
Section 11 of this Agreement.
Company further agrees to provide W&R with such assistance as W&R may
reasonably request with respect to the preparation and submission of
reports and other documents pertaining to Ivy Funds VIP to appropriate
regulatory bodies and third party reporting services.
X. XXX FUNDS VIP-RELATED CONTRACT OWNER SERVICES. Company agrees to
distribute, in a timely manner, Prospectuses, SAIs, supplements thereto,
Periodic Reports and any other materials of Ivy Funds VIP required by law
or otherwise to be given to its shareholders, including, without
limitation, Contract Owners investing in Portfolio shares, and to bear the
expenses associated with such distribution. In addition, Company shall
bear the expenses associated with (i) mailing and distributing proxy
materials, including voting instruction solicitation materials, sent to
Contract Owners with respect to proxy solicitations related to the
Variable Account or related to matters requested by Company and agreed to
by Ivy Funds VIP, and (ii) making typesetting and other customization
changes to Ivy Funds VIP proxy materials, which changes are requested by
Company and agreed to by Ivy Funds VIP. Company further agrees to provide
telephonic support for Contract Owners, including, without limitation,
inquiries about Ivy Funds VIP and each Portfolio (but in no event shall
Company make any recommendation regarding the Portfolios), and
communicating with Contract Owners about Ivy Funds VIP (and Variable
Account) performance.
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