Exhibit
8(eee)(i)
FUND
PARTICIPATION AGREEMENT
This Agreement
is entered into as of the 1st day of May, 2014 between Jefferson National Life Insurance Company on behalf of one or more
separate accounts, a life insurance company organized under the laws of the State of Texas, (“Insurance Company”),
and XXXXXXX VARIABLE SERIES, INC., a Maryland corporation, (“CVS”), XXXXXXX VARIABLE PRODUCTS,
INC.), a Maryland corporation (“CVP”), and XXXXXXX INVESTMENT DISTRIBUTORS, INC., a Delaware corporation,
(“CID”).
Article
I
DEFINITIONS
| 1.1. | “1933 Act” shall mean the Securities Act
of 1933, as amended. |
| 1.2. | “1934 Act” shall mean the Securities Exchange
Act of 1934, as amended. |
| 1.3. | “1940 Act” shall mean the Investment Company
Act of 1940, as amended. |
| 1.4. | “Board” shall mean the Board of Directors
of the Fund having the responsibility for management and control of the Fund. |
| 1.5. | “Business Day” shall mean, with respect
to any Portfolio, any day for which the Fund calculates net asset value per share of such Portfolio as described in the Fund’s
Prospectus. |
| 1.6. | “Commission” shall mean the Securities
and Exchange Commission. |
| 1.7. | “Contract” shall mean a variable annuity
or variable life insurance contract issued by Insurance Company that uses one or more Portfolios of the Fund as an underlying
investment medium. Individuals who participate under a group Contract are “Participants”. |
| 1.8. | “Contractholder” shall mean any person
or entity that is a party to a Contract with Insurance Company. |
| 1.9. | “Disinterested Board Members” shall mean
those directors of the Board that are not deemed to be “interested persons” of the Fund, as defined by the 0000 Xxx. |
| 1.10. | “Fund” shall mean, (i) with respect to
those Portfolios listed in Section A of Schedule A, CVS and (ii) with respect to those Portfolios listed in Section B of Schedule
A, CVP. |
| 1.11. | “Participating Companies” shall mean any
insurance company (including Insurance Company), which offers variable annuity and/or variable life insurance contracts to the
public (“Participating Contracts”) and which has entered into an agreement with the Fund for the purpose of making
Portfolio Shares available to serve as the underlying investment medium for the aforesaid Participating Contracts. “Participating |
Contractholder”
shall mean any person or entity that is a party to a Participating Contract.
| 1.12. | “Party” shall mean Insurance Company,
CVS, CVP and CID. |
| 1.13. | “Plans” shall mean qualified pension and
retirement benefit plans. |
| 1.14. | “Portfolio” shall mean any portfolio of
a Fund listed on Schedule A, as amended from time to time. |
| 1.15. | “Prospectus” shall mean, with respect
to any Portfolio, the current Statutory Prospectus, current Summary Prospectus and the statement of additional information
applicable to such Portfolio, and any amendment or supplement thereto, as most recently filed with the Commission. |
| 1.16. | “Separate Account” shall mean those separate
accounts listed on Schedule B, which have been established by Insurance Company in accordance with the laws of the State of Texas. |
| 1.17. | “Shares” shall mean, with respect to any
Portfolio, the shares issued by such Portfolio. |
| 1.18. | “Software Program” shall mean the software
program used by the Fund or its agent(s) for providing Fund and account balance information including net asset value per share. |
| 1.19. | “Statutory Prospectus” shall have the
same meaning as set forth in Rule 498 of the 1933 Act. |
| 1.20. | “Summary Prospectus” shall have the same
meaning as set forth in Rule 498 of the 1933 Act. |
| 1.21. | “Insurance Company’s General Account(s)”
shall mean the general account(s) of Insurance Company and its affiliates that invest in the Fund (if any). |
ARTICLE
II
REPRESENTATIONS
| 2.1 | Insurance Company represents and warrants that (a) it is
an insurance company duly organized and in good standing under applicable law; (b) it has legally and validly established each
Separate Account pursuant to the Texas Insurance Code for the purpose of offering to the public certain individual and/or group
variable annuity contracts; (c) it has registered each Separate Account as a unit investment trust under the 1940 Act to serve
as the segregated investment account for the Participating Contracts; (d) each Separate Account is eligible to invest in shares
of the Fund without such investment disqualifying the Fund as an investment medium for insurance company separate accounts supporting
variable annuity contracts or variable life insurance contracts; (e) each Separate Account shall comply at all times with all
applicable legal requirements for |
so
long as any Contract under that Separate Account is outstanding.
| 2.2 | Insurance Company represents and warrants that (a) the Contracts
will be described in a registration statement filed under the 1933 Act; (b) the Contracts will be issued, sold and distributed
in compliance in all material respects with all applicable federal and state laws, including, without limitation, the 1933 Act,
the 1934 Act and the 1940 Act; and (c) the sale of the Contracts shall comply in all material respects with state insurance law
requirements. In particular, Insurance Company represents and warrants that it complies with the requirements of Rule 498 under
the 1933 Act in connection with the delivery of summary prospectuses for Portfolio Shares. |
| 2.3 | Insurance Company represents and warrants that the income,
gains and losses, whether or not realized, from assets allocated to each Separate Account are, in accordance with the applicable
Contracts, to be credited to or charged against such Separate Account without regard to other income, gains or losses from assets
allocated to any other accounts of Insurance Company. Insurance Company represents and warrants that the assets of each Separate
Account are and will be kept separate from Insurance Company’s General Account (if any) and any other separate accounts
Insurance Company may have, and will not be charged with liabilities from any other business that Insurance Company may conduct
or the liabilities of any companies affiliated with Insurance Company. |
| 2.4 | Fund represents and warrants that the Fund is registered
with the Commission under the 1940 Act as an open-end management investment company and possesses, and shall maintain, all legal
and regulatory licenses, approvals, consents and/or exemptions required for the Fund to operate and offer its shares as an underlying
investment medium for Participating Companies. CVS has established five portfolios and CVP has established 12 portfolios and CVS
and CVP may in the future establish other portfolios. |
| 2.5 | The Fund represents and warrants that (a) the Portfolio Shares
will be described in a registration statement filed under the 1933 Act; and (b) the Portfolio Shares will be issued, sold
and distributed in compliance in all material respects with all applicable federal and state laws, including, without limitation,
the 1933 Act, the 1934 Act and the 1940 Act. In particular, Fund represents and warrants that it complies with the requirements
of Rule 498 under the 1933 Act in connection with the offer and sales of Portfolio Shares. |
| 2.6 | Fund represents that it is currently qualified as a Regulated
Investment Company under Subchapter M of the Internal Revenue Code of 1986, as amended (the “Code”), and that
it will utilize best efforts to maintain such qualification (under Subchapter M or any successor or similar provision) and that
it will notify Insurance Company immediately in writing upon having a reasonable basis for believing that it has ceased
to so qualify or that it might not so qualify in the future. |
| 2.7 | Insurance Company represents and warrants that the Contracts
are currently, and at the time of issuance will be, treated as life insurance policies or annuity contracts, whichever is appropriate,
under applicable provisions of the Code, and that it will utilize best efforts |
to
maintain such treatment and that it will notify the Fund and its investment adviser immediately in writing upon having a reasonable
basis for believing that the Contracts have ceased to be so treated or that they might not be so treated in the
future. Insurance 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, will identify such Contract as a modified endowment contract (or policy).
| 2.8 | Fund represents and agrees that the Fund’s assets shall
be managed and invested in a manner that complies with the requirements of Section 817(h) of the Code. Without limiting the scope
of the foregoing, the Fund shall ensure that each Portfolio complies with Section 817(h) of the Code and Treasury Regulation 1.817-5
thereunder, relating to the diversification requirements for variable annuity, endowment, or life insurance contracts, and any
amendments or modifications to such Section and Regulation or successors thereto. Upon written request, the Fund shall provide
Insurance Company with a written certification of this compliance as of the most recent quarter end. The Fund shall notify the
Company immediately upon having a reasonable basis for believing that a Portfolio has failed to so comply. In the event of such
a failure, the Fund or CID shall take all necessary steps to cure any such failure within the grace period afforded by Treasury
Regulation 1.817-5, including, if necessary, obtaining a waiver or closing agreement with respect to such failure from the U.S.
Internal Revenue Service at CID’s expense. The representations and warranties of this Section 2.8 shall not apply with respect
to any Portfolio whose beneficial interests are held solely by owners of “pension plan contracts” within the meaning
of Section 818(a) of the Code and other persons whose federal income tax treatment is not dependent on such Portfolio’s
compliance with the requirements of Section 817(h) of the Code. |
Notwithstanding
any other provision herein to the contrary, Insurance Company agrees that if the Internal Revenue Service (“IRS”)
asserts in writing in connection with any governmental audit or review of Insurance Company or, to Insurance Company’s knowledge,
of any Contractholder, that any Portfolio has failed to comply with the diversification requirements of Section 817(h) of the
Code or Insurance Company otherwise becomes aware of any facts that could give rise to any claim against any Fund or its affiliates
as a result of such a failure or alleged failure:
| (i) | Insurance Company shall promptly notify the applicable
Fund of such assertion or potential claim (subject to the Confidentiality provisions of Article IX as to any Contractholder); |
| (ii) | Insurance Company shall consult with the applicable Fund
as to how to minimize any liability that may arise as a result of such failure or alleged failure; |
| (iii) | Insurance Company shall use its best efforts to minimize
any liability of the applicable Fund or its affiliates resulting from such failure, including, without limitation, demonstrating,
pursuant to Treasury Regulations Section 1.817-5(a)(2), to the Commissioner of the IRS that such failure was inadvertent; |
| (iv) | Insurance Company shall permit the applicable Fund, its
affiliates and their legal and accounting advisors to participate in any conferences, settlement discussions or other administrative
or judicial proceeding or contests (including judicial appeals thereof) with the IRS, any Contractholder or any other claimant
regarding any claims that could give rise to liability to the applicable Fund or CID or its affiliates as a result of such a failure
or alleged failure; provided, however, that Insurance Company will retain control of the conduct of such conferences discussions,
proceedings, contests or appeals; |
| (v) | any written materials to be submitted by Insurance Company
to the IRS, any Contractholder or any other claimant in connection with any of the foregoing proceedings or contests (including,
without limitation, any such materials to be submitted to the IRS pursuant to Treasury Regulations Section 1.817-5(a)(2)), (a) shall
be provided by Insurance Company to the applicable Fund (together with any supporting information or analysis), subject to the
confidentiality provisions of Article IX, at least ten (10) business days or such shorter period to which the Parties hereto agree
prior to the day on which such proposed materials are to be submitted, and (b) shall not be submitted by Insurance Company to
any such person without the express written consent of the applicable Fund, which shall not be unreasonably withheld; |
| (vi) | Insurance Company shall provide the applicable Fund or
CID or its affiliates and their accounting and legal advisors with such cooperation as they shall reasonably request (including,
without limitation, by allowing them to review the relevant books and records of Insurance Company) in order to facilitate their
review of any written submissions provided to them pursuant to the preceding clause or its assessment of the validity or amount
of any claim against it arising from such a failure or alleged failure; |
| (vii) | Insurance Company shall not with respect to any claim
of the IRS or any Contractholder that would give rise to a claim against any Fund or CID or its affiliates (a) compromise
or settle any claim, (b) accept any adjustment on audit, or (c) forego any allowable administrative or judicial appeals,
without the express written consent of the applicable Fund, CID or its affiliates, which shall not be unreasonably withheld, provided
that Insurance Company shall not be required, after exhausting all administrative appeals, to appeal any adverse judicial
decision unless the applicable Fund, CID or its affiliates shall have provided an opinion of independent counsel to the effect
that a reasonable basis exists for taking such appeal; and provided further that the costs of any such appeal shall be
borne by the applicable fund or CID or an affiliate of CID; and |
| (viii) | The applicable Fund, CID and its affiliates shall have
no liability as a result of such failure or alleged failure if Insurance Company fails to comply with any of the foregoing clauses
(i) through (vii), and such failure is shown to have materially contributed to the liability. |
Should
the applicable Fund, CID or its affiliates refuse to give their written consent to any compromise or settlement of any claim or
liability described under this Section 2.8, Insurance Company may, in its discretion, authorize them to act in the name of Insurance
Company in, and to control the conduct of, such conferences, discussions, proceedings, contests or appeals and all administrative
or judicial appeals thereof, and in that event the applicable Fund or CID or its affiliates shall bear the fees and expenses associated
with the conduct of the proceedings that it is so authorized to control; provided, that in no event shall Insurance Company
have any liability resulting from their refusal to accept the proposed settlement or compromise with respect to any failure caused
by the applicable Fund. As used in this Agreement, the term “affiliates” shall have the same meaning as “affiliated
person” as defined in Section 2(a)(3) of the 0000 Xxx.
| 2.9 | Fund represents and warrants that, for as long as Section
817(h) of the Code continues to apply to the Fund, Shares of each Portfolio will not be sold to the general public and will be
held only by one or more (i) segregated asset accounts of one or more Participating Companies or (ii) ”permitted
investors” as defined in Treasury Regulation 1.817-5(f)(3), as amended, or any successor Treasury regulation. |
| 2.10 | Fund represents and warrants that any of its directors, officers,
employees, investment advisers, and other individual/entities who deal 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 that required by Rule 17g-1 under the 1940 Act. The aforesaid bond shall include coverage for larceny and embezzlement
and shall be issued by a reputable bonding company. |
| 2.11 | Insurance Company agrees that CID (the Fund’s principal
underwriter) may enforce any and all of the Fund’s rights conferred by virtue of this Agreement. |
| 2.12 | Each party agrees (i) to perform any and all duties,
functions, procedures and responsibilities assigned to it by National Securities Clearing Corporation’s (“NSCC”)
rules, procedures or other requirements relating to its Fund/SERV system (“Fund/SERV”) and Networking system (“Networking”),
as applicable, in a competent manner; (ii) to maintain facilities, equipment and skilled personnel sufficient to perform
the foregoing activities; (iii) that any information provided to another party through Fund/SERV or Networking will be accurate,
complete, and in the format prescribed by the NSCC; and (iv) to adopt, implement and maintain procedures reasonably designed
to ensure the accuracy of all transmissions through Fund/SERV or Networking and to limit the access to, and the inputting of data
into, Fund/SERV or Networking to persons specifically authorized by the party. |
ARTICLE
III
PORTFOLIO
SHARES
| 3.1 | The Contracts funded through the Separate Account will provide
for the investment of certain amounts in the Portfolio Shares. |
| 3.2 | Fund agrees to make the shares of each Portfolio available
for purchase at such Portfolio’s then applicable net asset value per share by Insurance Company and the Separate Account
on each Business Day pursuant to rules of the Commission. Notwithstanding the foregoing, the Fund may, in its sole discretion,
(i) refuse to sell the shares of any Portfolio to any person, or (ii) suspend or terminate the offering of the shares of any Portfolio
if such action is (a) required by law or by regulatory authorities having jurisdiction over it or (b) determined by the Board,
acting in good faith and in light of its fiduciary duties under federal and any applicable state laws, to be necessary and in
the best interests of the shareholders of such Portfolio. |
| 3.3 | Insurance Company agrees that, for as long as Section 817(h)
of the Code continues to apply to the Fund, Shares of each Portfolio may be held by one or more (i) segregated asset accounts
of one or more Participating Companies or (ii) ”permitted investors” as defined in Treasury Regulation 1.817-5(f)(3),
as amended, or any successor Treasury regulation. |
| 3.4 | Fund shall use its best efforts to provide closing net asset
value, dividend and capital gain information for each Portfolio available on a per-share and Portfolio basis to Insurance Company
by 7:00 p.m. Eastern Time on each Business Day. In the event that the Fund is unable to make the 7:00 p.m. deadline, it
shall provide additional time for the Insurance Company to place orders for the purchase or redemption of Portfolio Shares equal
to the additional time that the Fund takes to make the required information for all Portfolios available to the Insurance Company;
provided, however, that all orders placed by the Insurance Company during such additional time must have been received by the
Insurance Company prior to the close of the New York Stock Exchange (currently 4:00 p.m. Eastern time). Any material errors in
the calculation of net asset value, dividend and capital gain information shall be reported promptly upon discovery to Insurance
Company. In such event, the Insurance Company shall be entitled to an adjustment to the number of Portfolio Shares purchased or
redeemed to reflect the correct net asset value per Share and number of Shares representing dividends and the Fund or its agent
shall bear the cost of making such adjustments. Non-material errors will be corrected in the next Business Day’s net asset
value per share for the Portfolio in question. |
| 3.5 | At the end of each Business Day, Insurance Company will use
the information described in Sections 3.2 and 3.4 to calculate the Separate Account unit values for the day. Using this
unit value, Insurance Company will process the day’s Separate Account transactions received by it by the close of trading
on the floor of the New York Stock Exchange (currently 4:00 p.m. Eastern time) to determine the net dollar amount of Portfolio
Shares which will be purchased or redeemed at that day’s closing net asset value per share for such Portfolio. Trades
will normally settle through the facilities of Fund/SERV. If a transaction initiated through Fund/SERV fails to be processed through
Fund/SERV then the net purchase or redemption orders will be transmitted to the Fund by Insurance Company by 9:00 a.m.
Eastern Time on the Business Day next following Insurance Company’s receipt of that information. |
| 3.6 | Fund appoints Insurance Company as its agent for the limited
purpose of accepting orders for the purchase and redemption of Portfolio Shares. Trades will normally settle through the facilities
of Fund/SERV. If a transaction initiated through Fund/SERV fails to be processed through Fund/SERV then the Fund will execute
orders for any Portfolio at the applicable net asset value per share determined as of the close of trading on the day of receipt
of such orders by Insurance Company acting as agent (“effective trade date”), provided that the Fund receives written
notice of such orders by 8:30 a.m. Eastern Time on the next following Business Day and, if such orders request the purchase
of Portfolio Shares, the conditions specified in Section 3.8, as applicable, are satisfied. A redemption or purchase request
for any Portfolio that does not satisfy the conditions specified above and in Section 3.8, as applicable, will be effected
at the net asset value computed for such Portfolio on the Business Day as of which such conditions have been satisfied. |
| 3.7 | Insurance Company will provide Fund with access to FundTrack
which will allow the Fund to monitor unusually large purchase or redemption orders. |
| 3.8 | Trades will normally settle through the facilities of Fund/SERV.
If a transaction initiated through Fund/SERV fails to be processed through Fund/SERV and Insurance Company’s order requests
the purchase of Portfolio Shares, Insurance Company will pay for such purchases by wiring Federal Funds to Fund or its designated
custody account on the day the order is transmitted. Insurance Company shall transmit any such Fund payment in Federal Funds by
the close of the Federal Reserve wire system on the Business Day the Fund receives the notice of the order pursuant to Section
3.6. Fund will execute such orders at the applicable net asset value per share determined as of the close of trading on the effective
trade date if Fund receives payment in Federal Funds by the close of the Federal Reserve wire system on the Business Day the Fund
receives the notice of the order pursuant to Section 3.6. If payment in Federal Funds for any purchase is not received on such
Business Day, Insurance 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 borrowings 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. |
| 3.9 | Fund shall ensure that Portfolio Shares are registered under
the 1933 Act at all times. |
| 3.10 | Trades will normally settle through the facilities of Fund/SERV.
If a transaction initiated through Fund/SERV fails to be processed through Fund/SERV then Fund will confirm each purchase or redemption
order made by Insurance Company. Transfer of Portfolio Shares will be by book entry only. No share certificates will be issued
to Insurance Company or Participating Companies. Insurance Company will record shares ordered from Fund in an appropriate
title for the corresponding account. |
| 3.11 | Trades will normally settle through the facilities of Fund/SERV.
If a transaction initiated through Fund/SERV fails to be processed through Fund/SERV and the conditions of Section 3.8 have been
satisfied, the Fund shall credit Insurance Company with the appropriate number of shares utilizing the net asset value per share
determined in |
accordance
with Section 3.6.
| 3.12 | Before or as soon as possible on each ex-dividend date of
the Fund or, if not a Business Day, on the first Business Day thereafter, Fund shall communicate to Insurance Company the amount
of dividend and capital gain, if any, per share of each Portfolio. All dividends and capital gains of any Portfolio will normally
settle through the facilities of Fund/SERV system. If any dividend or capital gains transaction initiated through Fund/SERV fails
to be processed through Fund/SERV then (i) the Fund shall automatically reinvest such amounts in additional shares of the relevant
Portfolio at the applicable net asset value per share of such Portfolio on the payable date and (ii) Fund shall, on the
day after the payable date or, if not a Business Day, on the first Business Day thereafter, notify Insurance Company of the number
of shares so issued. |
ARTICLE
IV
STATEMENTS
AND REPORTS
| 4.1 | Fund or its agent shall provide monthly statements of account
as of the end of each month for all of Insurance Company’s accounts by the fifteenth (15th) Business Day of the following
month. |
| 4.2 | Fund or its agent shall distribute to Insurance Company copies
of the Fund’s Prospectus, proxy materials, notices, periodic reports and other printed materials (which the Fund customarily
provides to its shareholders) in such quantities as Insurance Company may reasonably request for distribution to each Contractholder
and Participant. Insurance Company has requested, and Fund shall provide, in lieu of printed documents, camera-ready copy or diskette
of prospectuses, annual and semi-annual reports for Insurance Company to print or post on its secured website. Fund shall provide
all such materials to Insurance Company in a timely manner so as to enable Insurance Company to print, post and distribute such
materials within the time required by law. The Fund shall maintain a website that is in compliance with all applicable requirements
of Rule 498 under the 1933 Act such that the Fund may deliver a Summary Prospectus in lieu of Statutory Prospectus for each Portfolio. |
| 4.3 | Fund or its agent will provide to Insurance Company, contemporaneously
with the filing thereof with the Commission or other regulatory authority, at least one complete copy of (i) the then-current
registration statement and Prospectus, (ii) all then-current sales literature and other promotional materials prepared by the
Fund for distribution to Insurance Company or any Participating Company, and (iii) all new or pending proxy statements, applications
for exemptions or requests for no-action letters, that relate to the Fund or the Portfolio Shares, and all amendments to any of
the documents specified in (i), (ii) or (iii). Insurance Company agrees that the Fund shall be deemed to have fully satisfied
its obligations under this Section 4.3 by making the required documents available on either the Securities and Exchange Commission’s
XXXXX information retrieval system or on xxx.xxxxxxx.xxx or any successor website. |
| 4.4 | Insurance Company will provide to the Fund at least one copy
of all registration statements, Prospectuses, reports, proxy statements, sales literature and other promotional materials, applications
for exemptions, requests for no-action letters, and all amendments to any of the above, relating to the Contracts or any Separate
Account that discuss or affect any Fund or Portfolio contemporaneously with the filing of such document with the Commission or
other regulatory authority. Fund agrees that Insurance Company shall be deemed to have fully satisfied its obligations under this
Section 4.4 by making the required documents available on either the Securities and Exchange Commission’s XXXXX information
retrieval system or on xxx.xxx.xxxxxxx.xxx or any successor website. |
| 4.5 | Insurance Company and Fund shall each promptly notify the
other in writing of the results of any examination by the Commission (or any other regulatory authority) that (i) relates
to the Contracts, Separate Accounts, any Fund or Portfolio Shares and (ii) results in the imposition of fines or any non-monetary
sanction (including, without limitation, a reprimand or deficiency letter), and the party that was the subject of any such examination
shall provide the other parties with a copy of the relevant correspondence or written report from the Commission (or other regulatory
authority) regarding such examination. |
ARTICLE
V
EXPENSES
| 5.1 | The charge to the Fund for all expenses and costs of the
Portfolio, including but not limited to management fees, administrative expenses and legal and regulatory costs, will be made
in the determination of the applicable Portfolio’s daily net asset value per share so as to accumulate to an annual charge
at the rate set forth in the Fund’s Prospectus. |
| 5.2 | Except as provided in this Article V and, in particular in
the next sentence, Insurance Company shall not be required to pay directly any expenses of the Fund or expenses relating to the
distribution of any Portfolio Shares. Insurance Company shall pay the following expenses or costs: |
| a. | The production expenses of any Fund materials (including
the cost of printing the Fund’s Prospectus or marketing materials) for prospective Contractholders and Participants. |
| b. | Distribution expenses of any Fund materials or marketing
materials for prospective Contractholders and Participants. |
| c. | Distribution expenses of Fund materials or marketing materials
for Contractholders and Participants. |
Except
as provided herein, all other Fund expenses shall not be borne by Insurance Company.
| 5.3 | Insurance Company shall bear all expenses associated with
(i) the registration, qualification, and filing of the Contracts under applicable federal securities and state insurance laws,
(ii) the cost of preparing, printing and distributing the Contract prospectus and statement of additional information, and (iii)
the cost of preparing, printing and distributing annual individual account statements for Contractholders as required by state
insurance laws. |
ARTICLE
VI
EXEMPTIVE
RELIEF
| 6.1 | Insurance Company has reviewed (i) a copy of the Order of
the Commission under Section 6(c) of the 1940 Act dated November 21, 1988 issued to the applicants including Acacia Capital Corporation,
the predecessor to CVS (the “CVS Exemptive Order”), and the conditions to the relief set forth in the related
Notice of Application for Exemption dated October 24, 1988 and (ii) a copy of the Order of the Commission under Section 6(c) of
the 1940 Act dated December 4, 2000 issued to Summit Mutual Funds, Inc., the predecessor to CVP (the “CVP Exemptive Order”
and, together with the CVS Exemptive Order, the “Exemptive Orders”), and the conditions to the relief set forth
in the related Notice of Application for Exemption dated November 9, 2000. As set forth therein, Insurance Company agrees to report
any potential or existing conflicts promptly to the Board, in particular whenever contract voting instructions are disregarded,
and recognizes that it will be responsible for assisting the Board in carrying out its responsibilities under such application
by, among other things, providing the Board with all information reasonably necessary for the Board to consider any issues raised.
Insurance Company agrees to carry out such responsibilities with a view only to the interests of existing Contractholders. |
| 6.2 | If a majority of the Board, or a majority of Disinterested
Board Members, determines that a material irreconcilable conflict exists with regard to Participating Contractholder investments
in the Fund, the Board shall give prompt notice to all Participating Companies. If the Board determines that Insurance Company
is wholly or partly responsible for causing or creating said conflict, Insurance Company shall at its sole cost and expense, and
to the extent reasonably practicable (as determined by a majority of the Disinterested Board Members), take such action as is
necessary to remedy or eliminate the irreconcilable material conflict. |
Such
necessary action may include, but shall not be limited to:
| a. | Withdrawing the assets allocable to the applicable Separate
Account from the Portfolio and reinvesting such assets in a different investment medium, or submitting the question of whether
such segregation should be implemented to a vote of all affected Contractholders and, as appropriate, segregating the assets of
any appropriate group (e.g., annuity contract owners, life insurance contract owners, or variable contract owners of one
or more Participating Companies) that votes in favor of such segregation, or offering to the affected Contractholders the option
of making such a change; and/or |
| b. | Establishing a new registered management investment company
or managed separate account and segregating the assets underlying the Contracts, unless a majority of Contractholders materially
adversely affected by the conflict have voted to decline the offer to establish a new registered management investment company
or managed separate account. |
| 6.3 | If a material irreconcilable conflict arises as a result
of a decision by Insurance Company to disregard Contractholder voting instructions and said decision represents a minority position
or would preclude a majority vote by all Participating Contractholders having an interest in the Fund, Insurance Company may be
required, at the Board’s election, to withdraw the Separate Account’s investment in the Fund. |
| 6.4 | For the purpose of this Article, a majority of the Disinterested
Board Members shall determine whether or not any proposed action adequately remedies any irreconcilable material conflict, but
in no event will the Fund be required to bear the expense of establishing a new funding medium for any Contract. Insurance Company
shall not be required by this Article to establish a new funding medium for any Contract if an offer to do so has been declined
by vote of a majority of the Contractholders materially adversely affected by the irreconcilable material conflict. In the event
that the Board determines that any proposed action does not adequately remedy any material irreconcilable conflict, Insurance
Company will withdraw the investment in each affected Portfolio of each Separate Account designated by the Disinterested Board
Members and, if required by the Disinterested Board Members, will terminate this Agreement within six (6) months after the Board
informs the Company in writing of the foregoing determination; provided, however, that such withdrawal and termination
shall be limited to the extent required to remedy any such material irreconcilable conflict as determined by a majority of the
Disinterested Board Members. |
| 6.5 | No action by Insurance Company taken or omitted, and no action
by either Separate Account or the Fund taken or omitted as a result of any act or failure to act by Insurance Company pursuant
to this Article VI shall relieve Insurance Company of its obligations under, or otherwise affect the operation of, Article V or
this Article VI. |
| 6.6 | If and to the extent that Rule 6e-2 and Rule 6e-3(T) are
amended, or Rule 6e-3 is adopted, to provide exemptive relief from any provision of the 1940 Act or the rules promulgated thereunder
with respect to mixed and or shared funding (as defined in the Exemptive Orders) on terms and conditions materially different
from those contained in the Exemptive Orders, then (a) the Fund or Participating Companies, as appropriate, shall take such steps
as may be necessary to comply with Rule 6e-2 and 6e-3(T), as amended, or Rule 6e-3, as adopted, to the extent such rules are applicable,
and (b) Sections 6.1, 6.2, 6.3, 6.4, 6.5 and 7.1 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. |
| 6.7 | Insurance Company acknowledges that Fund and CID have notified
it 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.
ARTICLE VII
VOTING
OF FUND SHARES
| 7.1 | Fund shall provide Insurance Company with copies at no cost
to Insurance Company, of the Fund’s proxy material, reports to shareholders and other communications to shareholders in
such quantity as Insurance Company shall reasonably require for distributing to Contractholders or Participants. |
To
the extent required by Section 12(d)(1)(E)(iii)(aa) of the 1940 Act or Rule 6e-2 or Rule 6e-3(T) thereunder, other applicable
law, or by regulatory order, whenever the Fund shall have a meeting of shareholders of any Portfolio or class of Portfolio Shares,
Insurance Company shall:
| (a) | solicit voting instructions from Contractholders or Participants
on a timely basis; |
| (b) | vote the Portfolio Shares held in each Separate Account
in accordance with instructions received from Contractholders or Participants; |
| (c) | vote Portfolio Shares held in each Separate Account for
which it has not received timely instructions in the same proportion as it votes Portfolio Shares or class thereof for which it
has received timely instructions; and |
| (d) | vote Portfolio Shares held in its general account in the
same proportion as it votes the applicable Portfolio Shares or class thereof held by the Separate Accounts for which it has received
timely instructions. |
Except
with respect to matters as to which Insurance Company has the right under Rule 6e-2 and Rule 6e-3(T) under the 1940 Act to vote
Portfolio Shares without regard to voting instructions from Contractholders or Participants, Insurance Company will in no way
recommend action in connection with or oppose or interfere with the solicitation of proxies for the Shares held by any Contractholder.
Insurance Company agrees to be responsible for assuring that voting Portfolio Shares for each Separate Account is conducted in
a manner consistent with the Exemptive Orders. Fund shall notify Company of any material changes to the Exemptive Orders.
| 7.2 | Insurance Company agrees that
it shall not, without the prior written consent of the Fund and its investment adviser, solicit, induce or encourage Contractholders
to change or supplement the Fund’s current investment adviser. |
ARTICLE VIII
MARKETING AND REPRESENTATIONS
| 8.1 | Insurance Company shall designate certain persons or entities
which shall have the requisite licenses to solicit applications for the sale of Contracts. No representation is made as to the
number or amount of Contracts that are to be sold by Insurance Company. Insurance Company shall comply with all applicable federal
and state laws in marketing the Contracts. |
| 8.2 | Insurance Company shall furnish, or shall cause to be furnished,
to the Fund, each piece of sales literature or other promotional material in which the Fund, its investment adviser or the administrator
is named, at least five (5) Business Days prior to its use. No such material shall be used unless the Fund
approves such material. This excludes the listing of the Fund name and/or objective. Such approval (if given) must be in writing
and shall be presumed not given if not received within five (5) Business Days after receipt of such material. The
Fund shall use all reasonable efforts to respond within five (5) days of receipt. |
| 8.3 | Insurance Company shall not give any information or make
any representations or statements on behalf of the Fund or concerning the Fund or any Portfolio in connection with the sale of
the Contracts other than the information or representations contained in the registration statement or Prospectus, as 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. |
Fund
shall furnish, or shall cause to be furnished, to Insurance Company, each piece of the Fund’s sales literature or other
promotional material in which Insurance Company or the Separate Account is named, at least five (5) Business Days
prior to its use. No such material shall be used unless Insurance Company approves such material. Such approval (if given)
must be in writing and shall be presumed not given if not received within five (5) Business Days after receipt of
such material. Insurance Company shall use all reasonable efforts to respond within five (5) business days of receipt.
| 8.4 | Fund shall not, in connection with the sale of Portfolio
Shares, give any information or make any representations on behalf of Insurance Company or concerning Insurance Company, the Separate
Account, or the Contracts other than the information or representations contained in a registration statement or prospectus for
the Contracts, as may be amended or supplemented from time to time, or in published reports for the Separate Account which are
in the public domain or approved by Insurance Company for distribution to Contractholders or Participants, or in sales literature
or other promotional material approved by Insurance Company. |
| 8.5 | For purposes of this Agreement, the phrase “sales literature
or other promotional material” or words of similar import include, without limitation, advertisements (such as material
published, or designed for use, in a newspaper, magazine or other periodical, radio, television, telephone or tape recording,
videotape display, signs or billboards, motion pictures or other public media), sales literature (such as any written communication
distributed or made generally available to customers or the public, including brochures, circulars, research reports, market letters,
form letters, seminar texts, |
or
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 any other material constituting
sales literature or advertising under Financial Industry Regulatory Authority rules, the 1940 Act or the 0000 Xxx.
| 8.6 | Insurance Company shall comply with all applicable laws and
regulations designed to prevent money “laundering”, and if required by such laws or regulations, to share with the
Fund information about individuals, entities, organizations and countries suspected of possible terrorist or money “laundering”
activities in accordance with Section 314(b) of the USA Patriot Act. |
The
Fund and CID shall comply with all applicable laws and regulations designed to prevent money “laundering”, and if
required by such laws or regulations, to share with Insurance Company information about individuals, entities, organizations and
countries suspected of possible terrorist or money “laundering” activities in accordance with Section 314(b) of the
USA Patriot Act.
ARTICLE IX
CONFIDENTIALITY
| 9.1 | Confidentiality Obligation. Each Party shall
hold the Confidential Information of the other Party in strict confidence. Each Party warrants to the other that it shall not
(i) disclose to any person any Confidential Information of the other Party which it may acquire in the performance of its
obligations under this Agreement or (ii) use Confidential Information of the other Party for any purpose, except, in each case,
for the purpose of fulfilling its contractual obligations under this Agreement, and then any disclosure or use of any such Confidential
Information shall be limited to its or its affiliate’s employees, attorneys, accountants or other advisors who have a business
need to know such Confidential Information and who have agreed to be bound by the confidentiality obligations set forth herein.
Each Party shall maintain the other Party’s Confidential Information with reasonable care, which shall not be less than
the degree of care it would use to safeguard its own Confidential Information, for the purpose of preventing the unauthorized,
negligent or inadvertent disclosure or use thereof. |
| 9.2 | Confidential Information. |
(a)
“Confidential Information” means, with respect to a Party, (i) any data or information that is or relates to
proprietary information of that party, including, without limitation, nonpublic portfolio holding information of any mutual fund
for which CDI acts in the capacity of principal underwriter, financial information, business or marketing strategies or plans,
and product development strategies or plans, (ii) information that the party has labeled Confidential, (iii) the identity
of that Party’s customers and any “non-public personally identifiable information” of those customers, as that
term is defined in the Xxxxx-Xxxxx-Xxxxxx Act and the rules and regulations promulgated thereunder, and (iv) information
relating to that Party that a reasonable business person would understand
to
be confidential.
(b) Confidential
Information does not include information that (a) was in the public domain prior to the date of this Agreement or subsequently
came into the public domain through no fault of the receiving Party or by no violation of this Agreement; (b) was lawfully
received by the receiving Party from a third party free of any obligation of confidence of such third party; (c) was already in
the possession of the receiving Party prior to receipt thereof directly or indirectly from the disclosing Party; (d) is subsequently
and independently developed by employees, consultants or agents of the receiving Party without reference to or use of the Confidential
Information disclosed under this Agreement; (e) is required to be disclosed pursuant to applicable laws, regulatory or legal process,
subpoena or court order; provided, that the receiving Party (i) shall, unless restrained by court order, promptly notify
the disclosing Party of any such demand or request in order to enable the disclosing Party to obtain an appropriate protective
order to prevent such disclosure, (ii) shall, at the disclosing Party’s cost and expense, fully cooperate with the disclosing
Party to obtain an appropriate protective order, and (iii) may, in the absence of an appropriate protective order, disclose
only that information that its legal counsel advises in writing must be disclosed; or (f) any fees payable to Insurance Company
for performing certain administrative services.
| 9.3 | Unauthorized Disclosure Notification and Liability.
The receiving Party shall promptly notify the disclosing Party of, and provide the details regarding, any unauthorized disclosure,
possession or use of the disclosing Party’s Confidential Information. Each Party understands and agrees that the receiving
Party shall be liable for damages arising out of any breach of the confidentiality obligations set forth in this Agreement. The
Parties acknowledge the disclosing Party would be irreparably injured by violation of this Article IX, and agree that the disclosing
Party, in addition to any other remedies available to it, shall be entitled to a preliminary injunction, temporary restraining
order, or other equivalent relief, restraining the receiving Party from any actual or threatened breach of Article IX. |
| 9.4 | Data Disposition. Upon the disclosing Party’s
written request, the receiving Party shall promptly return all documents and other media containing Confidential Information.
Any information that cannot feasibly be returned shall be purged, deleted or destroyed and the receiving Party shall deliver to
the disclosing Party written certification thereof; provided, however, that the receiving Party may retain a single
copy of the Confidential Information solely for the purpose of complying with applicable law or regulation or the order of any
court, arbitration panel, regulator or similar governmental authority having jurisdiction over the receiving Party. The receiving
Party shall have an ongoing obligation to safeguard all information of the disclosing Party that is not returned, purged, deleted
or destroyed. |
| 9.5 | Duty Not to Trade. The receiving Party agrees
not to trade on any Confidential Information disclosed to it or otherwise obtained by it from the disclosing Party or any of the
disclosing Party’s affiliates, agents or representatives. |
| 9.6 | Compliance With Applicable Laws. Each Party
warrants and represents that its conduct under this Agreement shall comply with the Xxxxx-Xxxxx-Xxxxxx Act, Regulation S-P (17
C.F.R. §248), and all other applicable federal and state laws and regulations concerning customer confidentiality, and that
no party will share customers’ non-public personal information with third parties, except as allowed by applicable law and
regulation. |
ARTICLE
X
INDEMNIFICATION
| 10.1 | Indemnification by Insurance Company. Insurance
Company agrees to indemnify and hold harmless the Fund, its investment adviser, any sub-investment adviser of a Portfolio, and
their affiliates, and each of their directors, trustees, officers, employees, agents and each person, if any, who controls or
is associated with any of the foregoing entities or persons within the meaning of the 1933 Act (collectively, the “Indemnified
Parties” for purposes of Section 10.1), against any and all losses, claims, damages or liabilities joint or several
(including any investigative, legal and other expenses reasonably incurred in connection with, and any amounts paid in settlement
of, any action, suit or proceeding or any claim asserted) for which the Indemnified Parties may become subject, under the 1933
Act or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) (i) arise out of or are
based on any untrue statement or alleged untrue statement of a material fact contained in the registration statement, prospectus,
statement of additional information, or sales literature or other promotional material of any Separate Account or relating to
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, (ii) arise out of
or are based upon any untrue statement or alleged untrue statement of any material fact contained in information furnished by
Insurance Company for use in the Fund’s registration statement, Prospectus, or sales literature or other promotional material
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 not misleading, (iii) arise out of or as a result of conduct,
statements or representations (other than statements or representations contained in the Prospectus and sales literature or advertisements
of the Fund) of Insurance Company, with respect to the sale and distribution of Contracts for which Portfolio Shares are an underlying
investment; (iv) arise out of the wrongful conduct of Insurance Company or persons under its control or direction with respect
to the sale or distribution of the Contracts or Portfolio Shares; (v) arise out of Insurance Company’s incorrect calculation
and/or untimely reporting of net purchase or redemption orders or CID’s or the Fund’s reliance on any net purchase
or redemption order reported by Insurance Company without Contractholder authorization; or (vi) arise out of any breach by Insurance
Company of a material term of or representation contained in this Agreement or as a result of any failure by Insurance Company
to provide the services and furnish the materials or to make any payments provided for in this Agreement. Insurance Company will
reimburse any Indemnified Party in connection with investigating or defending any such loss, claim, |
damage,
liability or action; provided, however, that with respect to clauses (i), (ii) and (iii) above, Insurance Company
will not be liable in any such case to the extent that any such loss, claim, damage or liability arises out of or is based upon
any untrue statement or omission or alleged untrue statement or omission made in any document specified in any such clause in
conformity with written information furnished to Insurance Company by the Fund specifically for use therein; and provided,
further, that Insurance Company shall not be liable for special, consequential or incidental damages. This indemnity agreement
will be in addition to any liability that Insurance Company may otherwise have.
No
party shall be entitled to indemnification by the Insurance Company if such loss, claim, damage, liability or litigation is due
to the willful misfeasance, bad faith, gross negligence, or reckless disregard of duty by the party seeking indemnification.
| 10.2 | Indemnification by CID. CID agrees to indemnify
and hold harmless Insurance Company, its affiliates, and each of their directors, officers, employees, agents and each person,
if any, who controls or is associated with any of the foregoing entities or persons within the meaning of the 1933 Act (collectively,
the “Indemnified Parties” for purposes of Section 10.2) against any losses, claims, damages or liabilities joint or
several (including any investigative, legal and other expenses reasonably incurred in connection with, any amounts paid in settlement
of, any action, suit or proceeding or any claim asserted) for which the Indemnified Parties may become subject, under the 1933
Act or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) (i) arise out
of or are based upon any untrue statement or alleged untrue statement of a material fact contained in the registration statement
or Prospectus or sales literature or advertisements of the Fund; (ii) arise out of or are based upon the omission to state in
the registration statement or Prospectus or sales literature or advertisements of the Fund any material fact required to be stated
therein or necessary to make the statements therein not misleading; (iii) arise out of or are based upon any untrue statement
or alleged untrue statement of any material fact contained in any written information furnished by the Fund for use in the registration
statement or prospectus or sales literature or advertisements with respect to the Separate Account or the Contracts 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; or (iv) arise out of or are based upon any breach by the Fund of a material term of or representation
contained in this Agreement or any failure by the Fund to provide the services and furnish the materials or make any payments
under the terms of this Agreement (including a failure, whether unintentional or in good faith or otherwise, to comply with the
diversification requirements and procedures related thereto as specified in Article 2 of this Agreement); provided, however,
that, with respect to clauses (i), (ii) or (iii) above, CID will not be liable in any such case to the extent that any such loss,
claim, damage or liability arises out of or is based upon an untrue statement or omission or alleged untrue statement or omission
made in any document specified in any such clause in conformity with written information furnished to the Fund by Insurance Company
specifically for use therein; and provided, further, that the Fund shall not be liable for special, consequential
or incidental damages. This indemnity agreement will be in addition to any liability that the Fund may otherwise have. |
| 10.3 | CID shall indemnify and hold Insurance Company harmless against
any and all liability, loss, damages, costs or expenses which Insurance Company may incur, suffer or be required to pay due to
the Fund’s (1) incorrect calculation of the daily net asset value, dividend rate or capital gain distribution rate of a
Portfolio; (2) incorrect reporting of the daily net asset value, dividend rate or capital gain distribution rate; and (3) untimely
reporting of the net asset value, dividend rate or capital gain distribution rate; provided that the Fund shall have no obligation
to indemnify and hold harmless Insurance Company if the incorrect calculation or incorrect or untimely reporting was the result
of incorrect or untimely information furnished by Insurance Company, any net purchase or redemption order reported to CID or the
Fund by Insurance Company without Contractholder authorization, or as a result of or relating to a breach of this Agreement by
Insurance Company; and provided, further, that the CID shall not be liable for special, consequential or incidental damages or
for any incorrect calculation or reporting, which after rounding, results in (i) a change to the NAV of one cent or less,
or (ii) a dividend rate or capital gain distribution rate that is not required to be corrected under applicable law and related
regulations. |
| 10.4 | No party shall be entitled to indemnification by CID if such
loss, claim, damage, liability or litigation is due to the willful misfeasance, bad faith, gross negligence, or reckless disregard
of duty by the party seeking indemnification. |
| 10.5 | Promptly after receipt by an indemnified party under this
Article of notice of the commencement of any action, such indemnified party will, if a claim in respect thereof is to be made
against the indemnifying party under this Article, notify the indemnifying party of the commencement thereof. The omission to
so notify the indemnifying party will not relieve the indemnifying party from any liability under this Article X, except
to the extent that the indemnifying party did not otherwise learn of such action and to the extent such failure results in the
forfeiture by the indemnifying party of material rights and defenses. In case any such action is brought against any indemnified
party, and it notified the indemnifying party of the commencement thereof, the indemnifying party may, in its sole discretion
and at its expense, elect to (i) participate in the investigation, defense and settlement of such action and (ii) assume
the defense thereof, with counsel satisfactory to the indemnified parties (which counsel shall not, except with the consent of
the indemnified parties, be counsel to the indemnifying parties), and, after notice from the indemnifying parties to the indemnified
parties of its election to assume the defense thereof, the indemnifying party shall not be liable to any indemnified party for
any legal fees and expenses of other counsel or any other expenses, in each case subsequently incurred by such indemnified party,
in connection with the defense thereof other than the indemnified party’s reasonable costs of investigation, participation,
and cooperation with the defense to the extent requested by the indemnifying party; provided, however, that, if
the indemnified party reasonably determines that counsel selected by the indemnifying party has a conflict of interest, such indemnifying
party shall pay the reasonable fees and disbursements of one additional counsel selected by the indemnified party (in addition
to any local counsel) separate from its own counsel for all indemnified parties in connection |
with
any one action or separate but similar or related actions in the same jurisdiction arising out of the same general allegations
or circumstances.
| 10.6 | The indemnifying party shall not be liable for any settlement
of any proceeding effected without its written consent. No indemnifying party, in the defense of any such claim or litigation,
shall, without the prior written consent of the indemnified parties, consent to the entry of any judgment or enter into any settlement
that does not include as an unconditional term the giving by the claimant or plaintiff to the indemnified party of a release from
all liability in respect to such claim or litigation. No indemnifying party shall settle any claim in any matter that would impose
any expense, penalty, obligation or limitation on the indemnified party, or would contain language other than a recitation of
any amounts to be paid in settlement, the fact of the settlement or the underlying claim relating to the settlement, that could
be viewed, in the sole discretion of the indemnified party, as an acknowledgement of wrongdoing on the part of the indemnified
party or as detrimental to the reputation of the indemnified party, without the indemnified party’s prior written consent. |
| 10.7 | A successor by law of the parties to this Agreement shall
be entitled to the benefits of the indemnification contained in this Article X. |
| 10.8 | This Article X shall survive the termination of this Agreement. |
ARTICLE
XI
COMMENCEMENT
AND TERMINATION
| 11.0 | This Agreement shall be effective as of the date hereof and
shall continue in force until terminated in accordance with the provisions herein. |
| 11.1 | This Agreement shall terminate without penalty as to one
or more Portfolios as set forth below: |
| a. | At the option of Insurance Company or the Fund, in each
case with or without cause, upon 180 days’ advance written notice (unless a shorter time is agreed to by the parties), which
notice shall specify the Portfolio or Portfolios, Contracts and, if applicable, Separate Accounts as to which the Agreement is
to be terminated; |
| b. | At the option of Insurance Company, if shares of any Portfolio
are not reasonably available to meet the requirements of the Contracts as determined by Insurance Company. Prompt notice of election
to terminate shall be furnished by Insurance Company, said termination to be effective ten (10) days after receipt of notice unless
the Fund makes available a sufficient number of shares to meet the requirements of the Contracts within said ten-day period; |
| c. | At the option of Insurance Company, upon the institution
of formal proceedings against the Fund by the Commission, Financial Industry Regulatory Authority or any other regulatory body,
the expected or anticipated ruling, judgment or outcome of which would, in Insurance Company’s reasonable judgment, materially
impair the Fund’s ability to meet and perform the Fund’s obligations and duties hereunder. Prompt notice of election
to terminate shall be furnished by Insurance Company with said termination to be effective upon receipt of notice; |
| d. | At the option of the Fund, upon the institution of formal
proceedings against Insurance Company by the Commission, Financial Industry Regulatory Authority or any other regulatory body,
the expected or anticipated ruling, judgment or outcome of which would, in the Fund’s reasonable judgment, materially impair
Insurance Company’s ability to meet and perform Insurance Company’s obligations and duties hereunder. Prompt notice
of election to terminate shall be furnished by the Fund with said termination to be effective upon receipt of notice; |
| e. | At the option of the Fund, if the Fund shall determine,
in its sole judgment reasonably exercised in good faith, that Insurance Company has suffered a material adverse change in its
business or financial condition or is the subject of material adverse publicity and such material adverse change or material adverse
publicity is likely to have a material adverse impact upon the business and operation of the Fund or its investment adviser, the
Fund shall notify Insurance Company in writing of such determination and its intent to terminate this Agreement, and after considering
the actions taken by Insurance Company and any other changes in circumstances since the giving of such notice, such determination
of the Fund shall continue to apply on the sixtieth (60th) day following the giving of such notice, which sixtieth
day shall be the effective date of termination; |
| f. | Upon termination of the Investment Advisory Agreement
between the Fund and its investment adviser or its successors unless Insurance Company specifically approves the selection of
a new Fund investment adviser. The Fund shall promptly furnish notice of such termination to Insurance Company; |
| g. | In the event the Fund’s shares are not registered,
issued or sold in accordance with applicable federal law, or such law precludes the use of such shares as the underlying investment
medium of Contracts issued or to be issued by Insurance Company. Termination shall be effective immediately upon such occurrence
without notice; |
| h. | At the option of the Fund upon a determination by the
Board in good faith that it is no longer advisable and in the best interests of shareholders for the Fund to continue to operate
pursuant to this Agreement. Termination pursuant to this |
Subsection (h) shall be effective upon notice by the Fund
to Insurance Company of such termination;
| i. | At the option of the Fund if the Contracts cease to qualify
as annuity contracts or life insurance policies, as applicable, under the Code, or if the Fund reasonably believes that the Contracts
may fail to so qualify; |
| j. | At the option of either party to this Agreement, fifteen
(15) days after such party delivers to the other party notice of such other party’s material breach of any provision of
this Agreement unless such alleged breach is cured to the reasonable satisfaction of the notifying Party within such fifteen (15)
day period; |
| k. | At the option of the Fund, if the Contracts are not registered,
issued or sold in accordance with applicable federal and/or state law; or |
| l. | Upon assignment of this Agreement, unless made with the
written consent of the non-assigning party. |
| 11.3 | Notwithstanding any termination of this Agreement pursuant
to Section 11.1 hereof, the Fund and its investment adviser may, at the option of the Fund, continue to make available additional
Portfolio Shares for so long as the Fund desires pursuant to the terms and conditions of this Agreement as provided below, for
all Contracts in effect on the effective date of termination of this Agreement (hereinafter referred to as “Existing Contracts”).
Specifically, without limitation, if the Fund so elects to make additional Portfolio Shares available, the owners
of the Existing Contracts or Insurance Company, whichever shall have legal authority to do so, shall be permitted to reallocate
investments in the Portfolio, redeem investments in the Fund and/or invest in any additional Portfolio upon the making of additional
purchase payments under the Existing Contracts. In the event of a termination of this Agreement pursuant to Section 11.2 hereof,
the Fund, as promptly as is practicable under the circumstances, shall notify Insurance Company whether the Fund will continue
to make Portfolio Shares available after such termination. If Portfolio Shares continue to be made available after such termination,
the provisions of this Agreement shall remain in effect and thereafter either the Fund or Insurance Company may terminate the
Agreement, as so continued pursuant to this Section 11.3, upon prior written notice to the other party, such notice
to be for a period that is reasonable under the circumstances but, if given by the Fund, need not be for more than six months. |
ARTICLE XII
AMENDMENTS
| 12.1 | Any change in the terms of this Agreement (other than those permitted pursuant to Section 11.3) shall be made by agreement
in writing between the parties to this Agreement. |
ARTICLE XIII
NOTICE
| 13.1 | Except as otherwise specifically provided for in this Agreement,
any notice required or permitted to be given by either party to the other shall be in writing and shall be deemed to have been
given on the date delivered personally by overnight delivery or by courier service or 3 days after sent by registered or certified
mail, postage prepaid, return receipt requested or on the date sent and confirmed received by facsimile transmission to the other
party’s address set forth below or to such other address as may be provided in writing: |
| | Jefferson National Life Insurance Company |
| | Xxxxxxx Variable Series, Inc. |
| | Xxxxxxx Investment Distributors, Inc. |
In the
case of any notice to Fund or CID, a duplicate copy shall be sent to:
| | Attn: Office of the General Counsel |
ARTICLE
XIV
TRADEMARKS
and PORTFOLIO NAMES
| 14.1 | The Funds or CID or one or more of its affiliates owns all
right, title and interest in and to the tradenames, trademarks and service marks set forth on Schedule C, as amended from time
to time by written notice from the Funds or CID to Insurance Company (the “Xxxxxxx Licensed Marks” or the “licensor’s
licensed marks”) and is authorized to use and to license other persons to use such marks. Insurance Company and its affiliates
are hereby granted a limited, non-transferable, non-exclusive, revocable license to use the Xxxxxxx Licensed Marks in connection
with Insurance Company’s performance of the services contemplated under this Agreement, subject to the terms and conditions
set forth in this Section 14. |
| 14.2 | The grant of license to Insurance Company (collectively,
the “Licensee”) shall terminate automatically upon (i) the termination of this Agreement, (ii) Licensee’s
receipt of written notification that its use of any Xxxxxxx Licensed Xxxx, in the reasonable opinion of a Fund or CID, reflects
unfavorably upon the professional, business or personal reputation of a Fund or CID or any of its affiliates or any of their directors,
officers, employees or agents, or (iii) Licensee’s receipt of written notification that the quality, appearance and/or style
of any Xxxxxxx Licensed Xxxx is unacceptable in the reasonable opinion of a Fund or CID (each of clauses (ii) and (iii) being
a “License Violation”). Upon the termination of the license, Insurance Company and its affiliates shall immediately
cease to issue any new annuity or life insurance contract bearing any Xxxxxxx Licensed Xxxx and shall likewise cease any activity
which suggests that it has any right under any of the Xxxxxxx Licensed Marks or that it has any association with a Fund, except
that Insurance Company shall have the right to continue to service outstanding Contracts by utilizing any of the Xxxxxxx Licensed
Marks until the earlier of (x) the Final Termination Date and (y) Licensee’s receipt of written notification regarding the
occurrence of a second License Violation, following which the license shall terminate and Licensee will cease all further use
of any Xxxxxxx Licensed Xxxx. |
| 14.3 | The Licensee shall obtain the prior written approval of the
applicable Fund or CID for the public release by Licensee of any materials bearing any Xxxxxxx Licensed Xxxx, which shall not
be unreasonably withheld. |
| 14.4 | During the term of this grant of license, the applicable
Fund or CID may request that the Licensee submit samples of any materials bearing any of the Xxxxxxx Licensed Marks which were
previously approved by a Fund or CID but, due to changed circumstances, in the sole judgment of a Fund or CID, require reconsideration.
If, on reconsideration, or on |
initial
review, respectively, any such sample fails to meet with the written approval of the applicable Fund or CID, then the Licensee
shall immediately cease distributing such disapproved materials. The applicable Fund or CID shall not unreasonably withhold approval
upon any reconsideration and shall, when engaged in any reconsideration, give due weight to the expenses associated with withdrawing
and replacing the materials that are the subject of such reconsideration. The Licensee shall obtain the prior written approval
of the applicable Fund or CID for the use of any new materials developed to replace the disapproved materials, in the manner set
forth above.
| 14.5 | The Licensee (i) acknowledges that it does not own the Xxxxxxx
Licensed Marks and claims no rights therein other than as a Licensee under this Agreement; (ii) agrees never to contend otherwise
in legal proceedings or in other circumstances; and (iii) acknowledges and agrees that the use of the Xxxxxxx Licensed Marks
pursuant to this grant of license shall inure to the benefit of the applicable Fund and/or CID and/or its affiliates. |
ARTICLE XIV
MISCELLANEOUS
| 15.1 | This Agreement has been executed on behalf of the Fund by
the undersigned officer of the Fund in his/her capacity as an officer of the Fund. The obligations of this Agreement shall only
be binding upon the assets and property of the Fund and shall not be binding upon any Director, officer or shareholder of the
Fund individually. |
| 15.2 | 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. |
| 15.3 | This Agreement may be executed in one or more counterparts,
each of which, taken together, shall constitute one and the same instrument. |
| 15.4 | If any provision of this Agreement shall be held or made
invalid or unenforceable by a court decision, statute, rule or otherwise, the remainder of this Agreement shall not be affected
thereby, but shall have the same force and effect as if the invalid or unenforceable portion had not been inserted. |
| 15.5 | This Agreement shall be binding upon, enforceable against
and shall inure to the benefit of the parties hereto and their respective successors and permitted assigns. |
| 15.6 | Waiver by a party of a breach of any provision of this Agreement
does not constitute waiver of any subsequent breach of that or any other provision. |
| 15.7 | The schedules and exhibits attached hereto, as modified from
time to time, are incorporated herein by reference and is part of this Agreement. |
| 15.8 | Each party hereto shall cooperate with each other party in
connection with inquiries by appropriate governmental authorities (including, without limitation, the Commission, Financial Industry
Regulatory Authority, and state insurance regulators) relating to this Agreement or the transactions contemplated hereby. |
| 15.9 | 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. |
| 15.10 | Unless otherwise agreed to in writing by the parties hereto,
each party acknowledges that the others may enter into agreements, similar to this one, with other parties, for the performance
of the same or similar services to those to be provided under this Agreement. |
| 15.11 | Any party may assign its interest in this Agreement to a
third party provided that each non-assigning party has given prior written consent to the assignment in writing, which consent
shall not be unreasonably withheld. Any attempted assignment in contravention hereof shall be null and void. |
| 15.12 | Except as otherwise expressly provided in this Agreement,
neither the Fund nor CID nor any affiliate of either or them shall use any trademark, trade name, service xxxx or logo of Insurance
Company or any of its affiliates, or any variation of any such trademark, trade name, service xxxx or logo, without Insurance
Company’s prior written consent, the granting of which shall be at the Insurance Company’s sole discretion. Except
as otherwise expressly provided in this Agreement, neither Insurance Company nor any of its affiliates shall use any trademark,
trade name, service xxxx or logo of Fund or CID or any of their affiliates, or any variation of any such trademark, trade name,
service xxxx or logo, without the Fund’s or CID’s prior written consent, the granting of which shall be at the applicable
company’s sole discretion. |
ARTICLE
XVI
LAW
| 16.1 | This Agreement shall be construed in accordance with the
internal laws of the State of New York, without giving effect to principles of conflict of laws. |
IN WlTNESS
WHEREOF, the parties hereto have caused this Agreement to be duly executed and attested as of the date first above written.
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JEFFERSON NATIONAL LIFE INSURANCE
COMPANY |
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By: |
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XXXXXXX VARIABLE SERIES, INC. |
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XXXXXXX VARIABLE PRODUCTS, INC. |
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By: |
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Date: |
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XXXXXXX INVESTMENT DISTRIBUTORS, INC. |
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SCHEDULE A
Portfolios
CVP Portfolios
Portfolio Name |
CUSIP # |
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Xxxxxxx XX SRI Balanced Portfolio |
131647760 |
SCHEDULE
B
Insurance
Company Separate Accounts
Jefferson
National Life Annuity Account G and future separate accounts under which variable annuity products are offered by Jefferson National
Life Insurance Company.
SCHEDULE C
XXXXXXX
TRADEMARKS

| (b) | The name “Xxxxxxx Variable Series, Inc.” and
“Xxxxxxx Variable Products, Inc.” |
| (c) | The name of each Portfolio set forth on Exhibit A. |