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Exhibit (b)(8)(f)
PARTICIPATION AGREEMENT
Among
XXX XXX WORLDWIDE INSURANCE TRUST,
XXX XXX SECURITIES CORPORATION,
XXX XXX ASSOCIATES CORPORATION
and
NATIONAL LIFE INSURANCE COMPANY
==================================
THIS AGREEMENT, made and entered into to be effective on __________
______, by and among National Life Insurance Company, (hereinafter the
"Company"), a Vermont corporation, on its own behalf and on behalf of each
segregated asset account of the Company set forth on Schedule A hereto and
incorporated herein by this reference, as such Schedule A may from time to
time be amended by mutual written agreement of the parties hereto (each such
account hereinafter referred to as the "Account"), and XXX XXX WORLDWIDE
INSURANCE TRUST, an unincorporated business trust organized under the laws of
the Commonwealth of Massachusetts (hereinafter the "Fund"), XXX XXX SECURITIES
CORPORATION (hereinafter the "Underwriter"), a Delaware corporation and XXX XXX
ASSOCIATES CORPORATION (hereinafter the "Adviser"), a Delaware corporation.
WHEREAS, the Fund engages in business as an open-end management
investment company and is available to act as the investment vehicle for
separate accounts established for variable life insurance policies and variable
annuity contracts (hereafter referred to collectively as the "Variable
Insurance Products") to be offered by insurance companies which have entered
into participation agreements with the Fund and the Underwriter (hereinafter
the "Participating Insurance Companies"); and
WHEREAS, the beneficial interest in the Fund is divided into several
series of shares, each representing the interest in a particular managed
portfolio of securities and other assets (each such series hereinafter referred
to as a "Portfolio"); and
WHEREAS, the Fund has obtained an order from the Securities and
Exchange Commission (hereinafter the "SEC") (File No. 811-5083), granting
Participating Insurance Companies and variable annuity and variable life
insurance separate accounts exemptions from the provisions of Sections 9(a),
13(a), 15(a), and 15(b) of the Investment Company Act of 1940, as amended,
(hereinafter the "1940 Act") and Rules 6e-2(b)(15) and 6e-3 (T)(b)(15)
thereunder, to the extent necessary to permit shares of the Fund to be sold to
and held by variable annuity and variable life insurance separate accounts of
both affiliated and unaffiliated life insurance companies (hereinafter the
"Shared Funding Order"); and
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WHEREAS, the Fund is registered as an open-end management investment
company under the 1940 Act and its shares are registered under the Securities
Act of 1933, as amended (hereinafter the "1933 Act"); and
WHEREAS, the Company has registered or will register certain variable
life insurance and variable annuity contracts under the 1933 Act, unless such
contracts are exempt from registration thereunder; and
WHEREAS, each Account is a duly organized, validly existing segregated
asset account, established by resolution of the Board of Directors of the
Company, on the date shown for such Account on Schedule A hereto, to set aside
and invest assets attributable to the aforesaid variable life insurance and
variable annuity contracts; and
WHEREAS, the Company has registered or will register each Account as a
unit investment trust under the 1940 Act, unless such Account is exempt from
registration thereunder; and
WHEREAS, the Underwriter is registered as a broker-dealer with the SEC
under the Securities Exchange Act of 1934, as amended (hereinafter the "1934
Act"), and is a member in good standing of the National Association of
Securities Dealers, Inc. (hereinafter the "NASD"); and
WHEREAS, the Adviser is duly registered as an investment adviser under
the Investment Advisers Act of 1940 and any applicable state securities law;
and
WHEREAS, to the extent permitted by applicable insurance laws and
regulations, the Company intends to purchase shares in the Portfolios on behalf
of each Account to fund certain of the aforesaid variable life and variable
annuity contracts and the Underwriter is authorized to sell such shares to unit
investment trusts such as each Account at net asset value;
NOW, THEREFORE, in consideration of their mutual promises, the
Company, the Fund, the Underwriter and the Adviser agree as follows:
ARTICLE I
Sale of Fund Shares
1.1. The Underwriter agrees to sell to the Company those shares
of the Portfolios (which are listed on Schedule B attached hereto and
incorporated herein by this reference, as such Schedule B may from time to time
be amended by mutual written agreement of the parties hereto) which each
Account orders, executing such orders on a daily basis at the net asset value
per share next computed after receipt by the Fund or its designee of the order
for the shares of the Portfolios subject to the terms and conditions of this
Agreement. For purposes of this Section 1.1, the Company shall be the designee
of the Fund for receipt of such orders from each Account and receipt by such
designee shall constitute receipt by the Fund provided that the Fund receives;
notice of such order by 9:00 a.m. Eastern time on the next following Business
Day. "Business
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Day" shall mean any day on which the New York Stock Exchange is open for
business and on which the Fund calculates the Portfolios' net asset values
pursuant to the rules of the SEC.
1.2. The Fund agrees to make Portfolio shares available for
purchase at the applicable net asset value per share by the Company and its
Accounts on those days on which the Fund calculates net asset values pursuant
to the rules of the SEC and the Fund shall use reasonable efforts to calculate
such net asset values on each day on which the New York Stock Exchange is open
for trading. Notwithstanding the foregoing, the Board of Trustees of the Fund
(hereinafter the "Board") may refuse to sell shares of any Portfolio to any
person, or suspend or terminate the offering of shares of any Portfolio, if
such action is required by law or by regulatory authorities having
jurisdiction, or if it is, in the sole discretion of the Board, desirable or
advisable, and in the best interests of the shareholders of such Portfolio.
1.3. The Fund and the Underwriter agree that shares of the Fund
will be sold only to Participating Insurance Companies and their separate
accounts or other accounts (e.g., qualified retirement plans) as may be
permitted so that the Variable Insurance Products continue to qualify as a
"life insurance, annuity or variable contract" under Section 817(h) of the
Internal Revenue Code of 1986, as amended (hereinafter the "Code"). No shares
of any Portfolio will be sold to the general public.
1.4. The Fund and the Underwriter will not sell Fund shares to
any insurance company, separate account or other account unless an agreement
containing provisions substantially the same as Article I, Section 2.5 of
Article II, Sections 3.4 and 3.5 of Article III, Article V and Article VII of
this Agreement is in effect to govern such sales.
1.5. Subject to its rights under Section 18(f) of the 1940 Act,
the Fund agrees to redeem for cash, on the Company's request, any full or
fractional shares of a Portfolio held by the Company, executing such requests
on a daily basis at the net asset value per share next computed after receipt
by the Fund or its designee of the request for redemption. For purposes of
this Section 1.5, the Company shall be the designee of the Fund for receipt of
requests for redemption from each Account and receipt by such designee shall
constitute receipt by the Fund; provided that the Fund receives notice of such
request for redemption by 9:00 a.m., Eastern Time, on the next following
Business Day. Payment of redemption proceeds for any whole or fractional shares
shall be made within seven days of actual receipt of the redemption request by
the Fund, or within such greater or lesser period as may be permitted by law or
rule, regulation, interpretive position or order of the SEC.
1.6. The Company agrees that purchases and redemptions of
Portfolio shares offered by the then-current prospectus of the Fund shall be
made in accordance with the provisions of such prospectus. The Company agrees
that all net amounts available in the Accounts which are listed in Schedule A
attached hereto and incorporated herein by this reference, as such Schedule A
may from time to time be amended by mutual written agreement of the parties
hereto (the "Contracts"), shall be invested in the Portfolios and in such other
funds advised by the Adviser as are listed in Schedule B, or in the Company's
general account; provided that such amounts may also be invested in an
investment company other than the Fund if (a) such other investment
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company, or series thereof, has investment objectives or policies that are
substantially different from the investment objectives and policies of all the
Portfolios of the Fund; or (b) the Company gives the Fund and the Underwriter
45 days' written notice of its intention to make such other investment company
available as a funding vehicle for the Contracts; or (c) such other investment
company was available as a funding vehicle for the Contracts prior to the date
of this Agreement and the Company so informs the Fund and Underwriter prior to
their signing this Agreement (a list of such funds appearing on Schedule C to
this Agreement); or (d) the Fund or Underwriter consents in writing to the use
of such other investment company.
1.7. The Company shall pay for Portfolio shares on the next
Business Day after an order to purchase such shares is made in accordance with
the provisions of this Article I. Payment shall be in federal funds transmitted
by wire. For purposes of Sections 2.10 and 2.11, upon receipt by the Fund of
the federal funds so wired, such funds shall cease to be the responsibility of
the Company and shall become the responsibility of the Fund.
1.8. Issuance and transfer of the Fund's shares will be by book
entry only. Stock certificates will not be issued to the Company or any
Account. Shares ordered from the Fund will be recorded in an appropriate title
for each Account or the appropriate subaccount of each Account.
1.9. The Fund shall furnish same day notice (by wire or
telephone, followed by written confirmation) to the Company of any income
dividends or capital gain distributions payable on the Portfolios' shares. The
Company hereby elects to receive all such income dividends and capital gain
distributions as are payable on the Portfolio shares in additional shares of
that Portfolio. The Company reserves the right to revoke this election and to
receive all such income dividends and capital gain distributions in cash. The
Fund shall notify the Company of the number of shares so issued as payment of
such dividends and distributions.
1.10. The Fund shall make the net asset value per share for each
Portfolio available to the Company on a daily basis as soon as reasonably
practical after the net asset value per share is calculated (normally by 6:30
p.m., Eastern Time) and shall use its best efforts to make such net asset value
per share available by 7:00 p.m., Eastern Time.
ARTICLE II
Representations and Warranties
2.1. The Company represents and warrants that the Contracts are
or will be registered under the 1933 Act or exempt therefrom; that the
Contracts will be issued and sold in compliance in all material respects with
all applicable federal and state laws and that the sale of the Contracts shall
comply in all material respects with state insurance suitability requirements.
The Company further represents and warrants that it is an insurance company
duly organized and in good standing under applicable law and that it has
legally and validly established each Account prior to any issuance or sale
thereof as a segregated asset account under the Insurance Code and Regulations
of the State of Vermont, and has registered or, prior to any issuance
or sale of the Contracts, will, unless exempt from registration, register each
Account as a unit
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investment trust in accordance with the provisions of the 1940 Act to serve as
a segregated investment account for the Contracts.
2.2. The Company represents that the Contracts will be eligible
for treatment as life insurance or annuity contracts under applicable
provisions of the Code and that it will make every effort to maintain such
treatment and that it will notify the Fund and the Underwriter promptly upon
having determined that the Contracts may have ceased to be so treated or that
they might not be so treated in the future.
2.3. The Company represents and warrants that all of its
directors/trustees, employees, investment advisers and other
individuals/entities dealing with money and/or securities of the Fund are and
shall continue to be at all times covered by a blanket fidelity bond or similar
coverage for the benefit of the Fund, in an amount not less than $5 million.
The aforesaid bond shall include coverage for larceny and embezzlement and
shall be issued by a reputable bonding company. The Company shall notify the
Fund, the Underwriter and the Adviser in the event that such coverage no longer
applies.
2.4. The Fund represents and warrants that Fund shares sold
pursuant to this Agreement are registered under the 1933 Act, duly authorized
for issuance and sale in compliance in all material respects with the terms of
this Agreement and all applicable federal and state securities laws, and that,
while shares of the Portfolios are being offered for sale, the Fund is and
shall remain registered under the 1940 Act. The Fund shall amend its
Registration Statement under the 1933 Act and the 1940 Act from time to time as
required in order to effect the continuous offering of Portfolio shares. The
Fund shall register or otherwise qualify the shares for sale in accordance with
the laws of the various states only if and to the extent deemed advisable by
the Fund or the Underwriter.
2.5. The Fund represents that each Portfolio is qualified as a
Regulated Investment Company under Subchapter M of the Code and that it will
make every effort to maintain such qualification (under Subchapter M or any
successor or similar provision) and that it will notify the Company promptly
upon having determined that any Portfolio may have ceased to so qualify or that
it might not so qualify in the future.
2.6. The Fund currently does not intend to make any payments to
finance distribution expenses pursuant to Rule 12b-1 under the 1940 Act or
otherwise, although it may make such payments in the future. To the extent
that it decides to finance distribution expenses pursuant to Rule 12b-1, the
Fund undertakes to have a board of trustees, a majority of whom are not
interested persons of the Fund, formulate and approve any plan under Rule 12b-1
to finance distribution expenses.
2.7. The Fund makes no representation as to whether any aspect of
its operations (including, but not limited to, fees, expenses and investment
policies) complies with the insurance laws or regulations of the various states
except that the Fund represents that the Fund has disclosed or made available,
in writing, all information requested by Company and represents and warrants
that such written information is true and accurate in all material respects as
of the
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effective date of this Agreement. Without prior written notice to the Company,
the Fund will not make any changes in fundamental investment policies or
advisory fees, and shall at all times remain in compliance with federal
securities law as it applies to insurance products. The Company will use its
best efforts to provide the Fund with copies of amendments to provisions of
state insurance laws and regulations related to separate accounts and variable
products, which may affect Fund operations.
2.8. The Fund represents that it is lawfully organized and
validly existing under the laws of the Commonwealth of Massachusetts and that
it does and will comply in all material respects with the 1940 Act.
2.9. The Underwriter represents and warrants that it is a member
in good standing of the NASD and is registered as a broker-dealer with the SEC.
The Underwriter further represents that it will sell and distribute Portfolio
shares to the Company in accordance with all applicable state and federal
securities laws, including, without limitation, the 1933 Act, the 1934 Act and
the 0000 Xxx.
2.10. The Adviser represents and warrants that it is and shall
remain duly registered in all material respects under all applicable federal
and state securities laws and that it shall perform its obligations for the
Fund in compliance in all material respects with any applicable state and
federal securities laws.
2.11. The Fund, the Underwriter and the Adviser represent and
warrant that all of their directors/trustees, officers, employees, investment
advisers and other individuals/entities dealing with money and/or securities of
the Fund are and shall continue to be at all times covered by a blanket
fidelity bond or similar coverage for the benefit of the Fund, in an amount not
less than the minimum coverage as required by Rule 17g-1 of the 1940 Act or
related provisions as may from time to time be promulgated. The aforesaid bond
shall include coverage for larceny and embezzlement and shall be issued by a
reputable bonding company. The Fund shall notify the Company in the event such
coverage no longer applies.
ARTICLE III
Prospectuses and Proxy Statements; Voting
3.1. The Underwriter shall provide the Company (at the
Underwriter's expense) with as many copies of the Fund's current prospectus as
the Company may reasonably request. If requested by the Company in lieu
thereof, the Fund shall provide such documentation (including a final copy of
the new prospectus as set in type at the Fund's expense) and other assistance
as is reasonably necessary in order for the Company once each year (or more
frequently if the prospectus for the Fund is amended) to have the prospectus
(or private offering memorandum, if a Contract and its associated Account are
exempt from registration) for the Contracts and the Fund's prospectus printed
together in one document (such printing to be at the Company's expense).
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3.2. The Fund's prospectus shall state that the Statement of
Additional Information for the Fund is available from the Underwriter (or in
the Fund's discretion, from the Fund), and the Underwriter (or the Fund), at
its expense, shall provide such Statement of Additional Information free of
charge to the Company and to any owner of a Contract or prospective owner who
requests such Statement.
3.3. The Fund, at its expense, shall provide the Company with
copies of its proxy statements, reports to shareholders, and other
communications to shareholders in such quantity as the Company shall reasonably
require for distributing to Contract owners.
3.4. If and to the extent required by law, the Company shall:
(i) solicit voting instructions from Contract owners;
(ii) vote Portfolio shares in accordance with
instructions received from Contract owners; and
(iii) vote Portfolio shares for which no instructions
have been received in the same proportion as shares
of such Portfolio for which instructions have been
received,
so long as and to the extent that the SEC continues to interpret the 1940 Act
to require pass-through voting privileges for variable contract owners. The
Company reserves the right to vote Fund shares held in any segregated asset
account in its own right, to the extent permitted by law. The Company shall be
responsible for assuring that each of its separate accounts participating in
the Fund calculates voting privileges in a manner consistent with the standards
set forth in the Shared Funding Order and rules and regulations of the SEC,
which standards will also be provided to other Participating Insurance
Companies.
3.5. The Fund will comply with all provisions of the 1940 Act
requiring voting by shareholders, and in particular, the Fund will either
provide for annual meetings or comply with Section 16(c) of the 1940 Act
(although the Fund is not one of the trusts described in Section 16(c) of that
Act) as well as with Sections 16(a) and, if and when applicable, 16(b).
Further, the Fund will act in accordance with the SEC's interpretation of the
requirements of Section 16(a) with respect to periodic elections of trustees
and with whatever rules the SEC may promulgate with respect thereto.
ARTICLE IV
Sales Material and Information
4.1. The Company shall furnish, or shall cause to be furnished,
to the Fund or its designee, each piece of sales literature or other promotional
material in which the Fund, the Underwriter or the Adviser is named, at least
fifteen Business Days prior to its use. No such material shall be used unless
approved in writing by the Fund or the Underwriter. The Fund and the
Underwriter will use reasonable best efforts to provide the Company with
written response
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within ten Business Days of receipt of such materials. Any piece which merely
names the Fund, the Underwriter or the Adviser as participating in the
Variable Insurance Products may be used after ten Business Days of receipt by
the Fund and the Underwriter if the Company has not received a written response
from the Fund or the Underwriter.
4.2. The Company shall not give any information or make any
representations or statements on behalf of the Fund or concerning the Fund in
connection with the sale of the Contracts other than the information or
representations contained in the registration statement or prospectus for the
Fund, as such registration statement and prospectus may from time to time be
amended or supplemented, or in reports or proxy statements for the Fund, or in
sales literature or other promotional material provided to the Company by the
Fund or its designee or by the Underwriter, except with the written permission
of the Fund or the Underwriter, pursuant to Section 4.1 hereof.
4.3. The Fund, the Underwriter or their designee shall furnish,
or shall cause to be furnished, to the Company or its designee, each piece of
sales literature or other promotional material in which the Company and/or its
separate account(s), is named at least fifteen Business Days prior to its use.
No such material shall be used unless approved in writing by the Company or its
designee. The Company will use reasonable best efforts to provide the Fund
with written response within ten Business Days of receipt of such materials.
Any piece which merely states that the Fund, the Underwriter or the Adviser are
participating in the Variable Insurance Products may be used after ten Business
Days after receipt by the Company if the Fund or the Underwriter have not
received a written response from the Company.
4.4. The Fund and the Underwriter shall not give any information
or make any representations on behalf of the Company or concerning the Company,
each Account, or the Contracts other than the information or representations
contained in a registration statement or prospectus for the Contracts, as such
registration statement and prospectus may from time to time be amended or
supplemented, or in published reports which are in the public domain or
approved by the Company for distribution to Contract owners, or in sales
literature or other promotional material approved by the Company or its
designee, except with the permission of the Company.
4.5. The Fund will provide to the Company at least one complete
copy of all registration statements, prospectuses, Statements of Additional
Information, reports, proxy statements, sales literature and other promotional
materials, applications for exemptions, requests for no-action letters, and all
amendments to any of the above, that relate to any of the Portfolios or their
shares, promptly following the filing of such document with the SEC or other
regulatory authorities.
4.6. The Company will provide to the Fund at least one complete
copy of all registration statements, prospectuses, Statements of Additional
Information, reports, solicitations for voting instructions, sales literature
and other promotional materials, applications for exemptions, requests for
no-action letters, and all amendments to any of the above, that relate to the
Contracts or each Account, promptly following the filing of such document with
the SEC or
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other regulatory authorities; and, if a Contract and its associated Account are
exempt from registration, the equivalents to the above.
4.7. For purposes of this Agreement, the phrase "sales literature
or other promotional material" includes, but is not limited to, any of the
following that refer to the Fund or any affiliate of the Fund: advertisements
(such as material published or designed for use in a newspaper, magazine, or
other periodical, radio, television, telephone or tape recording, videotape or
electronic display, signs or billboards, motion pictures, or other public
media), sales literature (i.e., any written communication distributed or made
generally available to customers or the public, including brochures, circulars,
research reports, market letters, form letters, seminar texts, reprints or
excerpts of any other advertisement, sales literature or published article),
educational or training materials or other communications distributed or made
generally available to some or all agents or employees.
ARTICLE V
Fees and Expenses
5.1. The Fund and the Underwriter shall pay no fee or other
compensation to the Company under this Agreement, except that if the Fund or
any Portfolio adopts and implements a plan pursuant to Rule 12b-1 to finance
distribution expenses, then the Underwriter may make payments to the Company or
to the underwriter for the Contracts if and in amounts agreed to by the
Underwriter in writing and such payments will be made out of existing fees
otherwise payable to the Underwriter, past profits of the Underwriter or other
resources available to the Underwriter. No such payments shall be made
directly by the Fund. Currently, no such payments are contemplated.
5.2. Except as otherwise expressly provided in the Agreement, all
expenses incident to performance by the Fund under this Agreement shall be paid
by the Fund. The Fund shall see to it that all Portfolio shares are registered
and authorized for issuance in accordance with applicable federal law and, if
and to the extent deemed advisable by the Fund, in accordance with applicable
state laws prior to their sale. The Fund shall bear the expenses for the cost
of registration and qualification of the Portfolios' shares, preparation and
filing of the Fund's prospectus and registration statement, proxy materials and
reports, setting the prospectus in type, setting in type and printing the proxy
materials and reports to shareholders (including the costs of printing a
prospectus that constitutes an annual report), the preparation of all
statements and notices required by any federal or state law and all taxes on
the issuance or transfer of the Portfolios' shares.
5.3. The Company shall bear the expenses of printing and
distributing the Fund's prospectus to owners of Contracts issued by the Company
and of distributing the Fund's proxy materials and reports to such Contract
owners.
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ARTICLE VI
Diversification
6.1. The Fund will at all times invest money from the Contracts
in such a manner as to ensure that the Contracts will be treated as variable
contracts under the Code and the regulations issued thereunder. Without
limiting the scope of the foregoing, the Fund will at all times comply with
Section 817(h) of the Code and Treasury Regulation 1.817-5, relating to the
diversification requirements for variable annuity, endowment or life insurance
contracts and any amendments or other modifications to such Section or
Regulation. In the event of a breach of this Article VI by the Fund, it will
take all reasonable steps (a) to notify Company of such breach and (b) to
adequately diversify the Fund so as to achieve compliance with the grace period
afforded by Regulation 1.817-5.
ARTICLE VII
Potential Conflicts
7.1. The Board will monitor the Fund for the existence of any
material irreconcilable conflict between the interests of the contract owners
of all separate accounts investing in the Fund. A material irreconcilable
conflict may arise for a variety of reasons, including: (a) an action by any
state insurance regulatory authority; (b) a change in applicable federal or
state insurance, tax or securities laws or regulations, or a public ruling,
private letter ruling, no-action or interpretive letter or any similar action
by insurance, tax, or securities regulatory authorities; (c) an administrative
or judicial decision in any relevant proceeding; (d) the manner in which the
investments of a Portfolio are being managed; (e) a difference in voting
instructions given by variable annuity contract and variable life insurance
contract owners; or (f) a decision by a Participating Insurance Company to
disregard the voting instructions of contract owners. The Board shall promptly
inform the Company if it determines that a material irreconcilable conflict
exists and the implications thereof.
7.2. The Company will report any potential or existing conflicts
to the Board. The Company will assist the Board in carrying out its
responsibilities under the Shared Funding Order, by providing the Board with
all information reasonably necessary for the Board to consider any issues
raised. This includes, but is not limited to, an obligation by the Company to
inform the Board whenever any of the events in Section 7.1, as they pertain to
the Company, occur (e.g., a decision to disregard contract owner voting
instructions).
7.3. If it is determined by a majority of the Board, or a
majority of its disinterested trustees, that a material irreconcilable conflict
exists, the Company and other Participating Insurance Companies shall, at their
expense and to the extent reasonably practicable (as determined by a majority
of the disinterested trustees), take whatever steps are necessary to remedy or
eliminate the material irreconcilable conflict, up to and including: (1)
withdrawing the assets allocable to some or all of the separate accounts from
the Fund or any Portfolio and reinvesting such assets in a different investment
medium, including (but not limited to) another Portfolio of the Fund, or
submitting the question whether such segregation should be implemented to a
vote of all affected Contract owners and, as appropriate, segregating the
assets
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of any appropriate group (i.e., annuity contract owners, life insurance
contract owners or variable contract owners of one or more Participating
Insurance Companies) that votes in favor of such segregation, or offering to
the affected contract owners the option of making such a change, and (2)
establishing a new registered management investment company or managed separate
account.
7.4. If a material irreconcilable conflict arises because of a
decision by the Company to disregard contract owner voting instructions and
that decision represents a minority position or would preclude a majority vote,
the Company may be required, at the Fund's election, to withdraw the affected
Account's investment in the Fund and terminate this Agreement with respect to
such Account; provided, however, that such withdrawal and termination shall be
limited to the extent required by the foregoing material irreconcilable
conflict as determined by a majority of the disinterested trustees of the
Board. Any such withdrawal and termination must take place within six months
after the Fund gives written notice that this provision is being implemented,
and until the end of that six month period the Fund and the Underwriter shall
continue to accept and implement orders by the Company for the purchase (and
redemption) of shares of the Fund.
7.5. If a material irreconcilable conflict arises because a
particular state insurance regulator's decision applicable to the Company
conflicts with that of other state regulators, then the Company will withdraw
the affected Account's investment in the Fund and terminate this Agreement with
respect to such Account within six months after the Board informs the Company
in writing that it has determined that such decision has created a material
irreconcilable conflict; provided, however, that such withdrawal and
termination shall be limited to the extent required by the foregoing material
irreconcilable conflict as determined by a majority of the disinterested
trustees of the Board. Until the end of that six month period, the Fund and
the Underwriter shall continue to accept and implement orders by the Company
for the purchase (and redemption) of shares of the Fund.
7.6. For purposes of Sections 7.3 through 7.6 of this Agreement,
a majority of the disinterested trustees of the Board shall determine whether
any proposed action adequately remedies a material irreconcilable conflict, but
in no event will the Fund be required to establish a new funding medium for the
Contracts. The Company shall not be required by Section 7.3 to establish a new
funding medium for the Contracts if an offer to do so has been declined by vote
of a majority of Contract owners materially adversely affected by the material
irreconcilable conflict. In the event that the Board determines that any
proposed action does not adequately remedy a material irreconcilable conflict,
then the Company will withdraw the Account's investment in the Fund and
terminate this Agreement within six months after the Board informs the Company
in writing of the foregoing determination; provided, however, that such
withdrawal and termination shall be limited to the extent required by any such
material irreconcilable conflict as determined by a majority of the
disinterested trustees of the Board.
7.7. If and to the extent that Rule 6e-2 and Rule 6e-3(T) are
amended, or Rule 6e-3 is adopted, to provide exemptive relief from any
provision of the 1940 Act or the rules promulgated thereunder with respect to
mixed or shared funding (as defined in the Shared Funding Order) on terms and
conditions materially different from those contained in the Shared Funding
Order, then
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(a) the Fund and/or the Participating Insurance Companies, as appropriate,
shall take such steps as may be necessary to comply with Rules 6e-2 and
6e-3(T), as amended, and Rule 6e-3 as adopted, to the extent such rules are
applicable; and (b) Sections 3.4, 3.5, 7.1, 7.2, 7.3, 7.4 and 7.5 of this
Agreement shall continue in effect only to the extent that terms and conditions
substantially identical to such Sections are contained in such Rule(s) as so
amended or adopted.
ARTICLE VIII
Indemnification
8.1. Indemnification By The Company
8.1(a). The Company agrees to indemnify and hold harmless the Fund,
the Underwriter and the Adviser and each trustee/director and officer thereof
and each person, if any, who controls the Fund, the Underwriter, or the Adviser
within the meaning of Section 15 of the 1933 Act (collectively, the
"Indemnified Parties" for purposes of this Section 8.1) against any and all
losses, claims, damages, liabilities (including amounts paid in settlement with
the written consent of the Company), expenses or litigation (including legal
and other expenses) (hereinafter referred to collectively as a "Loss"), to
which the Indemnified Parties may become subject under any statute or
regulation, at common law or otherwise, insofar as a Loss is related to the
sale or acquisition of the Fund's shares or the Contracts and:
(i) arise out of or are based upon any untrue statement
or alleged untrue statement of any material fact
contained in the registration statement, prospectus
or private offering memorandum for the Contracts or
contained in the Contracts or sales literature or
other promotional materials for the Contracts (or
any amendment or supplement to any of the
foregoing), or arise out of or are based upon the
omission or the alleged omission to state therein a
material fact required to be stated therein or
necessary to make the statement therein not
misleading, provided that this agreement to
indemnify shall not apply as to any Indemnified
Party if such statement or omission or such alleged
statement or omission was made in reliance upon and
in conformity with written information furnished to
the Company by or on behalf of the Indemnified
Party for use in the registration statement or
prospectus for the Contracts or in the Contracts or
in sales literature or any other promotional
materials (or any amendment or supplement to any of
the foregoing); or
(ii) arise out of or as a result of statements or
representations (other than statements or
representations contained in the registration
statement, prospectus or sales literature or other
promotional materials of the Fund not supplied by
the Company, or persons under its control) or
wrongful conduct of the Company or persons under
its control, with respect to the sale or
distribution of the Contracts or Fund shares; or
Page 12
13
(iii) arise out of any untrue statement or alleged untrue
statement of a material fact contained in a
registration statement, prospectus or sales
literature or other promotional materials of the
Fund (or any amendment or supplement to any of the
foregoing) or arise out of or are based upon the
omission or the alleged omission to state therein a
material fact required to be stated therein or
necessary to make the statements therein not
misleading if such statement or omission was made
in reliance upon or in conformity with written
information furnished to the Fund, the Underwriter
or the Adviser by or on behalf of the Company; or
(iv) arise as a result of any failure by the Company to
provide the services and furnish the materials
under the terms of this Agreement; or
(v) arise out of or result from any material breach of
any representation and/or warranty made by the
Company in this Agreement or arise out of or result
from any other material breach of this Agreement by
the Company, as limited by and in accordance with
the provisions of Sections 8.1 (b) and 8.1(c)
hereof.
8.1(b). The Company shall not be liable under this indemnification
provision with respect to any Loss incurred or assessed against an Indemnified
Party as such may arise from such Indemnified Party's willful misfeasance, bad
faith or gross negligence in the performance of such Indemnified Party's duties
or by reason of such Indemnified Party's reckless disregard of obligations or
duties under this Agreement or to the Fund, the Underwriter or the Adviser,
whichever is applicable.
8.1(c). The Company shall not be liable under this indemnification
provision with respect to any claim made against an Indemnified Party unless
such Indemnified Party shall have notified the Company in writing within a
reasonable time after the summons or other first legal process giving
information of the nature of the claim shall have been served upon such
Indemnified Party (or after such Indemnified Party shall have received notice
of such service on any designated agent), but failure to notify the Company of
any such claim shall not relieve the Company from any liability which it may
have to the Indemnified Party against whom such action is brought otherwise
than on account of this indemnification provision. In case any such action is
brought against the Indemnified Parties, the Company shall be entitled to
participate, at its own expense, in the defense thereof. The Company also shall
be entitled to assume the defense thereof, with counsel satisfactory to the
party named in the action. After notice from the Company to such Party of the
Company's election to assume the defense thereof, the Indemnified Party shall
bear the fees and expenses of any additional counsel retained by it, and the
Company will not be liable to such Party under this Agreement for any legal or
other expenses subsequently incurred by such Party independently in connection
with the defense thereof other than reasonable costs of investigation.
Page 13
14
8.1(d). The Indemnified Parties will promptly notify the Company of
the commencement of any litigation or proceedings against them in connection
with this Agreement, the issuance or sale of Portfolio shares or the Contracts
or the operation of the Fund.
8.2. Indemnification By The Fund
8.2(a). The Fund agrees to indemnify and hold harmless the Company,
and each of its directors/trustees and officers and each person, if any, who
controls the Company within the meaning of Section 15 of the 1933 Act
(collectively, the "Indemnified Parties" for purposes of this Section 8.2)
against any Loss to which the Indemnified Parties may become subject under any
statute or regulation, at common law or otherwise, insofar as a Loss is related
to the operations of the Fund and:
(i) arise as a result of any failure by the Fund to
provide the services and furnish the materials
under the terms of this Agreement (including a
failure to comply with the diversification
requirements specified in Article VI of this
Agreement);or
(ii) arise out of or result from any material breach of
any representation and/or warranty made by the Fund
in this Agreement or arise out of or result from
any other material breach of this Agreement by the
Fund, as limited by and in accordance with the
provisions of Sections 8.2(b) and 8.2(c) hereof.
8.2(b). The Fund shall not be liable under this indemnification
provision with respect to any Loss incurred or assessed against an Indemnified
Party as such may arise from such Indemnified Party's willful misfeasance, bad
faith or gross negligence in the performance of such Indemnified Party's duties
or by reason of such Indemnified Party's reckless disregard of obligations and
duties under this Agreement or to the Company, an Account, the Fund, the
Underwriter or the Adviser, whichever is applicable.
8.2(c). The Fund shall not be liable under this indemnification
provision with respect to any claim made against an Indemnified Party unless
such Indemnified Party shall have notified the Fund in writing within a
reasonable time after the summons or other first legal process giving
information of the nature of the claim shall have been served upon such
Indemnified Party (or after such Indemnified Party shall have received notice
of such service on any designated agent), but failure to notify the Fund of any
such claim shall not relieve the Fund from any liability which it may have to
the Indemnified Party against whom such action is brought otherwise than on
account of this indemnification provision. In case any such action is brought
against the Indemnified Parties, the Fund shall be entitled to participate, at
its own expense, in the defense thereof. The Fund also shall be entitled to
assume the defense thereof, with counsel satisfactory to the party named in the
action. After notice from the Fund to such party of the Fund's election to
assume the defense thereof, the Indemnified Party shall bear the fees and
expenses of any additional counsel retained by it, and the Fund will not be
liable to such Party under this Agreement for any legal or other expenses
subsequently incurred by such Party independently in connection with the
defense thereof other than reasonable costs of investigation.
Page 14
15
8.2(d). The Company will promptly notify the Fund of the commencement
of any litigation or proceedings against the Indemnified Parties in connection
with this Agreement, the issuance or sale of Portfolio shares or the Contracts,
the operation of each Account or the acquisition of shares of the Fund.
8.3. Indemnification By The Underwriter
8.3(a) The Underwriter agrees to indemnify and hold harmless the
Company and each of its directors/trustees and officers and each person, if
any, who controls the Company within the meaning of Section 15 of the 1933 Act
(collectively, the "Indemnified Parties" for purposes of this Section 8.3)
against any Loss to which the Indemnified Parties may become subject under any
statute or regulation, at common law or otherwise, insofar as a Loss is related
to the sale or acquisition of the Fund's shares or the Contracts and:
(i) arise out of or are based upon any untrue statement
or alleged untrue statement of any material fact
contained in the registration statement or
prospectus or sales literature or other promotional
materials of the Fund (or any amendment or
supplement to any of the foregoing), or arise out
of or are based upon the omission or the alleged
omission to state therein a material fact required
to be stated therein or necessary to make the
statements therein not misleading, provided that
this agreement to indemnify shall not apply as to
any Indemnified Party if such statement or omission
or such alleged statement or omission was made in
reliance upon and in conformity with written
information furnished to the Fund, the Underwriter
or the Adviser by or on behalf of the Indemnified
Party for use in the registration statement or
prospectus of the Fund or in sales literature or
other promotional materials (or any amendment or
supplement to any of the foregoing); or
(ii) arise out of or as a result of statements or
representations (other than statements or
representations contained in the registration
statement, prospectus or sales literature or other
promotional materials for the Contracts not
supplied by the Underwriter or persons under its
control) or wrongful conduct of the Fund or
Underwriter or persons under their control, with
respect to the sale or distribution of the
Contracts or Fund shares; or
(iii) arise out of any untrue statement or alleged untrue
statement of a material fact contained in a
registration statement, prospectus or private
offering memorandum for the Contracts or contained
in the Contracts or sales literature or other
promotional materials for the Contracts (or any
amendment or supplement to any of the foregoing) or
arise out of or are based upon the omission or
alleged omission to state therein a material fact
required to be stated therein or necessary to make
the statement or statements therein not misleading,
if such statement or omission was made
Page 15
16
in reliance upon or in conformity with written
information furnished to the Company by or on
behalf of the Fund or the Underwriter; or
(iv) arise as a result of any failure by the Underwriter
to provide the services and furnish the materials
under the terms of this Agreement (including a
failure, whether unintentional or in good faith or
otherwise, to comply with the diversification
requirements specified in Article VI of this
Agreement); or
(v) arise out of or result from any material breach of
any representation and/or warranty made by the
Underwriter in this Agreement or arise out of or
result from any other material breach of this
Agreement by the Underwriter, as limited by and in
accordance with the provisions of Sections 8.3(b)
and 8.3(c) hereof.
8.3(b). The Underwriter shall not be liable under this
indemnification provision with respect to any Loss incurred or assessed against
an Indemnified Party as such may arise from such Indemnified Party's willful
misfeasance, bad faith or gross negligence in the performance of such
Indemnified Party's duties or by reason of such Indemnified Party's reckless
disregard of obligations and duties under this Agreement or to the Company or
an Account, whichever is applicable.
8.3(c). The Underwriter shall not be liable under this
indemnification provision with respect to any claim made against an Indemnified
Party unless such Indemnified Party shall have notified the Underwriter in
writing within a reasonable time after the summons or other first legal process
giving information of the nature of the claim shall have been served upon such
Indemnified Party (or after such Indemnified Party shall have received notice
of such service on any designated agent), but failure to notify the Underwriter
of any such claim shall not relieve the Underwriter from any liability which it
may have to the Indemnified Party against whom such action is brought otherwise
than on account of this indemnification provision. In case any such action is
brought against the Indemnified Parties, the Underwriter shall be entitled to
participate, at its own expense, in the defense thereof The Underwriter also
shall be entitled to assume the defense thereof, with counsel satisfactory to
the Party named in the action. After notice from the Underwriter to such Party
of the Underwriter's election to assume the defense thereof, the Indemnified
Party shall bear the fees and expenses of any additional counsel retained by
it, and the Underwriter will not be liable to such Party under this Agreement
for any legal or other expenses subsequently incurred by such Party
independently in connection with the defense thereof other than reasonable
costs of investigation.
8.3(d). The Company will promptly notify the Underwriter of the
commencement of any litigation or proceedings against the Indemnified Parties
in connection with this Agreement, the issuance or sale of Portfolio shares or
the Contracts or the operation of each Account.
Page 16
17
8.4. Indemnification By The Adviser
8.4(a) The Adviser agrees to indemnify and hold harmless the
Company and each of its directors/trustees and officers and each person, if
any, who controls the Company within the meaning of Section 15 of the 1933 Act
(collectively, the "Indemnified Parties" for purposes of this Section 8.4)
against any Loss to which the Indemnified Parties may become subject under any
statute or regulation, at common law or otherwise, insofar as a Loss is related
to the sale or acquisition of the Fund's shares or the Contracts and:
(i) arise out of or as a result of statements or
representations (other than statements or
representations contained in the registration
statement, prospectus or sales literature or other
promotional materials for the Contracts not
supplied by the Adviser, or persons under its
control) or wrongful conduct of the Adviser or
persons under its control, with respect to the sale
or distribution of the Contracts or Fund shares; or
(ii) arise out of any untrue statement or alleged untrue
statement of a material fact contained in a
registration statement, prospectus or private
offering memorandum for the Contracts or contained
in the Contracts or sales literature or other
promotional materials for the Contracts (or any
amendment or supplement to any of the foregoing) or
the omission or alleged omission to state therein a
material fact required to be stated therein or
necessary to make the statement or statements
therein not misleading, if such statement or
omission was made in reliance upon or in conformity
with written information furnished to the Company
by or on behalf of the Adviser; or
(iii) arise as a result of any failure by the Adviser to
provide the services and furnish the materials
under the terms of this Agreement (including a
failure by the Fund, whether unintentional or in
good faith or otherwise, to comply with the
diversification requirements specified in Article
VI of this Agreement); or
(iv) arise out of or result from any material breach of
any representation and/or warranty made by the
Adviser in this Agreement or arise out of or result
from any other material breach of this Agreement by
the Adviser, as limited by and in accordance with
the provisions of Sections 8.4(b) and 8.4(c) hereof.
8.4(b). The Adviser shall not be liable under this indemnification
provision with respect to any Loss incurred or assessed against an Indemnified
Party as such may arise from such Indemnified Party's willful misfeasance, bad
faith or gross negligence in the performance of such Indemnified Party's duties
or by reason of such Indemnified Party's reckless disregard of obligations and
duties under this Agreement or to the Company or an Account, whichever is
applicable.
Page 17
18
8.4(c). The Adviser shall not be liable under this indemnification
provision with respect to any claim made against an Indemnified Party unless
such Indemnified Party shall have notified the Adviser in writing within a
reasonable time after the summons or other first legal process giving
information of the nature of the claim shall have been served upon such
Indemnified Party (or after such Indemnified Party shall have received notice
of such service on any designated agent), but failure to notify the Adviser of
any such claim shall not relieve the Adviser from any liability which it may
have to the Indemnified Party against whom such action is brought otherwise
than on account of this indemnification provision. In case any such action is
brought against the Indemnified Parties, the Adviser shall be entitled to
participate, at its own expense, in the defense thereof. The Adviser also shall
be entitled to assume the defense thereof, with counsel satisfactory to the
party named in the action. After notice from the Adviser to such party of the
Adviser's election to assume the defense thereof, the Indemnified Party shall
bear the fees and expenses of any additional counsel retained by it, and the
Adviser will not be liable to such Party under this Agreement for any legal or
other expenses subsequently incurred by such Party independently in connection
with the defense thereof other than reasonable costs of investigation.
8.4(d). The Company will promptly notify the Adviser of the
commencement of any litigation or proceedings against the Indemnified Parties
in connection with this Agreement, the issuance or sale of Portfolio shares or
the Contracts or the operation of each Account.
8.5. Except as otherwise expressly provided in the Agreement, no
party shall be liable to any other party for special, consequential, punitive
or exemplary damages, or damages of a like kind or nature; and, without
limiting the foregoing, with respect to Section 1.10 of Article I and Sections
8.2, 8.3 and 8.4 of Article VIII as such Sections relate to errors in
calculation or untimely reporting of net asset value per share or dividend or
capital gain rate, the liability of a party to any other party shall be limited
to the amount required to correct the value of the Account as if there had been
no incorrect calculation or reporting or untimely reporting of the net asset
value per share or dividend or capital gain rate.
ARTICLE IX
Applicable Law
9.1. This Agreement shall be construed and the provisions hereof
interpreted under and in accordance with the laws of the State of New York.
9.2. This Agreement shall be subject to the provisions of the
1933 Act, the 1934 Act and the 1940 Act and the rules and regulations and
rulings thereunder, including such exemptions from those statutes, rules and
regulations as the SEC may grant (including, but not limited to, the Shared
Funding Order) and the terms of this Agreement shall be interpreted and
construed in accordance therewith.
Page 18
19
ARTICLE X
Termination
10.1. This Agreement shall continue in full force and effect
until the first to occur of:
(a) termination by any party for any reason by sixty
(60) days' advance written notice delivered to the
other parties; or
(b) termination by the Company by written notice to the
Fund and the Underwriter with respect to any
Portfolio based upon the Company's determination
that shares of such Portfolio are not reasonably
available to meet the requirements of the
Contracts; or
(c) termination by the Company by written notice to the
Fund and the Underwriter with respect to any
Portfolio in the event any of the Portfolio's
shares are not registered, issued or sold in
accordance with applicable state and/or federal law
or such law precludes the use of such shares as the
underlying investment media of the Contracts issued
or to be issued by the Company; or
(d) termination by the Company by written notice to the
Fund, the Underwriter and the Adviser with respect
to any Portfolio in the event that such Portfolio
ceases to qualify as a "regulated investment
company" under Subchapter M of the Code or under
any successor or similar provision, or if the
Company reasonably believes that the Fund will fail
to so qualify; or
(e) termination by the Company by written notice to the
Fund, the Underwriter and the Adviser with respect
to any Portfolio in the event that such Portfolio
fails to meet the diversification requirements
specified in Article VI hereof; or
(f) termination by either the Fund or the Underwriter
by written notice to the Company, if either one or
both of the Fund or the Underwriter shall
determine, in their sole judgment exercised in good
faith, that the Company and/or its affiliated
companies has suffered a material adverse change in
its business, operations, financial condition or
prospects since the date of this Agreement or is
the subject of material adverse publicity; or
(g) termination by the Company by written notice to the
Fund and the Underwriter, if the Company shall
determine, in its sole judgment exercised in good
faith, that either the Fund or the Underwriter has
suffered a material adverse change in its business,
operations, financial condition or prospects since
the date of this Agreement or is the subject of
material adverse publicity; or
Page 19
20
(h) termination by the Fund or the Underwriter by written
notice to the Company, if the Company gives the Fund
and the Underwriter the written notice specified in
Section 1.6(b) hereof and at the time such notice was
given there was no notice of termination outstanding
under any other provision of this Agreement; provided,
however, that any termination under this Section
10.1(h) shall be effective forty-five days after the
notice specified in Section 1.6(b) was given.
10.2. Effect of Termination. Notwithstanding termination of this
Agreement, the Fund and the Underwriter shall, if the Company and the
Underwriter mutually agree, continue to make available additional shares of the
Fund pursuant to the terms and conditions of this Agreement, for all Contracts
in effect on the effective date of termination of this Agreement (hereinafter
referred to as "Existing Contracts"). Specifically, without limitation, the
owners of the Existing Contracts shall be permitted to retain investments in
the Fund, reinvest dividends and redeem investments in the Fund. The parties
agree that this Section 10.2 shall not apply to any terminations under Section
1.2 of Article I or under Article VII, and the effect of such Article VII
terminations shall be governed by Article VII of this Agreement.
10.3 The Company shall not redeem Fund shares attributable to the
Contracts (as opposed to Fund shares attributable to the Company's assets held
in the Account) except (i) as necessary to implement Contract Owner initiated
or approved transactions; or (ii) as required by state and/or federal laws or
regulations or judicial or other legal precedent of general application
(hereinafter referred to as a "Legally Required Redemption"); or (iii) as a
result of action by the Fund's Board, acting in good faith, upon sixty (60)
days' advance written notice to the Company and Contract Owners. Upon request,
the Company will promptly furnish to the Fund and the Underwriter the opinion
of counsel for the Company (which counsel shall be reasonably satisfactory to
the Fund and the Underwriter) to the effect that any redemption pursuant to
clause (ii) above is a Legally Required Redemption, or is as permitted by an
order of the SEC pursuant to Section 26(b) of the 1940 Act. In the event that
the Company is to redeem shares pursuant to clause (iii) above, the Fund will
promptly furnish to the Company the opinion of counsel for the Fund (which
counsel shall be reasonably satisfactory to the Company) to the effect that any
such redemption is not in violation of the 1940 Act or any rule or regulation
thereunder, or is as permitted by an order of the SEC. Furthermore, except in
cases where permitted under the terms of the Contracts, the Company shall not
prevent Contract Owners from allocating payments to a Portfolio that was
otherwise available under the Contracts without first giving the Fund or the
Underwriter 90 days' advance written notice of its intention to do so.
ARTICLE XI
Notices
Any notice shall be sufficiently given when sent by registered or
certified mail or next-day delivery to the other parties at the address of such
parties set forth below or at such other address as any party may from time to
time specify in writing to the other parties.
Page 20
21
If to the Company:
One National Life Drive
------------------------------------------------
Montpelier, VT 05604
------------------------------------------------
Attention: D. Xxxxxxx Xxxxxx, Counsel
--------------------------------------
If to the Fund:
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: President, with a copy to the General Counsel
If to the Underwriter:
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: President, with a copy to the General Counsel
If to the Adviser:
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: President, with a copy to the General Counsel
ARTICLE XII
Miscellaneous
12.1. All persons dealing with the Fund must look solely to the
property of the Fund for the enforcement of any claims against the Fund as
neither the Board, officers, agents or shareholders assume any personal
liability for obligations entered into on behalf of the Fund.
12.2. Subject to the requirements of legal process and regulatory
authority, each party hereto shall treat as confidential the names and
addresses of the owners of the Contracts and all information reasonably
identified as confidential in writing by any other party hereto and, except as
permitted by this Agreement, shall not disclose, disseminate or utilize such
names and addresses and other confidential information without the express
written consent of the affected party, until such time as it may come into the
public domain.
12.3. The captions in this Agreement are included for convenience
of reference only and in no way define or delineate any of the provisions
hereof or otherwise affect their construction or effect.
12.4. This Agreement may be executed simultaneously in two or more
counterparts, each of which taken together shall constitute one and the same
instrument.
12.5. If any provision of this Agreement shall be held or made
invalid by a court decision, statute, rule or otherwise, the remainder of the
Agreement shall not be affected thereby.
Page 21
22
12.6. Each party hereto shall cooperate with each other party and
all appropriate governmental authorities (including, without limitation, the
SEC, the NASD and state insurance regulators) and shall permit such authorities
reasonable access to its books and records in connection with any investigation
or inquiry relating to this Agreement or the transactions contemplated hereby.
12.7. The rights, remedies and obligations contained in this
Agreement are cumulative and are in addition to any and all rights, remedies
and obligations, at law or in equity, which the parties hereto are entitled to
under state and federal laws.
12.8. This Agreement or any of the rights and obligations
hereunder may not be assigned by any party without the prior written consent of
all parties hereunder; provided, however, that the Underwriter may assign this
Agreement or any rights or obligations hereunder to any affiliate of or company
under common control with the Underwriter, if such assignee is duly licensed
and registered to perform the obligations of the Underwriter under this
Agreement.
12.9. The Company shall furnish, or shall cause to be furnished,
to the Fund or its designee, copies of the following reports:
(a) the Company's annual statement (prepared under statutory
accounting principles) and annual report (prepared under
generally accepted accounting principles ("GAAP"), if any),
as soon as practical and in any event within 120 days after
the end of each fiscal year;
(b) the Company's semi-annual statements (statutory) (and GAAP,
if any), as soon as practical and in any event within 60
days after the end of each period:
(c) any financial statement, proxy statement, notice or report
of the Company sent to stockholders and/or policyholders, as
soon as practical after the delivery thereof to
stockholders;
(d) any registration statement (without exhibits) and financial
reports of the Company filed with the SEC or any state
insurance regulator, as soon as practical after the filing
thereof;
(e) any other report submitted to the Company by independent
accountants in connection with any annual, interim or
special audit made by them of the books of the Company, as
soon as practical after the receipt thereof.
Page 22
23
IN WITNESS WHEREOF, each of the parties hereto has caused this
Agreement to be executed in its name and on its behalf by its duly authorized
representative and its seal to be hereunder affixed hereto as of the date
specified below.
National Life Insurance Company Attest:
------------------------------------
By: By:
--------------------------------- ---------------------------------
Name: Name:
------------------------------- -------------------------------
Title: Title:
------------------------------ ------------------------------
XXX XXX WORLDWIDE INSURANCE TRUST Attest:
By: By:
--------------------------------- ---------------------------------
Name: Name:
------------------------------- -------------------------------
Title: Title:
------------------------------ ------------------------------
XXX XXX SECURITIES CORPORATION Attest:
By: By:
--------------------------------- ---------------------------------
Name: Name:
------------------------------- -------------------------------
Title: Title:
------------------------------ ------------------------------
XXX XXX ASSOCIATES CORPORATION Attest:
By: By:
--------------------------------- --------------------------------
Name: Name:
------------------------------- ------------------------------
Title: Title:
------------------------------ -----------------------------
Page 23
24
SCHEDULE A
ACCOUNTS
Date Established by the Company's
Name of Account Board of Directors
--------------- ---------------------------------
National Variable Annuity Account II Nov. 1, 1996
Page 24
25
SCHEDULE B
PORTFOLIOS AND OTHER FUNDS
ADVISED BY ADVISER
I. Portfolios
Xxx Xxx Worldwide Bond Fund
II. Other Funds Advised by the Adviser
Page 25
26
SCHEDULE C
OTHER INVESTMENT COMPANIES AVAILABLE
AS FUNDING VEHICLE FOR THE CONTRACTS
(If none, so state)
Xxxxx American Fund
Xxxxx American Small Capitalization Portfolio
Xxxxx American Growth Portfolio
Variable Insurance Products Fund
Equity-Income Portfolio
Growth Portfolio
High Income Portfolio
Overseas Portfolio
Variable Insurance Products Fund II
Index 500 Portfolio
Contrafund Portfolio
The Market Street Fund
Common Stock Portfolio
Sentinel Growth Portfolio
Aggressive Growth Portfolio
Bond Portfolio
Managed Portfolio
Money Market Portfolio
International Portfolio
Strong Variable Insurance Funds, Inc.
Strong Growth Fund II
Strong Special Fund II, Inc.
Xxx Xxx Worldwide Insurance Trust
Worldwide Bond Fund
Page 26
