EXHIBIT 99.(e)
AMENDED AND RESTATED
PARTICIPATION AGREEMENT
THIS AMENDED AND RESTATED PARTICIPATION AGREEMENT is entered into
this 23rd day of October, 2003 by HARTFORD LIFE INSURANCE COMPANY ("Hartford
Life"), HARTFORD LIFE AND ANNUITY INSURANCE COMPANY ("Hartford Life and
Annuity"), each a Connecticut corporation (together, the "Companies" and
individually, a "Company"), each of the Companies on its own behalf and on
behalf of each separate account set forth under its name on SCHEDULE A, as it
may be amended from time to time (each such separate account a "Separate
Account"), and XXXXXX XXXXXXX SELECT DIMENSIONS INVESTMENT SERIES, a
Massachusetts business trust ("Fund") and XXXXXX XXXXXXX DISTRIBUTORS INC.
("Distributor").
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 offered or to be offered by the Companies which have entered
into this agreement with the Fund and the Distributor; 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, any one or more of which may be made
available under this Agreement, as may be amended from time to time by mutual
agreement of the parties hereto (each such series referred to as a "Portfolio");
and
WHEREAS, the Companies are insurance companies which have registered
or will register the variable annuity contracts and/or variable life insurance
policies listed in Schedule A under the Securities Act of 1933, as amended (the
"1933 Act") and the Investment Company Act of 1940, as amended (the "1940 Act"),
unless exempt from such registration, to be issued by the Companies for
distribution (the "Contracts");
WHEREAS, the Distributor is registered as a broker-dealer with the
Securities and Exchange Commission (the "SEC") under the Securities Exchange Act
of 1934, as amended (the "1934 Act"), and is a member in good standing of the
National Association of Securities Dealers, Inc. ( "NASD");
WHEREAS, to the extent permitted by applicable insurance laws and
regulations, each Company intends, by purchasing shares of the Portfolios on
behalf of the Separate Accounts, to fund the Contracts and the Distributor is
authorized to sell such shares to the Companies for the benefit of the Separate
Accounts at net asset value without the imposition of any charges; and
WHEREAS, the Fund and the Companies have previously entered into a
Participation Agreement, dated May 31, 1997, as amended from time to time,
permitting the Companies and the Separate Accounts to participate in the
purchase of Portfolio shares for the purpose of funding the Contracts, and the
Fund and the Companies wish to amend and restate such participation agreement as
follows: (i) to reflect the inclusion of the Distributor as a party to this
Agreement and to make all corresponding changes attendant thereto, (ii) to
clarify the provisions of fees and expenses relating to services performed under
this Agreement, (iii) to shorten the notice period for terminations by either
party from 180 days to 60 days, (iv) to require that the Board of Trustees of
the Fund approve only material changes to this Agreement, and (v) to make other
ministerial changes; and and (iv) to make other ministerial changes; and
WHEREAS, the Board of Trustees of the Fund approved this Agreement in
compliance with and in the manner specified in Section 23 of this Agreement.
NOW, THEREFORE, in consideration of their mutual promises, the
Companies, the Fund and the Distributor agree as follows:
1. PURCHASE OF SHARES. The Companies agree to purchase shares at the net
asset value applicable to the then currently effective prospectus of the Fund.
The Companies will order Fund shares in the quantities and at the times each
Company determines to be necessary to meet the requirements of its Contracts.
Orders from Contract owners received and processed by the Companies prior to the
close of the New York Stock Exchange ("Exchange") on any given day that the
Exchange is open ("business day") will be executed by the Fund at the net asset
value determined as of the close of the Exchange on such business day. Any
orders received and processed on such day but after the close of the Exchange
will be executed by the Fund at the net asset value determined as of the close
of the Exchange on the next business day following the day of receipt of such
order. Each Company will forward to the Fund a list of names and specimen
signatures of persons authorized to act on the Company's behalf. The Fund shall
not accept orders given on behalf of a Company by persons not on such list. Each
Company agrees to promptly notify the Fund in writing of any additions,
deletions or other modifications to such list. Until so notified of such
modifications, the Fund shall have no liability as a result of the execution of
orders given by a person previously identified on the list as authorized.
2. SALES OF SHARES. The Distributor agrees to sell shares of the Fund to
the Companies for allocation to their respective Separate Accounts. The Fund
will execute share orders on a daily basis at the next determined net asset
value per share after receipt by the Fund or its designee of the order for
shares of the applicable Portfolio of the Fund determined as set forth in the
Fund prospectus. Each Company shall be a designee of the Fund for purposes of
accepting such orders. For each Portfolio, the Fund will determine the closing
net asset value, dividend and capital gain rate information at the close of each
business day. The Fund will provide this information to the Companies by 5:30
p.m. Eastern Time or as soon thereafter as is practicable. By 10:00 a.m. Eastern
Time the next following business day or as soon thereafter as is practicable,
the Companies will send directly to the Fund or its specified agent orders to
purchase or redeem Fund shares for the preceding business day. Payment for net
purchases will be wired by the Companies to a custodial account designated by
the Fund as nearly as practicable to coincide with the order for shares of the
Fund. The Fund shares will be sold only to insurance companies and separate
accounts which have entered into agreements to purchase shares or participation
agreements substantially identical to this Agreement, except that the Fund may
sell its shares to its investment manager(s) consistent with Section 817(h) of
the Internal Revenue Code ("Code") and Treasury Regulation 1.817-5, as amended
from time to time, and any
2
Treasury interpretations thereof, relating to the diversification requirements
for variable annuity or variable life insurance contracts and any amendments or
other modifications to such section or Regulations. No shares of the Fund will
be sold to the general public. The Fund will send confirmations of Fund share
purchases by a Company directly to the Company. The Fund will maintain all Fund
share purchases in a book share account in the name of each Company.
3. REDEMPTION OF SHARES. At a Company's request, the Fund agrees to
redeem for cash without charge, any full or fractional shares of the Fund held
by the Company, executing such requests on a daily basis at the net asset value
of the applicable Portfolio computed after receipt of the redemption request;
provided, however, that the Fund reserves the right to suspend the right of
redemption or to postpone the date of payment upon redemption of the shares of
any Portfolio under the circumstances and for the period of time specified in
the prospectus. To the extent that it is able to do so, payments for net
redemptions of shares of the Funds will be wired by the Fund from the Fund's
custodial account to an account designated by each Company. Until the Fund is so
able to wire such redemption proceeds, they may be sent by check or by such
other means as the Fund and each Company agree.
4. AVAILABILITY OF SHARES. The Fund agrees to make its shares available
for purchase by the Companies at the applicable net asset value per share on
those days on which the Fund calculates its net asset value pursuant to rules of
the SEC. The Fund shall use reasonable efforts to calculate such net asset value
on each day on which the Exchange is open for trading. The Fund shall have the
right to suspend the sale of its shares if (a) the Exchange has closed or has
suspended or materially restricted trading, (b) an emergency exists as a result
of which disposal by the Fund of securities owned by it is not reasonably
practicable or it is not reasonably practicable for the Fund fairly to determine
the value of its net assets, (c) the SEC, by order, so permits, (d) a banking
moratorium shall have been declared by federal or New York authorities, or (e)
there shall have been some other extraordinary event which, in the judgment of
the Fund, makes it impracticable to sell the shares.
5. PAYMENT OF SHARES. The Companies shall pay for Fund shares on the next
business day after they place the order for Fund shares. If the Fund does not
receive payment on the next business day, the Fund may, without notice, cancel
the order and require a Company to reimburse the Fund promptly for any loss the
Fund suffered by reason of the Company failing to timely pay for its shares.
6. FEE FOR SHARES. The Companies shall purchase and redeem shares in the
Fund at net asset value and the Companies shall not pay any commission, dealer's
fee or other fee to the Distributor or any other broker-dealer.
7. FUND'S REGISTRATION STATEMENT AND PROSPECTUS. The Fund shall amend the
Registration Statement for its shares under the 1933 Act and the 1940 Act from
time to time as required in order to effect the continuous offering of its
shares and, at the expense of the Fund or its designee, shall provide the
Companies with as many copies of its current prospectus as the Companies may
reasonably request. At the Companies' request, in lieu of printed prospectuses,
the Fund will provide camera-ready film, computer diskettes or "PDF" files
containing the Fund's prospectus and statement of additional information for
printing by the Companies. The Fund or the Distributor shall pay or shall cause
to be paid the expenses of printing and providing
3
the Companies with the Fund's current prospectus and statement of additional
information and the expenses of mailing such prospectus and statement of
additional information to existing Contract owners.
The Companies may elect to print the Fund's prospectus and/or its statement of
additional information in combination with other fund companies' prospectuses
and statements of additional information. If the Companies elect to print the
Fund's prospectus and/or its statement of additional information in combination
with other fund companies' prospectuses and statements of additional
information, the Fund shall pay or shall cause to be paid only the Fund's pro
rata share of the cost of printing and mailing such documents to existing
Contract owners. The Fund's pro-rata share of such cost shall be determined by
multiplying the ratio of the number of pages applicable to the Fund to the total
number of pages in the document being printed or mailed by the total cost of
such printing or mailing.
8.1 FEES AND EXPENSES. The Fund 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 service plan and/or a plan pursuant to Rule 12b-1, then
the Distributor may make payments to the Company or to the underwriter for the
Contracts pursuant to such plans if and in amounts agreed to by the Distributor
in writing.
8.2. 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 its 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 Fund's 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, the preparation of all statements and
notices required by any federal or state law, and all taxes on the issuance or
transfer of the Fund 's shares.
9. INVESTMENT OF ASSETS. The Fund agrees to invest its assets in
accordance with its investment policies as disclosed in the prospectus and the
provisions of Section 817(h) of the Code and Treasury Regulation 1.817-5, as
amended from time to time, and any Treasury interpretations thereof, relating to
the diversification requirements for variable annuity and variable life
insurance contracts and any amendments or other modifications to such Section or
Regulations.
10. ADMINISTRATION OF CONTRACTS. The Companies shall be responsible for
administering their respective Contracts and keeping records on the Contracts.
11. SHAREHOLDER INFORMATION. The Fund shall in a timely manner, at the
expense of the Fund or its designee, furnish the Companies copies of its proxy
material, reports to shareholders and other communication to shareholders in
such quantity as the Companies shall reasonably require for distributing to
owners or participants under the Contracts. The Companies, at the expense of the
Fund or its designee, will distribute these materials to such owners or
participants as required; provided that any proxy materials required as a result
of events
4
originating from the Companies will be furnished and distributed at the expense
of the Companies.
12. RECORD KEEPING AND ACCESS TO RECORDS. Each Company, the Fund and the
Distributor shall maintain records in accordance with the applicable federal and
state statutes, rules and regulations applicable to their respective operations
in connection with the performance of their duties under this Agreement. Upon
request and subject to statutory requirements, a party to this Agreement shall
promptly provide to another party copies of such records as the party shall
reasonably request. At the expense of the requesting party, each party to this
Agreement shall cooperate with and assist the requesting party's auditors or
representatives of regulatory agencies having jurisdiction over the requesting
party in connection with inquiries, complaints or judicial proceedings involving
responsibilities carried out under this Agreement. Such cooperation and
assistance shall include the production of copies of potentially relevant
records if so requested.
13. VOTING. To the extent required by law, the Companies shall vote Fund
shares in accordance with instructions received from Contract owners. If,
however, the 1940 Act or any regulation thereunder should be amended or if the
present interpretation thereof should change, and as a result the Companies
determine that they are permitted to vote the Fund's shares in their own right,
they may elect to do so. The Companies shall vote shares of a Portfolio for
which no instructions have been received in the same proportion as the voting
instructions which are received with respect to all Contracts participating in
that Portfolio. Neither the Companies nor persons under their control shall
recommend action in connection with solicitation of proxies for Fund shares
allocated to the Separate Accounts. The Companies shall also vote shares they
own that are not attributable to Contract owners in the same proportion. The
Companies may, when required by state insurance regulatory authorities,
disregard voting instructions if the instructions require that the shares be
voted so as to cause a change in the sub-classification or investment objective
of the Fund or one or more of its Portfolios or to approve or disapprove an
investment advisory contract for a Portfolio of the Fund. In addition, the
Companies themselves may disregard voting instructions in favor of changes
initiated by a Contract owner in the investment policy or the investment adviser
of a Portfolio of the Fund if the Companies reasonably disapprove of such
changes.
14. FUND'S WARRANTY. The Fund represents and warrants that Fund shares
sold pursuant to this Agreement shall be registered under the 1933 Act and duly
authorized for issuance in accordance with all applicable federal and state
laws.
15. EACH COMPANY'S WARRANTY. Each Company represents and warrants that it
is an insurance company duly organized and in good standing under the law of its
state of domicile and that it has legally and validly established its Separate
Accounts under the laws of its state of domicile, and will register the Separate
Accounts as a unit investment trust in accordance with the provisions of the
1940 Act, unless exempt from such registration, to serve as a segregated
investment account for certain Contracts. Each Company further represents and
warrants that its Contracts will be registered under the 1933 Act, unless exempt
from such registration, and will be issued and sold in compliance with all
applicable federal and state laws.
5
16. DISTRIBUTOR'S WARRANTY. The Distributor represents and warrants that
it is a member in good standing of the NASD and is registered as a broker-dealer
with the SEC under the 1934 Act. The Distributor further represents that it will
sell and distribute the shares in accordance with the 1933, 1934 and 1940 Acts
and will not make any representations concerning the Separate Accounts except
those contained in the then current registration statement or related prospectus
and any sales literature approved by the Fund.
17. TERMINATION OF AGREEMENT. (a) The parties may terminate this Agreement
as follows:
(i) at the option of a Company with respect to that Company or
the Fund or the Distributor upon 60 days' written notice to the other parties;
(ii) at the option of each Company if, for any reason except
for those specified in Section 4, Fund shares are not available to meet the
requirements of the Company's Contracts as determined by the Company;
(iii) at the option of the Fund with respect to a Company,
upon the NASD, the SEC, the director of the Department of Insurance in a
Company's state of domicile or any other regulatory body instituting legal
proceedings against the Company regarding its duties under this Agreement;
(iv) at the option of each Company upon institution of formal
proceedings against the Fund by the SEC or other regulatory body; or
(v) at the option of each Company if Fund shares are not
registered, issued or sold in conformance with applicable federal or state law,
including Section 817(h) and Regulations and Treasury interpretations
thereunder. Prompt notice shall be given to the Companies if the conditions of
this provision occur.
(b) This Agreement shall automatically terminate in the event of its
assignment.
(c) Notwithstanding any termination of this Agreement, the Fund shall,
at the Companies' option, 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"), so long as the Fund is in existence.
Specifically, without limitation, the owners of the Existing Contracts shall be
permitted to reallocate investments in the Fund, redeem investments in the Fund,
or invest in the Fund upon the making of additional purchase payments under the
Existing Contracts. A termination under Section 21 of this Agreement shall end
rights of the owners of Existing Contracts.
(d) The Companies shall not redeem Fund shares attributable to the
Contracts (as opposed to Fund shares attributable to the Companies' assets held
in the Accounts) except (i) as necessary to implement transactions permitted
under the Contracts, or (ii) as required by state or federal laws or regulations
or judicial or other legal precedent of general application (hereinafter
referred to as a "Legally Required Redemption"). Upon request, a Company will
promptly furnish to the Fund the opinion of counsel for the Company (which
counsel shall be reasonably satisfactory to the Fund) to the effect that any
redemption pursuant to clause (ii) above is a Legally Required Redemption.
Furthermore, except in cases where permitted under the terms of
6
the Contracts, a Company shall not prevent its Contract owners from allocating
payments to a Portfolio that was otherwise available under the Contracts without
first giving the Fund 90 days' notice of its intention to do so.
18. EACH COMPANY'S INDEMNIFICATION AGREEMENT. (a) Each Company agrees to
indemnify and hold harmless the Fund or the Distributor and each of their
Trustees or Directors who is not an "interested person" of the Fund, as defined
in the 1940 Act (collectively the "Fund's Indemnified Parties" for purposes of
this Section 18), against any losses, claims, damages, liabilities (including
amounts paid in settlement with the written consent of the Company) or expenses
or actions to which the Fund's Indemnified Parties may become subject, under the
Federal securities laws or otherwise, insofar as such losses, claims, damages,
liabilities or expenses (or actions in respect thereof) or settlements 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 which arise from erroneous
instructions by the Company to the Distributor concerning the particular
Portfolio or Portfolios whose shares are to be allocated to the Account. This
indemnity agreement is in addition to any liability which the Company may
otherwise have. PROVIDED, HOWEVER, that in no case is the indemnity of the
Company in favor of the Distributor deemed to protect the Distributor against
any liability to the Fund or its shareholders to which the Distributor would
otherwise be subject by reason of its bad faith, willful misfeasance or
negligence in the performance of its duties or by reason of reckless disregard
of its obligations and duties under this Agreement.
(b) The Company will reimburse the Fund's Indemnified Parties for any
legal or other expenses reasonably incurred by the Fund's Indemnified Parties in
connection with investigating or defending any such loss, claim, damage,
liability or action.
(c) Promptly after receipt by any of the Fund's Indemnified Parties of
notice of the commencement of any action, or the making of any claim for which
indemnity may apply under this section, the Fund's Indemnified Parties will, if
a claim in respect thereof is to be made against the Fund, notify the Company of
the commencement thereof; but the omission so to notify the Company will not
relieve the Company from any liability which it may have to the Fund's
Indemnified Parties otherwise than under this Agreement. In case any such action
is brought against the Fund's Indemnified Parties, and the Company is notified
of the commencement thereof, the Company will be entitled to participate therein
and to assume the defense thereof, with counsel satisfactory to the party named
in the action, and after notice from the Company to such party of the Company's
election to assume the defense thereof, 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.
19. FUND AND DISTRIBUTOR INDEMNIFICATION AGREEMENTS. (a) The Fund and the
Distributor each agrees to indemnify and hold harmless each Company and each of
the Company's Directors who is not an "interested person" of the Company, as
defined in the 1940 Act (collectively the "Company's Indemnified Parties" for
purposes of this Section 19), against any losses, claims, damages, liabilities
(including amounts paid in settlement with the written consent of the Fund) or
expenses or actions to which the Company's Indemnified Parties may
7
become subject, under the Federal securities laws or otherwise, insofar as such
losses, claims, damages, liabilities or expenses (or actions in respect thereof)
or settlements:
(i) arise as a result of any failure by the Fund or the
Distributor to provide the services and furnish the materials under the terms of
this Agreement;
(ii) 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 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 the Company's
Indemnified Parties if such statement or omission was made in reliance upon and
in conformity with information furnished to the Fund or the Distributor by or on
behalf of the Company for use in the registration statement or prospectus of the
Fund or in sales literature (or any amendment or supplement) or otherwise for
use in connection with the sale of the Contracts or Fund shares; or
(iii) arise out of or result from any material breach of any
representation and/or warranty made by the Fund or the Distributor in this
Agreement or arise out of or result from any other material breach of this
Agreement by the Fund or the Distributor, including a failure, whether
unintentional or in good faith or otherwise, to comply with the requirements
specified in Section 9 of this Agreement. This indemnity agreement is in
addition to any liability which the Fund may otherwise have.
(b) The Fund represents and warrants that the Fund will at all times
invest its assets in such a manner as to ensure that the Contracts will be
treated as variable annuity or flexible premium life insurance contracts under
the Code and the regulations 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, as amended from time to time, and any Treasury
interpretations thereof, relating to the diversification requirements for
variable annuity or variable life insurance contracts and any amendments or
other modifications to such section or Regulations.
(c) Fund shares will not be sold to any person or entity that would
result in the Contracts not being treated as variable annuity contracts or
variable life contracts.
(d) The Fund will reimburse the Companies, as shareholders of the
Fund, for pricing errors respecting Fund shares transacted with incorrect net
asset values by paying the Companies the amount of the difference between the
incorrect net asset value as of the date of the error and the correct net asset
value as of the date of the error, provided that: (a) in the case of an
overstatement of net asset value, any such reimbursement resulting from
overpayments by the Companies on Fund share purchases during the period the
error in pricing was in effect will be net of overpayments to the Companies on
Fund share redemptions during such period, (b) in the case of an understatement
of net asset value, any such reimbursement resulting from underpayments to the
Companies on Fund share redemptions during the period the error in pricing was
in effect will be net of underpayments by the Companies on Fund share purchases
during such period, and (c) in the case of a series of pricing errors over a
period of days consisting alternately of overstatements and understatements of
net asset value, any such
8
reimbursements shall reflect the combined effect of the net of all overpayments
and underpayments during such period; and provided further that reimbursements
in connection with a pricing error discovered for a period for which another
pricing error has previously been corrected will be calculated as if all errors
pertaining to that period had been discovered at the same time for purposes of
the foregoing netting process.
(e) The Fund and the Distributor will reimburse the Company's
Indemnified Parties for any legal or other expenses reasonably incurred by the
Company's Indemnified Parties in connection with investigating or defending of
any such loss, claim, damage, liability or action.
(f) Promptly after receipt by any of the Company's Indemnified Parties
of notice of the commencement of any action, or the making of any claim for
which indemnity may apply under this section, the Company's Indemnified Parties
will, if a claim in respect thereof is to be made against the Company, notify
the Fund or the Distributor of commencement thereof; but the omission so to
notify the Fund or the Distributor will not relieve the Fund or the Distributor
from any liability which it may have to the Company's Indemnified Parties
otherwise than under this Agreement. In case any such action is brought against
the Company's Indemnified Parties, and the Fund or the Distributor is notified
of the commencement thereof, the Fund or the Distributor will be entitled to
participate therein and to assume the defense thereof, with counsel satisfactory
to the party named in the action, and after notice from the Fund or the
Distributor to such party of the Fund's or the Distributor's election to assume
the defense thereof, the Fund or the Distributor 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.
20. INDEMNIFICATION OF FUND BY OR OF DISTRIBUTOR. For purposes of this
Agreement, the Fund and the Distributor shall indemnify each other according to
the terms of the Distribution Agreement between them.
21. POTENTIAL CONFLICTS. (a) The Trustees of the Fund will monitor the
operations of 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. An irreconcilable material conflict may arise for a variety of
reasons, including: (i) an action by any state insurance regulatory authority;
(ii) a change in applicable Federal or state insurance, tax, or securities laws
or regulations, or a public ruling, private letter ruling, no-action or
interpretative letter, or any similar action by insurance, tax, or securities
regulatory authorities; (iii) an administrative or judicial decision in any
relevant proceeding; (iv) the manner in which the investments of any Portfolio
are being managed; (v) a difference in voting instructions given by variable
annuity contract and variable life insurance contract owners; or (vi) a decision
by an insurer to disregard the voting instructions of Contract owners. The
Trustees shall promptly inform the Companies if they determine that an
irreconcilable material conflict exists and the implications thereof.
(b) Each Company will report any potential or existing conflicts of
which it is aware to the Trustees of the Fund. The Company will assist the
Trustees in carrying out their responsibilities under paragraphs (a) and (b) of
this section, by providing the Trustees with all information reasonably
necessary for the Trustees to consider any issues raised. This includes,
9
but is not limited to, an obligation by the Company to inform the Trustees
whenever Contract owner voting instructions are disregarded.
(c) If it is determined by a majority of the Trustees, or a majority
of the Trustees who are not parties to this Agreement or interested persons of
any such party and who have no direct or indirect financial interest in this
Agreement or any agreement related thereto (the "Independent Trustees"), that a
material irreconcilable conflict exists, the Company shall, at its expense and
to the extent reasonably practicable (as determined by a majority of the
Independent Trustees), take whatever steps are necessary to remedy or eliminate
the irreconcilable material conflict, up to and including: (i) withdrawing the
assets allocable to one or more 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 of variable
annuity contract owners invested in one of more of the Separate Accounts from
those of any other appropriate group (i.e., annuity contract owners, life
insurance contract owners, or variable Contract owners of other life insurance
companies) that votes in favor of such segregation, or offering to the contract
owners the option of making such a change; and (ii) establishing a new
registered management investment company or managed separate account.
(d) If a material irreconcilable conflict arises because of a decision
by a 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 Separate Accounts'
investment in the Fund and terminate this Agreement; 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
Independent Trustees. Any such withdrawal and termination must take place within
six (6) months after the Fund gives written notice that this provision is being
implemented, and until the end of that six month period the Distributor and the
Fund shall continue to accept and implement orders by the Company for the
purchase (and redemption) of shares of the Fund.
(e) If a material irreconcilable conflict arises because a particular
state insurance regulator's decision applicable to a Company conflicts with the
majority of other state regulators, then the Company will withdraw the Separate
Accounts' investment in the Fund and terminate this Agreement within six months
after the Trustees inform the Company in writing that they have determined that
such decision has created an irreconcilable material conflict; provided,
however, that such withdrawal and termination shall be limited to the extent
required by the foregoing material irreconcilable conflict as determined by a
majority of the Independent Trustees. Until the end of the foregoing six month
period, the Distributor and the Fund shall continue to accept and implement
orders by the Company for the purchase (and redemption) of shares of the Fund.
(f) For purposes of paragraphs (c) through (f) of this section, a
majority of the Independent Trustees shall determine whether any proposed action
adequately remedies any irreconcilable material conflict, but in no event will
the Fund be required to establish a new funding medium for the Contracts. A
Company shall not be required by paragraph (c) to establish a new funding medium
for its Contracts if an offer to do so has been declined by vote
10
of a majority of Contract owners materially adversely affected by the
irreconcilable material conflict. In the event that the Trustees determine that
any proposed action does not adequately remedy any irreconcilable material
conflict, then the Company will withdraw its Separate Accounts' investment in
the Fund and terminate this Agreement within six (6) months after the Trustees
inform 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
Independent Trustees.
22. DURATION OF THIS AGREEMENT. This Agreement shall remain effective
until terminated in accordance with Section 17 hereof.
23. AMENDMENTS OF THIS AGREEMENT. This Agreement may be amended only by
mutual written agreement of the parties hereto. No material amendment of this
Agreement shall be effective until approved by (i) the Trustees of the Fund, or
by the vote of a majority of outstanding voting securities of the Fund, and (ii)
a majority of those Trustees of the Fund who are not parties to this Agreement
or interested persons of any such party and who have no direct or indirect,
financial interest in this Agreement or in any agreement related thereto, cast
in person at a meeting called for the purpose of voting on such approval.
24. GOVERNING LAW. This Agreement shall be construed in accordance with
the law of the State of New York and the applicable provisions of the 1933, 1934
and 1940 Acts and the rules and regulations and rulings thereunder including
such exemptions from those statutes, rules and regulations as the SEC may grant
and the terms hereof shall be interpreted and construed in accordance therewith.
To the extent the applicable law of the State of New York, or any of the
provisions herein, conflicts with the applicable provisions of the 1940 Act, the
latter shall control. 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.
25. NOTICES. Any notice under this Agreement shall be in writing and
delivered or mailed postage prepaid if to the Fund, to Xxxxxx Xxxxxxx, Attn:
Office of General Counsel, Investment Management, 0000 Xxxxxx xx xxx Xxxxxxxx,
00xx Xxxxx, Xxx Xxxx, XX 00000; and if to the Companies, to Hartford Life, Attn:
Xxxx Xxxxxxx, Vice President, Individual Annuity Sales and Marketing, 000
Xxxxxxxxx Xxxxxx, Xxxxxxxx, XX 00000, with a copy to Xxxxxxxxx X. Xxxxxx,General
Counsel at the same address. The parties shall have the right to designate any
other address hereafter by written notice to the other parties.
26. PERSONAL LIABILITY. The Declaration of Trust establishing Xxxxxx
Xxxxxxx Select Dimensions Investment Series (renamed the "Xxxxxx Xxxxxx Select
Dimensions Investment Series" as of June 18, 2001), dated June 2, 1994, a copy
of which, together with all amendments thereto (the "Declaration"), is on file
in the office of the Secretary of the Commonwealth of Massachusetts, provides
that the name Xxxxxx Xxxxxxx Select Dimensions Investment Series refers to the
Trustees under the Declaration collectively as Trustees, but not as individuals
or personally; and no Trustee, shareholder, officer, employee or agent of Xxxxxx
Xxxxxxx Select Dimensions Investment Series shall be held to any personal
liability, nor shall resort be had to their private property for the
satisfaction of any obligation or claim or otherwise, in connection with the
affairs of said Xxxxxx Xxxxxxx Select Dimensions Investment Series, but the
Trust Estate only shall be liable.
11
[The Remainder of this page intentionally left blank]
12
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed as of the day and year first written above.
HARTFORD LIFE INSURANCE COMPANY
By: /s/ Xxxxxxx X. Xxxxxx
----------------------------------
Name: Xxxxxxx X. Xxxxxx
Duly Authorized
HARTFORD LIFE AND ANNUITY INSURANCE COMPANY
By: /s/ Xxxxxxx X. Xxxxxx
----------------------------------
Name: Xxxxxxx X. Xxxxxx
Duly Authorized
XXXXXX XXXXXXX SELECT DIMENSIONS INVESTMENT SERIES
By: /s/ Xxxxxx X. Xxxxxxx
----------------------------------
Name: Xxxxxx X. Xxxxxxx
Duly Authorized
XXXXXX XXXXXXX DISTRIBUTORS INC.
By: /s/ Xxxx X. Xxxx III
----------------------------------
Name: Xxxx X. Xxxx III
Duly Authorized
13
SCHEDULE A
SEPARATE ACCOUNTS CONTRACTS AND FUND SHARE CLASS
FUND SHARE
SEPARATE ACCOUNT TYPE CONTRACT FORM NO. CLASS
-------------------------------------------------------------------------------------------------------
Hartford Life Insurance Company Separate Account Three VA HL-VA94 X
VA HL-VA99 Y
VA HL-VA03 Y
Hartford Life Insurance Company Separate Account Five VL HL-SPVL94 X
VL HL-SPVL97 X
Hartford Life Insurance Company Separate Account VL 11 VL HL-15441(98)(NY) Y
Hartford Life and Annuity Insurance Company Separate VA XXX-VA94 X
Account Three VA LAVA99 Y
VA LA-VA03 Y
Hartford Life and Annuity Insurance Company Separate VL XXX-SPVL94 X
Account Five VL XXX-SPVL97 X
Hartford Life and Annuity Insurance Company Separate VL LA-1151(98) Y
Account VL 11
14
