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Exhibit 8(a)(c)
Participation Agreement Between Xxxxxxxxxx Asset Management, L.P.
and
Canada Life of America
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PARTICIPATION AGREEMENT
By and Among
CANADA LIFE INSURANCE COMPANY OF AMERICA
And
XXXXXXXXXX FUNDS III
And
XXXXXXXXXX ASSET MANAGEMENT, L.P.
THIS AGREEMENT, made and entered into this 1st day of May, 1996 by and among
Canada Life Insurance Company of America, organized under the laws of the
State of Michigan (the "Company"), on its own behalf and on behalf of each
separate account of the Company named in Schedule I to this Agreement, as may
be amended from time to time (each account referred to as the "Account"),
Xxxxxxxxxx Funds III, an open-end management investment company and business
trust organized under the laws of the State of Delaware (the "Fund") and
Xxxxxxxxxx Asset Management, L.P., a limited partnership organized under the
laws of the State of California (the "Adviser").
WHEREAS, the Fund engages in business as an open-end management investment
company and was established for the purpose of serving as the investment
vehicle for separate accounts established for variable life insurance contracts
and variable annuity contracts to be offered by insurance companies which have
entered into participation agreements substantially identical to this Agreement
(the "Participating Insurance Companies"), and
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WHEREAS, beneficial interests in the Fund are divided into several series of
shares, each representing the interest in a particular managed portfolio of
securities and other assets (the "Portfolios"); and
WHEREAS, the Fund has received an order from the Securities & Exchange
Commission (alternatively referred to as the "SEC" or the "Commission")
granting Participating Insurance Companies and variable annuity separate
accounts and variable life insurance separate accounts relief from the
provisions of Sections 9(a), 13(a), 15(a), and 15(b) of the Investment Company
Act of 1940, as amended, (the "1940 Act") and Rules 6e-2(b)(15) and
6e-3(T)(b)(15) thereunder, to the extent necessary to permit shares of the Fund
to be sold to and held by variable annuity separate accounts and variable life
insurance separate accounts of both affiliated and unaffiliated Participating
Insurance Companies and qualified pension and retirement plans outside of the
separate account context (the "Mixed and Shared Funding Exemptive Order"). The
parties to this Agreement agree to the conditions or undertakings specified in
the Mixed and Shared Funding Exemptive Order and that may be imposed on the
Company, the Fund and/or the Adviser by virtue of the receipt of such order by
the SEC will be incorporated herein by reference, and such parties agree to
comply with such conditions and undertakings to the extent applicable to each
such party; and
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 (the "1933 Act"); and
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WHEREAS,, the Company has registered or will register certain variable annuity
contracts (the "Contracts") under the 1933 Act; and
WHEREAS, the Account is a duly organized, validly existing segregated asset
account, established by resolution of the Board of Directors of the Company
under the insurance laws of the State of Michigan, to set aside and invest
assets attributable to the Contracts; and
WHEREAS, the Company has registered the Account as a unit investment trust
under the 1940 Act; and
WHEREAS, to the extent permitted by applicable insurance laws and regulations,
the Company intends to purchase shares of the Portfolios named in Schedule 2, as
such schedule may be amended from time to time (the "Designated Portfolios") on
behalf of the Account to fund the Contracts, and the Fund is authorized to sell
such shares to unit investment trusts such as the Account at net asset value;
NOW, THEREFORE, in consideration of their mutual promises, the Company, the
Fund and the Adviser agree as follows:
ARTICLE I. SALE OF FUND SHARES
1.1. The Fund agrees to sell to the Company those shares of the
Designated Portfolios which each Account orders, executing such
orders on a daily basis at the net asset value next computed
after receipt and acceptance by the Fund or its designee of the
order for the shares of the Fund. For purposes of this Section
1.1, the Company
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will be the designee of the Fund for receipt of such orders from
each Account and receipt by such designee will constitute receipt
by the Fund; provided that the Fund receives notice of such order
by 9:00 a.m. Central Time on the next following business day.
"Business Day" will mean any day on which the New York Stock
Exchange is open for trading and on which the Fund calculates its
net asset value pursuant to the rules of the SEC.
1.2. The Company will pay for Fund shares on the next Business Day
after an order to purchase Fund shares is made in accordance with
Section 1.1 above. Payment will be in federal funds transmitted
by wire except for amounts less than $500, which may be paid by
check or by another method acceptable to the parties.
1.3. The Fund agrees to make shares of the Designated Portfolios
available indefinitely for purchase at the applicable net asset
value per share by Participating Insurance Companies and their
separate accounts on those days on which the Fund calculates its
Designated Portfolio net asset value pursuant to rules of the
SEC; provided, however, that the Board of Trustees of the Fund
(the "Fund 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 is, in the sole discretion of
the Fund Board, acting in good faith and in light of its
fiduciary duties under federal and any applicable state laws,
necessary in the best interests of the shareholders of such
Portfolio.
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1.4. The Fund agrees that shares of the Fund will be sold only to
Participating Insurance Companies and their separate accounts,
qualified pension and retirement plans or such other persons as
are permitted under applicable provisions of the Internal Revenue
Code of 1986, as amended, (the "Internal Revenue Code"), and
regulations promulgated thereunder, the sale to which will not
impair the tax treatment currently afforded the Contracts. No
shares of any Portfolio will be sold to the general public.
1.5. The Fund will not sell Fund shares to any insurance company or
separate account unless an agreement containing provisions
substantially the same as Articles I, III, V, and VII of this
Agreement are in effect to govern such sales.
1.6. The Fund agrees to redeem for cash, upon the Company's request,
any full or fractional shares of the Fund held by the Company,
executing such requests on a daily basis at the net asset value
next computed after receipt and acceptance by the Fund or its
agent of the request for redemption. For purposes of this
Section 1.6, the Company will be the designee of the Fund for
receipt of requests for redemption from each Account and receipt
by such designee will constitute receipt by the Fund; provided
the Fund receives notice of such requests for redemption by 9:00
a.m. Central Time on the next following Business Day. Payment
will be in federal funds transmitted by wire to the Company's
account as designated by the Company in writing from time to
time, on the same Business Day the Fund receives notice of the
redemption order from the Company, except for amounts less than
$500 which may be paid by check or by another method acceptable
to the
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parties. The Fund reserves the right to delay payment of
redemption proceeds, but in no event may such payment be delayed
longer than the period permitted under Section 22(e) of the 0000
Xxx. The Fund will not bear any responsibility whatsoever for
the proper disbursement or crediting of redemption proceeds; the
Company alone will be responsible for such action. If
notification of redemption is received after 9:00 a.m. Central
Time, payment for redeemed shares will be made on the next
following Business Day.
1.7. The Company agrees to purchase and redeem the shares of the
Designated Portfolios offered by the then current prospectus of
the Fund in accordance with the provisions of such prospectus.
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 to
any Account. Purchase and redemption orders for Fund shares will
be recorded in an appropriate tide for each Account or the
appropriate subaccount of each Account.
1.9. The Fund will furnish same day notice (by wire or telephone,
followed by written confirmation) to the Company of the
declaration of any income, dividends or capital gain
distributions payable on each Designated Portfolio's shares. The
Company hereby elects to receive all such dividends and
distributions as are payable on the Portfolio shares in the form
of additional shares of that Portfolio. The Company reserves the
right to revoke this election and to receive all such
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dividends and distributions in cash. The Fund will notify the
Company of the number of shares so issued as payment of such
dividends and distributions.
1.10. The Fund will make the net asset value per share for each
Designated Portfolio available to the Company on a daily basis as
soon as reasonably practical after the net asset value per share
is calculated and will use its best efforts to make such net
asset value per share available by 5:00 p.m., Central Time, each
business day.
ARTICLE II. REPRESENTATIONS AND WARRANTIES
2.1. The Company represents and warrants that the Contracts are or
will be registered under the 1933 Act and that the Contracts will
be issued and sold in compliance with all applicable federal and
state laws, including 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 as a separate account under applicable state law and
has registered each such account as a unit investment trust in
accordance with the provisions of the 1940 Act to serve as a
segregated investment account for the Contracts, and that it will
maintain such registration for so long as any Contracts are
outstanding. The Company will amend the registration statement
under the 1933 Act for the Contracts and the registration
statement under the 1940 Act for the Account from time to time as
required in order to effect the continuous offering of the
Contracts or as may otherwise be required by applicable law. The
Company will register and qualify the Contracts for sale in
accordance with the
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securities laws of the various states only if and to the extent
deemed necessary by the Company.
2.2. The Company represents that the Contracts are currently and at
the time of issuance will be treated as annuity contracts under
applicable provisions of the Internal Revenue Code of 1986, as
amended, and that it will make every effort to maintain such
treatment and that it will notify the Fund and the Adviser
immediately upon having a reasonable basis for believing that the
Contracts have ceased to be so treated or that they might not be
so treated in the future.
2.3. The Company represents and warrants that it will not purchase
shares of the Designated Portfolios with assets derived from
tax-qualified retirement plans except, indirectly, through
Contracts purchased in connection with such plans.
2.4. The Fund represents and warrants that Fund shares of the
Designated Portfolios sold pursuant to this Agreement will be
registered under the 1933 Act and duly authorized for issuance in
accordance with applicable law and that the Fund is and will
remain registered under the 1940 Act for as long as such shares
of the Designated Portfolios are sold. The Fund will 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. The Fund will register and
qualify the shares of the Designated Portfolios for sale in
accordance with the laws of the various states only if and to the
extent deemed advisable by the Fund.
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2.5. The Fund represents that it is currently qualified as a Regulated
Investment Company under Subchapter M of the Internal Revenue
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 immediately upon
having a reasonable basis for believing that it has ceased to so
qualify or that it might not so qualify in the future.
2.6. The Fund represents that its investment objectives, policies and
restrictions comply with applicable state investment laws as they
may apply to the Fund. The Fund makes no representation as to
whether any aspect of its operations (including, but not limited
to, fees and expenses and investment policies, objectives and
restrictions) complies with the insurance laws and regulations of
any state. The Company alone will be responsible for informing
the Fund of any insurance restrictions imposed by state insurance
laws which are applicable to the Fund. To the extent feasible
and consistent with market conditions, the Fund will adjust its
investments to comply with the aforementioned state insurance
laws upon written notice from the Company of such requirements
and proposed adjustments, it being agreed and understood that in
any such case the Fund will be allowed a reasonable period of
time under the circumstances after receipt of such notice to make
any such adjustment. The Fund and the Adviser agree that they
will furnish the information required by state insurance laws so
that the Company can obtain the authority needed to issue the
Contracts in the various states.
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2.7. The Fund currently does not intend to make any payments to
finance distribution expenses pursuant to Rule l2b-1 under the
1940 Act or otherwise, although it reserves the right to 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 the trustees of its Fund Board, a majority of
whom are not "interested" persons of the Fund, formulate and
approve any plan under Rule 12b-1 to finance distribution
expenses.
2.8. The Fund represents that it is lawfully organized and validly
existing under the laws of the State of Delaware and that it does
and will comply in all material respects with applicable
provisions of the 0000 Xxx.
2.9. The Adviser represents and warrants that it is and will remain
duly registered under all applicable federal and state securities
laws and that it will perform its obligations for the Fund in
accordance in all material respects with the laws of the State
of California and any applicable state and federal securities
laws.
2.10. The Fund represents and warrants that all of its trustees,
officers, employees, investment advisers, and other
individuals/entities having access to the funds and/or securities
of the Fund are and 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 minimal coverage as required
currently by Rule 17g-(1) of the 1940 Act or related provisions
as may be promulgated from time to time. The aforesaid
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bond includes coverage for larceny and embezzlement and is issued
by a reputable bonding company.
ARTICLE III. PROSPECTUSES AND PROXY STATEMENTS: VOTING
3.1. The Fund will provide the Company, at the Fund's expense, with as
many copies of the current Fund prospectus for the Designated
Portfolios as the Company may reasonably request for
distribution, at the Company's expense, to prospective
contractowners and applicants. The Fund will provide, at the
Fund's expense, as many copies of said prospectus as necessary
for distribution, at the Fund's expense, to existing
contractowners. The Fund will provide the copies of said
prospectus to the Company or to its mailing agent. The Company
will distribute the prospectus to existing contractowners and
will xxxx the Fund for the reasonable cost of such distribution.
If requested by the Company in lieu thereof, the Fund will
provide such documentation, including a final copy of a current
prospectus set in type at the Fund's expense, and other
assistance as is reasonably necessary in order for the Company at
least annually (or more frequently if the Fund prospectus is
amended more frequently) to have the new prospectus for the
Contracts and the Fund's new prospectus printed together, in
which case the Fund will pay its share of reasonable expenses
directly related to the required disclosure of information
concerning the Fund.
3.2. The Fund's prospectus will state that the statement of additional
information for the Fund is available from the Company. The Fund
will provide the Company, at the
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Fund's expense, with as many copies of the statement of
additional information as the Company may reasonably request for
distribution, at the Company's expense, to prospective
contractowners and applicants. The Fund will provide,
at the Fund's expense, as many copies of said statement of
additional information as necessary for distribution, at the
Fund's expense, to any existing contractowner who requests such
statement or whenever state or federal law otherwise requires
that such statement be provided. The Fund will provide the
copies of said statement of additional information to the Company
or to its mailing agent. The Company will distribute the
statement of additional information as requested or required and
will xxxx the Fund for the reasonable cost of such distribution.
3.3. The Fund, at its expense, will provide the Company or its mailing
agent with copies of its proxy material, if any, reports to
shareholders and other communications to shareholders in such
quantity as the Company will reasonably require. The Company
will distribute this proxy material, reports and other
communications to existing contractowners and will xxxx the Fund
for the reasonable cost of such distribution.
3.4. If and to the extent required by law the Company will:
(a) solicit voting instructions from contractowners;
(b) vote the shares of the Designated Portfolios held in the
Account in accordance with instructions received from
contractowners; and
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(c) vote shares of the Designated Portfolios held in the
Account for which no timely instructions have been
received, in the same proportion as shares of such
Designated Portfolio for which instructions have been
received from the Company's contractowners;
so long as and to the extent that the SEC continues to interpret
the 1940 Act to require pass-through voting privileges for
variable contractowners. 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. Participating Insurance
Companies will be responsible for assuring that each of their
separate accounts participating in the Fund calculates voting
privileges in a manner consistent with all legal requirements,
including the Mixed and Shared Funding Exemptive Order.
3.5. The Fund will comply with all provisions of the 1940 Act
requiring voting by shareholders, and in particular, the Fund
either will provide for annual meetings (except insofar as the
SEC may interpret Section 16 of the 1940 Act not to require such
meetings) or, as the Fund currently intends, to 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 directors and with whatever rules the Commission may
promulgate with respect thereto.
ARTICLE IV. SALES MATERIAL AND INFORMATION
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4.1. The Company will furnish, or will cause to be furnished, to the
Fund or the Adviser, each piece of sales literature or other
promotional material in which the Fund or the Adviser is named,
at least ten (10) Business Days prior to its use. No such
material will be used if the Fund or the Adviser reasonably
objects to such use within five (5) Business Days after receipt
of such material.
4.2. The Company will 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, prospectus or statement of additional
information for Fund shares, as such registration statement,
prospectus and statement of additional information may be amended
or supplemented from time to time, or in reports or proxy
statements for the Fund, or in published reports for the Fund
which are in the public domain or approved by the Fund or the
Adviser for distribution, or in sales literature or other
material provided by the Fund or by the Adviser, except with
permission of the Fund or the Adviser. The Fund and the Adviser
agree to respond to any request for approval on a prompt and
timely basis. Nothing in this Section 4.2 will be construed as
preventing the Company or its employees or agents from giving
advice on investment in the Fund.
4.3. The Fund or the Adviser will furnish, or will cause to be
furnished, to the Company or its designee, each piece of sales
literature or other promotional material in which the Company or
its separate account is named, at least ten (10) Business Days
prior to its use. No such material will be used if the Company
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reasonably objects to such use within five (5) Business Days
after receipt of such material.
4.4. The Fund and the Adviser will not give any information or make
any representations or statements 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, prospectus or statement of additional information for
the Contracts, as such registration statement, prospectus and
statement of additional information may be amended or
supplemented from time to time, or in published reports for each
Account or the Contracts which are in the public domain or
approved by the Company for distribution to contractowners, or
in sales literature or other material provided by the Company,
except with permission of the Company. The Company agrees to
respond to any request for approval on a prompt and timely basis.
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 the Fund or its shares,
contemporaneously with the filing of each such document with the
SEC or the NASD.
4.6. The Company will provide to the Fund at least one complete copy
of all registration statements, prospectuses, statements of
additional information, reports,
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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, contemporaneously with
the filing of each such document with the SEC or the NASD.
4.7. For purposes of this Article IV, the phrase "sales literature or
other promotional material" includes, but is not limited to,
advertisements (such as material published, or designed for use
in, a newspaper, magazine, or other periodical, radio,
television, telephone or tape recording, videotape display, signs
or billboards, motion pictures, or other public media, (i.e.,
on-line networks such as the Internet or other electronic
messages)), 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, registration statements, prospectuses, statements of
additional information, shareholder reports, and proxy materials
and any other material constituting sales literature or
advertising under the NASD rules, the 1933 Act or the 0000 Xxx.
4.8. The Fund and the Adviser hereby consent to the Company's use of
the names Xxxxxxxxxx, Xxxxxxxxxx Funds III, Xxxxxxxxxx Variable
Series and Xxxxxxxxxx Asset Management, in connection with
marketing the Contracts,
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subject to the terms of Sections 4.1 and 4.2 of this Agreement.
Such consent will terminate with the termination of this
Agreement.
ARTICLE V. FEES AND EXPENSES
5.1. The Fund will pay no fee or other compensation to the Company
under this Agreement, except as provided below: (a) if the Fund
or any Designated Portfolio adopts and implements a plan pursuant
to Rule l2b-1 under the 1940 Act to finance distribution
expenses, then, subject to obtaining any required exemptive
orders or other regulatory approvals, the Fund may make payments
to the Company or to the underwriter for the Contracts if and in
such amounts agreed to by the Fund in writing; (b) the Fund may
pay fees to the Company for services provided to contractowners
that are not primarily intended to result in the sale of shares
of the Designated Portfolio or of underlying Contracts.
5.2. All expenses incident to performance by the Fund of this
Agreement will be paid by the Fund to the extent permitted by
law. All shares of the Designated Portfolios will be duly
authorized for issuance and registered in accordance with
applicable federal law and, to the extent deemed advisable by the
Fund, in accordance with applicable state law, prior to sale.
The Fund will bear the expenses for the cost of registration and
qualification of the Fund's shares; preparation and filing of the
Fund's prospectus, statement of additional information and
registration statement, proxy materials and reports; setting the
Fund's prospectus in type; setting in type and printing proxy
materials and reports to
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contractowners, (including the costs of printing a Fund
prospectus that constitutes an annual report); the preparation of
all statements and notices required by any federal or state law;
all taxes on the issuance or transfer of the Fund's shares; any
expenses permitted to be paid or assumed by the Fund pursuant to
a plan, if any, under Rule l2b-1 under the 1940 Act; and all
other typesetting, printing and distribution expenses as set
forth in Article III of this Agreement.
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 annuity contracts under the Internal Revenue Code and
the regulations issued thereunder. Without limiting the scope of
the foregoing, the Fund will comply with Section 817(h) of the
Internal Revenue Code and Treasury Regulation 1.817-5, as amended
from time to time, 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 accordance with guidelines provided by the Company
prior to the execution of this Agreement and as necessary
thereafter. In the event of a breach of this Article VI by the
Fund, it will take all reasonable steps: (a) to notify the
Company of such breach; and (b) to adequately diversify the Fund
so as to achieve compliance within the grace period afforded by
Treasury Regulation 1.817-5.
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ARTICLE VII. POTENTIAL CONFLICTS
7.1. The Fund Board will monitor the Fund for the existence of any
irreconcilable material conflict among the interests of the
contractowners of all separate accounts investing in the Fund.
An irreconcilable material conflict may arise for a variety of
reasons, including: (a) an action by any state insurance
regulatory authority; (b) a change in applicable 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; (c) an administrative or judicial
decision in any relevant proceeding; (d) the manner in which the
investments of any Portfolio are being managed; (e) a difference
in voting instructions given by Participating Insurance Companies
or by variable annuity and variable life insurance
contractowners; or (f) a decision by an insurer to disregard the
voting instructions of contractowners. The Fund Board will
promptly inform the Company if it determines that an
irreconcilable material conflict exists and the implications
thereof. A majority of the Fund Board will consist of persons
who are not "interested" persons of the Fund.
7.2. The Company will report any potential or existing conflicts of
which it is aware to the Fund Board. The Company agrees to assist
the Fund Board in carrying out its responsibilities, as
delineated in the Mixed and Shared Funding Exemptive Order, by
providing the Fund Board with all information reasonably
necessary for the Fund Board to consider any issues raised. This
includes, but is not limited to, an obligation by the Company to
inform the Fund Board whenever contractowner voting instructions
are to be disregarded. The Fund Board will record in its
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minutes, or other appropriate records, all reports received by it
and all action with regard to a conflict.
7.3. If it is determined by a majority of the Fund Board, or a
majority of its disinterested trustees, that an irreconcilable
material conflict exists, the Company and other Participating
Insurance Companies will, 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 irreconcilable material conflict, up to
and including: (a) withdrawing the assets allocable to some or
all of the 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 contractowners and, as
appropriate, segregating the assets of any appropriate group
(i.e., variable annuity contractowners or variable life insurance
contractowners of one or more Participating Insurance Companies)
that votes in favor of such segregation, or offering to the
affected contractowners the option of making such a change; and
(b) 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 contractowner voting
instructions, and such disregard of voting instructions could
conflict with the majority of contractowner voting instructions,
and the Company's judgment represents a minority position or
would preclude a
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majority vote, the Company may be required, at the Fund's
election, to withdraw the affected subaccount of the Account's
investment in the Fund and terminate this Agreement with respect
to such subaccount; provided, however, that such withdrawal and
termination will be limited to the extent required by the
foregoing irreconcilable material conflict as determined by a
majority of the disinterested trustees of the Fund Board. No
charge or penalty will be imposed as a result of such withdrawal.
Any such withdrawal and termination must take place within six
(6) months after the Fund gives written notice to the Company
that this provision is being implemented. Until the end of such
six-month period the Adviser and Fund will, to the extent
permitted by law and any exemptive relief previously granted to
the Fund, 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 the majority of other state insurance regulators,
then the Company will withdraw the affected subaccount of the
Account's investment in the Fund and terminate this Agreement
with respect to such subaccount; provided, however, that such
withdrawal and termination will be limited to the extent required
by the foregoing irreconcilable material conflict as determined
by a majority of the disinterested directors of the Fund Board.
No charge or penalty will be imposed as a result of such
withdrawal. Any such withdrawal and termination must take place
within six (6) months after the Fund gives written notice to the
Company that this provision is being implemented. Until the end
of such six-month period the Advisor and Fund will, to the extent
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permitted by law and any exemptive relief previously granted to
the Fund, 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 members of the Fund Board will
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.
The Company will 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 contractowners affected by
the irreconcilable material conflict.
7.7. The Company will at least annually submit to the Fund Board such
reports, materials or data as the Fund Board may reasonably
request so that the Fund Board may fully carry out the duties
imposed upon it as delineated in the Mixed and Shared Funding
Exemptive Order, and said reports, materials and data will be
submitted more frequently if deemed appropriate by the Fund
Board.
7.8. 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 Mixed and Shared Funding Exemptive Order) on terms and
conditions materially different from those contained in the
Mixed and Shared Funding Exemptive Order, then: (a) the Fund
and/or the Participating Insurance Companies,
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24
as appropriate, will 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
will continue in effect only to the extent that terms and
conditions substantially identical to such Sections are contained
in such Rule(s) as so amended or adopted.
ARTICLE VIII. INDEMNIFICATION
8.1. INDEMNIFICATION BY THE COMPANY
(a) The Company agrees to indemnify and hold harmless the
Fund, the Adviser, and each person, if any, who
controls or is associated with the Fund or the Adviser
within the meaning of such terms under the federal
securities laws and any director, trustee, officer, employee
or agent of the foregoing (collectively, the "Indemnified
Parties" for purposes of this Section 8.1) against any and
all losses, claims, expenses, damages, liabilities
(including amounts paid in settlement with the written
consent of the Company) or litigation (including reasonable
legal and other expenses), to which the Indemnified Parties
may become subject under any statute, regulation, at common
law or otherwise, insofar as such losses, claims, damages,
liabilities or expenses (or actions in respect thereof) or
settlements:
(1) arise out of or are based upon any untrue statements or
alleged untrue statements of any material fact
contained in the registration statement,
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25
prospectus or statement of additional information for
the Contracts or contained in the Contracts or sales
literature or other promotional material 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 or necessary to
make such statements not misleading in light of the
circumstances in which they were made; provided that
this agreement to indemnify will not apply as to any
Indemnified Party if such statement or omission or such
alleged statement or omission was made in reliance upon
and in conformity with information furnished to the
Company by or on behalf of the Adviser or the Fund for
use in the registration statement, prospectus or
statement of additional information for the Contracts
or in the Contracts or sales literature (or any
amendment or supplement) or otherwise for use in
connection with the sale of the Contracts or Fund
shares; or
(2) arise out of or as a result of statements or
representations by or on behalf of the Company
(other than statements or representations contained in
the Fund registration statement, prospectus, statement
of additional information or sales literature or other
promotional material of the Fund, or any amendment or
supplement to the foregoing, 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
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26
(3) arise out of any untrue statement or alleged untrue
statement of a material fact contained in the
Fund registration statement, prospectus, statement of
additional information or sales literature or other
promotional material of the Fund (or amendment or
supplement) or the omission or alleged omission to
state therein a material fact required to be stated
therein or necessary to make such statements not
misleading in light of the circumstances in which they
were made, if such a statement or omission was made in
reliance upon and in conformity with information
furnished to the Fund by or on behalf of the Company or
persons under its control; or
(4) 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
(5) arise out of 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 by the Company of this Agreement;
except to the extent provided in Sections 8.1(b) and 8.4
hereof. This indemnification will be in addition to any
liability that the Company otherwise may have.
(b) No party will be entitled to indemnification under
Section 8.1(a) if such loss, claim, damage, liability or
litigation is due to the willful misfeasance, bad
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27
faith, or gross negligence in the performance of such party's
duties under this Agreement, or by reason of such party's
reckless disregard of its obligations or duties under this
Agreement.
(c) The Indemnified Parties promptly will notify the Company of the
commencement of any litigation, proceedings, complaints or
actions by regulatory authorities against them in connection with
the issuance or sale of the Fund shares or the Contracts or the
operation of the Fund.
8.2. INDEMNIFICATION BY THE ADVISER
(a) The Adviser agrees to indemnify and hold harmless the Company and
each person, if any, who controls or is associated with the
Company within the meaning of such terms under the federal
securities laws and any director, officer, employee or agent of
the foregoing (collectively, the "Indemnified Parties" for
purposes of this Section 8.2) against any and all losses, claims,
expenses, damages, liabilities (including amounts paid in
settlement with the written consent of the Adviser) or litigation
(including reasonable legal and other expenses) to which the
Indemnified Parties may become subject under any statute,
regulation, at common law or otherwise, insofar as such losses,
claims, damages, liabilities or expenses (or actions in respect
thereof) or settlements:
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28
(1) 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 statement of additional
information for the Fund or sales literature or other promotional
material 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 or necessary to make such statements not misleading in
light of the circumstances in which they were made; provided that
this agreement to indemnify will not apply as to any Indemnified
Party if such statement or omission or such alleged statement or
omission was made in reliance upon and in conformity with
information furnished to the Adviser or Fund by or on behalf of
the Company for use in the registration statement, prospectus or
statement of additional information for the Fund or in sales
literature of the Fund (or any amendment or supplement thereto)
or otherwise for use in connection with the sale of the
Contracts or Fund shares; or
(2) arise out of or as a result of statements or representations
(other than statements or representations contained in the
Contracts or in the Contract or Fund registration statements,
prospectuses or statements of additional information or sales
literature or other promotional material for the Contracts or of
the Fund, or any amendment or supplement to the foregoing, not
supplied by the Adviser or the Fund or persons under the control
of the Adviser or the Fund respectively) or wrongful
-27-
29
conduct of the Adviser or the Fund or persons under the control
of the Adviser or the Fund respectively, with respect to the sale
or distribution of the Contracts or Fund shares; or
(3) arise out of any untrue statement or alleged untrue statement of
a material fact contained in a registration statement,
prospectus, statement of additional information or sales
literature or other promotional material covering the Contracts
(or any amendment or supplement thereto), or the omission or
alleged omission to state therein a material fact required to be
stated or necessary to make such statement or statements not
misleading in light of the circumstances in which they were made,
if such statement or omission was made in reliance upon and in
conformity with information furnished to the Company by or on
behalf of the Adviser or the Fund or persons under the control of
the Adviser or the Fund; or
(4) arise as a result of any failure by the Fund or the Adviser to
provide the services and furnish the materials under the terms of
this Agreement; or
(5) arise out of or result from any material breach of any
representation and/or warranty made by the Adviser or the Fund in
this Agreement, or arise out of or result from any other material
breach of this Agreement by the Adviser or the Fund;
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30
except to the extent provided in Sections 8.2(b) and 8.4 hereof.
(b) No party will be entitled to indemnification under Section 8.2(a)
if such loss, claim, damage, liability or litigation is due to
the willful misfeasance, bad faith, or gross negligence in the
performance of such party's duties under this Agreement, or by
reason of such party's reckless disregard or its obligations or
duties under this Agreement.
(c) The Indemnified Parties will promptly notify the Adviser and the
Fund of the commencement of any litigation, proceedings,
complaints or actions by regulatory authorities against them in
connection with the issuance or sale of the Contracts or the
operation of the Account.
8.3. INDEMNIFICATION BY THE FUND
(a) The Fund agrees to indemnify and hold harmless the Company and
each person, if any, who controls or is associated with the
Company within the meaning of such terms under the federal
securities laws and any director, officer, employee or agent of
the foregoing (collectively, the "Indemnified Parties" for
purposes of this Section 8.3) against any and all losses, claims,
expenses, damages, liabilities (including amounts paid in
settlement with the written consent of the Fund) or litigation
(including reasonable legal and other expenses) to which the
Indemnified Parties may become subject under any statute,
regulation, at common law or otherwise, insofar as such losses,
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31
claims, damages, liabilities or expenses (or actions in respect
thereof) or settlements, are 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; 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; or
(iii) arise out of or result from the incorrect or untimely
calculation or reporting of the daily net asset value per
share or dividend or capital gain distribution rate;
except to the extent provided in Sections 8.3(b) and 8.4 hereof.
(b) No party will be entitled to indemnification under Section 8.3(a)
if such loss, claim, damage, liability or litigation is due to
the willful misfeasance, bad faith, or gross negligence in the
performance of such party's duties under this Agreement, or by
reason of such party's reckless disregard of its obligations and
duties under this Agreement.
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32
(c) The Indemnified Parties will promptly notify the Fund of the
commencement of any litigation, proceedings, complaints or
actions by regulatory authorities against them in connection with
the issuance or sale of the Contracts or the operation of the
Account.
8.4. INDEMNIFICATION PROCEDURE
Any person obligated to provide indemnification under this
Article VIII ("Indemnifying Party" for the purpose of this
Section 8.4) will not be liable under the indemnification
provisions of this Article VIII with respect to any claim made
against a party entitled to indemnification under this Article
VIII ("Indemnified Party" for the purpose of this Section 8.4)
unless such Indemnified Party will have notified the Indemnifying
Party in writing within a reasonable time after the summons or
other first legal process giving information of the nature of the
claim will have been served upon such Indemnified Party (or after
such party will have received notice of such service on any
designated agent), but failure to notify the Indemnifying Party
of any such claim will not relieve the Indemnifying Party from
any liability which it may have to the Indemnified Party against
whom such action is brought otherwise than on account of the
indemnification provision of this Article VIII, except to the
extent that the failure to notify results in the failure of
actual notice to the Indemnifying Party and such Indemnifying
Party is damaged solely as a result of failure to give such
notice. In case any such action is brought against the
Indemnified Party, the Indemnifying Party will be entitled to
participate, at its own expense, in the defense thereof. The
Indemnifying Party
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33
also will be entitled to assume the defense thereof, with counsel
satisfactory to the party named in the action. After notice from
the Indemnifying Party to the Indemnified Party of the
Indemnifying Party's election to assume the defense thereof, the
Indemnified Party will bear the fees and expenses of any
additional counsel retained by it, and the Indemnifying Party
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, unless: (a) the Indemnifying
Party and the Indemnified Party will have mutually agreed to the
retention of such counsel; or (b) the named parties to any such
proceeding (including any impleaded parties) include both the
Indemnifying Party and the Indemnified Party and representation
of both parties by the same counsel would be inappropriate due to
actual or potential differing interests between them. The
Indemnifying Party will not be liable for any settlement of any
proceeding effected without its written consent but if settled
with such consent or if there is a final judgment for the
plaintiff, the Indemnifying Party agrees to indemnify the
Indemnified Party from and against any loss or liability by
reason of such settlement or judgment. A successor by law of the
parties to this Agreement will be entitled to the benefits of the
indemnification contained in this Article VIII. The
indemnification provisions contained in this Article VIII will
survive any termination of this Agreement.
ARTICLE IX. APPLICABLE LAW
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34
9.1. This Agreement will be construed and the provisions hereof
interpreted under and in accordance with the laws of the State
of California.
9.2. This Agreement will 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 Mixed and Shared Funding Exemptive Order)
and the terms hereof will be interpreted and construed in
accordance therewith.
ARTICLE X. TERMINATION
10.1. This Agreement will terminate:
(a) at the option of any party, with or without cause, with
respect to some or all of the Portfolios, upon one (1)
year's advance written notice to the other parties or, if
later, upon receipt of any required exemptive relief or
orders from the SEC, unless otherwise agreed in a
separate written agreement among the parties; or
(b) at the option of the Company, upon receipt of written
notice by the other parties, with respect to any
Portfolio if shares of the Portfolio are not reasonably
available to meet the requirements of the Contracts as
determined in good faith by the Company; or
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35
(c) at the option of the Company, upon receipt of written
notice by the other parties, 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 Company; or
(d) at the option of the Fund, upon receipt of written notice
by the other parties, upon institution of formal
proceedings against the Company by the NASD, the SEC, the
insurance commission of any state or any other regulatory
body regarding the Company's duties under this Agreement
or related to the sale of the Contracts, the
administration of the Contracts, the operation of the
Account, or the purchase of the Fund shares, provided
that the Fund determines in its sole judgment, exercised
in good faith, that any such proceeding would have a
material adverse effect on the Company's ability to
perform its obligations under this Agreement; or
(e) at the option of the Company, upon receipt of written
notice by the other parties, upon institution of formal
proceedings against the Fund or the Adviser by the NASD,
the SEC, or any state securities or insurance department
or any other regulatory body, provided that the Company
determines in its sole judgment, exercised in good faith,
that any such proceeding would have a material adverse
effect on the Fund's or the Adviser's ability to perform
its obligations under this Agreement; or
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36
(f) at the option of the Company, upon receipt of written
notice by the other parties, if the Fund ceases to
qualify as a Regulated Investment Company under
Subchapter M of the Internal Revenue Code, or under any
successor or similar provision, or if the Company
reasonably and in good faith believes that the Fund may
fail to so qualify; or
(g) at the option of the Company, upon receipt of written
notice by the other parties, with respect to any
Portfolio if the Fund fails to meet the diversification
requirements specified in Article VI hereof or if the
Company reasonably and in good faith believes the Fund
may fail to meet such requirements; or
(h) at the option of any party to this Agreement, upon
written notice to the other parties, upon another party's
material breach of any provision of this Agreement; or
(i) at the option of the Company, if the Company determines
in its sole judgment exercised in good faith, that either
the Fund or the Adviser has suffered a material adverse
change in its business, operations or financial condition
since the date of this Agreement or is the subject of
material adverse publicity which is likely to have a
material adverse impact upon the business and operations
of the Company, such termination to be effective sixty
(60) days' after receipt by the other parties of written
notice of the election to terminate; or
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37
(j) at the option of the Fund or the Adviser, if the Fund or
Adviser respectively, determines in its sole judgment
exercised in good faith, that the Company has suffered a
material adverse change in its business, operations or
financial condition since the date of this Agreement or
is the subject of material adverse publicity which is
likely to have a material adverse impact upon the
business and operations of the Fund or the Adviser, such
termination to be effective sixty (60) days' after receipt
by the other parties of written notice of the election to
terminate; or
(k) at the option of the Company or the Fund upon receipt of
any necessary regulatory approvals and/or the vote of the
contractowners having an interest in the Account (or any
subaccount) to substitute the shares of another
investment company for the corresponding Portfolio shares
of the Fund in accordance with the terms of the Contracts
for which those Portfolio shares had been selected to
serve as the underlying investment media. The Company
will give sixty (60) days' prior written notice to the
Fund of the date of any proposed vote or other action
taken to replace the Fund's shares; or
(l) at the option of the Company or the Fund upon a
determination by a majority of the Fund Board, or a
majority of the disinterested Fund Board members, that an
irreconcilable material conflict exists among the
interests of: (l) all contractowners of variable
insurance products of all separate accounts; or (2) the
interests of the Participating Insurance Companies
investing in the Fund as set forth in Article VII of
this Agreement; or
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38
(m) at the option of the Fund in the event any of the
Contracts are not issued or sold in accordance with
applicable federal and/or state law. Termination will be
effective immediately upon such occurrence without
notice.
10.2. NOTICE REQUIREMENT
(a) No termination of this Agreement, except a termination
under Section 10.1 (m) of this Agreement, will be
effective unless and until the party terminating this
Agreement gives prior written notice to all other parties
of its intent to terminate, which notice will set forth
the basis for the termination.
(b) In the event that any termination of this Agreement is
based upon the provisions of Article VII, such prior
written notice will be given in advance of the effective
date of termination as required by such provisions.
10.3. EFFECT OF TERMINATION
(a) Notwithstanding any termination of this Agreement, the
Fund and the Adviser will, at the option of the Company,
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 will be permitted to
reallocate investments in the Designated Portfolios (as
in effect on such date), redeem
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39
investments in the Designated Portfolios and/or invest in
the Designated Portfolios upon the making of additional
purchase payments under the Existing Contracts. The
parties agree that this Section 10.3 will not apply to
any terminations under Article VII and the effect of such
Article VII terminations will be governed by Article VII
of this Agreement.
10.4 SURVIVING PROVISIONS
Notwithstanding any termination of this Agreement, each party's
obligations under Article VIII to indemnify other parties will
survive and not be affected by any termination of this Agreement.
In addition, with respect to Existing Contracts, all provisions
of this Agreement also will survive and not be affected by any
termination of this Agreement.
ARTICLE XI. NOTICES
Any notice will be deemed duly given when sent by registered or
certified mail to the other party at the address of such party set forth below
or at such other address as such party may from time to time specify in writing
to the other parties.
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40
If to the Company:
Xxxxx Xxxxxxx
Canada Life Insurance Company of America
0000 Xxxxxx Xxxxx Xxxx, X.X.
Xxxxxxx, XX 00000
If to the Fund:
Xxxxxxxxxx Funds III
000 Xxxxxxxxxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000
Attn: Xxxx Xxxxx
Executive Vice President
If to the Adviser:
Xxxxxxxxxx Asset Management, L.P.
000 Xxxxxxxxxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000
Attn: Xxxx Xxxxx
Executive Vice President
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 trustees, officers,
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41
agents or shareholders assume any personal liability for
obligations entered into on behalf of the Fund.
12.2. The Fund and the Adviser acknowledge that the identities of the
customers of the Company or any of its affiliates (collectively
the "Protected Parties" for purposes of this Section 12.2),
information maintained regarding those customers, and all
computer programs and procedures developed by the Protected
Parties or any of their employees or agents in connection with
the Company's performance of its duties under this Agreement are
the valuable property of the Protected Parties. The Fund and the
Adviser agree that if they come into possession of any list or
compilation of the identities of or other information about the
Protected Parties' customers, or any other property of the
Protected Parties, other than such information as may be
independently developed or compiled by the Fund or the Adviser
from information supplied to them by the Protected Parties'
customers who also maintain, accounts directly with the Fund or
the Adviser, the Fund and the Adviser will hold such information
or property in confidence and refrain from using, disclosing or
distributing any of such information or other property except:
(a) with the Company's prior written consent; or (b) as
required by law or judicial process. The Fund and the Adviser
acknowledge that any breach of the agreements in this Section
12.2 would result in immediate and irreparable harm to the
Protected Parties for which there would be no adequate remedy at
law and agree that in the event of such a breach, the Protected
Parties will be entitled to
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42
equitable relief by way of temporary and permanent injunctions,
as well as such other relief as any court of competent
jurisdiction deems appropriate.
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 will constitute one
and the same instrument.
12.5. If any provision of this Agreement will be held or made invalid
by a court decision, statute, rule or otherwise, the remainder of
the Agreement will not be affected thereby.
12.6. This Agreement will not be assigned by any party hereto without
the prior written consent of all the parties.
12.7. Each party to this Agreement will cooperate with each other
party and all appropriate governmental authorities (including
without limitation the SEC, the NASD and state insurance
regulators) and will permit each other and 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.
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43
12.8. Each party represents that the execution and delivery of this
Agreement and the consummation of the transactions contemplated
herein have been duly authorized by all necessary corporate or
board action, as applicable, by such party and when so executed
and delivered this Agreement will be the valid and binding
obligation of such party enforceable in accordance with its
terms.
12.9. The parties to this Agreement may amend the schedules to this
Agreement from time to time to reflect changes in or relating to
the Contracts, the Accounts or the Portfolios of the Fund or
other applicable terms of this Agreement.
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44
IN WITNESS WHEREOF, each of the parties hereto has caused this Agreement to be
executed in its name and behalf by its duly authorized representative and its
seal to be hereunder affixed hereto as of the date specified below.
CANADA LIFE INSURANCE COMPANY OF
AMERICA
SEAL By: /s/ Xxxxx X. Xxxxxxx
-----------------------------
XXXXXXXXXX FUNDS III
SEAL By: /s/ Xxxx Xxxxx
-----------------------------
XXXXXXXXXX ASSET MANAGEMENT,
L.P.
SEAL By: /s/ Xxxx Xxxxx
-----------------------------
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45
Schedule 1
PARTICIPATION AGREEMENT
By and Among
CANADA LIFE INSURANCE COMPANY OF AMERICA
And
XXXXXXXXXX FUNDS III
And
XXXXXXXXXX ASSET MANAGEMENT, L.P.
The following separate accounts of Canada Life Insurance Company of America
are permitted in accordance with the provisions of this Agreement to invest in
Portfolios of the Fund shown in Schedule 2:
Variable Annuity Account I, established July 22, 1988 under
Michigan law.
May 1, 1996
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46
Schedule 2
PARTICIPATION AGREEMENT
By and Among
CANADA LIFE INSURANCE COMPANY OF AMERICA
And
XXXXXXXXXX FUNDS III
And
XXXXXXXXXX ASSET MANAGEMENT, L.P.
The Separate Account(s) shown on Schedule 1 may invest in the following
Portfolios of the Xxxxxxxxxx Funds III:
Xxxxxxxxxx Variable Series: Emerging Markets Fund
May 1, 1996
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