Exhibit 8(l)
AMENDED AND RESTATED
PARTICIPATION AGREEMENT
Among
VANGUARD VARIABLE INSURANCE FUND
and
THE VANGUARD GROUP, INC.
and
VANGUARD MARKETING CORPORATION
and
MONY LIFE INSURANCE COMPANY OF AMERICA
THIS AGREEMENT, made and entered into as of the ____ day of __________,
2003, by and among VANGUARD VARIABLE INSURANCE FUND (hereinafter the "Fund"), a
Delaware business trust, THE VANGUARD GROUP, INC. (hereinafter the "Sponsor"), a
Pennsylvania corporation, VANGUARD MARKETING CORPORATION (hereinafter the
"Distributor"), a Delaware corporation, and MONY LIFE INSURANCE COMPANY OF
AMERICA (hereinafter the "Company"), an Arizona corporation, on its own behalf
and on behalf of each segregated asset account of the Company named in Schedule
A hereto as may be amended from time to time (each such account hereinafter
referred to as the "Account").
WHEREAS, the Fund, the Sponsor, the Distributor and the Company entered
into a Participation Agreement dated as of January 25, 2002, which the parties
desire to amend and restate on the terms and conditions set forth herein;
WHEREAS, the Fund was organized to act as the investment vehicle for
variable life insurance policies and variable annuity contracts to be offered by
separate accounts of insurance companies which have entered into participation
agreements with the Fund and the Sponsor (hereinafter "Participating Insurance
Companies"); and
WHEREAS, the beneficial interest in the Fund is divided into several series
of shares, each designated a "Portfolio," and representing the interest in a
particular managed portfolio of securities and other assets; and
1
WHEREAS, the Fund is registered as an open-end management investment
company under the Investment Company Act of 1940, as amended (the "1940 Act")
and its shares are registered under the Securities Act of 1933, as amended (the
"1933 Act"); and
WHEREAS, the assets of each Portfolio of the Fund are managed by several
entities (the "Advisers"), each of which is duly registered as an investment
adviser under the federal Investment Advisers Act of 1940 and any applicable
state securities laws; and
WHEREAS, the Company has established or will establish one or more Accounts
to fund certain variable life insurance policies (the "Variable Insurance
Products"), the offering of each of which will be made pursuant to a private
placement memorandum ("PPM") in reliance on certain exemptions from the
requirements of federal securities law for placement of securities other than by
means of a public offering, and the Accounts and the interests in the Variable
Insurance Products funded thereby will not be registered under the 1933 Act
and/or the 1940 Act in reliance upon exemptions therein; and
WHEREAS, each Account is a duly organized, validly existing segregated
asset account, established by resolution of the Board of Directors of the
Company, on the date shown for each Account on Schedule A hereto, to set aside
and invest assets attributable to the Variable Insurance Products; and
WHEREAS, the Distributor is a wholly-owned subsidiary of the Sponsor,
is registered as a broker dealer with the Securities and Exchange Commission
("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"); and
WHEREAS, to the extent permitted by applicable insurance laws and
regulations, the Company intends to purchase shares of the Portfolios on behalf
of each Account to fund the Variable Insurance Products and the Sponsor is
authorized to sell such shares to the Accounts at net asset value;
WHEREAS, the Sponsor has established or will establish and account or
accounts on its mutual fund shareholder accounting system to reflect the
Company's ownership of shares of the Fund and all transactions by the Company
involving such shares;
NOW, THEREFORE, in consideration of their mutual promises, the Company,
the Fund, the Sponsor and the Distributor agree as follows:
ARTICLE I. Sale of Fund Shares
1.1 Subject to and in accordance with the terms and procedures in Section
1.2 hereof, the Company is hereby appointed as the designee of the Fund to
receive orders for the purchase and redemption of shares of the Portfolios of
the Fund by the Accounts. The Company shall maintain records for the Accounts
reflecting all shares of the Fund purchased and redeemed by the Accounts
(including the date and price for all transactions and share balances) and all
reinvestments of dividends and capital gains distributions paid by the Fund. The
Company shall reconcile on each
2
day on which the New York Stock Exchange ("NYSE") is open for trading (a
"Business Day") all transactions by the Accounts involving shares of the Fund
(including purchases, redemptions and reinvestments of dividends and capital
gains distributions) with the corresponding transactions at the Variable
Insurance Product owner level on the Company's record-keeping system.
The Company shall promptly notify the Sponsor if the Company experiences
difficulty in maintaining the records described above in an accurate and
complete manner. The Company agrees to furnish the Sponsor with such information
as the Sponsor may reasonably request from time to time in order for the Sponsor
to verify the Company's compliance with the terms of this Agreement.
1.2 (a) As provided in Section 1.1, and in accordance with the procedures
set forth below, the Company will act as the designee of the Fund to
receive orders by the Accounts for purchases and redemptions by the
Accounts of shares of the Portfolios of the Fund. In the case of any such
purchase or redemption order received by the Company on any Business Day
prior to the time the net asset value of shares of the Fund is determined
(the close of trading on the New York Stock Exchange, generally 4:00 p.m.
Eastern time) (the "Market Close"), the order shall be accorded a trade
date on the Fund's accounting system that is the date of receipt of the
order by the Company. In the case of any such purchase or redemption order
received by the Company on any Business Day after the Market Close, the
order shall be accorded a trade date on the Fund's accounting system that
is the next Business Day.
(b) It is understood by the parties that the Company may receive
orders from Variable Insurance Product owners for purchases and redemptions
of shares of the Fund by the Accounts in various formats, including
directions in writing, by computer magnetic tape, diskette or electronic
data transmission, through interactive voice response system, or by any
other accepted method for transmitting transaction instructions that is
adopted by the Company. All such Variable Insurance product owner
transactions shall be received and processed by the Company in accordance
with its standard transaction processing procedures that apply to all
investment options offered under the Variable Insurance Products. The
Company shall maintain records sufficient to identify the date and time of
receipt of all such transactions involving the Fund and shall make such
records available upon request for examination by the Sponsor or its
designated representative or, at the request of the Sponsor, by appropriate
governmental authorities. Under no circumstances shall the Company change,
alter or manipulate any orders for purchases or redemptions of shares of
the Fund received by it in good order.
(c) Based on the aggregate authorized Variable Insurance Product
owner-level transactions for the Accounts received by the Company on each
Business Day, the Company shall cause BISYS Fund Services ("BISYS") to
transmit to the Fund, by 5:00 a.m. Eastern time on the following calendar
day (including Saturdays and holidays), a file containing the net purchase
or redemption order, in dollars, by each Account (or in the aggregate for
all Accounts, if that has been agreed to in advance by the parties) for
shares of each Portfolio of the Fund for the preceding Business Day. Each
transmission by BISYS on behalf of the Company of a net purchase or
redemption order shall constitute a representation by the Company that such
net order was based solely on authorized
3
Variable Insurance Product owner-level transactions received by the Company
prior to the Market Close on the previous Business Day, and that such net
order included all such transactions so received by the Company. In the
event that an Account in a Portfolio of the Fund is redeemed in full, the
Company shall not cause BISYS to transmit such redemption order to the Fund
pursuant to this paragraph, but instead shall, not later than 4:00 p.m.
Eastern time on the trade date, either fax such order to (000) 000-0000 or
call the Company's assigned Vanguard associate. Notwithstanding the
foregoing, if the payment of redemption proceeds on the next Business Day
would require the Fund to dispose of Portfolio securities or otherwise
incur substantial additional costs, the Fund may determine to settle one or
more redemption transactions on a delayed basis, in which case proceeds
shall be wired to the Company with seven (7) days and the Fund shall notify
the Company of such a delay by 3:00 Eastern time on the same Business Day
that the Company transmits the redemption order to the Fund. Furthermore,
notwithstanding the foregoing, the Fund reserves the right to suspend
redemption privileges or pay redemptions in kind, as disclosed in the
Fund's prospectus or statement of additional information. The Fund agrees
to treat the Company like any other shareholder in similar circumstances in
making these determinations.
1.3 The Fund, subject to the provisions of Article IX of this Agreement,
agrees to make its shares available indefinitely for purchase at the applicable
net asset value per share by the Company and its Accounts on those days on which
the Fund calculates its net asset value pursuant to the rules of the SEC, and
the Fund shall use its best efforts to calculate such net asset value on each
day which the NYSE is open for trading. Notwithstanding the foregoing, the Board
of Trustees of the Fund (hereinafter the "Board") may refuse to sell shares of
any Portfolio to any person including, but not limited to, the Company, 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 Board, acting in good faith and in light of their
fiduciary duties under federal and any applicable state laws, necessary in the
best interests of the shareholders of such Portfolio. Further, it is
acknowledged and agreed that the availability of shares of the Fund shall be
subject to the Fund's then current prospectus and statement of additional
information, federal and state securities laws and applicable rules and
regulations of the SEC and the NASD.
1.4 The Fund and the Sponsor agree that shares of the Fund will be sold
only to Participating Insurance Companies and their separate accounts. No shares
of any Portfolio will be sold to the general public.
1.5 The Fund and the Sponsor will not sell Fund shares to any Participating
Insurance Company or its separate account unless an agreement containing a
provision substantially the same as Section 2.6 of Article II of this Agreement
is in effect to govern such sales.
1.6 The Fund agrees to redeem for cash, on the Company's request, any full
or fractional shares of the Fund held by an Account, in accordance with the
provisions of Section 1.9 below. The Fund reserves the right to suspend
redemption privileges or pay redemptions in kind, as disclosed in the Fund's
prospectus or statement of additional information. The Fund
4
agrees to treat the Company like any other shareholder in similar circumstances
in making these determinations.
1.7 The Company agrees to purchase and redeem the shares of each Portfolio
offered by the then current prospectus of the Fund and in accordance with the
provisions of such prospectus and the accompanying statement of additional
information.
1.8 With respect to payment of the purchase price by the Company and of
redemption proceeds by the Fund, the Company and the Fund shall net all purchase
and redemption orders on a given Business Day and shall transmit one net payment
for all of the Portfolios in accordance with Section 1.9 hereof.
1.9 (a) In the case of a net purchase order, the Company shall remit to the
Fund the exact amount of requisite funds to cover such order by Federal
Funds wire by 4:00 p.m. Eastern time on the Business Day on which the file
containing the net purchase order is transmitted to the Sponsor or, if such
day is not a business day, on the next business day (the "settlement
date"). If the Company becomes aware that the Fund may not receive, prior
to the Market Close on the settlement date, a wire transfer relating to a
net purchase order, the Company shall promptly inform the Sponsor of the
facts and circumstances thereof and shall cooperate with the Sponsor with
the goal of the Fund receiving such purchase proceeds as soon as reasonably
possible. Notwithstanding the immediately preceding sentence, if a wire
transfer relating to an aggregate purchase order is not received by the
Fund prior to Market Close on the appropriate settlement date, the Fund
reserves the right to (i) charge the Company interest on the amount of the
delayed wire as provided below or (ii) redeem the shares for which payment
has not been received on any Business Day subsequent to the appropriate
settlement date if (A) the Sponsor has further notified the Company by no
later than 12:00 noon Eastern time on the business day following the
settlement date that the Fund still has not received the delayed wire
transfer relating to the net purchase order and (B) the Fund still has not
received the delayed wire by one hour prior to Market Close on such
subsequent business day.
(b) In the case of a net redemption order, the Fund shall remit or
cause to be remitted to the Company the exact amount of requisite funds to
cover such order by Federal Funds wire by 4:00 p.m. Eastern time on the
Business Day on which the file containing the net redemption order is
received by the Sponsor or, if such day is not a business day, on the next
business day; provided, however, that in the event that the Company's
account in a Portfolio of the Fund is redeemed in full such that it will
have a zero balance on such business day, the Fund reserves the right to
wire, or to cause to be wired, the redemption proceeds within the time
frame set forth in the then-current Fund prospectus. If the Sponsor becomes
aware that the Company may not receive the wire transfer relating to a net
redemption order by 4:00 p.m. Eastern time on the appropriate date, the
Sponsor shall promptly inform the Company of the facts and circumstances
thereof and shall cooperate with the Company with the goal of the Company
receiving such proceeds as soon as reasonably possible. If such wire
transfer is not received by the Company on the appropriate date, the Fund
shall pay the Company interest on the amount of the delayed wire as
provided below.
5
(c) In the event that a wire is delayed, the interest owed shall be deemed
to be the interest cost on the delayed funds until paid, charged at the
Federal Funds "offered" rate as published by The Wall Street Journal.
1.10 Issuance and transfer of a Fund's shares will be by book entry only.
Stock certificates will not be issued to the Company or any Account. Shares
ordered from the Fund will be recorded in an appropriate title for each Account
or the appropriate subaccount of each Account. The Fund shall furnish to the
Company the CUSIP number assigned to each Portfolio of the Fund identified in
Schedule B hereto.
1.11 The Fund shall furnish advance notice, as practicable, but at the
latest same day notice (by wire or telephone, followed by written confirmation)
to the Company of any income, dividends or capital gain distributions on the
Fund's shares. The Company hereby elects to receive all such income, dividends
and capital gain distributions as are payable on the Portfolio shares in
additional shares of that Portfolio. The Company reserves the right to revoke
this election and to receive all such income dividends and capital gain
distributions in cash. The Fund shall notify the Company of the number of shares
so issued as payment of dividends and distributions.
1.12 All transmissions of files by BISYS to the Fund on behalf of the
Company required under this Article I shall conform to the Sponsor's specified
file formats, which the Sponsor shall provide to the Company and BISYS within a
reasonable period of time prior to the commencement of transmissions hereunder.
The Sponsor reserves the right to change the specified file formats at any time,
but shall provide the Company and BISYS with no less than 30 days' notice.
1.13 Each business day the Company and the Sponsor will reconcile their
records so that an appropriate number of shares of each of the Portfolios is
credited to the Company's account invested in the Portfolios of the Fund.
(a) In the event of any error (other than a Pricing Error, as
hereinafter defined) or delay with respect to the procedures outlined in
this Article I which is caused by the Fund or the Sponsor, the Sponsor
shall make any adjustments on the Sponsor's accounting system necessary to
correct such error or delay and shall reimburse the Accounts for any losses
or reasonable costs incurred directly as a result of the error or delay.
(b) In the event of any error or delay with respect to the procedures
outlined in this Article I that is caused by the Company or by any
administrator or representative of the Company, the Company shall adjust
its records accordingly in order to correct such error or delay. The
Company will notify the Sponsor of the error and required correction and
shall reimburse the Sponsor and the Fund for any losses or reasonable costs
incurred as a result of the error or delay. In the event of an error or
delay caused by the Company, the Sponsor will process any adjustment with
the trade date of the day such error or delay is identified by the Company
to the Sponsor.
6
(c) The Company and the Sponsor, respectively, each agree to provide
the other prompt notice of any errors or delays of the type referred to in
this Section 1.13 and to use reasonable efforts to take such action as may
be appropriate to avoid or mitigate any such costs or losses.
1.14 The Fund shall make the daily net asset value, dividend and capital
gain information for each Portfolio available on a per share basis to the
Company as soon as reasonable practical after the information is calculated
(normally by 6:30 p.m. Eastern time) and shall use its best efforts to make such
net asset value per share available by 7:00 p.m. Eastern time on each Business
Day. Related to this obligation, the Fund shall provide a contact name or names
and telephone numbers of the persons responsible for providing daily net asset
value, dividend and capital gain information to the Company. In the event of an
error in the computation of a Portfolio's net asset value per share which, in
accordance with procedures adopted by the Fund's Board of Trustees consistent
with views expressed by the staff of the Securities and Exchange Commission
regarding appropriate error correction standards, as shall be in effect or
amended from time to time, requires adjustment to transactions previously
effected on behalf of a Plan (a "Pricing Error"), the Sponsor shall notify the
Company as soon as possible after discovery of the Pricing Error. Such
notification may be oral, but shall be confirmed promptly in writing. In such
event, the Sponsor shall reimburse the affected Portfolio for any loss (without
taking into consideration any positive effect of such Pricing Error) and shall
make appropriate adjustments to the Accounts' accounts, which adjustments shall
net the impact of individual Variable Insurance Product owner gains and losses;
this will result in either a net payment to the Account from the Sponsor (in the
event of net Variable Insurance Product owner losses) or from the Account to the
Sponsor (in the event of net Variable Insurance Product owner gains). In
addition, in the event that the Pricing Error causes the Company to incur any
direct costs for re-processing Variable Insurance Product owner accounts, such
as preparing and mailing revised statements, the Sponsor shall reimburse the
Company for all such reasonable costs upon receipt from the Company of an
invoice or other statement documenting such costs in reasonable detail.
1.15 The Fund shall transmit to the Company by 8:30 a.m. Eastern time on
each Business Day a confirmation of any net purchase or redemption orders of
shares of the Fund with a trade date of the second preceding Business Day.
However, on any Business Day that is the first Business Day of the month,
Vanguard shall transmit such confirmation by 11:00 a.m. Eastern time.
1.16 In the event a communication, systems or other failure occurs, and
BISYS is unable to transmit, or the Fund is unable to receive, purchase or
redemption orders through the normal procedures, the Company agrees to comply
with the Contingency Procedures set forth on Schedule C, attached hereto and
incorporated herein. The Fund and the Sponsor reserve the right, in their sole
discretion, to amend the Contingency Procedures from time to time and shall
provide 48 hours' advance notice of such amendment to the Company.
ARTICLE II. Representations and Warranties
2.1 The Company represents and warrants it is an insurance company duly
organized and in good standing under applicable law; that it has legally and
validly established each
7
Account prior to any issuance or sale thereof as a segregated asset account
under Section 20 of the Arizona Insurance Code; and that each Account is exempt
from registration under the 1940 Act. The Company will notify the Fund if it
believes an Account will cease to qualify for the exception from the definition
of investment company provided under Sections 3(c)(1), 3(c)(7), or 3(c)(11) of
the 1940 Act. Notification shall be made prior to the end of the calendar
quarter in which the Company becomes aware that the Account may cease to
qualify.
2.2 The Company represents and warrants that (i) the Variable Insurance
Products are exempt from or not subject to registration under the 1933 Act and
(ii) the Variable Insurance Products will be issued and sold in compliance in
all material respects with all applicable federal and state laws and with state
insurance suitability requirements. The Company further represents and warrants
that that it has and will maintain the capacity to issue all Variable Insurance
Products that may be sold; and that it is properly licensed, qualified and is in
good standing to sell the Variable Insurance Products in all fifty states and
the District of Columbia.
2.3 The Fund represents and warrants that Fund shares sold pursuant to this
Agreement shall be registered under the 1933 Act, duly authorized for issuance
and sold in compliance with the laws of the State of Arizona and all applicable
federal and state securities laws and that the Fund is and shall remain
registered under the 0000 Xxx. 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. The Fund shall
register and qualify the shares for sale in accordance with the laws of the
various states only if and to the extent deemed advisable by the Fund, the
Distributor, or the Sponsor.
2.4 The Fund represents that it is qualified as a Regulated Investment
Company under Subchapter M of the Internal Revenue Code of 1986, as amended (the
"Code"), and that it will make every effort to maintain qualification (under
Subchapter M or any successor or similar provision) and (ii) it will notify the
Company immediately upon having a reasonable basis for believing that it ceased
to so qualify or that it might not so qualify in the future. The Fund
acknowledges that any failure to qualify as a Regulated Investment Company will
eliminate the ability of the subaccounts to avail themselves of the "look
through" provisions of Section 817(h) of the Code, and that as a result the
Variable Insurance Products will almost certainly fail to qualify as endowment
or life insurance contracts under Section 817(h) of the Code.
2.5 The Company represents that the Variable Insurance Products will be
treated as endowment or life insurance contracts under applicable provisions of
the Code and that it will make every effort to maintain such treatment and that
it will notify the Fund and the Sponsor immediately upon having a reasonable
basis for believing that the Variable Insurance Products have ceased to be so
treated or that they might not be so treated in the future.
2.6 The Fund currently does not intend to make any payments to finance
distribution expenses pursuant to Rule 12b-1 under the 1940 Act or otherwise
2.7 The Fund makes no representation as to whether any aspect of its
operations (including, but not limited to, fees and expenses and investment
policies) complies with the insurance laws or regulations of the various states
except that the Fund represents that the Fund's
8
investment policies, fees and expenses are and shall at all times remain in
compliance with the laws of the State of Arizona and the Fund and the Sponsor
represent that their respective operations are and shall at all times remain in
material compliance with the laws of the State of Arizona to the extent required
to perform this Agreement.
9
2.8 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. The
Distributor further represents that it will sell and distribute the Fund shares
in accordance with the laws of the State of Arizona and all applicable state and
federal securities laws, including without limitation the 1933 Act, the 1934
Act, and the 0000 Xxx.
2.9 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 the 1940 Act and any applicable regulations thereunder.
2.10 The Sponsor represents and warrants that the Advisers to the Fund are,
and the Sponsor shall use its best effort to cause the Advisers to remain, duly
registered in all material respects under all applicable federal and state
securities laws and to perform their obligations for the Fund in compliance in
all material respects with the laws of the State of Arizona and any applicable
state and federal securities laws.
2.11 The Fund and Sponsor represent and warrant that all of their trustees,
directors, officers, employees, investment advisers, and other
individuals/entities dealing with the money and/or securities of the Fund are
and shall continue to be at all times covered by a blanket fidelity bond or
similar coverage for the benefit of the Fund in an amount not less than the
minimum coverage required currently by Rule 17g-1 under the 1940 Act or other
applicable laws or regulations as may be promulgated from time to time. The
aforesaid bond shall include coverage for larceny and embezzlement and shall be
issued by a reputable bonding company.
2.12 With respect to the Accounts, which are exempt from registration under
the 1940 Act in reliance upon Section 3(c)(1) or Section 3(c)(7) thereof, the
Company represents and warrants that:
(a) MONY Securities Corporation is the principal underwriter for each such
Account and any subaccounts thereof and is a registered broker-dealer
with the SEC under the 1934 Act;
(b) the shares of the Portfolios of the Fund are and will continue to be
the only investment securities held by the corresponding subaccounts;
and
(c) with regard to each Portfolio, the Company, if permitted by law, on
behalf of the corresponding subaccount, will:
(i) vote such shares held by it in the same proportion as the vote of
all other holders of such shares; and
(ii) refrain from substituting shares of another security for such
shares unless the SEC has approved such substitution in the
manner provided in Section 26 of the 0000 Xxx.
2.13 The Fund represents that it will comply with all provisions of the
1940 Act
10
requiring voting by shareholders, and in particular the Fund will either provide
for annual meetings or comply with Section 16(c) of the 1940 Act (although the
Fund is not one of the trusts described in Section 16(c) of that Act) as well as
with Sections 16(a) and, if an when applicable, 16(b). Further, the Fund will
act in accordance with the SEC's interpretation of the requirements of Section
16(a) with respect to periodic elections of trustees and with whatever rules the
SEC may promulgate with respect thereto.
ARTICLE III. Offering Documents and Reports
3.1 The Fund, the Sponsor or their designee shall provide the Company (at
the Sponsor's expense) with as many copies of the Fund's current prospectus as
the Company may reasonably request. The Company shall provide a copy of the
Fund's prospectus to each person to whom it provides the PPM for the Variable
Insurance Products. If requested by the Company in lieu thereof, the Fund or the
Sponsor shall provide such documentation (including a final copy of the new
prospectus as set in type at the Fund's or the Sponsor's expense) and other
assistance as is reasonably necessary in order for the Company once each year
(or more frequently if the prospectus for the Fund is amended) to have the PPM
for the Variable Insurance Products and the Fund's prospectus printed together
in one document (such printing to be at the Company's expense).
3.2 The Fund's prospectus shall state that the statement of additional
information for the Fund is available from the Sponsor (or in the Fund's
discretion, the prospectus shall state that the statement of additional
information is available from the Fund) and the Sponsor (or the Fund), at its
expense, shall print and provide such statement free of charge to the Company
and to any owner of a Variable Insurance Product or prospective owner who
requests such statement.
3.3 The Fund, at its own expense, shall provide the Company with copies of
its reports to shareholders, other communications to shareholders, and, if
required by applicable law, proxy material, in such quantity as the Company
shall reasonably require for distributing to Variable Insurance Product owners.
The Fund shall provide to the Company the prospectuses and annual reports
referenced in this Agreement within fifteen (15) days prior to the Company's
obligation to mail, and the Company agrees to provide the Fund with advance
notice of such date. If the documents are not delivered to the Company within
ten (10) days of the Company's obligation to mail, the Fund shall reimburse the
Company for any extraordinary out-of-pocket costs (including, but not limited
to, overtime for printing and mailing).
ARTICLE IV. Sales Material and Information
4.1 The Company shall furnish, or shall cause to be furnished, to the Fund
or its designee, each piece of sales literature or other promotional material in
which the Fund, its Advisers or the Sponsor is named, at least ten Business Days
prior to its use. The Company may use such material in fewer than ten Business
Days if it receives the written consent of the Fund or its designee. No such
material shall be used if the Fund or its designee reasonably objects to such
use within ten Business Days after receipt of such material.
4.2 The Company shall not give any information or make any representations
or
11
statements on behalf of the Fund or concerning the Fund in connection with the
sale of the Variable Insurance Products other than the information or
representations contained in the registration statement or prospectus for the
Fund shares, as such registration statement and prospectus may be amended or
supplemented from time to time, or in reports or proxy statements for the Fund,
or in sales literature or other promotional material approved by the Fund or its
designee or by the Sponsor, except with the permission of the Fund or the
Sponsor or the designee of either.
4.3 The Fund, Sponsor, Distributor or their designee shall furnish, or
shall cause to be furnished, to the Company or its designee, each piece of sales
literature or other promotional material in which the Company or an Account is
named at least ten Business Days prior to its use. No such material shall be
used if the Company or its designee reasonably objects to such use within ten
Business Days after receipt of such material.
4.4 The Fund, the Distributor and the Sponsor shall not give any
information or make any representations on behalf of the Company or concerning
the Company, each Account, or the Variable Insurance Products other than the
information or representations contained in a PPM for the Variable Insurance
Products, as such PPM may be amended or supplemented from time to time, or in
published reports for each Account which are in the public domain or approved by
the Company for distribution to Variable Insurance Product owners, or in sales
literature or other promotional material approved by the Company or its
designee, except with the permission of the Company.
4.5 The Fund will provide to the Company at least one complete copy of all
registration statements, prospectuses, statements of additional information,
reports, proxy statements, sales literature and other promotional materials,
applications for exemptions, requests for no-action letters, and all amendments
to any of the above, that relate to the Fund or its shares, prior to or
contemporaneously with the filing of each document with the SEC or other
regulatory authorities.
4.6 The Company will provide to the Fund at least one complete copy of all
PPMs, reports, solicitations for voting instructions, sales literature and other
promotional materials, applications for exemption, requests for no action
letters, and all amendments to any of the above, that relate to the Variable
Insurance Products or each Account, prior to or contemporaneously with the
filing of such document with the SEC or other regulatory authorities, or, in the
case of a PPM, at least three Business Days before any sales are made by use of
the relevant PPM.
4.7 The Company and the Fund shall also each promptly inform the other of
the results of any examination by the SEC (or other regulatory authorities) that
relates to the Variable Insurance Products, the Fund or its shares, and the
party that was the subject of the examination shall provide the other party with
a copy of relevant portions of any "deficiency letter" or other correspondence
or written report regarding any such examination.
4.8 The Fund and the Sponsor will provide the Company with as much notice
as
12
is reasonably practicable of any proxy solicitation for any Portfolio, and of
any material change in the Fund's registration statement, particularly any
change resulting in a change to the PPM for any Account. The Fund and the
Sponsor will cooperate with the Company so as to enable the Company to solicit
voting instructions from owners of Variable Insurance Products, to the extent a
solicitation is required by applicable law, or to make changes to its PPM in a
orderly manner.
4.9 For purposes of this Article IV, the phrase "sales literature and other
promotional material" is subject to applicable laws and regulations governing
the private placement of securities, particularly the prohibition against making
a general solicitation. The phrase includes, but is not limited to, sales
literature (i.e., any written communication distributed or made generally
available to customers, including brochures, circulars, research reports, market
letters, form letters, seminar texts, reprints or excerpts of any other
advertisement, sales literature, or published articles), educational or training
materials or other communications distributed or made generally available to
some or all agents or employees, and PPMs, shareholder reports, and proxy
materials.
ARTICLE V. Fees and Expenses
5.1 The Fund and Sponsor shall pay no fee or other compensation to the
Company under this Agreement. Nothing herein shall prevent the parties hereto
from otherwise agreeing to perform, and arranging for appropriate compensation
for, other services relating to the Fund and or to the Accounts.
5.2 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 fees and
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 (including the costs of
printing a prospectus that constitutes an annual report), the preparation of all
statements and notices required by any federal or state law, all taxes on the
issuance or transfer of the Fund's shares.
5.3 The Fund shall bear the expenses of printing, and the Company shall
bear the expenses of distributing, the Fund's prospectus to owners of Variable
Insurance Products issued by the Company. The Fund shall bear the expenses of
printing and distributing the Fund's proxy materials (to the extent such proxy
solicitation is required by law) and reports to owners of Variable Insurance
Products.
ARTICLE VI. Diversification
6.1 The Fund will at all times invest money from the Variable Insurance
Products in such a manner as to ensure that the Variable Insurance Products will
be treated as variable contracts under the Code and the regulations issued
thereunder. Without limiting the scope of the foregoing, the Fund and the
Sponsor represent and warrant that each Portfolio of the Fund will
13
meet the diversification requirements of Section 817(h) of the Code and Treasury
Regulation 1.817-5, relating to the diversification requirements for endowment
or life insurance contracts and any amendments or other modifications to such
Section or Regulations, as if those requirements applied directly to each such
Portfolio. In the event of a breach of this Article VI by the Fund, it will take
all reasonable steps (a) to notify Company of such breach and (b) to adequately
diversify, each Portfolio of the Fund so as to achieve compliance within the
grace period afforded by Regulation 817-5.
6.2 The Fund and the Sponsor represent that each Portfolio will elect to be
qualified as a Regulated Investment Company under Subchapter M of the Code and
they will maintain such qualification (under Subchapter M or any successor or
similar provision).
ARTICLE VII. Indemnification
7.1 Indemnification by the Company
(a) The Company agrees to indemnify and hold harmless the Fund and
each trustee of the Board and officers and each person, if any, who
controls the Fund within the meaning of Section 15 of the 1933 Act, the
Sponsor and the Distributor (collectively, the "Indemnified Parties" for
purposes of this Section 7.1) against any and all losses, claims, damages,
liabilities (including amounts paid in settlement with the written consent
of the Company) or litigation (including 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 are
related to the sale or acquisition of the Fund's shares or the Variable
Insurance Products and:
(i) arise out of or are based upon any untrue statements or
alleged untrue statements of any material fact contained in
the PPM for the Variable Insurance Products or contained in
the contract or policy or sales literature for the Variable
Insurance Products (or any amendment or supplement to any of
the foregoing), or arise out of or are based upon the
omission or the alleged omission to state therein a material
fact required to be stated therein or necessary to make the
statements therein not misleading, provided that this
agreement to indemnify shall not apply as to any Indemnified
Party if such statement or omission or such alleged
statement or omission was made in reliance upon and in
conformity with information furnished to the Company by or
on behalf of the Fund for use in the PPM for the Variable
Insurance Products or in the contract or policy sales
literature (or any amendment or supplement thereto) or
otherwise for use in connection with the sale of the
Variable Insurance Products or the Fund shares; or
(ii) arise out of or as a result of statements or representations
(other than statements or representations contained in the
registration
14
statement, prospectus or sales literature of the Fund not
supplied by the Company, or persons under its control) or
unlawful conduct of the Company or persons under its
control, with respect to the sale or distribution of the
Variable Insurance Products or Fund Shares; or
(iii)arise out of any untrue statement or alleged untrue
statement of a material fact contained in a registration
statement, prospectus, or sales literature of the Fund (or
any amendment or supplement thereto), or the omission or
alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements
therein not misleading, if such statement or omission was
made in reliance upon information furnished to the Fund by
or on behalf of the Company; or
(iv) result from any failure by the Company to provide the
services and furnish the materials under the terms of this
Agreement; or
(v) arise out of or result from any material breach of any
representation and/or warranty made by the Company in this
Agreement or arise out of or result from any material breach
of this Agreement by the Company;
as limited by and in accordance with the provisions of Section 7.1(b) and 7.1(c)
hereof.
(b) The Company shall not be liable under this indemnification provision
with respect to any losses, claims, damages, liabilities or litigation to which
an Indemnified Party would otherwise be subject by reason of such Indemnified
Party's willful misfeasance, bad faith, or gross negligence in the performance
of such Indemnified Party's duties or by reason of such Indemnified Party's
reckless disregard of obligations and duties under this Agreement or to the
Fund, whichever is applicable.
(c) The Company shall not be liable under this indemnification provision
with respect to any claim made against an Indemnified Party unless such
Indemnified Party shall have notified the Company in writing within a reasonable
time after the summons or other first legal process giving information of the
nature of the claim shall have been served upon such Indemnified Party (or after
such Indemnified Party shall have received notice of such service on a
designated agent), but failure to notify the Company of any such claim shall not
relieve the Company from any liability which it may have to the Indemnified
Party against whom such action is brought otherwise than on account of this
indemnification provision. In case any such action is brought against the
Indemnified Parties, the Company shall be entitled to participate, at its own
expense, in the defense of such action. The Company also shall be entitled to
assume the defense thereof, with counsel satisfactory to the party named in the
action. After notice from the Company to such a party of the Company's election
to assume the defense thereof, the Indemnified Party shall bear the fees and
expenses of any additional counsel retained by it, and the
15
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.
(d) The Indemnified Parties will promptly notify the Company of the
commencement of any litigation or proceedings against them in connection with
the issuance or sale of the Fund shares or the Variable Insurance Products or
the operation of the Fund.
7.2 Indemnification by the Sponsor
(a) The Sponsor agrees to indemnify and hold harmless the Company and each
of its directors and officers and each person, if any, who controls the Company
within the meaning of Section 15 of the 1933Act (collectively, the "Indemnified
Parties" for purposes of this Section 7.2) against any and all losses, claims,
damages, liabilities (including amounts paid in settlement with the written
consent of the Sponsor) or litigation (including legal and other expenses) to
which the Indemnified Parties may become subject under any statute, at common
law or otherwise, insofar as such losses, claims, damages, liabilities or
expenses (or actions in respect thereof) or settlements are related to the sale
or acquisition of the Fund's shares or the Variable Insurance Products and:
(i) arise out of or are based upon any untrue statement or alleged
untrue statement of any material fact contained in the
registration statement or prospectus or sales literature of the
Fund (or any amendment or supplement to any of the foregoing), or
arise out of or are based upon the omission or the alleged
omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not
misleading, provided that this agreement to indemnify shall not
apply as to any Indemnified Party if such statement or omission
or such alleged statement or omission was made in reliance upon
and in conformity with information furnished to the Sponsor or
Fund by or on behalf of the Company for use in the registration
statement or prospectus for the Fund or in sales literature (or
any amendment or supplement) or otherwise for use in connection
with the sale of the Variable Insurance Products or Fund shares;
or
(ii) arise out of or as a result of statements or representations
(other than statements or representations contained in the PPM or
sales literature for the Variable Insurance Products not supplied
by the Sponsor or persons under its control) or unlawful conduct
of the Fund, the Advisers or persons under their control, with
respect to the sale or distribution of the Variable Insurance
Products or Fund shares; or
16
(iii) arise out of any untrue statement or alleged untrue statement of
a material fact contained in a PPM or sales literature covering
the Variable Insurance Products (or any amendment or supplement
thereto), or the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make
the statement or statements therein not misleading, if such
statement or omission was made in reliance upon information
furnished to the Company by or on behalf of the Fund; or
(iv) result from any failure by the Sponsor or the Fund to provide the
services and furnish the materials under the terms of this
Agreement (including a failure to comply with the diversification
requirements specified in Article VI of this Agreement); or
(v) arise out of or result from any material breach of any
representation and/or warranty made by the Sponsor or the Fund in
this Agreement or arise out of or result from any other material
breach of this Agreement by the Sponsor or the Fund;
as limited by and in accordance with the provisions of Sections 7.2(b) and
7.2(c) hereof.
(b) The Sponsor shall not be liable under this indemnification provision
with respect to any losses, claims, damages, liabilities or litigation to which
an Indemnified Party would otherwise be subject by reason of such Indemnified
Party's willful misfeasance, bad faith, or gross negligence in the performance
of such Indemnified Party's duties or by reason of such Indemnified Party's
reckless disregard of obligations and duties under this Agreement or to the
Company or the Accounts, whichever is applicable.
(c) The Sponsor shall not be liable under this indemnification provision
with respect to any claim made against an Indemnified Party unless such
Indemnified Party shall have notified the Sponsor in writing within a reasonable
time after the summons or other first legal process giving information of the
nature of the claim shall have been served upon such Indemnified Party (or after
such Indemnified Party shall have received notice of any such service on any
designated agent), but failure to notify the Sponsor of any such claim shall not
relieve the Sponsor from any liability which it may have to the Indemnified
Party against whom such action is brought otherwise than on account of this
indemnification provision. In any case any such action is brought against the
Indemnified Parties, the Sponsor will be entitled to participate, at its own
expense, in the defense thereof. The Sponsor also shall be entitled to assume
the defense thereof, with counsel satisfactory to the party named in the action.
After notice from the Sponsor to such party of the Sponsor's election to assume
the defense thereof, the Indemnified Party shall bear the fees and expenses of
any additional counsel retained by it, and the Sponsor will not be liable to
such party under this Agreement for any legal or other expenses subsequently
incurred by each party independently in connection with the defense thereof
other than reasonable costs of investigation.
17
(d) The Company agrees promptly to notify the Sponsor of the commencement
of any litigation or proceedings against it or any of its officers or directors
in connection with the issuance or sale of the Variable Insurance Products or
the operation of each Account.
7.3 Indemnification by the Fund
(a) The Fund agrees to indemnify and hold harmless the Company, and each of
its directors and officers and each person, if any, who controls the Company
within the meaning of Section 15 of the 1933 Act (collectively, the "Indemnified
Parties" for purposes of this Section 7.3) against any and all losses, claims,
damages, liabilities (including amounts paid in settlement with the written
consent of the Fund) or litigation (including legal and other expenses) to which
the Indemnified Parties may become subject under any statute, at common law or
otherwise, insofar as such losses, claims damages, liabilities or expenses (or
action in respect thereof) or settlements resulting from the gross negligence,
bad faith or willful misconduct of the Board or any member thereof, 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 (including a failure to comply with the diversification
requirements specified in Article VI of this Agreement); or
(ii) arise out of or result from any material breach of any
representation and/or warranty made by the Fund in this Agreement
or arise out of or result from any other material breach of this
Agreement by the Fund;
as limited by and in accordance with the provisions of Sections 7.3(b) and
7.3(c) hereof.
(b) The Fund shall not be liable under this indemnification provision with
respect to any losses, claims, damages, liabilities or litigation to which an
Indemnified Party would otherwise be subject by reason of such Indemnified
Party's willful misfeasance, bad faith, or gross negligence in the performance
of such Indemnified Party's duties or by reason of such Indemnified Party's
reckless disregard of obligations and duties under this Agreement or to the
Company, the Fund, the Sponsor or each Account, whichever is applicable.
(c) The Fund shall not be liable under this indemnification provision with
respect to any claim made against an Indemnified Party unless such Indemnified
Party shall have notified the Fund in writing within a reasonable time after the
summons or other first legal process giving information of the nature of the
claim shall have been served upon such Indemnified Party (or after such
Indemnified Party shall have received notice of such service on any designated
agent), but failure to notify the Fund of any such claim shall not relieve the
Fund from any liability which it may have to the Indemnified
18
Party against whom such action is brought otherwise than on account of this
indemnification provision. In case any such action is brought against the
Indemnified Parties, the Fund will be entitled to participate, at its own
expense, in the defense thereof. The Fund also shall be entitled to assume the
defense thereof, with counsel satisfactory to the party named in the action.
After notice from the Fund to such party or the Fund's election to assume the
defense thereof, the Indemnified Party shall bear the fees and expenses of any
additional counsel retained by it, and the Fund will not be liable to such party
independently in connection with the defense thereof other than reasonable costs
of litigation.
(d) The Company and the Sponsor agree promptly to notify the Fund of the
commencement of any litigation or proceedings against it or any of its
respective officers or directors in connection with this Agreement, the issuance
or sale of the Variable Insurance Products, with respect to the operation of an
Account, or the sale or acquisition of shares of the Fund.
7.4 Indemnification by the Distributor
(a) The Distributor agrees to indemnify and hold harmless the Company and
each of its directors and officers and each person, if any, who controls the
Company within the meaning of Section 15 of the 1933 Act (collectively, the
"Indemnified Parties" for purposes of this Section 7.4) against any and all
losses, claims, damages, liabilities (including amounts paid in settlement with
the written consent of the Sponsor) or litigation (including legal and other
expenses) to which the Indemnified Parties may become subject under any statute,
at common law or otherwise, insofar as such losses, claims, damages, liabilities
or expenses (or actions in respect thereof) or settlements are related to the
sale or acquisition of the Fund's shares or the Variable Insurance Products and:
(i) arise out of or are based upon any untrue statement or alleged
untrue statement of any material fact contained in the
registration statement or prospectus or sales literature of the
Fund (or any amendment or supplement to any of the foregoing), or
arise out of or are based upon the omission or the alleged
omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not
misleading, provided that this agreement to indemnify shall not
apply as to any Indemnified Party if such statement or omission
or such alleged statement or omission was made in reliance upon
and in conformity with information furnished to the Distributor
or the Fund by or on behalf of the Company for use in the
registration statement or prospectus for the Fund or in sales
literature (or any amendment or supplement thereto) or otherwise
for use in connection with the sale of the Variable Insurance
Products or Fund shares; or
19
(ii) arise out of or as a result of statements or representations
(other than statements or representations contained in the PPM or
sales literature for the Variable Insurance Products not supplied
by the Distributor or persons under its control) or unlawful
conduct of the Fund, the Advisers or persons under their control,
with respect to the sale or distribution of the Variable
Insurance Products or Fund shares; or
(iii) arise out of any untrue statement or alleged untrue statement of
a material fact contained in a PPM or sales literature covering
the Variable Insurance Products (or any amendment or supplement
thereto), or the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make
the statement or statements therein not misleading, if such
statement or omission was made in reliance upon information
furnished to the Company by or on behalf of the Fund; or
(iv) result from any failure by the Distributor or the Fund to provide
the services and furnish the materials under the terms of this
Agreement; or
(v) arise out of or result from any material breach of any
representation and/or warranty made by the Distributor or the
Fund in this Agreement or arise out of or result from any other
material breach of this Agreement by the Distributor of the Fund;
as limited by and in accordance with the provisions of Sections 7.4(b) and
7.4(c) hereof.
(b) The Distributor shall not be liable under this indemnification
provision with respect to any losses, claims, damages, liabilities or litigation
to which an Indemnified Party would otherwise be subject by reason of such
Indemnified Party's willful misfeasance, bad faith, or gross negligence in the
performance of such Indemnified Party's duties or by reason of such Indemnified
Party's reckless disregard of obligations and duties under this Agreement or to
the Company or the Accounts, whichever is applicable.
(c) The Distributor shall not be liable under this indemnification
provision with respect to any claim made against an Indemnified Party unless
such Indemnified Party shall have notified the Distributor in writing within a
reasonable time after the summons or other first legal process giving
information of the nature of the claim shall have been served upon such
Indemnified Party (or after such Indemnified Party shall have received notice of
any such service on any designated agent), but failure to notify the Distributor
of any such claim shall not relieve the Distributor from any liability which it
may have to the Indemnified Party against whom such action is brought otherwise
than on account of this indemnification provision. In any case any such action
is brought against the Indemnified Parties, the Distributor will be entitled to
participate, at its own
20
expense, in the defense thereof. The Sponsor also shall be entitled to
assume the defense thereof, with counsel satisfactory to the party named in
the action. After notice from the Distributor to such party of the
Distributor's election to assume the defense thereof, the Indemnified Party
shall bear the fees and expenses of any additional counsel retained by it,
and the Distributor will not be liable to such party under this Agreement
for any legal or other expenses subsequently incurred by each party
independently in connection with the defense thereof other than reasonable
costs of investigation.
(d) The Company agrees promptly to notify the Distributor of the
commencement of any litigation or proceedings against it or any of its
officers or directors in connection with the issuance or sale of the
Variable Insurance Products or the operation of each account.
ARTICLE VIII. Applicable Law
8.1 This Agreement shall be construed and the provisions hereof interpreted
under and in accordance with the laws of the State of Arizona.
8.2 This Agreement shall be subject to the 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.
ARTICLE IX. Termination
9.1 This Agreement shall continue in full force and effect until the first
to occur of:
(a) termination by any party for any reason by sixty (60) days'
advance written notice delivered to the other parties; or
(b) termination by the Company by written notice to the Fund and the
Sponsor with respect to any Portfolio based upon the Company's
determination that shares of such Portfolio are not reasonably available to
meet the requirements of the Variable Insurance Products; or
(c) termination by the Company by written notice to the Fund and the
Sponsor 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 Variable Insurance Products issued
or to be issued by the Company; or
(d) termination by the Company by written notice to the Fund and the
Sponsor with respect to any Portfolio in the event that such Portfolio
ceases to qualify as a Regulated Investment Company under Subchapter M of
the Code or under any successor or similar provision, or if the Company
reasonably believes that the Fund may fail to so
21
qualify (in the event of such termination, the Company shall withdraw all
assets allocable to the separate accounts from the Portfolio and shall
reinvest such assets in a different investment medium, including, but not
limited to, another Portfolio of the Fund); or
(e) termination by the Company by written notice to the Fund and the
Sponsor with respect to any Portfolio in the event that such Portfolio
fails to meet the diversification requirements as specified in Article VI
hereof (in the event of such termination, the Company shall withdraw all
assets allocable to the separate accounts from the Portfolio and shall
reinvest such assets in a different investment medium, including, but not
limited to, another Portfolio of the Fund); or
(f) termination by the Fund, the Sponsor, or the Distributor by
written notice to the Company, if any of the Fund, the Sponsor, or the
Distributor shall determine, in its sole judgment exercised in good faith,
that the Company and/or its affiliated companies 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;
or
(g) termination by the Company by written notice to the Fund and the
Sponsor, if the Company shall determine, in its sole judgment exercised in
good faith, that either the Fund, the Sponsor, or the Distributor 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.
9.2 Notwithstanding any termination of this Agreement, the Fund and the
Sponsor shall, at the option of the Company, continue to make available shares
of the Fund pursuant to the terms and conditions of this Agreement, for all
Variable Insurance Products in effect on the effective date of termination of
this Agreement (hereinafter referred to as "Existing Contracts"). Specifically,
without limitation, the owners of the Existing Contracts shall be permitted to
reallocate investments in the Fund, redeem investments in the Fund and/or invest
in the Fund upon the making of additional purchase payments under the Existing
Contracts.
9.3 The Company shall not redeem Fund shares attributable to the Variable
Insurance Products (as opposed to Fund shares attributable to the Company's
assets held in the Accounts) except (a) as necessary to implement Variable
Insurance Products owner initiated or approved transactions, or (b) as required
by state and/or federal laws or regulations or judicial or other legal precedent
of general application (hereinafter referred to as a "Legally Required
Redemption"). Upon request, the Company will promptly furnish to the Fund and
the Sponsor the opinion of counsel for the Company (which counsel shall be
reasonably satisfactory to the Fund and the Sponsor) to the effect that any
redemption pursuant to clause (b) above is a Legally Required Redemption.
Furthermore, except in cases where permitted under the terms of the Variable
Insurance Products, the Company shall not prevent owners of Variable Insurance
Products from allocating payments to a Portfolio that was otherwise available
under the Variable Insurance Products without first giving the Fund or the
Sponsor 90 days' notice of its intention to do so.
ARTICLE X. Notices
22
Any notice shall be sufficiently given when sent by registered or certified
mail, overnight courier or facsimile 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 party.
If to the Fund: Vanguard Variable Insurance Fund
X.X. Xxx 0000
Xxxxxx Xxxxx, XX 00000
Attn: Xxxxx Xxxx
If to the Sponsor: The Vanguard Group, Inc.
X.X. Xxx 0000
Xxxxxx Xxxxx, XX 00000
Attn: R. Xxxxxxx Xxxxxx
If to the Distributor: Vanguard Marketing Corporation
X.X. Xxx 0000
Xxxxxx Xxxxx, XX 00000
Attn: R. Xxxxxxx Xxxxxx
23
If to the Company: MONY Life Insurance Company of America
0000 Xxxxxxxx
Xxx Xxxx, XX 00000
Attn: ____________
ARTICLE XI. Miscellaneous
11.1 It is understood and stipulated that neither the shareholders of any
Portfolio nor the officers or trustees of the Fund shall be personally liable
hereunder.
11.2 Subject to the requirements of the legal process and regulatory
authority, each party hereto shall treat as confidential the names and addresses
of the owners of the Variable Insurance Products and all information reasonably
identified as confidential in writing by any other party hereto and, except as
permitted by this Agreement, shall not (unless it has obtained the express
written consent of the affected party) disclose, disseminate or utilize such
names and addresses and other confidential information until such time as it may
come into the public domain.
11.3 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.
11.4 This Agreement may be executed simultaneously in two or more
counterparts, each of which taken together shall constitute one and the same
instrument.
11.5 If any provision of this Agreement shall be held or made invalid by a
court decision, statute, rule or otherwise, the remainder of this Agreement
shall not be affected thereby.
11.6 Each party hereto shall cooperate with each party and all appropriate
governmental authorities (including without limitation the SEC, the NASD and
state insurance regulators) and shall permit such authorities reasonable access
to its books and records in connection with any investigation or inquiry
relating to this Agreement or the transactions contemplated hereby.
11.7 The rights, remedies and obligations contained in this Agreement are
cumulative and are in addition to any and all rights, remedies and obligations,
at law or in equity, which the parties hereto are entitled to under state and
federal laws.
11.8 This Agreement or any of the rights and obligations hereunder may not
be assigned by any party without the prior written consent of all parties
hereto.
11.9 The Company shall furnish, or cause to be furnished, to the Fund or
its designee copies of the following reports:
24
(a) the Company's Annual Financial Statement on Statutory Basis as
soon as practical and in any event within 90 days after the end of each
fiscal year; and
(b) any PPM or other materials distributed in connection with the sale
of the Variable Insurance Products to the extent such PPM or other
materials reference the Fund.
11.10 This Agreement, including any Schedule hereto, may be amended or
modified only by written instrument, executed by duly authorized officers of the
parties.
25
IN WITNESS WHEREOF, each of the parties hereto has caused this
Agreement to be executed in its name and on its behalf by its duly authorized
representative as of the date specified above.
VANGUARD VARIABLE INSURANCE FUND
By: ____________________________________
Name: _________________________________
Title: __________________________________
THE VANGUARD GROUP, INC.
By: ____________________________________
Name: _________________________________
Title: __________________________________
VANGUARD MARKETING CORPORATION
By: ____________________________________
Name: _________________________________
Title: __________________________________
MONY LIFE INSURANCE COMPANY OF AMERICA
By: ____________________________________
Name: __________________________________
Title: __________________________________
26
SCHEDULE A
SEPARATE ACCOUNTS AND ASSOCIATED CONTRACTS
Name of Separate Account Contracts Funded by Separate Account
MONY America Variable Account L Group Flexible Premium Variable Life
Insurance Policy
MONY America Variable Account Q Flexible Premium Variable Life Insurance
Policy
MONY America Variable Account R Flexible Premium Variable Life Insurance
Policy
27
SCHEDULE B
PORTFOLIOS
The following Portfolios of the Vanguard Variable Insurance Funds shall be
made available as investments underlying the Variable Insurance Products:
Money Market Portfolio
Total Bond Market Index Portfolio
High-Yield Bond Portfolio
Short-Term Corporate Portfolio
Balanced Portfolio
Diversified Value Portfolio
Equity Income Portfolio
Equity Index Portfolio
Growth Portfolio
Mid-Cap Index Portfolio
REIT Index Portfolio
Small Company Growth Portfolio
International Portfolio
Capital Growth Portfolio
Total Stock Market Index Portfolio
28
SCHEDULE C
CONTINGENCY PROCEDURES
The Company can fax and must provide the details on voice-mail for the IIS -
Daily Valuation Administrator at (000) 000-0000. Additionally, the Company must
fax the buy/sell instructions by 8:30 a.m. EST to the following Sponsor
personnel at the numbers listed below:
(a) IIC-Money Movement Unit
(000) 000-0000
(000) 000-0000 (alternate)
(b) IIS-Daily Valuation Unit
(000) 000-0000 (until June 30, 2003)
(000) 000-0000 (alternate)
(000) 000-0000 (effective June 30, 2003)
The Fund cannot guarantee trade date commitments if the buy/sell instructions
are not received by 8:30 a.m. EST in good order.
"Good order" shall mean the following information is on the fax buy/sell
instructions:
> Company name
> Contact name
> Contact phone number between 8:30 a.m. and 9:30 a.m. EST
> Current date
> Trade date
> Fund Portfolio number
> Vanguard account number
> Purchase, redemption, rebalance redemption, rebalance purchase amount
> Purchase total, redemption total, rebalance redemption total, rebalance
purchase total
29
