AMENDMENT TO PARTICIPATION AGREEMENT
This AMENDMENT TO PARTICIPATION AGREEMENT (the "Amendment") is made
and entered into as of the 1st day of March, 2008, by and among THE UNION
CENTRAL LIFE INSURANCE COMPANY (the "Company"), on its own behalf and on behalf
of each separate account of the Company set forth on Schedule A hereto as may be
amended from time to time (each such account referred to as an "Account"), THE
UNIVERSAL INSTITUTIONAL FUNDS, INC. (the "Fund"), a Maryland corporation, XXXXXX
XXXXXXX DISTRIBUTION, INC. (the "Underwriter"), a Delaware corporation, and
XXXXXX XXXXXXX INVESTMENT MANAGEMENT INC. (the "Adviser"), a Delaware
corporation.
WHEREAS, the Company, the Fund, the Underwriter and the Adviser have
entered into a Participation Agreement dated as of May 1, 2003, as such
agreement may be amended from time to time (the "Participation Agreement"); and
WHEREAS, the Company, the Fund, the Underwriter, and the Adviser wish
to amend the Participation Agreement in certain respects.
NOW, THEREFORE, in consideration of their mutual promises, and other
good and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the Company, the Fund, the Underwriter, and the Adviser agree to
amend the Participation Agreement as follows:
1. Schedule A of the Participation Agreement is deleted and replaced in its
entirety with the attached Schedule A.
2. Schedule B of the Participation Agreement is deleted and replaced in its
entirety with the attached Schedule B.
3. Except as provided herein, the Participation Agreement shall remain in full
force and effect. This Amendment and the Participation Agreement, as amended,
constitute the entire agreement between the parties hereto pertaining to the
subject matter hereof and fully supersede any and all prior agreements or
understandings between the parties hereto pertaining to the subject matter
hereof. In the event of any conflict between the terms of this Amendment and the
Participation Agreement, the terms of this Amendment shall control.
4. This Amendment may be amended only by written instrument executed by each
party hereto.
5. This Amendment shall be effective as of the date written above.
IN WITNESS WHEREOF, each of the parties hereto has caused this
Amendment to be executed in its name and on its behalf by its duly authorized
representative as of the date specified above.
THE UNION CENTRAL LIFE INSURANCE COMPANY
By: /s/ Xxxxxx xxXxxxx
Name: Xxxxxx xxXxxxx
Title: Second Vice President
THE UNIVERSAL INSTITUTIONAL FUNDS, INC.
By: /s/ Xxxxxx X. Xxxxxxx
Name: Xxxxxx X. Xxxxxxx
Title: President
XXXXXX XXXXXXX DISTRIBUTION, INC.
By: /s/ Xxxxxxx X. Xxxxx
Name: Xxxxxxx X. Xxxxx
Title: President
XXXXXX XXXXXXX INVESTMENT MANAGEMENT INC.
By: /s/ Xxxxxx X. Xxxxxxx
Name: Xxxxxx X. Xxxxxxx
Title: Managing Director
SCHEDULE A
SEPARATE ACCOUNTS AND ASSOCIATED CONTRACTS
Name of Separate Account and Form Number and Name of
Date Established by Board of Directors Contract Funded by Separate Account
Carillon Account Variable Annuity UC 2617 (sold only
(February 6, 1984) in VT and NY until the other contract
forms are approved)
Variable Annuity UC 8134 (VA I)
Variable Annuity UC 8135-1 (VA II)
Variable Annuity UC 8137 (VA II-SA)
Advantage UC 8138 (VA III)
Carillon Life Account Variable Universal Life UC 8703 (Excel
(July 10, 1995) Choice and Executive Edge)
Excel Accumulator Variable Universal
Life UC 8707
SCHEDULE B
PORTFOLIOS OF THE UNIVERSAL INSTITUTIONAL FUNDS, INC.
AVAILABLE UNDER THIS AGREEMENT
UIF Core Plus Fixed Income Portfolio -- Class I Shares
UIF U.S. Real Estate Portfolio -- Class I Shares
UIF Emerging Markets Equity Portfolio -- Class I Shares
AMENDMENT TO PARTICIPATION AGREEMENT
This AMENDMENT TO PARTICIPATION AGREEMENT (the "Amendment") is made and
entered into as of this 1st day of June, 2006, by and among THE UNION CENTRAL
LIFE INSURANCE COMPANY (the "Company"), on its own behalf and on behalf of each
separate account of the Company (each an "Account") identified in the
Participation Agreement (as defined below), THE UNIVERSAL INSTITUTIONAL FUNDS,
INC. (the "Fund"), XXXXXX XXXXXXX DISTRIBUTION, INC. (formerly XXXXXX XXXXXXX &
CO.INCORPORATED) (the "Distributor") and XXXXXX XXXXXXX INVESTMENT MANAGEMENT
INC. (the "Adviser").
WHEREAS, the Company, the Fund , the Distributor, and the Adviser have
entered into a Participation Agreement dated as of May 1, 2003, as such
agreement may be amended from time to time (the "Participation Agreement"),
which provides that the Fund will make available for purchase and redemption by
the Company, on behalf of the Accounts, shares of certain Portfolios to fund
certain Variable Insurance Products and Qualified Plans; and
WHEREAS, the Fund, acting through the Fund's transfer agent, has
established a master account on its mutual fund shareholder account system (the
"T/A Account") reflecting the aggregate ownership of shares of the Fund and all
transactions involving such shares by the Company on behalf of the Accounts; and
WHEREAS, the Company, the Fund , the Distributor and the Adviser wish.
to amend the Participation Agreement as necessary to permit the Fund to receive,
and the Company, or it's affiliate Ameritas Variable Life Insurance Company as
authorized agent for Company, to transmit, purchase and redemption orders of
Portfolio shares using the National Securities Cleating Corporation ("NSCC")
Fund/SERV System ("Fund/SERV"); and
WHEREAS, in order to receive and transmit Fund shares via Fund/SERV, it
is intended that the Fund and the Company will establish an account using
Fund/SERV (the "Fund/SERV Account") that will reflect corresponding transactions
and Fund share balances in the T/A Account; and
WHEREAS, the Company, the Fund , the Distributor and the Adviser wish
to amend the Participation Agreement as necessary to add certain provisions
relating to anti-money laundering rules and regulations, as well as to Rule
22c-2 under the Investment Company Act of 1940, as amended; and
NOW, THEREFORE, in consideration of their mutual promises, and other
good and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the Company, the Fund and the Adviser agree to amend the
Participation Agreement as follows:
1. Section 1.1 of the Participation Agreement is deleted in its entirety
and replaced with the following:
The Fund and the Distributor agrees to make available for purchase by
the Company shares of the Portfolio(s) and shall execute purchase
orders placed for each Account on each Business Day at the net asset
value next computed after receipt by the Fund or its designee of such
purchase order. For purposes of this Section 1.1, the Company shall be
the designee of the Fund and the Distributor for receipt of such
purchase orders from each Account and receipt by such designee shall
constitute receipt by the Fund; provided that such purchase orders are
received and transmitted in accordance with the Operating Procedures
attached hereto as Exhibit A (the "Operating Procedures"). "Business
Day" shall mean any day on which the New York Stock Exchange, Inc. is
open for trading and on which the Fund calculates its net asset value
pursuant to SEC rules.
2. Section 1.4 of the Participation Agreement is deleted in its entirety
and replaced with the following:
The Fund and the Distributor agrees to redeem for cash, on the
Company's request, any full or fractional shares of the Portfolio(s)
held by the Company, executing such redemption requests for each
Account on each Business Day at the net asset value next computed
after receipt by the Fund or its designee of the request for
redemption. For purposes of this Section 1.4, the Company shall be the
designee of the Fund and the Distributor for receipt of requests for
redemption from each Account and receipt by such designee shall
constitute receipt by the Fund; provided that such redemption requests
are received and transmitted in accordance with the Operating
Procedures.
3. Section 1.6 of the Participation Agreement is deleted in its entirety
and replaced with the following:
The Fund and the Company will settle all purchase and redemption
orders transmitted pursuant to Sections 1.1 and 1.4 of this Agreement,
respectively, in accordance with the Operating Procedures.
4. Sections 1.8 and 1.9 of the Participation Agreement are deleted in their
entirety.
5. The following new Section 2.12 is hereby added to the Participation
Agreement:
2.12 Anti-Money Laundering
a. The Company represents and warrants that it is in compliance
and will continue to be in compliance with all applicable anti-money
laundering laws and regulations, including the Bank Secrecy Act, as
amended by the USA PATRIOT Act, and implementing regulations of the
Bank Secrecy Act ("BSA Regulations") and applicable guidance issued by
the SEC and the guidance and rules of the applicable Exchanges, SROs
and the NASD (collectively, "Guidance").
b. In connection with the Fund's reliance on Company to perform
Customer Identification Program ("CIP") procedures on its behalf, the
Company represents and warrants that (1) Company is subject to a rule
implementing 31 U.S.C. 5318(h) and maintains an anti-money laundering
program consistent with the USA PATRIOT Act and the rules thereunder;
(2) Company is regulated by a Federal functional regulator as that
term is defined under 31.C.F.R. ss.103.120(a)(2); (3) Company has
implemented a CIP compliant with Section 326 and 31 C.F.R. ss.
103.137(b) that enables Company to form a reasonable belief that it
knows the true identity of its customers, including procedures to
obtain information from and verify the identity of customers, maintain
records of the information used to verify identity, determine whether
the customer appears on any government list of known or suspected
terrorists or terrorist organizations, and provide customers with
adequate notice that the institution is requesting information to
verify their identities; and (4) At the Funds request, Company will
certify annually that it has implemented its anti-money laundering
program and that it or its agent will perform all aspects of its CIP
procedures with respect to customers referred to the Fund by the
Company.
c. The Company represents and warrants that to the extent that
any owner of a Contract which provides for the allocation of purchase
payments and Contract value to subaccounts investing in shares of a
Portfolio is a current or former Senior Foreign Political Figure
("SFPF"), an immediate family member of a SFPF, a person who is widely
known (or is actually known by the Company) to maintain a close
personal relationship with any such individual, or a corporation,
business or other entity that has been formed by or for the benefit of
such individual, it has conducted appropriate due diligence of such
customer consistent with Section 312 of the USA PATRIOT Act and any
applicable BSA Regulations and Guidance.
d. The Company represents and warrants that to the extent any
owner of a Contract is a foreign bank, it has taken reasonable
measures and has obtained certifications and will obtain
re-certifications that indicate that such Contract owner is not a
foreign shell bank, as defined in the BSA Regulations.
e. The Company will take all reasonable and practicable steps to
ensure that it does not accept or maintain investments in any Contract
from:
(i) A person or entity (A) who is or becomes subject to
sanctions administered by the U.S. Office of Foreign Assets
Control ("OFAC"), is included in any executive order or is on the
list of Specially Designated Nationals and Blocked Persons
maintained by OFAC, or (B) whose name appears on such other lists
of prohibited persons and entities as may be mandated by
applicable U.S. law or regulation.
(ii) A foreign shell bank (i.e., a bank with no physical
presence in any country).
f. The Company agrees to immediately notify in writing the
AntiMoney Laundering Compliance Officer of the Fund if it becomes
aware of any suspicious activity or pattern of activity or any
activity that may require further review to determine whether it is
suspicious in connection with the Funds.
g. The Company agrees that if the Fund, Underwriter or Adviser is
required to supply information, documentation or guidance to a
securities regulatory organization ("SRO") or government department or
agency about the CIP of the Fund or the Underwriter or the Adviser or
the measures taken to obtain information and to verify the identity of
any owner of a Contract who has allocated purchase payments or
Contract value to Portfolios available under the Contract, Company
shall allow such SRO or government department or agency to examine its
files pertaining to such Contract owner.
6. The following new Section 4.8 is hereby added to the Participation
Agreement:
To the extent required by applicable laws, rules, or regulations, or
in the event the Company has the ability to do so, the Company will
promptly provide to the Fund upon request the Taxpayer Identification
Number or other identifying information contained in the Company's
records, of any particular or all Contract owners that purchased,
redeemed, transferred, or exchanged Shares of the Portfolios, and the
amount and dates of such purchases, redemptions, transfers and
exchanges. The Company will also execute any instructions from the
Fund to restrict or prohibit further purchases or exchanges of Shares
by a Contract owner who has been identified by the Company or the Fund
as having engaged in transactions in such Shares that violate the
Fund's policies and restrictions on short term or excessive trading
activity. In addition, the Company understands that consistent with
federal and state laws, the Fund may impose redemption fees on the
redemption of Shares held for a short period of time as may be
specified in the Fund's prospectuses, and the Company agrees that, to
the extent it may make such Portfolio available, it will ensure that
any redemption by a Contract owner will comply with such requirements.
7. Operating Procedures. The Operating Procedures governing the
responsibilities of the Fund and the Company under the Participation Agreement
and this Amendment with respect to the purchase and redemption of Fund shares
and share price communication are hereby incorporated into the Participation
Agreement as Exhibit A thereto.
8. NSCC Membership. Each of the Fund and the Company represents and
warrants that it or its duly authorized agent is a member in good standing of
the NSCC, or is otherwise entitled to use Fund/SERV, and will abide by the rules
and regulations of the NSCC.
9. Conflict. Except as provided herein, the Participation Agreement shall
remain in full force and effect. In the event of any conflict between the terms
of this Amendment and the Participation Agreement, the terms of this Amendment
shall control.
10. Amendments. This Amendment may be amended only by written instrument
executed by each party hereto. 11. Capitalized Terms. All capitalized words and
phrases used but not otherwise defined herein shall have the meaning ascribed to
them in the Participation Agreement.
12. Entire Agreement. This Amendment and the Participation Agreement, as
amended, constitute the entire agreement between the parties hereto pertaining
to the subject matter hereof and fully supersede any and all prior agreements or
understandings between the parties hereto pertaining to the subject matter
hereof.
13. Notices. All notices and other communications hereunder shall be in
writing and shall be delivered as provided for by the Participation Agreement.
14. Governing Law. This Amendment, including its existence, validity,
construction, and operating effect, and the rights of each of the parties
hereto, shall be governed by and construed in accordance with the laws of the
State of New York.
15. Counterparts. This Amendment may be executed in any number of multiple
counterparts (and may be delivered by facsimile), each of which shall be deemed
to be an original and all of which shall constitute one agreement, binding on
all parties hereto.
16. Effective Date. This Amendment shall be effective as of the date
written above. [remainder of page left blank intentionally]
[remainder of page left blank intentionally.]
IN WITNESS WHEREOF, each of the parties hereto has caused this
Amendment to be executed in its name and on its behalf by its duly authorized
representative and its seal hereunder affixed hereto as of the date specified
above.
THE UNION CENTRAL LIFE INSURANCE COMPANY
By: /s/ Xxxxxx de Xxxxx
Name: Xxxxxx xxXxxxx
Title: 2nd Vice President, Investment Products Group
THE UNIVERSAL INSTITUTIONAL FUNDS, INC.
By:
Name: Xxxxxx X. Xxxxxxx Title:
President
XXXXXX XXXXXXX DISTRIBUTION, INC.
By:
Name: Xxxxxxx X. Xxxxx Title:
President
XXXXXX XXXXXXX INVESTMENT MANAGEMENT INC.
By:
Name: Xxxxxx X. Xxxxxxx Title:
Managing Director
IN WITNESS WHEREOF, each of the parties hereto has caused this Amendment
to be executed in its name and on its behalf by its duly authorized
representative and its seal hereunder affixed hereto as of the date specified
above.
THE UNION CENTRAL LIFE INSURANCE COMPANY
By:
Name:
Title:
THE UNIVERSAL INSTITUTIONAL FUNDS, INC.
By: /s/ Xxxxxx X. Xxxxxxx
Name: Xxxxxx X. Xxxxxxx Title:
President
XXXXXX XXXXXXX DISTRIBUTION, INC.
By: /s/ Xxxxxxx X. Xxxxx
Name: Xxxxxxx X. Xxxxx Title:
President
XXXXXX XXXXXXX INVESTMENT MANAGEMENT INC.
By: /s/ Xxxxxx X. Xxxxxxx
Name: Xxxxxx X. Xxxxxxx Title:
Managing Director
EXHIBIT A
Operating Procedures
Unless otherwise defined below, all capitalized terms have the meanings
specified in the Amendment and the Participation Agreement, each of which this
Exhibit is a part.
I. FUND/SERV PROCEDURES
A. Fund/SERV Account Establishment. All parties hereto agree and
acknowledge that the Company may not open or establish any new Fund/SERV
Accounts with the Fund without the prior written consent of the Fund. The
Company further acknowledges that the Fund reserves the right to reject any new
Fund/SERV Accounts with the Fund established by the Company that have not been
previously approved by the Fund in writing.
B. Transmittal of Portfolio Information. With respect to each Portfolio,
the Fund will provide the Company with (i) the net asset value per share of the
Portfolio (the "Share Price") on each Business Day, determined as of the time
specified in the Portfolio's prospectus ("Close of Trading"); (ii) dividend and
capital gains distribution information on ex-date, and (iii) in the case of
fixed income and money market Portfolios which declare dividends daily, the
daily accrual interest rate factor. The Fund will use its best efforts to
communicate such information to the Company or its designee by 7:00 p.m. Eastern
Time each Business Day; however, the Fund reserves the right to communicate the
Share Price at a time later than 7:00 p.m. Eastern Time, but in no event later
than 12: a.m. Eastern Time, due to extraordinary or unforeseen circumstances
C. Transmittal of Orders. The Company agrees that, unless otherwise agreed
to in writing with the Fund, orders for the purchase or redemption of Fund
shares ("Instructions") received by the Company prior to the Close of Trading on
any Business Day ("Day 1") will be transmitted to the Fund via Fund/SERV and
accepted by Fund/SERV prior to 6:00 a.m. Eastern Time on the following Business
Day ("Day 2") (such orders are referred to as "Day 1 Trades"). Each transmission
by the Company of a purchase or redemption order relating to a Business Day
("Order") will constitute a representation by the Company that such Order was
based on Instructions that the Company received and accepted as being in good
order prior to the Close of Trading on that Business Day, and that the Order
included all purchase and redemption Instructions so received by the Company.
In the event that Orders for any Business Day are not transmitted to the
Fund via Fund/SERV and accepted by Fund/SERV prior to 6:00 a.m. Eastern Time on
Day 2, the Company shall transmit such Orders to the Fund in accordance with the
Manual Procedures below. If such Orders are not transmitted to the Fund in
accordance with the Manual Procedures, the Fund reserves the right, in its sole
discretion, to reject, reverse or re-price the Orders (notwithstanding that the
Company may have received Fund/Sere confirmation of the Orders) and the Company
will be responsible for reimbursement of any loss sustained by the Fund that may
arise out of the improper transmittal of such Orders.
All Orders transmitted to the Fund via Fund/SERV will be communicated
in accordance with Fund/SERV rules and procedures. The Company acknowledges that
certain cash flows may be known on or before a trade date, and the Company
agrees to use its reasonable efforts to notify the Fund of such cash flows
before such trade date.
D. Fund/SERV Confirmation. All Orders transmitted in accordance with
Section C of these Fund/Sery Procedures are subject to acceptance by the Fund
and shall become effective only upon confirmation by the Fund. The Fund reserves
the right, in its sole discretion, (i) to reject.any Order, and (ii) to require
any Order to be settled outside of Fund/SERV, in which case the Fund shall not
confirm such Order via Fund/SERV and such Order shall settle in accordance with
the Manual Procedures discussed below.
E. Pricing of Orders. Day 1 Trades communicated to the Fund as provided
under Section C of these Fund/SERV Procedures will be effected at the Share
Price for the applicable Portfolio on Day 1.
F. Settlement. Day 1 Trades confirmed by the Fund via Fund/SERV will
settle in U.S. dollars in accordance with the Fund's profile within Fund/SERV
applicable to the Company.
G. Dividends and Other Distributions. The Fund will furnish the Company
or its designee notice of any dividends or other distributions payable on the
shares of each Portfolio via Fund/SERV. Dividends and distributions with respect
to a Portfolio will be automatically reinvested in additional shares of the
Portfolio held by the Account(s) and the Fund will notify the Company or its
designee as to the number of shares so issued.
H. Confirmations and Verification. If the Company chooses to
participate in and utilize Fund/SERV's Networking application when trading with
the Fund in accordance with the procedures herein, the Fund or its designee will
transmit or make available to the Company via Fund/SERV, as applicable: (i)
confirmations of Orders received from the Company, and (ii) the share balance
for each T/A Account in accordance with Fund/SERV's Networking guidelines. The
Company will promptly review and verify this information on Fund/SERV and
immediately advise the Fund or its designee in writing of any discrepancies
between the Company's records and the balance in the Fund/SERV Account or the
T/A Account.
If the Company chooses to utilize Fund/SERV without the Networking
application when trading with the Fund in accordance with the procedures herein,
the Fund or its designee will deliver to the Company: (i) physical confirmations
of Orders received from the Company, and (ii) a physical statement for the
preceding calendar month reflecting the shares of each Portfolio held by the
Account(s) as of the end of such preceding month and all purchases and
redemptions by the Company of shares of a Portfolio during such preceding month.
The Company will immediately on receipt of any physical confirmation or
statement concerning an Account verify the information contained therein against
the information contained on the Company's recordkeeping system and immediately
advise the Fund in writing of any discrepancies between such information.
The Fund and the Company will cooperate to resolve any such
discrepancies mentioned in this Section H as soon as reasonably practicable.
I. Processing Adjustments. In the event of any error or delay with
respect to these Fund/SERV Procedures that is caused by the Fund, the Fund will
make any adjustments on its (or its transfer agent's) accounting system
necessary to correct such error or delay. The Company will make the
corresponding adjustments on its record-keeping system. The Company and the Fund
will each provide the other with prompt notice of any errors or delays of the
type referred to in these Fund/SERV Procedures.
J. Fund/SERV Unavailability. If the Fund/SERV system is unavailable for
any reason, or if it is otherwise impracticable to operate in accordance with
these Fund/SERV Procedures, transactions shall be processed in accordance with
the Manual Procedures below.
II. MANUAL PROCEDURES
A. Transmittal of Portfolio Information. With respect to each Portfolio,
the Fund will provide the Company with (i) the Share Price determined as of the
Close of Trading on each Business Day; (ii) dividend and capital gains
distribution information on ex-date; and (iii) in the case of fixed income and
money market Portfolios which declare dividends daily, the daily accrual
interest rate factor. The Fund will use its best efforts to communicate such
information to the Company or its designee by 7:00 p.m. Eastern Time each
Business Day; however, the Fund reserves the right to communicate the Share
Price at a time later than 7:00 p.m. Eastern Time, but in no event later than
12: a.m. Eastern Time, due to extraordinary or unforeseen circumstances.
B. Transmittal of Orders. The Company agrees that, unless otherwise agreed
to in writing with the Fund, Instructions received by the Company prior to the
Close of Trading on any Business Day ("Day 1") will be transmitted to the Fund
by facsimile no later than 9:00 a.m. Eastern Time on the following Business Day
("Day 2") (such Orders are referred to as "Day 1 Trades"). Each transmission by
the Company of a purchase or redemption order relating to a Business Day
("Order") will constitute a representation by the Company that such Order was
based on Instructions that the Company received and accepted as being in good
order prior to the Close of Trading on that Business Day, and that the Order
included all purchase and redemption Instructions so received by the Company.
All Orders transmitted to the Fund will be communicated in U.S. dollars and
will indicate the date of the transaction. On Business Days where there are no
Orders, or where the net dollar amount for purchases and redemptions for an
Account equals zero, the communication will so indicate. The Company
acknowledges that certain cash flows may be known on or before a trade date, and
the Company agrees to use its reasonable efforts to notify the Fund of such cash
flows before such trade date.
C. Pricing of Orders. Day 1 Trades communicated to the Fund by 9:00 a.m.
Eastern Time on Day 2 will be effected at the Share Price for the applicable
Portfolio on Day 1.
D. Settlement.
1. Purchase Orders. In the case of Day 1 Trades that constitute a
net purchase order, the Company will arrange for a federal funds
wire transfer of the net purchase amount to a custodial account
designated by the Fund by 3:00 p.m. Eastern Time on Day 2.
2. Redemption Orders. In the case of Day 1 Trades that constitute a
net redemption order, the Fund will arrange for a federal funds
wire transfer of the net redemption amount to a custodial account
designated by the Company on Day 2, or in no instance later than
the time provided for in the applicable Portfolio's Prospectus.
3. Generally. Settlements will be in U.S. dollars,. except that each
Portfolio reserves the right, in cases of substantial
liquidations, to pay redemption proceeds in whole or in part by a
distribution in-kind of readily marketable securities that it
holds in lieu of cash in accordance with applicable law, and the
Portfolio's redemption policy as described in the Prospectus. On
any Business Day when the Federal Reserve Wire Transfer System is
closed, all communication and processing rules will be suspended
for the settlement of Orders. Orders will be settled on the next
Business Day on which the Federal Reserve Wire Transfer System is
open. Transactions that are the subject of such Orders will be
processed at the Share Price for the applicable Portfolio on the
Business Day to which the Orders originally relate.
E. Dividends and Other Distributions. The Fund will furnish the Company
or its designee notice of any dividends or other distributions payable on the
shares of each Portfolio. Dividends and distributions with respect to a
Portfolio will be automatically reinvested in additional shares of the Portfolio
held by the Account(s) and the Fund will notify the Company or its designee as
to the number of shares so issued.
F. Confirmations and Verification. The Fund or its designee will
deliver to the Company: (i) confirmations of Orders received from the Company,
and (ii) a statement for the preceding calendar month reflecting the shares of
each Portfolio held by the Account(s) as of the end of such preceding month and
all purchases and redemptions by the Company of shares of a Portfolio during
such preceding month. The Company will immediately on receipt of any
confirmation or statement concerning an Account verify the information contained
therein against the information contained on the Company's record-keeping system
and immediately advise the Fund in writing of any discrepancies between such
information. The Fund and the Company will cooperate to resolve any such
discrepancies as soon as reasonably practicable.
G. Processing Adjustments. In the event of any error or delay with
respect to these Manual Procedures that is caused by the Fund the Fund will make
any adjustments on its (or its transfer agent's) accounting system necessary to
correct such error or delay. The Company will make the corresponding adjustments
on its record-keeping system. The Company and the Fund will each provide the
other with prompt notice of any errors or delays. of the type referred to in
these Manual Procedures.
AMENDMENT TO PARTICIPATION AGREEMENT
This AMENDMENT TO PARTICIPATION AGREEMENT (the "Amendment") is made
and entered into as of the 1s` day of May, 2004, by and among The Union Central
Life Insurance Company (the "Company"), on its own behalf and on behalf of each
separate account of the Company identified in the Participation Agreement (as
defined below), THE UNIVERSAL INSTITUTIONAL FUNDS, INC. (the "Fund"), XXXXXX
XXXXXXX DISTRIBUTION, INC. (the "Underwriter"), and XXXXXX XXXXXXX INVESTMENT
MANAGEMENT INC. (the "Adviser").
WHEREAS, the Company, the Fund, Xxxxxx Xxxxxxx & Co., Incorporated and
the Adviser have entered into a Participation Agreement dated as of May 1, 2003,
as such agreement may be amended from time to time (the "Participation
Agreement"); and
WHEREAS, effective April 29, 2005, Xxxxxx Xxxxxxx & Co., Incorporated
assigned to the Underwriter all of the rights and obligations of Xxxxxx Xxxxxxx
& Co., Incorporated under the Participation Agreement and the Underwriter
accepted assignment of such rights and assumed corresponding obligations from
Xxxxxx Xxxxxxx & Co., Incorporated on such terms; and
NOW, THEREFORE, in consideration of their mutual promises, and other
good and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the Company, the Fund and the Adviser agree to amend the
Participation Agreement as follows:
1. Schedule A of the Participation Agreement is deleted and replaced in its
entirety with the attached Schedule A.
2. Schedule B of the Participation Agreement is unchanged but restated in
its entirety in the attached Schedule B.
3. New Section 1.11 is hereby added to Article I of the Participation
Agreement:
1.11 If the Fund provides materially incorrect net asset
value per share information to the Company, through no fault of the Company, the
Account(s) shall be entitled to an adjustment with respect to the Portfolio
shares purchased or redeemed to reflect the correct net asset value per share.
The determination of the circumstances that require such an . adjustment of
Portfolio shares shall be consistent with the Securities and Exchange
Commission's informal position regarding the correction of net asset value per
share errors, as expressed by senior staff members from time to time ("Staff
Guidelines"). The Fund agrees to provide the Company with prompt notice of any
material error in net asset value per share information that requires an
adjustment of Portfolio shares maintained in the Account(s). The correction of
any material net asset value per share error shall be made by the Fund at the
Account level and shall be carried out in accordance with Staff Guidelines
regarding such errors. The Company and the Fund agree to use reasonable efforts
to take such action as may be appropriate to avoid or mitigate costs or losses
related to the correction of net asset value per share information.
4. Except as provided herein, the Participation Agreement shall remain in
full force and effect. This Amendment and the Participation Agreement, as
amended, constitute the entire agreement between the parties hereto pertaining
to the subject matter hereof and fully supersede any and all prior agreements or
understandings between the parties hereto pertaining to the subject matter
hereof. In the event of any conflict between the terms of this Amendment and the
Participation Agreement, the terms of this Amendment shall control.
5. This Amendment may be amended only by written instrument executed by
each party hereto.
6. This Amendment shall be effective as of the date written above. [The
remainder of this page is left blank intentionally]
[The remainder of this page is left blank intentionally.]
IN WITNESS WHEREOF, each of the parties hereto has caused this Amendment to
be executed in its name and on its behalf by its duly authorized representative
and its seal hereunder affixed hereto as of the date specified above.
THE UNION CENTRAL LIFE INSURANCE COMPANY
By: /s/ Xxxxxx xxXxxxx
Name: Xxxxxx xxXxxxx
Title: Second Vice President, Investment Products
THE UNIVERSAL INSTITUTIONAL FUNDS, INC.
By: /s/ Xxxxxx X. Xxxxxxx
Name: Xxxxxx X. Xxxxxxx
Title: President
XXXXXX XXXXXXX INVESTMENT MANAGEMENT INC.
By: /s/ Xxxxxx X. Xxxxxxx
Name: Xxxxxx X. Xxxxxxx
Title: Managing Director
XXXXXX XXXXXXX DISTRIBUTION, INC.
By: /s/ Xxxxxxx X. Xxxxx
Name: Xxxxxxx X. Xxxxx
Title: Vice President
SCHEDULE A
SEPARATE ACCOUNTS AND ASSOCIATED CONTRACTS
Name of Separate Account and Form Number and Name of
Date Established by Board of Directors Contract Funded by Separate Account
Variable Annuity UC 2617 (sold only in VT
Carillon Account and NY until the other contract forms
(February 6, 1984) are approved)
Variable Annuity UC 8134 (VA I)
Variable Annuity UC 8135 (VA II SA)
Advantage UC 8138 (VA III)
Carillon Life Account Variable Universal Life UC 8703
(July 10, 1995)
Excel Accumulator Variable Universal Life UC 8707
SCHEDULE B
PORTFOLIOS OF THE UNIVERSAL INSTITUTIONAL
FUNDS, INC. AVAILABLE UNDER THIS AGREEMENT
Core Plus Fixed Income Portfolio -- Class I Shares
U.S. Real Estate Portfolio -- Class I Shares
AMENDMENT TO PARTICIPATION AGREEMENT
This AMENDMENT TO PARTICIPATION AGREEMENT (the "Amendment") is made and
entered into as of this 1st day of February, 2004, by and among The Union
Central Life Insurance Company (the "Company"), on its own behalf and on behalf
of each separate account of the Company identified in the Participation
Agreement (as defined below), THE UNIVERSAL INSTITUTIONAL FUNDS, INC. (the
"Fund"), XXXXXX XXXXXXX & CO. INCORPORATED (the "Underwriter") and XXXXXX
XXXXXXX INVESTMENT MANAGEMENT INC. (the "Adviser").
WHEREAS, the Company, the Fund, the Underwriter and the Adviser have
entered into a Participation Agreement dated as of May 1, 2003, as such
agreement may be amended from time to time (the "Participation Agreement"); and
WHEREAS, the Company, the Fund, the Underwriter and the Adviser wish to
amend the Participation Agreement in certain respects.
NOW, THEREFORE, in consideration of their mutual promises, and other
good and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the Company, the Fund, the Underwriter and the Adviser agree to
amend the Participation Agreement as follows:
1. Schedule A of the Participation Agreement is deleted and replaced in its
entirety with the attached Schedule A.
2. Except as provided herein, the Participation Agreement shall remain in
full force and effect. This Amendment and the Participation Agreement, as
amended, constitute the entire agreement between the parties hereto pertaining
to the subject matter hereof and fully supersede any and all prior agreements or
understandings between the parties hereto pertaining to the subject matter
hereof. In the event of any conflict between the terms of this Amendment and the
Participation Agreement, the terms of this Amendment shall control.
3. This Amendment may be amended only by written instrument executed by
each party hereto.
4. This Amendment shall be effective as of the date written above.
[remainder of page intentionally left blank]
IN WITNESS WHEREOF, each of the parties hereto has caused this
Amendment to be executed in its name and on ITTED][GRAPHIC OMITTED] its behalf
by its duly authorized representative and its seal hereunder affixed hereto as
of the date specified above.
THE UNION CENTRAL LIFE INSURANCE COMPANY
By: /s/ Xxxxxxx X. Xxxxxxxx
Name: Xxxxxxx X. Xxxxxxxx
Title: Vice President
THE UNIVERSAL INSTITUTIONAL FUNDS, INC.
By: /s/ Xxxxxx X. Xxxxxxx
Name: Xxxxxx X. Xxxxxxx
Title: President
XXXXXX XXXXXXX & CO. INCORPORATED
By: /s/ Xxxxxx X. Xxxxxxx
Name: Xxxxxx X. Xxxxxxx
Title: Managing Director
XXXXXX XXXXXXX INVESTMENT MANAGEMENT INC.
By: /s/ Xxxxxx X. Xxxxxxx
Name: Xxxxxx X. Xxxxxxx
Title: Managing Director
SCHEDULE A
SEPARATE ACCOUNTS AND ASSOCIATED CONTRACTS
Name of Separate Account and Form Number and Name of
Date Established by Board of Directors Contract Funded by Separate Account
Carillon Account Variable Annuity UC 2617 (sold only in VT
(February 6, 1984) and NY until the other contract forms are approved)
Variable Annuity UC 8134 (VA I)
Variable Annuity UC 8137 (VA II SA)
Carillon Life Account Variable Universal Life UC 8703
(July 10, 1995)
PARTICIPATION AGREEMENT
Among
THE UNIVERSAL INSTITUTIONAL FUNDS, INC.,
XXXXXX XXXXXXX & CO. INCORPORATED
XXXXXX XXXXXXX INVESTMENT MANAGEMENT INC.,
and
THE UNION CENTRAL LIFE INSURANCE COMPANY
Dated as of
May 1, 2003
TABLE OF CONTENTS
Page
ARTICLE I. Purchase and Redemption of Fund Shares 2
ARTICLE II. Representations and Warranties 4
ARTICLE III. Prospectuses, Reports to Shareholders
and Proxy Statements; Voting 6
ARTICLE IV. Sales Material and Information 8
ARTICLE V. Fees and Expenses 9
ARTICLE VI. Diversification 9
ARTICLE VII. Potential Conflicts 10
ARTICLE VIII. Indemnification 11
ARTICLE IX. Applicable Law 17
ARTICLE X. Termination 17
ARTICLE XI. Notices 19
ARTICLE XII. Miscellaneous 19
SCHEDULE A Separate Accounts and Associated Contracts A-1
SCHEDULE B Portfolios of The Universal Institutional Funds, Inc.
Available Under this Agreement B-1
SCHEDULE C Proxy Voting Procedures C-1
THIS AGREEMENT is made and entered into as of the 1st day of May, 2003
by and among The Union Central Life Insurance Company (the "Company"), an Ohio
corporation, on its own behalf and on behalf of each separate account of the
Company set forth on Schedule A hereto as may be amended from time to time (each
such account referred to as an "Account"), THE UNIVERSAL INSTITUTIONAL FUNDS,
INC. (the "Fund"), a Maryland corporation, XXXXXX XXXXXXX & CO. INCORPORATED
(the "Underwriter"), a Delaware corporation, and XXXXXX XXXXXXX INVESTMENT
MANAGEMENT INC. (the "Adviser"), a Delaware corporation.
WHEREAS, the Fund engages in business as an open-end management
investment company and is available to act as (i) the investment vehicle for
separate accounts established by insurance companies for individual and group
life insurance policies and annuity contracts with variable accumulation and/or
pay-out provisions (hereinafter referred to individually and/or collectively as
"Variable Insurance Products") and (ii) the investment vehicle for certain
qualified pension and retirement plans ("Qualified Plans"); and
WHEREAS, insurance companies desiring to utilize the Fund as an
investment vehicle under their Variable Insurance Products enter into
participation agreements with the Fund, the Underwriter and the Adviser (the
"Participating Insurance Companies"); and
WHEREAS, shares of the Fund are divided into several series of shares,
each representing the interest in a particular managed portfolio of securities
and other assets, any one or more of which may be made available under this
Agreement; and
WHEREAS, the Fund intends to offer shares of the series set forth on
Schedule B hereto (each such series referred to as a "Portfolio"), as such
Schedule may be amended from time to time by mutual agreement of the parties
hereto, to the Account(s) of the Company (all references herein to "shares" of a
Portfolio shall mean the class or classes of shares specifically identified on
Schedule B); and
WHEREAS, the Fund has obtained an order from the Securities and
Exchange Commission ("SEC"), dated September 19, 1996 (File No. 812-10118),
granting Participating Insurance Companies and Variable Insurance Product
separate accounts exemptions from the provisions of Sections 9(a), 13(a), 15(a),
and 15(b) of the Investment Company Act of 1940, as amended (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 Insurance Product
separate accounts of both affiliated and unaffiliated life insurance companies
and Qualified Plans (the "Shared Funding Exemptive Order"); 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
WHEREAS, the Adviser is duly registered as an investment adviser under
the Investment Advisers Act of 1940, as amended, and any applicable state
securities laws; and
WHEREAS, the Adviser manages the Portfolios of the Fund; and
WHEREAS, the Underwriter is registered as a broker/dealer under the
Securities Exchange Act of 1934, as amended (the "1934 Act"), is a member in
good standing of the National Association of Securities Dealers, Inc. (the
"NASD") and serves as principal underwriter of the shares of the Fund; and
WHEREAS, the Company has registered or will register under the 1933
Act the Variable Insurance Products identified on Schedule A hereto (the
"Contracts"), as such Schedule may be amended from time to time by mutual
written agreement of the parties hereto; and
WHEREAS, each Account is a duly organized, validly existing segregated
asset account, established by resolution or under authority of the Board of
Directors of the Company, on the date shown for such Account on Schedule A
hereto, to set aside and invest assets attributable to the Contracts; and
WHEREAS, the Company has registered or will register each 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, on behalf
of each Account or sub-Account thereof (together, as applicable, an "Account"),
to fund the Contracts and the Underwriter is authorized to sell such shares to
each such Account at net asset value.
NOW, THEREFORE, in consideration of their mutual promises, the
Company, the Fund, the Underwriter and the Adviser agree as follows:
ARTICLE I. Purchase and Redemption of Fund Shares
1.1. The Fund and the Underwriter agree to make available for purchase
by the Company shares of the Portfolios and shall execute orders placed for each
Account on a daily basis at the net asset value next computed after receipt by
the Fund or its designee of such order. For purposes of this Section 1.1, the
Company shall be the designee of the Fund and the Underwriter for receipt of
such orders from each Account and receipt by such designee shall constitute
receipt by the Fund; provided that the Fund receives notice of such order by
10:00 a.m. Eastern time on the next following Business Day. "Business Day" shall
mean any day on which the New York Stock Exchange, Inc. is open for trading and
on which the Fund calculates its net asset value pursuant to SEC rules.
1.2. The Fund, so long as this Agreement is in effect, agrees to make
shares of the Portfolios available for purchase at the applicable net asset
value per share by the Company and its Accounts on those days on which the Fund
calculates its net asset value pursuant to SEC rules and the Fund shall use
reasonable efforts to calculate such net asset value on each day that the New
York Stock Exchange, Inc. is open for trading. Notwithstanding the foregoing,
the Board
of Directors of the Fund (the "Board") may refuse to permit the Fund 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 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.
1.3. The Fund and the Underwriter agree that shares of the Fund will
be sold only to Participating Insurance Companies and their separate accounts
and to certain Qualified Plans. No shares of a Portfolio will be sold to the
general public.
1.4. The Fund and the Underwriter agree to redeem for cash, on the
Company's request, any full or fractional shares of the Portfolios held by the
Company, executing such requests on a daily basis at the net asset value next
computed after receipt by the Fund or its designee of the request for
redemption. Subject to and in accordance with applicable laws and regulations,
however, the Fund reserves the right to redeem shares of the Portfolios for
assets other than cash. For purposes of this Section 1.4, the Company shall be
the designee of the Fund and the Underwriter for receipt of requests for
redemption from each Account and receipt by such designee shall constitute
receipt by the Fund; provided that the Fund receives notice of such request for
redemption by 10:00 a.m. Eastern time on the next following Business Day.
1.5. The Company agrees that purchases and redemptions of Portfolio
shares offered by the then current prospectus of the Fund shall be made in
accordance with the provisions of such prospectus. The Company will give the
Fund, the Underwriter and the Adviser forty-five (45) days written notice of its
intention to make available in the future any other investment company as a
funding vehicle under the Contracts that has investment objectives and policies
similar to the Portfolios.
1.6. The Company shall pay for Portfolio shares on the next Business
Day after an order to purchase Fund shares is made in accordance with the
provisions of Section 1.1 hereof. Payment shall be in federal funds transmitted
by wire and the Company agrees to use its best efforts to transmit such funds by
no later than 2:00 p.m. Eastern time on the day of transmission. For purposes of
Sections 2.10 and 2.11, upon receipt by the Fund of the federal funds so wired,
such funds shall cease to be the responsibility of the Company and shall become
the responsibility of the Fund.
1.7. Issuance and transfer of the Fund's shares will be by book entry
only. Share 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 sub-account of each Account.
1.8. The Fund shall use its best efforts to furnish same-day notice
(by wire or telephone, followed by written confirmation) to the Company of any
income dividends or capital gain distributions payable on Portfolio shares. The
Company hereby elects to receive all such income dividends and capital gain
distributions as are payable on a Portfolio's shares in additional shares of
that Portfolio. The Company reserves the right to revoke this election and to
receive all such income dividends and capital gain distributions in cash. The
Fund shall notify the Company of the number of shares so issued as payment of
such dividends and distributions.
1.9. The Fund shall make the net asset value per share for each
Portfolio available to the Company on each Business Day as soon as reasonably
practical after the net asset value per share is calculated (normally by 6:30
p.m. Eastern time) and shall use its best efforts to make such net asset value
per share available by 7:00 p.m. Eastern time.
1.10. The Company shall not redeem Fund shares attributable to the
Contracts (as distinct from Fund shares attributable to the Company's assets
held in the Account) except (i) as necessary to implement Contract owner
initiated or approved transactions, or (ii) as required by state and/or federal
laws or regulations or judicial or other legal precedent of general application
(hereinafter referred to as a "Legally Required Redemption") or (iii) as
permitted by an order of the SEC pursuant to Section 26(c) of the 1940 Act. Upon
request, the Company will promptly furnish to the Fund the opinion of counsel
for the Company (which counsel shall be reasonably satisfactory to the Fund) to
the effect that any redemption pursuant to clause (ii) above is a Legally
Required Redemption. Furthermore, except in cases where permitted under the
terms of the Contracts, the Company shall not prevent Contract owners from
allocating payments to a Portfolio that was otherwise available under the
Contracts without first giving the Fund ninety (60) days prior written notice of
its intention to do so.
ARTICLE II. Representations and Warranties
2.1. The Company represents and warrants that: (i) it is an insurance
company duly organized and in good standing under applicable law; (ii) it has
legally and validly established each Account prior to any issuance or sale
thereof as a segregated asset account under applicable laws and regulations; and
(iii) it has registered or, prior to any issuance or sale of the Contracts, will
register and will thereafter maintain the registration of each 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. The Company further represents
and warrants that: (i) the Contracts are or will be registered and shall remain
registered under the 1933 Act; (ii) the Contracts will be issued and sold in
compliance in all material respects with all applicable federal and state laws;
and (iii) the sale of the Contracts shall comply in all material respects with
state insurance suitability requirements. The Company shall amend the
registration statement for the Accounts and the Contracts under the 1940 Act and
the 1933 Act, respectively, from time to time as required in order to effect the
continuous offering of the Contracts..:.
2.2. The Fund and the Underwriter represent and warrant 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 Maryland 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.
2.3. The Fund represents that it is currently qualified as a Regulated
Investment Company under Subchapter M of the Internal Revenue Code of 1986, as
amended (the "Code"), and that it will use its reasonable efforts 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.
2.4. The Company represents and warrants that each Account is and will
continue to be a "segregated asset account"(.) under applicable provisions of
the Code and applicable Treasury Regulations promulgated thereunder and that
each Contract is and will continue to be treated as a "variable contract" under
applicable provisions of the Code and applicable Treasury Regulations
promulgated thereunder. The Company further represents and warrants that it
will make every effort to maintain such treatment and that it will notify the
Fund immediately upon having a reasonable basis for believing that any Account
or Contract has ceased to be so treated or that any Account or Contract might
not be so treated in the future.
2.5. The Fund represents that to the extent that it decides to finance
distribution expenses pursuant to Rule 12b-1 under the 1940 Act, the Fund
undertakes to have the 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.
2.6. 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.
2.7. The Fund represents that it is lawfully organized and validly
existing under the laws of the State of Maryland and that it does and will
comply in all material respects with the 1940 Act.
2.8. The Adviser represents and warrants that it is and shall remain
duly registered in all material respects under all applicable federal and state
securities laws and that it will perform its obligations for the Fund in
compliance in all material respects with the laws of its state of domicile and
any applicable state and federal securities laws.
2.9. The Underwriter represents and warrants that it is and shall
remain duly registered in all material respects under all applicable federal
and state securities laws and that it will perform its obligations for the Fund
in compliance in all material respects with the laws of its state of domicile
and any applicable state and federal securities laws.
2.10. The Fund represents and warrants that all of its directors,
officers, employees, 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 as currently required by Rule 17g1
of the 1940 Act or related provisions as may be promulgated from time to time.
The aforesaid
blanket fidelity bond shall include coverage for larceny and embezzlement and
shall be issued by a reputable bonding company.
2.11. The Company represents and warrants that all of its directors,
officers, employees, investment advisers, and other individuals/entities dealing
with the money and/or securities of the Account(s) are and shall continue to be
at all times covered by a blanket fidelity bond or similar coverage for the
benefit of the Company and/or the Account(s) that is reasonable and customary in
light of the Company's obligations under this Agreement. The aforesaid includes
coverage for larceny and embezzlement and shall be issued by a reputable bonding
company in an amount not less than $5 million. The Company agrees to make all
reasonable efforts to see that this bond or another bond containing these
provisions is always in effect, and agrees to notify the Fund, the Underwriter
and the Adviser in the event that such coverage no longer applies.
ARTICLE III. Prospectuses, Reports to Shareholders and Proxy Statements; Voting
3.1. The Fund or its designee shall provide the Company with as many
printed copies of the Fund's current prospectus and statement of additional
information as the Company may reasonably request. If requested by the Company,
in lieu of providing printed copies the Fund shall provide camera-ready film or
computer diskettes containing the Fund's prospectus and statement of additional
information, and such other assistance as is reasonably necessary in order for
the Company once each year (or more frequently if the prospectus and/or
statement of additional information for the Fund is amended during the year) to
have the prospectus for the Contracts and the Fund's prospectus printed together
in one document, and to have the statement of additional information for the
Fund and the statement of additional information for the Contracts printed
together in one document. Alternatively, the Company may print the Fund's
prospectus and/or its statement of additional information in combination with
other fund companies' prospectuses and statements of additional information.
3.2. Except as provided in this Section 3.2, all expenses of preparing,
setting in type, printing and distributing Fund prospectuses and statements of
additional information shall be the expense of the Company. For prospectuses and
statements of additional information provided by the Company to its Contract
owners who currently own shares of one or more Portfolios ("Existing Contract
Owners"); in order to update disclosure as required by the 1933 Act and/or the
1940 Act, the cost of printing shall be borne by the Fund. If the Company
chooses to receive camera-ready film or computer diskettes in lieu of receiving
printed., copies of the Fund's prospectus, the Fund shall bear the cost of
typesetting to provide the Fund's prospectus to the Company in the format in
which the Fund is accustomed to formatting prospectuses, and the Company shall
bear the expense of adjusting or changing the format to conform with any of its
prospectuses. In such event, the Fund will reimburse the Company in an amount
equal to the product of "x" and "y", where "x" is the number of such
prospectuses distributed to Existing Contract Owners and "y" is the Fund's per
unit cost of printing the Fund's prospectus. The same procedures shall be
followed with respect to the Fund's statement of additional information. The
Company agrees to provide the Fund or its designee with such information as may
be reasonably requested by the Fund to assure that the Fund's expenses do not
include the costs of printing,
typesetting or distributing any prospectuses or statements of additional
information other than the costs of printing those prospectuses or statements of
additional information actually distributed to Existing Contract Owners.
3.3. The statement of additional information of the Fund shall be
obtainable from the Fund, the Underwriter, the Company or such other person as
the Fund may designate.
3.4. The Fund, at its expense; shall provide the Company with copies
of its proxy statements, reports to shareholders, and other communications
(except for prospectuses and statements of additional information, which are
covered in Section 3.1) to shareholders in such quantity and in Adobe Portable
Document Format as the Company shall reasonably require for distributing to
Existing Contract Owners. The Fund shall not pay any costs of distributing such
proxy materials, reports to shareholders and other communications to prospective
Contract owners.
3.5. If and to the extent required by law, the Company shall
distribute all proxy materials furnished by the Fund to Contract owners to whom
voting privileges are required to be extended and shall:
(1) solicit voting instructions from Contract owners;
(ii) vote the Portfolio shares in accordance with instructions
received from Contract owners; and
(iii) vote Portfolio shares for which no instructions have been
received in the same proportion as Portfolio shares for
which instructions have been received;
so long as and to the extent that the SEC continues to interpret the 1940 Act to
require passthrough voting privileges for variable contract owners. The Company
reserves the right to vote Portfolio shares held in any segregated asset account
in its own right, to the extent permitted by law. If the Company is required to
solicit voting instructions, the Fund and the Company shall follow the
procedures, and shall have the corresponding responsibilities, for the handling
of proxies and voting instruction solicitations, as set forth in Schedule C
attached hereto and incorporated herein by reference. Participating Insurance
Companies shall be responsible for ensuring that each of their separate accounts
participating in the. Fund (and for which the soliciting of voting instructions
is required) calculates voting privileges in a manner consistent with the
standards set forth on Schedule C, which standards will also be provided to the
other Participating Insurance Companies.
3.6. The Fund will comply with all provisions of the 1940 Act
requiring voting by shareholders, and in particular the Fund will either provide
for annual meetings (except insofar as the SEC may interpret Section 16 of the
1940 Act not to require such 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
the 0000 Xxx) as well as with Section 16(a) of the 1940 Act and, if and when
applicable,
Section 16(b) of the 1940 Act. Further, the Fund will act in accordance with
the SEC's interpretation of the requirements of Section 16(a) of the 1940 Act
with respect to periodic elections of directors and with whatever rules the SEC
may promulgate with respect thereto.
ARTICLE IV. Sales Material and Information
4.1. The Company shall furnish, or shall cause to be furnished, to the
Fund or its designee, each piece of sales literature or other promotional
material in which the Fund, the Underwriter or the Adviser is named, at least
ten (10) Business Days prior to its use. No such material shall be used without
the prior approval of the Fund or its designee. The Fund shall use its
reasonable best efforts to review any such material as soon as practicable after
receipt and no later than ten (10) Business Days after receipt of such material.
4.2. The Company shall not give any information or make any
representations or statements on behalf of the Fund or concerning the Fund in
connection with the sale of the Contracts other than the information or
representations contained in the registration statement or prospectus for the
Fund shares, as such registration statement or prospectus may be amended or
supplemented from time to time, or in reports or proxy statements for the Fund
which are in the public domain or approved by the Fund for distribution to Fund
shareholders, or in sales literature or other promotional material approved by
the Fund or its designee, except with the permission of the Fund.
4.3. The Fund or its designee shall furnish, or shall cause to be
furnished, to the Company or its designee, each piece of sales literature or
other promotional material in which the Company and/or its Account(s) or
Contract(s) are named at least ten (10) 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 (10) Business Days after receipt of such material.
4.4. Neither the Fund, the Underwriter nor the Adviser shall give any
information or make any representations on behalf of the Company or concerning
the Company, each Account, or the Contracts, other than the information or
representations contained in a registration statement or prospectus for the
Contracts, as such registration statement or prospectus may be amended or
supplemented from time to time, or in reports or proxy statements for each
Account which are in the public domain or approved by the Company for
distribution to Contract owners, or in sales literature or other promotional
material approved by the Company or its designee, except with the permission of
the Company.
4.5. The Fund will provide to the Company at least one complete copy of
all registration statements, prospectuses, statements of additional information,
reports, proxy statements, sales literature and other promotional materials,
applications for exemptions, requests for no-action letters, and all amendments
to any of the above, that relate to the Fund or its shares and are relevant to
the Company or the Contracts.
4.6. The Company will provide to the Fund at least one complete copy
of all registration statements, prospectuses, statements of additional
information, reports, solicitations
for voting instructions, sales literature and other promotional materials,
applications for exemptions, requests for no action letters, and all
amendments to any of the above, that relate to investment in the Fund or the
Portfolios under the Contracts.
4.7. For purposes of this Article IV, the phrase "sales literature or
other promotional material" includes, but is not limited to, any of the
following that refer to the Fund or any affiliate of the Fund: advertisements
(such as material published, or designed for use in, a newspaper, magazine, or
other periodical, radio, television, telephone or tape recording, videotape
display, signs or billboards, motion pictures, or other public media), sales
literature (i.e., any written communication distributed or made generally
available to customers or the public, including brochures, circulars, research
reports, market letters, form letters, seminar texts, reprints or excerpts of
any other advertisement, sales literature, or published article), educational
or training materials or other communications distributed or made generally
available to some or all agents or employees, and registration statements,
prospectuses, statements of additional information, shareholder reports, and
proxy materials.
ARTICLE V. Fees and Expenses
5.1. The Fund shall pay no fee or other compensation to the Company
under this Agreement, except that if the Fund or any Portfolio adopts and
implements a service plan and/or a plan pursuant to Rule 12b-1, then the
Underwriter may make payments to the Company or to the underwriter for the
Contracts pursuant to such plans if and in amounts agreed to by the
Underwriter in writing.
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. Except as
otherwise set forth in Section 3.2 of this Agreement, the Fund shall bear the
expenses for the cost of registration and qualification of the Fund's shares,
preparation and filing of the Fund's prospectus and registration statement,
proxy materials and reports, setting the prospectus in type, setting in type
and printing the proxy materials and reports to shareholders, the preparation
of all statements and notices required by any federal or state law, and all
taxes on the issuance or transfer of the Fund's shares.
5.3. The Company shall bear the expenses of distributing.the Fund's
prospectus, statement of additional information, proxy materials and reports
to owners of Contracts issued by the Company.
ARTICLE VI. Diversification
6.1. The Fund will use its best efforts to at all times comply with
Section 817(h) of the Code and Treasury Regulation 1.817-5, relating to the
diversification requirements for annuity, endowment, or life insurance
contracts and any amendments or other modifications to such Section or
Regulations. In the event the Fund ceases to so qualify, it will take
reasonable steps to
(a) notify the Company of such event and (b) adequately diversify the Fund so as
to achieve compliance within the grace period afforded by Regulation 1.817-5.
ARTICLE VII. Potential Conflicts
7.1. The Board will monitor the Fund for the existence of any material
irreconcilable conflict between the interests of the contract owners of all
separate accounts investing in the Fund. 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 contract owners; or (f) a decision by a Participating Insurance Company to
disregard the voting instructions of contract owners. The Fund shall promptly
inform the Company if the Board determines that an irreconcilable material
conflict exists and the implications thereof..
7.2. The Company will report any potential or existing conflicts of
which it is aware to the Board. The Company will assist the Board in carrying
out its responsibilities under the Shared Funding Exemptive Order by providing
the Board with all information reasonably necessary for the Board to consider
any issues raised. This includes, but is not limited to, an obligation by the
Company to inform the Board whenever Contract owner voting instructions are
disregarded. The Company agrees that these responsibilities will be carried out
with a view only to the interests of Contract owners.
7.3. If it is determined by a majority of the Board, or a majority of
its disinterested members, that a material irreconcilable conflict exists, the
Company and other Participating Insurance Companies shall, at their expense and
to the extent reasonably practicable (as determined by a majority of the
disinterested directors), take whatever steps are necessary to remedy or
eliminate the irreconcilable material conflict, up to and including: (1)
withdrawing the assets allocable to some or all of the separate accounts from
the Fund or any Portfolio and reinvesting such assets in a different investment
medium, including (but not limited to) another portfolio of the Fund, or
submitting the question whether such segregation should be implemented to a vote
of all affected contract owners and, as appropriate, segregating the assets of
any appropriate group (i.e., annuity contract owners, life insurance policy
owners, or variable contract owners of one or more Participating Insurance
Companies) that votes in favor of such segregation, or offering to the affected
contract owners the option of making such a change; and (2) establishing a new
registered management investment company or managed separate account. No charge
or penalty will be imposed as a result of such withdrawal. The Company agrees
that it bears the responsibility to take remedial action in the event of a Board
determination of an irreconcilable material conflict and the cost of such
remedial action with respect to the Accounts' investment in the Fund, and that
these responsibilities will be carried out with a view only to the interests of
Contract owners.
7.4. If a material irreconcilable conflict arises because of a decision
by the Company to disregard contract owner voting instructions and that decision
represents a minority position or would preclude a majority vote, the Company
may be required, at the Fund's election, to withdraw the affected Account's
investment in the Fund and terminate this Agreement with respect to such Account
(at the Company's expense); provided, however that such withdrawal and
termination shall be limited to the extent required by the foregoing material
irreconcilable conflict as determined by a majority of the disinterested members
of the Board. No charge or penalty will be imposed as a result of such
withdrawal. The Company agrees that it bears the responsibility to take remedial
action in the event of a Board determination of an irreconcilable material
conflict and the cost of such remedial action, and that these responsibilities
will be carried out with a view only to the interests of Contract owners.
7.5. For purposes of Sections 7.3 and 7.4 of this Agreement, a majority
of the disinterested members of the Board shall determine whether any proposed
action adequately remedies any irreconcilable material conflict, but in no event
will the Fund be required to establish a new funding medium for the Contracts.
The Company shall not be required by Section 7.3 or 7.4 to establish a new
funding medium for the Contracts if an offer to do so has been declined by vote
of a majority of Contract owners materially adversely affected by the
irreconcilable material conflict.
7.6. If and to the extent that Rule 6e-2 and Rule 6e-3(T) are amended,
or Rule 6e-3 is adopted, to provide exemptive relief from. any provision of the
1940 Act or the rules promulgated thereunder with respect to mixed or shared
funding (as defined in the Shared Funding Exemptive Order) on terms and
conditions materially different from those contained in the Shared Funding
Exemptive Order, then (a) the Fund and/or the Participating Insurance Companies,
as appropriate, shall take such steps as may be necessary to comply with Rules
6e-2 and 6e-3(T), as amended, and Rule 6e-3, as adopted, to the extent such
rules are applicable; and (b) Sections 3.4, 3.5, 7.1, 7.2, 7.3 and 7.4 of this
Agreement shall continue in effect only to the extent that terms and conditions
substantially identical to such Sections are contained in such Rule(s) as so
amended or adopted.
7.7. Each of the Company and the Adviser shall at least annually submit
to the Board such reports, materials or data as the Board may reasonably request
so that the Board may fully carry out the obligations imposed upon it by the
provisions hereof and in the Shared Funding Exemptive Order. Such reports,
materials and data shall be submitted more frequently if deemed appropriate by
the Board.
ARTICLE VIII. Indemnification
8.1. Indemnification by the Company
8.1(a). The Company agrees to indemnify and hold harmless the Fund, the
Underwriter, the Adviser and each member of the Board and each officer and
employee of the Fund, and each director, officer and employee of the Underwriter
and the Adviser, and each person, if any, who controls the Fund, the Underwriter
or the Adviser within the meaning of Section 15 of the 1933
Act (collectively, the "Indemnified Parties" and individually, an "Indemnified
Party," for purposes of this Section 8.1) against any and all losses, claims,
damages, liabilities (including amounts paid in settlement with the written
consent of the Company) or litigation (including reasonable legal and other
expenses), to which the Indemnified Parties may become subject under any statute
or 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 Contracts
and:
(i) arise out of or are based upon any untrue statements or
alleged untrue statements of any material fact contained in
the registration statement or prospectus for the Contracts
or contained in the Contracts or sales literature for the
Contracts (or any amendment or supplement to any of the
foregoing), or arise out of or are based upon the omission
or the alleged omission to state therein a material fact
required to be stated. therein or necessary to make the
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 (or
made upon approval) by or on behalf of the Fund for use in
the registration statement or prospectus 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
(ii) arise out of or as a result of statements or representations
(other than statements or representations contained in the
registration statement, prospectus or sales literature of
the Fund not supplied by the Company, or persons under its
control and other than statements or representations
authorized by the Fund, the Underwriter or the Adviser) or
unlawful conduct of the Company or persons under its
control, with respect to the sale or distribution of the
Contracts or Fund shares; or
(iii) arise out of or as a result 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 thereof or supplement thereto or
the omission or alleged omission to state therein a material
fact required to be stated therein or necessary to make the
statements therein not misleading 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
(iv) arise as a result of any failure by the Company to provide
the services and furnish the materials under the terms of
this Agreement; or
(v) arise out of or result from any material breach of any
representation and/or warranty made by the Company in this
Agreement or arise out of or result from any other material
breach of this Agreement by the Company.
Each of paragraphs (i) through (v) above is limited by and in accordance with
the provisions of Sections 8.1(b) and 8.1(c) below.
8.1(b). The Company shall not be liable under this indemnification
provision with respect to any losses, claims, damages, liabilities or litigation
incurred or assessed against an Indemnified Party as such may arise from such
Indemnified Party's willful misfeasance, bad faith, or gross negligence in the
performance of such Indemnified Party's duties or by reason of such Indemnified
Party's reckless disregard of obligations or duties under this Agreement. '
8.1(c). The Company shall not be liable under this indemnification
provision with respect to any claim made against an Indemnified Party unless
such Indemnified Party shall have notified the Company in writing within a
reasonable time after the summons or other first legal process giving
information of the nature of the claim shall have been served upon such
Indemnified Party (or after such Indemnified Party shall have received notice of
such service on any designated agent), but failure to notify the Company of any
such claim shall not relieve the Company from any liability which it may have to
the Indemnified Party against whom such action is brought otherwise than on
account of this indemnification provision. In case any such action is brought
against the Indemnified Parties, the Company shall be entitled to participate,
at its own expense, in the defense 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 party of the
Company's election to assume the defense thereof, the Indemnified Party shall
bear the fees and expenses of any additional counsel retained by it, and the
Company will not be liable to such party under this Agreement for any legal or
other expenses subsequently incurred by such party independently in connection
with the defense thereof other than reasonable costs of investigation.
8.1(d). The Fund, the Underwriter or the Adviser, as applicable, will
promptly notify the Company of the commencement of any litigation or proceedings
against an Indemnified Party in connection with this Agreement, the issuance or
sale of the Fund shares or the Contracts, or the operation of the Fund.
8.2. Indemnification by the Underwriter
8.2(a). The Underwriter agrees to indemnify and hold harmless the
Company and each of its directors, officers and employees, and each person, if
any, who controls the Company within the meaning of Section 15 of the 1933 Act
(collectively, the "Indemnified Parties" and individually, an "Indemnified
Party," for purposes of this Section 8.2) against any and all losses, claims,
damages, liabilities (including amounts paid in settlement with the written
consent of the Underwriter) or litigation (including reasonable legal and other
expenses) to which the Indemnified Parties may become subject under any statute
or 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 shares of a Portfolio 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 Fund, the
Underwriter or the Adviser (or made upon approval) 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 Contracts or Portfolio shares; or
(ii) arise out of or as a result of statements or representations
(other than statements or representations contained in the
registration statement, prospectus or sales literature for
the Contracts not supplied by the Fund or the Underwriter or
persons under their respective control and other than
statements or representations authorized by the Company) or
unlawful conduct of the Fund or the Underwriter or persons
under their respective control, with respect to the sale or
distribution of the Contracts or Portfolio shares; or
(iii) arise out of or as a result of any untrue statement or
alleged untrue statement of a material fact contained in a
registration statement, prospectus, or sales literature
covering the Contracts, or any amendment thereof or
supplement thereto, or the omission or alleged omission to
state therein a material fact required to be stated therein
or necessary to make the statement or statements therein not
misleading, if such statement or omission was made in
reliance upon information furnished to the Company by or on
behalf of the Fund or the Underwriter; or
(iv) arise as a result of any failure by the Underwriter to
provide the services and furnish the materials under the
terms of this Agreement; or
(v) arise out of or result from any material breach of any
representation and/or warranty made by the Underwriter in
this Agreement or arise out of or result from any other
material breach of this Agreement by the Underwriter.
Each of paragraphs (i) through (v) above is limited by and in accordance with
the provisions of Sections 8.2(b) and 8.2(c) below.
8.2(b). The Underwriter shall not be liable under this indemnification
provision with respect to any losses, claims, damages, liabilities or litigation
incurred or assessed against an Indemnified Party as such may arise from such
Indemnified Party's willful misfeasance, bad
faith, or gross negligence in the performance of such Indemnified Party's duties
or by reason of such Indemnified Party's reckless disregard of obligations and
duties under this Agreement.
8.2(c). The Underwriter shall not be liable under this indemnification
provision with respect to any claim made against an Indemnified Party unless
such Indemnified Party shall have notified the Underwriter in writing within a
reasonable time after the summons or other first legal process giving
information of the nature of the claim shall have been served upon such
Indemnified Party (or after such Indemnified Party shall have received notice of
such service on any designated agent), but failure to notify the Underwriter of
any such claim shall not relieve the Underwriter from any liability which it may
have to the Indemnified Party against whom such action is brought otherwise than
on account of this indemnification provision. In case any such action is brought
against the Indemnified Parties, the Underwriter will be entitled to
participate, at its own expense, in the defense thereof. The Underwriter also
shall be entitled to assume the defense thereof, with counsel satisfactory to
the party named in the action. After notice from the Underwriter to such party
of the Underwriter's election to assume the defense thereof, the Indemnified
Party shall bear the fees and expenses of any additional counsel retained by it,
and the Underwriter will not be liable to such party under this Agreement for
any legal or other expenses subsequently incurred by such party independently in
connection with the defense thereof other than reasonable costs of
investigation.
8.2(d). The Company will promptly notify the Underwriter of the
commencement of any litigation or proceedings against an Indemnified Party in
connection with this Agreement, the issuance or sale of the Contracts or the
operation of the Account(s).
8.3. Indemnification by the Adviser
8.3(a). The Adviser agrees to indemnify and hold harmless the Company
and each of its directors, officers and employees, and each person, if any, who
controls the Company within the meaning of Section 15 of the 1933 Act
(collectively, the "Indemnified Parties" and individually, an "Indemnified
Party," for purposes of this Section 8.3) against any and all losses, claims,
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
or 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 shares of a Portfolio 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 Fund,
the Underwriter or the Adviser (or made upon approval) 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 Contracts or Portfolio
shares; or
(ii) arise out of or as a result of statements or representations
(other than statements or representations contained in the
registration statement, prospectus or sales literature for
the Contracts not supplied by the Fund or the Adviser or
persons under their respective control and other than
statements or representations authorized by the Company) or
unlawful conduct of the Fund or the Adviser or persons under
their respective control, with respect to the sale or
distribution of the Contracts or Portfolio shares; or
(iii) arise out of or as a result of any untrue statement or
alleged untrue statement of a material fact contained in a
registration statement, prospectus, or sales literature
covering the Contracts, or any amendment thereof or
supplement thereto, or the omission or alleged omission to
state therein a material fact required to be stated therein
or necessary to make the statement or statements therein not
misleading, if such statement or omission was made in
reliance upon information furnished to the Company by or on
behalf of the Fund or the Adviser; or
(iv) arise. as a result of any failure by the Adviser 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 Adviser in this
Agreement or arise out of or result from any other material
breach of this Agreement by the Adviser.
Each of paragraphs (i) through (v) above is limited by and in accordance with
the provisions of Sections 8.3(b) and 8.3(c) below.
8.3(b). The Adviser shall not be liable under this indemnification
provision with respect to any losses, claims, damages, liabilities or litigation
incurred or assessed against an Indemnified Party as such may arise from such
Indemnified Party's willful misfeasance, bad faith, or gross negligence in the
performance of such Indemnified Party's duties or by reason of such Indemnified
Party's reckless disregard of obligations and duties under this Agreement.
8.3(c). The Adviser shall not be liable under this indemnification
provision with respect to any claim made against an Indemnified Party unless
such Indemnified Party shall have notified. the Adviser in writing within a
reasonable time after the summons or other first legal process giving
information of the nature of the claim shall have been served upon such
Indemnified Party (or after such Indemnified Party shall have received notice of
such service on any designated agent), but failure to notify the Adviser of any
such claim shall not relieve the Adviser from any liability which it may have to
the Indemnified Party against whom such action
is brought otherwise than on account of this indemnification provision. In case
any such action is brought against the Indemnified Parties, the Adviser will be
entitled to participate, at its own expense, in the defense thereof. The Adviser
also shall be entitled to assume the defense thereof, with counsel satisfactory
to the party named in the action. After notice from the Adviser to such party of
the Adviser's election to assume the defense thereof, the Indemnified Party
shall bear the fees and expenses of any additional counsel retained by it, and
the Adviser will not be liable to such party under this Agreement for any legal
or other expenses subsequently incurred by such party independently in
connection with the defense thereof other than reasonable costs of
investigation.
8.3(d). The Company will promptly notify the Adviser of the
commencement of any litigation or proceedings against an Indemnified Party in
connection with this Agreement, the issuance or sale of the Contracts or the
operation of the Account(s).
ARTICLE IX. Applicable Law
9.1. This Agreement shall be construed and the provisions hereof
interpreted under and in accordance with the laws of the State of New York.
9.2. This Agreement shall be subject to the provisions of the 1933,
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 (including, but not limited to, the Shared Funding Exemptive Order)
and the terms hereof shall be interpreted and construed in accordance therewith.
ARTICLE X. Termination
10.1. This Agreement shall continue in full force and effect until the
first to occur of:
(a) termination by any party for any reason by sixty (60) days
advance written notice delivered to the other parties; or
(b) termination by the Company by written notice to the Fund, the
Underwriter and the Adviser with respect to any Portfolio based
upon the Company's determination that shares of such Portfolio
are not reasonably available to meet the requirements of the
Contracts; provided, however, that said termination shall become
effective ten (10) days after receipt of notice unless the Fund
makes available a sufficient number of shares of the Portfolio to
reasonably meet the requirements of the Contracts within said ten
(10) day period; or
(c) termination by the Company by written notice to the Fund, the
Underwriter and the Adviser with respect to any Portfolio in the
event that any of the Portfolio's shares are not registered,
issued or sold in accordance with applicable state and/or federal
law or such law precludes the use of such shares as the
underlying investment media of the Contracts issued or to be
issued by the Company; or
(d) termination by the Company by written notice to the Fund, the
Underwriter and the Adviser with respect to any Portfolio in the
event that such Portfolio ceases to qualify as a Regulated
Investment Company under Subchapter M of the Code or under any
successor or similar provision; or
(e) termination by the Company by written notice to the Fund, the
Underwriter and the Adviser with respect to any Portfolio in the
event that such Portfolio fails to meet the diversification
requirements specified in Article VI hereof; or
(f) termination by the Fund, the Underwriter or the Adviser by
written notice to the Company if the Fund, the Underwriter or the
Adviser, as applicable, 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, financial condition or prospects since the date of
this Agreement or is the subject of material adverse publicity;
or
(g) termination by the Company by written notice to the Fund, the
Underwriter and the Adviser, if the Company shall determine, in
its sole judgment exercised in good faith, that the Fund, the
Underwriter or the Adviser has suffered a material adverse change
in its business, operations, financial condition or prospects
since the date of this Agreement or is the subject of material
adverse publicity; or
(i) termination by the Fund, the Underwriter or the Adviser by
written notice to the Company, if the Company gives the Fund, the
Underwriter and the Adviser the written notice specified in
Section 1.5 hereof and at the time such notice was given there
was no notice of termination outstanding under any other
provision of this Agreement; provided, however, any termination
under this Section 10.1(h) shall be effective forty-five (45)
days after the notice specified in Section 1.5 was given; or
(i) termination by any party to this Agreement upon another party's
material breach of any provision of this Agreement.
10.2. Notwithstanding any termination of this Agreement with respect
to a Portfolio, the Fund and the Underwriter shall at the option of the Company
continue to make available additional shares of the Portfolio, pursuant to the
terms and conditions of this Agreement, for all Contracts in effect on the
effective date of termination of this Agreement (the "Existing Contracts"),
unless such further sale of Portfolio shares is proscribed by law, regulation or
applicable regulatory authority, or unless the Board determines that liquidation
of the Portfolio following termination of this Agreement is in the best
interests of the Portfolio. Specifically, subject to the foregoing, the owners
of the Existing Contracts shall be permitted to direct reallocation of
investments in the Portfolio, redemption of investments in the Portfolio and/or
investment in the Portfolio upon the making of additional purchase payments
under the Existing Contracts. The parties agree that this Section 10.2 shall not
apply to any terminations under
Article VII and the effect of such Article VII terminations shall be governed by
Article VII of this Agreement.
ARTICLE XL Notices
Any notice shall be sufficiently 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 party.
If to the Fund:
The Universal Institutional Funds, Inc.
c/x Xxxxxx Xxxxxxx Investment Management Inc.
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: President
If to the Underwriter:
Xxxxxx Xxxxxxx & Co. Incorporated
c/x Xxxxxx Xxxxxxx Investment Management Inc.
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: General Counsel
If to the Adviser:
Xxxxxx Xxxxxxx Investment Management Inc.
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: General Counsel
If to the Company:
The Union Central Life Insurance Company
0000 Xxxxxxxx Xxxx
Xxxxxxxxxx, XX 00000
Attention: Xxxxxx xxXxxxx
ARTICLE XII. Miscellaneous
12.1. All persons dealing with the Fund must look solely to the
property of the Fund for the enforcement of any claims against the Fund, as
neither the Board, officers, agents or
shareholders of the Fund assume any personal liability for obligations entered
into on behalf of the Fund.
12.2. Subject to the requirements of legal process and regulatory
authority, each party hereto shall treat as confidential any "non-public
personal information" about any "consumer" of another party (as such terms are
defined in SEC Regulation S-P) and any other information reasonably identified
as confidential in writing by another party ("Confidential Information"). Each
party agrees not to disclose, disseminate or utilize another party's
Confidential Information except: (i) as permitted by this Agreement, (ii) upon
the written consent of the other party, (iii) where the Confidential Information
comes into the public domain through no fault of the party receiving the
information, or (iv) as otherwise required or permitted under applicable law.
12.3. The captions in this Agreement are included for convenience of
reference only and in no way define or delineate any of the provisions hereof or
otherwise affect their construction or effect.
12.4. This Agreement may be executed simultaneously in two or more
counterparts, each of which taken together shall constitute one and the same
instrument.
12.5. If any provision of this Agreement shall be held or made
invalid by.a court decision, statute, rule or otherwise, the remainder of the
Agreement shall not be affected thereby.
12.6. Each party hereto shall cooperate with each other party and all
appropriate governmental authorities (including without limitation the SEC, the
National Association of Securities Dealers 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. Notwithstanding the generality of the
foregoing, each party hereto further agrees to furnish state insurance
authorities with any information or reports in connection with services provided
under this Agreement which such authorities may request in order to ascertain
whether the insurance operations of the Company are being conducted in a manner
consistent with applicable law and regulations.
12.7. The rights, remedies and obligations contained in this Agreement
are cumulative and are in addition to any and all rights, remedies and
obligations at law or in equity, which the parties hereto are entitled to under
state and federal laws.
12.8. This Agreement or any of the rights and obligations hereunder
may not be assigned by any party without the prior written consent of all
parties hereto; provided, however, that the Adviser may assign this Agreement or
any rights or obligations hereunder to any affiliate of or company under common
control with the Adviser, if such assignee is duly licensed and registered to
perform the obligations of the Adviser under this Agreement.
12.9. If requested by the Fund, the Underwriter or the Adviser, the
Company shall furnish, or shall cause to be furnished, to the requesting party
or its designee copies of the following documents:
(a) the Company's annual statement (prepared under statutory accounting
principles) and annual report (prepared under generally accepted
accounting principles ("GAAP"), if any), as soon as practical and in
any event within ninety (90) days after the end of each fiscal year;
(b) the Company's quarterly statements (prepared under statutory
accounting principles and GAAP, if any), as soon as practical and in
any event within forty-five (45) days after the end of each quarterly
period;
(c) any financial statement, proxy statement, notice or report of the
Company sent to stockholders and/or policyholders, as soon as
practical after the delivery thereof to stockholders;
(d) any registration statement (without exhibits) and financial reports of
the Company filed with the SEC or any state insurance regulator, as
soon as practical after the filing thereof; and
(e) any other report submitted to the Company by independent accountants
in connection with any annual, interim or special audit made by them
of the books of the Company, as soon as practical after the receipt
thereof.
12.10. Unless otherwise specifically provided in this Agreement, no
provision of this Agreement may be amended or modified in any manner except by a
written agreement executed by all parties.
IN WITNESS WHEREOF, each of the parties hereto has caused this Agreement to
be executed in its name and on its behalf by its duly authorized representative
and its seal to be hereunder affixed hereto as of the date specified above.
THE UNION CENTRAL LIFE INSURANCE COMPANY
By: /s/ Xxxxxxx X. Xxxxxxxx
Name: Xxxxxxx X. Xxxxxxxx
Title: Vice President
THE UNIVERSAL INSTITUTIONAL FUNDS, INC.
By: /s/ Xxxxxxxx Xxxxx Yu
Name: Xxxxxxxx Xxxxx Yu
Title: Vice President
XXXXXX XXXXXXX & CO. INCORPORATED
By: /s/ Xxxxxxxx Xxxxx Yu
Name: Xxxxxxxx Xxxxx Yu
Title: Executive Director
XXXXXX XXXXXXX INVESTMENT MANAGEMENT INC.
By: /s/ Xxxxxxxx Xxxxx Yu
Name: Xxxxxxxx Xxxxx Yu
Title: Executive Director
SCHEDULE A
SEPARATE ACCOUNTS AND ASSOCIATED CONTRACTS
Name of Separate Account and Form Number and Name of
Date Established by Board of Directors Contract Funded by Separate Account
Carillon Account Variable Annuity UC 2617 (sold only in VT
(February 6, 1984) and NY until the other contract forms are
approved)
Variable Annuity UC 8134 (VA I)
Variable Annuity UC 8135 (VA II)
Carillon Life Account Variable Universal Life UC 8703
(July 10, 1995)
SCHEDULE B
PORTFOLIOS OF THE UNIVERSAL INSTITUTIONAL FUNDS, INC.
AVAILABLE UNDER THIS AGREEMENT
Core Plus Fixed Income Portfolio -- Class I Shares
U.S. Real Estate Portfolio -- Class I Shares
SCHEDULE C
PROXY VOTING PROCEDURES
The following is a list of procedures and corresponding responsibilities for the
handling of proxies and voting instructions relating to the Fund. The defined
terms herein shall have the meanings assigned in the Participation Agreement
except that the term "Company" shall also include the department or third party
assigned by the Company to perform the steps delineated below.
o The proxy proposals are given to the Company by the Fund as early as
possible before the date set by the Fund for the shareholder meeting to
enable the Company to consider and prepare for the solicitation of
voting instructions from Contract owners and to facilitate the
establishment of tabulation procedures. At this time the Fund will
inform the Company of the Record, Mailing and Meeting dates. This will
be done verbally approximately two months before the shareholder
meeting.
o Promptly after the Record Date, theoCompany .will perform a "tape run",
or other activity, which will generate the names, addresses and number
of units which are attributed to each Contract. owner/policyholder (the
"Customer") as of the Record Date.. Allowance should be made for
account adjustments made after this date that could affect the status
of the Customers' accounts as of the Record Date.
Note: The number of proxy statements is determined by the activities
described in this Step #2. The Company will use its best efforts to
call in the number of Customers to the Fund, as soon as possible, but
no later than two weeks after the Record Date.
o The Fund's Annual Report must be sent to each Customer by the Company
either before or together with the Customers' receipt of voting
instruction solicitation material. The Fund will provide the last
Annual Report to the Company pursuant to the terms of Section 3.4 of
the Participation Agreement to which this Schedule relates.
o The text and format for the Voting Instruction Cards ("Cards" or
"Card") is provided to the Company by the Fund. The Company, at its
expense, shall produce and personalize the Voting Instruction Cards.
The Fund or its affiliate must approve the Card before it is printed.
Allow approximately 2-4 Business Days for printing information on the
Cards. Information commonly found on the Cards includes:
- name (legal name as found on account registration)
- address
- fund or account number
- coding to state number of units
- individual Card number for use in tracking and verification
of votes (already on Cards as printed by the Fund).
(This and related steps may occur later in the chronological process due to
possible uncertainties relating to the proposals.)
o During this time, the Fund will develop, produce and pay for the Notice of
Proxy and the Proxy Statement (one document). Printed and folded notices
and statements will be sent to Company for insertion into envelopes
(envelopes and return envelopes are provided and paid for by the Company).
Contents of envelope sent to Customers by the Company will include:
-- Voting Instruction Card(s)
-- One proxy notice and statement (one document)
-- return envelope (postage pre-paid by Company) addressed to
the Company or its tabulation agent
-- "urge buckslip" - optional, but recommended (this is a
small, single sheet of paper that requests Customers to vote
as quickly as possible and that their vote is important; one
copy will be supplied by the Fund.) cover letter
-- optional; supplied by Company and reviewed and approved in
advance by the Fund
o The above contents should be received by the Company approximately 3-5
Business Days before mail date. Individual in charge at Company reviews and
approves the contents of the mailing package to ensure correctness and
completeness. Copy of this approval sent to the Fund.
o Package mailed by the Company.
o The Fund must allow at least a 15-day solicitation time to the Company
as the shareowner. (A 5-week period is recommended.) Solicitation time
is calculated as calendar days from (but not including,) the
shareholder meeting, counting backwards.
o Collection and tabulation of Cards begins. Tabulation usually takes place
in another department or another vendor depending on process used. An often
used procedure is to sort Cards on arrival by proposal into vote categories
of all yes, no, or mixed replies, and to begin data entry.
Note: Postmarks are not generally needed. A need for postmark
information would be due to an insurance company's internal procedure
and has not been required by the Fund in the past.
o Signatures on Card checked against legal name on account registration that was
printed on the Card.
Note: For Example, if the account registration is under "Xxxx X. Xxxxx,
Trustee," then that is the exact legal name to be printed on the Card
and is the signature needed on the Card.
o If Cards are mutilated, or for any reason are illegible or are not signed
properly, they are sent back to Customer with an explanatory letter and a
new Card and return envelope. The mutilated or illegible Card is
disregarded and considered to be not received for purposes of vote
tabulation. Any Cards that have been "kicked out" (e.g. mutilated,
illegible) of the procedure are "hand verified," i.e., examined as to why
they did not complete the system. Any questions on those Cards are usually
remedied individually.
o There are various control procedures used to ensure proper tabulation of
votes and accuracy of that tabulation. The most prevalent is to sort the
Cards as they. first arrive into categories depending upon their vote; an
estimate of how the. vote is progressing may then be calculated. If the
initial estimates and the actual vote do not coincide, then an internal
audit of that vote should occur. This may entail a recount.
o The actual tabulation of votes is done in units which is then converted to
shares. (It is very important that the Fund receives the tabulations stated
in terms of a percentage and the number of shares.) The Fund must review
and approve tabulation format.
o Final tabulation in shares is verbally given by the Company to the Fund on
the morning of the shareholder meeting not later than 10:00 a.m. Eastern
time. The Fund may request an earlier deadline if reasonable and if
required to calculate the vote in time for the shareholder meeting.
o A Certification of Mailing and Authorization to Vote Shares will be
required from the Company as well as an original copy of the final vote.
The Fund will provide a standard form for each Certification.
o The Company will be required to box and archive the Cards received from the
Customers. In the event that any vote is challenged or if otherwise
necessary for legal, regulatory, or accounting purposes, the Fund will be
permitted reasonable access to such Cards.
o All approvals and "signing-off' may be done orally, but must always be
followed up in writing.
Xxxxxx Xxxxxxx
May 1, 2003
Xxxxxx xxXxxxx
The Union Central Life Insurance Company
0000 Xxxxxxxx Xxxx
Xxxxxxxxxx, XX 00000
Dear Xx. xxXxxxx:
As you know, we have entered into a participation agreement among The
Universal Institutional Funds, Inc, (the "Fund"), Xxxxxx Xxxxxxx & Co.
Incorporated, Xxxxxx Xxxxxxx Investment Management Inc. and The Union
Central Life Insurance Company (the "Company"), dated May 1, 2003, as may
be amended from time to time (the "Participation Agreement"), providing
for the purchase by the Company of shares of certain series of the Fund
("Portfolios") on behalf of its separate account(s) to fund certain
variable life and annuity contracts ("Contracts"), each as specified in
the Participation Agreement.
As consideration for various fund-related administrative services that the
Company will provide in connection with the issuance of the Contracts
("Administrative Services"), we will pay to the Company; during the term
of the Participation Agreement, an annual fee of 0.20% of the average
daily net assets invested in Class I Shares of the then offered Portfolios
under the Contracts identified in the Participation Agreement (excluding
all assets invested during the guarantee (free look) periods available
under the Contracts). We acknowledge that the Administrative Services to
be provided by the Company (such as shareholder communication, record
keeping and postage expenses) are ones for which we, or our affiliates, as
investment adviser and administrator to the Fund; would otherwise bear the
cost directly.
Payment will be made on a quarterly basis during the month following the
end of each calendar quarter and shall be prorated for any portion of such
period during which this letter agreement is in effect for less than the
full quarter. The fee will be calculated based on the average daily net
assets invested in Class I Shares of the applicable Portfolio(s) under the
Contracts over a calendar quarter (which shall be computed by totaling
daily balances during the quarter and dividing such total by the actual
days in the quarter).
Xxxxxx xxXxxxx
May 1, 2003 Page
The Company represents and agrees that it will maintain and preserve all
records as required by law to be maintained and preserved in connection with
providing the Administrative Services, and will otherwise comply with all
laws, rules and regulations applicable to such services. The Company further
agrees to provide copies of any such records maintained and preserved, as
reasonably requested. by us or our representatives, to enable us or the Fund
to monitor and review the Administrative Services provided by the Company, or
comply with any request of the Board of the Fund, or a governmental body or a
self-regulatory organization.
This letter agreement may be amended only upon mutual consent of the parties
hereto in writing and will terminate: (i) upon mutual agreement of the parties
hereto; (ii): upon thirty (30) days advance written notice by either party
delivered to the other party, or (iii) automatically Upon the termination of
the Participation Agreement.
If you agree to the foregoing, please sign the enclosed copies of this letter
and return them to Xxxxxxxx Xxxxx Yu at Xxxxxx . Xxxxxxx Investment
Management. Inc.,. 1221. Avenue of the Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000:
Sincerely,
XXXXXX XXXXXXX INVESTMENT MANAGEMENT INC.
By: /s/ Xxxxxxxx Xxxxx Yu
Name: Xxxxxxxx Xxxxx Yu
Title: Executive Director
AGREED and ACCEPTED:
THE UNION CENTRAL LIFE INSURANCE COMPANY
By: /s/ Xxxxxxx X. Xxxxxxxx
Name: Xxxxxxx X. Xxxxxxxx
Title: Vice President
