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EXHIBIT 8(a)
PARTICIPATION AGREEMENT
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AMONG
XXXXXX VARIABLE SERIES
XXXXXXX XXXXXX INVESTMENTS, INC.
XXXXXX DISTRIBUTORS, INC.
AND
FARMERS NEW WORLD LIFE INSURANCE COMPANY
THIS AGREEMENT, made and entered into as of this _____ day of _______,
1999, by and among Farmers New World Life Insurance Company (hereinafter, the
"Company"), a Washington insurance 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 account hereinafter referred to as an
"Account"), Xxxxxx Variable Series, a business trust organized under the laws
of the Commonwealth of Massachusetts (hereinafter the "Fund"), Xxxxxxx Xxxxxx
Investments, Inc. (hereinafter the "Adviser"), a Delaware corporation, and
Xxxxxx Distributors, Inc. (hereinafter the "Underwriter"), a Delaware
corporation.
WHEREAS, the Fund engages in business as an open-end management
investment company and is available to act as the investment vehicle for
separate accounts established for variable life insurance and variable annuity
contracts (hereinafter the "Variable Insurance Products") offered by insurance
companies that have entered into participation agreements with the Fund
(hereinafter "Participating Insurance Companies");
WHEREAS, the beneficial interest in the Fund is divided into several
series of shares, each designated a "Portfolio" and representing the interest
in a particular managed portfolio of securities and other assets;
WHEREAS, the Fund has obtained an order from the Securities and
Exchange Commission ("SEC") granting Participating Insurance Companies and
variable annuity and variable life insurance separate accounts exemptions from
the provisions of Sections 9(a), 13(a), 15(a), and 15(b) of the Investment
Company Act of 1940, as amended, (hereinafter the "1940 Act") and Rules
6e-2(b)(15) and 6e-3(T)(b)(15) thereunder, if and to the extent necessary to
permit shares of the Fund to be sold to and held by variable annuity and
variable life insurance separate accounts of both affiliated and unaffiliated
life insurance companies (SEC Release No. IC-17164; File No. 812-7345;
hereinafter the "Shared Funding Exemption Order");
WHEREAS, the Fund is registered as an open-end management investment
company under the 1940 Act and shares of the Portfolios are registered under
the Securities Act of 1933, as amended (hereinafter the "1933 Act");
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;
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WHEREAS, the Company has registered or will register certain variable
life insurance and variable annuity contracts supported wholly or partially by
the Accounts (the "Contracts") under the 1933 Act, and said Contracts are
listed in Schedule A hereto, as it may be amended from time to time by mutual
written agreement;
WHEREAS, each Account is duly established and maintained as a separate
account, established by resolution of the Board of Directors of the Company, on
the date shown for such Account on Schedule A hereto, to set aside and invest
assets attributable to the aforesaid Contracts;
WHEREAS, the Company has registered or will register each Account as a
unit investment trust under the 1940 Act;
WHEREAS, the Underwriter is registered as a broker-dealer with the SEC
under the Securities Exchange Act of 1934, as amended ("1934 Act"), and is a
member in good standing of the National Association of Securities Dealers Inc.
("NASD");
WHEREAS, to the extent permitted by applicable insurance laws and
regulations, the Company intends to purchase shares of the Portfolios listed in
Schedule A hereto, as it may be amended from time to time by mutual written
agreement ("Designated Portfolios"), on behalf of the Accounts to fund the
aforesaid Contracts, and the Underwriter is authorized to sell such shares to
unit investment trusts such as the Accounts at net asset value; and
WHEREAS, to the extent permitted by applicable insurance laws and
regulations, the Company also intends to purchase shares in other open-end
investment companies or series thereof not affiliated with the Fund
("Unaffiliated Funds") on behalf of the Accounts to fund the Contracts.
NOW, THEREFORE, in consideration of their mutual promises, the
Company, the Fund, the Adviser and the Underwriter agree as follows:
ARTICLE I
Sale of Fund Shares
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1.1 The Underwriter agrees to sell to the Company those shares of
the Designated Portfolios that the Accounts order, executing such orders on a
daily basis at the net asset value next computed after receipt by the Fund or
its designee of the order for the shares of the Designated Portfolios.
1.2 The Fund agrees to make shares of each Designated Portfolio
available for purchase at the applicable net asset value per share by the
Company and the Accounts on those days on which the Fund calculates such
Designated Portfolio's net asset value pursuant to rules of the SEC, and the
Fund will calculate such net asset value on each day when the New York Stock
Exchange is open for trading. Notwithstanding the foregoing, the Board of
Trustees of the
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Fund ("Board") may refuse to sell shares of any Designated Portfolio to any
person, or suspend or terminate the offering of shares of any Designated
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 interest of the shareholders of such Designated
Portfolio.
1.3 The Fund and the Underwriter agree that shares of the Fund
will be sold only to Participating Insurance Companies or their separate
accounts. No shares of any Designated Portfolios will be sold to the general
public. The Fund and the Underwriter will not sell shares of any Designated
Portfolio to any insurance company or separate account unless an agreement
containing provisions substantially the same as Sections 2.1, 3.4, 3.5 and 3.6
and Article VII of this Agreement is in effect to govern such sales.
1.4 The Fund agrees to redeem, on the Company's request, any full
or fractional shares of the Designated 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, except
that the Fund reserves the right to suspend the right of redemption or postpone
the date of payment or satisfaction upon redemption consistent with Section
22(e) of the 1940 Act and any rules thereunder, and in accordance with the
procedures and policies of the Fund as described in the Fund's then current
prospectus.
1.5 For purposes of Sections 1.1 and 1.4, the Company shall be
the designee of the Fund for receipt of purchase and redemption orders from the
Accounts, and receipt by such designee shall constitute receipt by the Fund;
provided that the Company receives the order prior to the determination of net
asset value as set forth in the Fund's then current prospectus and the Fund
receives notice of such order by 11:00 a.m. New York time on the next following
Business Day. "Business Day" shall mean any day on which the New York Stock
Exchange is open for trading and on which the Fund calculates its net asset
value pursuant to the rules of the SEC.
1.6 The Company agrees to purchase and redeem the shares of each
Designated Portfolio offered by the Fund's then current prospectus in
accordance with the provisions of such prospectus.
1.7 The Company shall pay for shares of a Designated Portfolio on
the next Business Day after receipt of an order to purchase shares of such
Designated Portfolio. Payment shall be in federal funds transmitted by wire by
4 p.m. New York time. If payment in federal funds for any purchase is not
received or is received by the Fund after noon New York time on such Business
Day, the Company shall promptly, upon the Fund's request, reimburse the Fund
for any charges, costs, fees, interest or other expenses incurred by the Fund
in connection with any advances to, or borrowing or overdrafts by, the Fund, or
any similar expenses incurred by the Fund, as a result of portfolio
transactions effected by the Fund based upon such purchase request. For
purposes of Section 2.8 and 2.9 hereof, 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.
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1.8 Issuance and transfer of the shares of a Designated Portfolio
will be by book entry only. Stock certificates will not be issued to the
Company or any Account. Shares of a Designated Portfolio ordered from the Fund
will be recorded in an appropriate title for each Account or the appropriate
subaccount of each Account.
1.9 The Fund shall furnish same-day notice (by wire or telephone,
followed by written confirmation) to the Company of any income, dividends or
capital gain distributions payable on shares of the Designated Portfolios. The
Company hereby elects to receive all such income, dividends, and capital gain
distributions as are payable on shares of a Designated Portfolio in additional
shares of that Designated 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. The Fund shall
use its best efforts to furnish advance notice of the day such dividends and
distributions are expected to be paid.
1.10 The Fund shall make the closing net asset value per share for
each Designated Portfolio available to the Company on a daily basis as soon as
reasonably practical after the closing net asset value per share is calculated
(normally by 6:30 p.m. New York time) and shall use its best efforts to make
such net asset value per share available by 7:00 p.m. New York time. In the
event the Fund is unable to make the 7:00 p.m. New York time deadline, it shall
provide additional time for the Company to place orders for the purchase and
redemption of shares. Such additional time shall be equal to the additional
time which the Fund takes to make the closing net asset value available to the
Company. Any material error in the calculation or reporting of the closing net
asset value per share shall be reported immediately upon discovery to the
Company. In such event the Company shall be entitled to an adjustment to the
number of shares purchased or redeemed to reflect the correct closing net asset
value per share and the Fund shall bear the cost of correcting such errors. Any
error of a lesser amount shall be corrected in the next Business Day's net
asset value per share.
1.11 The Parties hereto acknowledge that the arrangement
contemplated by this Agreement is not exclusive; the shares of the Designated
Portfolios (and other Portfolios of the Fund) may be sold to other insurance
companies (subject to Section 1.3 and Article VII hereof) and the cash value of
the Contacts may be invested in other investment companies.
ARTICLE II
Representations and Warranties
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2.1 The Company represents and warrants that the Contracts are or
will be registered under the 1933 Act; that the Contracts will be continually
issued, offered for sale and sold in compliance in all material respects with
all applicable federal and state laws and that the sale of the Contacts shall
comply in all material respects with state insurance suitability requirements.
The Company further represents and warrants that it is an insurance company
duly organized and in good standing under applicable law and that it has
legally and validly established each Account prior to any issuance or sale
thereof as a separate account under the Washington
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insurance laws and has registered or, prior to any issuance or sale of the
Contracts, will register each Account as a unit investment trust in accordance
with the provisions of the 1940 Act to serve as a separate account for the
Contracts.
2.2 The Fund represents and warrants that shares of the
Designated Portfolios sold pursuant to this Agreement shall be registered under
the 1933 Act, duly authorized for issuance and sold in compliance with all
applicable federal 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 of the Designated Portfolios for sale in
accordance with the laws of the various states only if and to the extent deemed
advisable by the Fund after taking into consideration any state insurance law
requirements that the Company advises the Fund may be applicable.
2.3 The Fund currently does not intend to make any payments to
finance distribution expenses pursuant to Rule 12b-1 under the 1940 Act,
although it may make such payments in the future subject to applicable law.
2.4 The Fund makes no representations as to whether any aspect of
its operation, including but not limited to, investments policies, fees and
expenses, complies with the insurance and other applicable laws of the various
states, except that the Fund represents that the investment policies, fees and
expenses of the Designated Portfolios are and shall at all times remain in
compliance with the insurance laws of the State of Washington to the extent
required to perform this Agreement. The Company will advise the Fund in writing
as to any requirements of Washington insurance law that affect the Designated
Portfolios, and the Fund will be deemed to be in compliance with this Section
2.4 so long as the Fund complies with such advice of the Company.
2.5 The Fund represents that it is lawfully organized and validly
existing as a business trust under the laws of the Commonwealth of
Massachusetts and that it does and will comply in all material respects with
the 1940 Act.
2.6 The Underwriter represents and warrants that it is a member
in good standing of the NASD and is registered as a broker-dealer with the SEC.
The Underwriter further represents that it will sell and distribute the shares
of the Designated Portfolios in accordance with any applicable state and
federal securities laws.
2.7 The Adviser represents and warrants that it is and shall
remain duly registered as an investment adviser under all applicable federal
and state securities laws and that the Adviser shall perform its obligations
for the Fund in compliance in all material respects with any applicable state
and federal securities laws.
2.8 The Fund, the Adviser and the Underwriter represent and
warrant that all their directors, officers, employees, investment advisers, and
other individuals or entities dealing with
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the money and/or securities of the Fund are and shall continue to be at all
times covered by a blanket fidelity bond or similar coverage for the benefit of
the Fund in an amount not less than the minimum coverage required currently by
Rule 17g-1 of the 1940 Act or such related provisions as may be promulgated
from time to time. The aforesaid bond shall include coverage for larceny and
embezzlement and shall be issued by a reputable bonding company.
2.9 The Company represents and warrants that all its officers,
employees, investment advisers, and other individuals or entities employed or
controlled by the Company dealing with the money and/or securities of the Fund
are covered by a blanket fidelity bond or similar coverage in an amount not
less than $5 million. The aforesaid bond includes coverage for larceny and
embezzlement and is issued by a reputable bonding company. The Company agrees
that this bond or another bond containing these provisions will always be in
effect, and agrees to notify the Fund, the Adviser and the Underwriter in the
event that such coverage no longer applies.
2.10 The Company represents and warrants that all shares of the
Designated Portfolios purchased by the Company will be purchased on behalf of
one or more unmanaged separate accounts that offer interests therein that are
registered under the 1933 Act and upon which a registration fee has been or
will be paid; and the Company acknowledges that the Fund intends to rely upon
this representation and warranty for purposes of calculating SEC registration
fees payable with respect to such shares of the Designated Portfolios pursuant
to Instruction B.5 to Form 24F-2 or any similar form or SEC registration fee
calculation procedure that allows the Fund to exclude shares so sold for
purposes of calculating its SEC registration fee. The Company agrees to
cooperate with the Fund on no less than an annual basis to certify as to its
continuing compliance with this representation and warranty.
2.11 The Fund represents and warrants that the investments of each
Designated Portfolio will comply with the diversification requirements set
forth in Section 817(h) of the Internal Revenue Code of 1986, as amended
("Code") Code and the rules and regulations thereunder.
ARTICLE III
Prospectuses, Statements of Additional
Information, and Proxy Statements; Voting
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3.1 The Fund shall provide the Company with as many copies of the
Fund's current prospectus or profile for the Designated Portfolios as the
Company may reasonably request. If requested by the Company in lieu thereof,
the Fund shall provide such documentation (including a final copy of the new
prospectus) and other assistance as is reasonably necessary in order for the
Company once each year (or more frequently if the prospectus for a Designated
Portfolio is amended) to have the prospectus for the Contracts and the
prospectus or profile for the Designated Portfolios printed-together in one
document. Expenses with respect to the foregoing shall be borne as provided
under Article V.
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3.2 The Fund's prospectus shall disclose that (a) the Fund is
intended to be a funding vehicle for all types of variable annuity and variable
life insurance contracts offered by Participating Insurance Companies, (b)
material irreconcilable conflicts of interest may arise, and (c) the Fund's
Board will monitor events in order to identify the existence of any material
irreconcilable conflicts and determine what action, if any, should be taken in
response to such conflicts. The Fund hereby notifies the Company that
disclosure in the prospectus for the Contracts regarding the potential risks of
mixed and shared funding may be appropriate. Further, the Fund's prospectus
shall state that the current Statement of Additional Information ("SAI") for
the Fund is available from the Company (or, in the Fund's discretion, from the
Fund), and the Fund shall provide a copy of such SAI to any owner of a Contract
who requests such SAI and to the Company in such quantities as the Company may
reasonably request. Expenses with respect to the foregoing shall be borne as
provided under Article V.
3.3 The Fund shall provide the Company with copies of its proxy
material, reports to shareholders, and other communications to shareholders for
the Designated Portfolios in such quantity as the Company shall reasonably
require for distributing to Contract owners. Expenses with respect to the
foregoing shall be borne as provided under Article V.
3.4 The Company shall:
(i) solicit voting instructions from Contract owners;
(ii) vote the shares of each Designated Portfolio in
accordance with instructions received from Contract
owners; and
(iii) vote shares of each Designated Portfolio for which
no instructions have been received in the same
proportion as shares of such Designated Portfolio
for which instructions have been received,
so long as and to the extent that the SEC continues to interpret the 1940 Act
to require passthrough voting privileges for variable contract owners or to the
extent otherwise required by law. The Company reserves the right to vote shares
of each Designated Portfolio held in any separate account in its own right, to
the extent permitted by law.
3.5 The Company shall be responsible for assuring that each of
its separate accounts participating in a Designated Portfolio calculates voting
privileges as required by the Shared Funding Exemption Order and consistent
with any reasonable standards that the Fund has adopted or may adopt.
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 or comply with Section 16(c) of the 1940 Act
(although the Fund is not one of the trusts described in Section 16(c) of that
Act) as well as with Sections 16(a) and, if and when applicable, Section 16(b).
Further, the Fund will act in accordance with the SEC's interpretation of the
requirements of
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Section 16(a) with respect to periodic elections of directors or trustees and
with whatever rules the SEC may promulgate from time to time with respect
thereto. The Fund reserves the right, upon prior written notice to the Company
(given at the earliest practicable time), to take all actions, including but
not limited to, the dissolution, termination, merger and sale of all assets of
the Fund or any Designated Portfolio upon the sole authorization of the Board,
to the extent permitted by the laws of the Commonwealth of Massachusetts and
the 0000 Xxx.
3.7 It is understood and agreed that, except with respect to
information regarding the Fund, the Underwriter, the Adviser or Designated
Portfolios provided in writing by the Fund, the Underwriter or the Adviser,
none of the Fund, the Underwriter or the Adviser is responsible for the content
of the prospectus or statement of additional information for the Contracts.
ARTICLE IV
Sales Material and Information
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4.1 The Company shall furnish, or shall cause to be furnished, to
the Fund or the Underwriter, each piece of sales literature or other
promotional material ("sales literature") that the Company develops or uses and
in which the Fund (or a Designated Portfolio thereof) or the Adviser or the
Underwriter is named, at least five business days prior to its use. No such
material shall be used if the Fund or its designee reasonably objects to such
use within five business days after receipt of such material. The Fund or its
designee reserves the right to reasonably object to the continued use of such
material, and no such material shall be used if the Fund or its designee so
object.
4.2 The Company shall not give any information or make any
representation or statement on behalf of the Fund or concerning the Fund in
connection with the sale of the Contracts other than the information or
representations contained in the registration statement, prospectus, profile or
SAI for the shares of the Designated Portfolios, as such registration
statement, prospectus, profile or SAI may be amended or supplemented from time
to time, or in reports or proxy statements for the Fund, or in sales literature
approved by the Fund or its designee or by the Underwriter, except with the
permission of the Fund or the Underwriter or the designee of either.
4.3 The Fund or the Underwriter shall furnish, or shall cause to
be furnished, to the Company, each piece of sales literature that the Fund or
Underwriter develops or uses in which the Company and/or its Account is named,
at least eight business days prior to its use. No such material shall be used
if the Company reasonably objects to such use within eight business days after
receipt of such material. The Company reserves the right to reasonably object
to the continued use of such material and no such material shall be used if the
Company so objects.
4.4 The Fund and the Underwriter shall not give any information
or make any representations on behalf of the Company or concerning the Company,
the Account, or the Contracts other than the information or representations
contained in a registration statement, prospectus, or statement of additional
information for the Contracts, as such registration
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statement, prospectus or statement of additional information may be amended or
supplemented from time to time, or in published reports for the Accounts which
are the public domain or approved by the Company for distribution to Contract
owners, or in sales literature 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, profiles, SAIs, reports,
proxy statements, sales literature, applications for exemptions, requests for
no-action letters, and all amendments to any of the above, that relate to the
Designated Portfolios, contemporaneously with the filing of such document(s)
with the SEC or other regulatory authorities.
4.6 The Company will provide to the Fund at least one complete
copy of all registration statements, prospectuses, statements of additional
information, shareholder reports, solicitations for voting instructions, sales
literature, applications for exemptions, request for no-action letters, and all
amendments to any of the above, that relate to the Contracts or the Accounts,
contemporaneously with the filing of such document(s) with the SEC or other
regulatory authorities.
4.7 For purposes of this Agreement, the phrase "sales literature"
includes, but is not limited to, any of the following: advertisements (such as
material published, or designed for use in, a newspaper, magazine, or other
periodical, radio, television, electronic media, 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,
reports, market letters, form letters, seminar texts, reprints or excerpts of
any other advertisement, sales literature, or published article) and
educational or training materials or other communications distributed or made
generally available to some or all agents or employees.
4.8 At the request of any party to this Agreement, any other
party will make available to the requesting party's independent auditors all
records, data and access to operating procedures that may reasonably be
requested in connection with compliance and regulatory requirements related to
this Agreement or any party's obligations under this Agreement.
ARTICLE V
Fees and Expenses
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5.1 All expenses incident to performance by the Fund under this
Agreement shall be paid by the Fund, except and as further provided in Schedule
B. The Fund shall see to it that all shares of the Designated Portfolios are
registered, duly authorized for issuance and sold in compliance with applicable
federal securities laws and, if and to the extent deemed advisable by the Fund,
in accordance with applicable state securities laws prior to their sale.
5.2 The parties hereto shall bear the expenses of typesetting,
printing and distributing the Fund's prospectus, SAI, proxy materials and
reports as provided in Schedule B.
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5.3 Administrative services to variable Contract owners shall be
the responsibility of the Company and shall not be the responsibility of the
Fund, Underwriter or Adviser. The Fund recognizes the Company as the sole
shareholder of shares of the Designated Portfolios issued under the Agreement.
5.4 The Fund shall not pay and neither the Adviser nor the
Underwriter shall pay any fee or other compensation to the Company under this
Agreement, although the parties will bear certain expenses in accordance with
Schedule B and other provisions of this Agreement.
ARTICLE VI
Diversification and Qualification
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6.1 The Fund will invest the assets of each Designated Portfolio
in such a manner as to ensure that the Contracts will be treated as annuity or
life insurance contracts, whichever is appropriate, under the Code, and the
regulations issued thereunder (or any successor provisions). Without limiting
the scope of the foregoing, the Fund will, with respect to each Designated
Portfolio, comply with Section 817(h) of the Code and Treasury Regulation
Section 1.817-5, and any Treasury interpretations thereof, relating to the
diversification requirements for variable annuity, endowment, or life insurance
contracts, and any amendments or other modifications or successor provisions to
such Section or Regulations. In the event of a breach of this Article VI, the
Fund will: (a) take all reasonable steps to notify the Company of such breach
and (b) immediately take all necessary steps to adequately diversify the
affected Designated Portfolio so as to achieve compliance within the grace
period afforded by Treasury Regulation Section 1.817-5.
6.2 The Fund represents that each Designated Portfolio is
currently qualified (and for new Designated Portfolios, intends to qualify) as
a Regulated Investment Company under Subchapter M of the Code, and that it will
make every effort to maintain such qualification (under Subchapter M or any
successor or similar provisions) and that it will notify the Company
immediately upon having a reasonable basis for believing that a Designated
Portfolio has ceased to so qualify or that a Designated Portfolio might not so
qualify in the future. The Fund acknowledges that compliance with Subchapter M
is an essential element of compliance with Section 817(h).
6.3 The Fund shall provide the Company or its designee with
reports certifying compliance with the aforesaid Section 817(h) diversification
and Subchapter M qualification requirements on a quarterly basis.
6.4 The Company represents that the Contracts are currently, and
at the time of issuance shall be, treated as life insurance or annuity
insurance contracts, under applicable provisions of the Code, and that it will
make every effort to maintain such treatment, and that it will notify the Fund,
the Adviser and the Underwriter immediately upon having a reasonable basis for
believing the Contracts have ceased to be so treated or that they might not be
so treated in the future.
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ARTICLE VII
Potential Conflicts
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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 Designated Portfolio are being managed; (e) a
difference in voting instructions given by variable annuity contract and
variable life insurance contract owners; or (f) a decision by a Participating
Insurance Company to disregard the voting instructions of contract owners. The
Board shall promptly inform the Company if it determines that an irreconcilable
material conflict exists and the implications thereof.
7.2 The Company and the Adviser will report any potential or
existing conflicts of which each is aware to the Board. The Company will assist
the Board in carrying out its responsibilities under the Shared Funding
Exemption 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. At least annually, and more
frequently if deemed appropriate by the Board, the Company shall submit to the
Adviser, and the Adviser shall at least annually submit to the Board, such
reports, materials and data as the Board may reasonably request so that the
Board may fully carry out the obligations imposed upon it by the conditions
contained in the Shared Funding Exemption Order; and said reports, materials
and data shall be submitted more frequently if deemed appropriate by the Board.
The responsibility to report such information and conflicts to the Board will
be carried out with a view only to the interests of the 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 any other Participating Insurance Companies shall, at their
expense and to the extent reasonably practicable (as determined by a majority
of the disinterested Board members), take whatever steps are necessary to
remedy or eliminate the irreconcilable material conflict, up to and including:
(a), withdrawing the assets allocable to some or all of the separate accounts
from the Fund or any Designated Portfolio and reinvesting such assets in a
different investment medium, which may include another Designated Portfolio of
the Fund, or submitting to a vote of all affected contract owners the question
whether such segregation should be implemented and, as appropriate, segregating
the assets of any appropriate group (i.e., annuity contract owners, life
insurance contract owners, or variable contract owners of one or more
Participating Insurance Companies) that votes in favor of such segregation, or
offering to the affected contract owners the option of making such a change;
and (b), establishing a new registered management investment company or managed
separate account.
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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 any Designated Portfolio and terminate this Agreement
with respect to such Account provided, however, that such withdrawal and
termination shall be limited to the extent required by the foregoing material
irreconcilable conflict as determined by a majority of the disinterested
members of the Board. The Company will bear the cost of any remedial action,
including such withdrawal and termination. No penalty will be imposed by the
Fund upon the affected Account for withdrawing assets from the Fund in the
event of a material irreconcilable conflict. Any such withdrawal and
termination must take place within six (6) months after the Fund gives written
notice that this provision is being implemented, and until the effective date
of such termination the Fund shall continue to accept and implement orders by
the Company for the purchase (and redemption) of shares of such Designated
Portfolio.
7.5 If a material irreconcilable conflict arises because a
particular state insurance regulator's decision applicable to the Company
conflicts with the majority of other state regulators, then the Company will
withdraw the affected Account's investment in the affected Designated Portfolio
and terminate this Agreement with respect to such Account within six months
after the Board informs the Company in writing that it has determined that such
decision has created an irreconcilable material conflict; provided, however,
that such withdrawal and termination shall be limited to the extent required by
the foregoing material irreconcilable conflict as determined by a majority of
the disinterested members of the Board. Until the effective date of such
termination the Fund shall continue to accept and implement orders by the
Company for the purchase (and redemption) of shares of such Designated
Portfolios.
7.6 For purposes of Sections 7.3 through 7.6 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 to establish a new
funding medium for the Contract 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. In the event that the Board determines that
any proposed action does not adequately remedy any irreconcilable material
conflict, then the Company will withdraw an Account's investment in any
Designated Portfolio and terminate this Agreement within six (6) months after
the Board informs the Company in writing of the foregoing determination;
provided, however, that such withdrawal and termination shall be limited to the
extent required by any such material irreconcilable conflict as determined by a
majority of the disinterested members of the Board.
7.7 If and to the extent the Shared Funding Exemption Order
contains terms and conditions different from Sections 3.4, 3.5, 3.6, 7.1, 7.2,
7.3, 7.4 and 7.5 of this Agreement, then the Fund and/or the Participating
Insurance Companies, as appropriate, shall take such steps as may be necessary
to comply with the Shared Funding Exemption Order, and Sections 3.4, 3.5,
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3.6, 7.1, 7.2, 7.3, 7.4 and 7.5 of the Agreement shall continue in effect only
to the extent that terms and conditions substantially identical to such
Sections are contained in the Shared Funding Exemption Order or any amendment
thereto. 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 Exemption Order) on terms and
conditions materially different from those contained in the Shared Funding
Exemption 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, 3.6, 7.1, 7.2,
7.3, 7.4 and 7.5 of this Agreement shall continue in effect only to the extent
that terms and conditions substantially identical to such Sections are
contained in such Rule(s) as so amended or adopted.
ARTICLE VIII
Indemnification
---------------
8.1 Indemnification by the Company.
(a) The Company agrees to indemnify and hold harmless
the Fund, the Adviser, the Underwriter and each of their officers, trustees and
directors and each person, if any, who controls the Fund, the Adviser or the
Underwriter within the meaning of Section 15 of the 1933 Act (collectively, the
"Indemnified Parties" for purposes of this Section 8.1) against any and all
losses, claims, damages, liabilities (including amounts paid in settlement with
the written consent of the Company) or litigation (including 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 shares of the
Designated Portfolios 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, prospectus, or
statement of additional information 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 in writing to the Company by or on
behalf of the Fund for use in the Registration Statement,
prospectus or statement of additional information for the
Contracts or in the Contracts or sales literature for the
Contracts (for any amendment or supplement) or otherwise for
use in connection with the sale of the Contracts or shares of
the Designated Portfolios; or
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(ii) arise out of or as a result of statements
or representations (other than statements or representations
contained in the Registration Statement, prospectus, SAI or
sales literature of the Fund not supplied by the Company or
persons under its control) or wrongful conduct of the Company
or persons under its authorization or control, with respect
to the sale or distribution of the Contracts or shares of the
Designated Portfolios; or
(iii) arise out of any untrue statement or
alleged untrue statement of a material fact contained in the
Registration Statement, prospectus, profile, SAI 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 information
furnished to the Fund by or on behalf of the Company; or
(iv) arise as a result of any material failure
by the Company to provide the services and furnish the
materials under the terms of this Agreement (including a
failure, whether unintentional or in good faith or otherwise,
to comply with the qualification requirements specified in
Article VI of this Agreement); or
(v) arise out of or are based upon any untrue
statements or alleged untrue statements of any material fact
contained in any Registration Statement, prospectus,
statement of additional information or sales literature for
any Unaffiliated Fund, or arise out of or are based upon the
omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the
statements therein not misleading, or otherwise pertain to or
arise in connection with the availability of any Unaffiliated
Fund as an underlying funding vehicle in respect of the
Contracts; or
(vi) arise out of or result from any material
breach of any representation and/or warranty made by the
Company in this Agreement or arise out of or result from any
other material breach of this Agreement by the Company;
as limited by and in accordance with the provisions of Sections 8.l(b)
and 8.l(c).
(b) The Company shall not be liable under this
indemnification provision with respect to any losses, claims, damages,
liabilities or litigation to which an Indemnified Party would otherwise be
subject by reason of such Indemnified Party's willful misfeasance, bad faith,
or gross negligence in the performance of such Indemnified Party's duties or by
reason of such Indemnified Party's reckless disregard of its obligations or
duties under this Agreement.
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(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 that it may
have to the Indemnified Party against whom such action is brought otherwise
than on account of this indemnification provision, except to the extent that
the Company has been prejudiced by such failure to give notice. In case any
such action is brought against an Indemnified Party, 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 and to settle the claim at its
own expense provided, however, that no such settlement shall, without the
Indemnified Parties' written consent, include any factual stipulation referring
to the Indemnified Parties or their conduct. 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.
(d) The Indemnified Parties will promptly notify the
Company of the commencement of any litigation or proceedings against them in
connection with the issuance or sale of the shares of the Designated Portfolios
or the Contracts or the operation of the Fund.
8.2 Indemnification by the Underwriter
(a) The Underwriter agrees to indemnify and hold
harmless the Company and each of its directors and officers and each person, if
any, who controls the Company within the meaning of Section 15 of the 1933 Act
(collectively, the "Indemnified Parties" for purposes of this Section 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 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 the Designated Portfolios or the Contracts; and
(i) arise out of or are based upon any untrue
statement or alleged untrue statement of any material fact
contained in the Registration Statement, profile. prospectus
or SAI of the Fund or sales literature of the Fund developed
by the Underwriter (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
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statement or omission was made in reliance upon and in
conformity with information furnished to the Underwriter or
Fund by or on behalf of the Company for use in the
Registration Statement, profile or prospectus for the Fund or
its sales literature (or any amendment or supplement thereto)
or otherwise for use in connection with the sale of the
Contracts or shares of the Designated Portfolios; 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 Underwriter
or persons under its control) or wrongful conduct of the Fund
or Underwriter or person under their control with respect to
the sale or distribution of the Contracts or shares of the
Designated Portfolios;
(iii) arise out of any untrue statement or
alleged untrue statement of a material fact contained in a
Registration Statement, prospectus or sales literature for
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
(iv) arise as a result of any failure by the
Fund to provide the services and furnish the materials under
the terms of this Agreement (including a failure, whether
unintentional or in good faith or otherwise, to comply with
the diversification and other qualification requirements
specified in Article VI of this Agreement); or
(v) arise out of or result from any material
breach of any representation and/or warranty made by the
Underwriter in this Agreement or arise out of or result from
any other material breach of this Agreement by the
Underwriter;
as limited by and in accordance with the provisions of Sections 8.2(b)
and 8.2(c) hereof.
(b) The Underwriter shall not be liable under this
indemnification provision with respect to any losses, claims, damages,
liabilities or litigation to which an Indemnified Party would otherwise be
subject by reason of such Indemnified Party's willful misfeasance, bad faith,
or gross negligence in the performance or such Indemnified Party's duties or by
reason of such Indemnified Party's reckless disregard of obligations and duties
under this Agreement or to the Company or the Accounts, whichever is
applicable.
(c) The Underwriter shall not be liable under this
indemnification provision with respect to any claim made against an Indemnified
Party unless such Indemnified Party shall
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17
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, except to the extent that the Underwriter has been
prejudiced by such failure to give notice. In case any such action is brought
against the Indemnified Party, 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 and to settle the claim at its own expense; provided,
however, that no such settlement shall, without the Indemnified Parties'
written consent, include any factual stipulation referring to the Indemnified
Parties or their conduct. 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.
(d) The Company agrees promptly to notify the
Underwriter of the commencement of any litigation or proceedings against it or
any of its officers or directors in connection with the issuance or sale of the
Contracts or the operation of the Account.
8.3 Indemnification By the Fund
(a) The Fund agrees to indemnify and hold harmless the
Company and each of its directors and officers and each person, if any, who
controls the Company within the meaning of Section 15 of the 1933 Act
(collectively, the "Indemnified Parties" for purposes of this Section 8.3)
against any and all losses, claims, expenses, damages, liabilities (including
amounts paid in settlement with the written consent of the Fund); or litigation
(including legal and other expenses) to which the Indemnified Parties may be
required to pay or may become subject under any statute or regulation, at
common law or otherwise, insofar as such losses, claims, expenses, damages,
liabilities or expenses (or actions in respect thereof) or settlements, are
related to the operations of the Fund and:
(i) arise as a result of any failure by the
Fund to provide the services and furnish the materials under
the terms of this Agreement (including a failure, whether
unintentional or in good faith or otherwise, to comply with
the diversification and qualification requirements specified
in Article VI of this Agreement); or
(ii) arise out of or result from any material
breach of any representation and/or warranty made by the Fund
in this Agreement or arise out of or result from any other
material breach of this Agreement by the Fund; or
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(iii) arise out of or result from the materially
incorrect or untimely calculation or reporting of the daily
net asset value per share or dividend or capital gain
distribution rate;
as limited by and in accordance with the provisions of Sections 8.3(b)
and 8.3(c) hereof.
(b) The Fund shall not be liable under this
indemnification provision with respect to any losses, claims, damages,
liabilities or litigation to which an Indemnified Party would otherwise be
subject by reason of such Indemnified Party's willful misfeasance, bad faith,
or gross negligence in the performance of such Indemnified Party's duties or by
reason of such Indemnified Party's reckless disregard of obligations and duties
under this Agreement or to the Company, the Fund, the Underwriter, the Adviser
or the Accounts, whichever is applicable.
(c) The Fund shall not be liable under this
indemnification provision with respect to any claim made against an Indemnified
Party unless such Indemnified Party shall have notified the Fund in writing
within a reasonable time after the summons or other first legal process giving
information of the nature of the claim shall have been served upon such
Indemnified Party (or after such Indemnified Party shall have received notice
of such service on any designated agent), but failure to notify the Fund of any
such claim shall not relieve the Fund from any liability that it may have to
the Indemnified Party against whom such action is brought otherwise than on
account of this indemnification provision, except to the extent that the Fund
has been prejudiced by such failure to give notice. In case any such action is
brought against the Indemnified Parties, the Fund will be entitled to
participate, at its own expense, in the defense thereof. The Fund also shall be
entitled to assume the defense thereof, with counsel satisfactory to the party
named in the action and to settle the claim at its own expense; provided,
however, that no such settlement shall, without the Indemnified Parties'
written consent, include any factual stipulation referring to the Indemnified
Parties or their conduct. After notice from the Fund to such party of the
Fund's election to assume the defense thereof, the Indemnified Party shall bear
the fees and expenses of any additional counsel retained by it, and the Fund
will not be liable to such party under this Agreement for any legal or other
expenses subsequently incurred by such party independently in connection with
the defense thereof other than reasonable costs of investigation.
(d) The Company, the Adviser and the Underwriter agree
to notify the Fund promptly of the commencement of any litigation or proceeding
against it or any of its respective officers or directors in connection with
the Agreement, the issuance or sale of the Contracts, the operation of any
Account, or the sale or acquisition of shares of the Designated Portfolios.
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 ____________.
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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 the statutes, rules and regulations as the SEC
may grant (including, but not limited to, the Shared Funding Exemption 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 with
respect to any Designated Portfolio, by ninety (90) days' advance written
notice delivered to the other parties; or
(b) termination by the Company by written notice to the
Fund, the Adviser and the Underwriter with respect to any Designated Portfolio
based upon the Company's reasonable and good faith determination that shares of
such Designated Portfolio are not reasonably available to meet the requirements
of the Contracts; or
(c) termination by the Company by written notice to the
Fund, the Adviser and the Underwriter with respect to any Designated Portfolio
if the shares of such Designated Portfolio are not registered, issued or sold
in accordance with applicable state and/or federal securities laws or such law
precludes the use of such shares to fund the Contracts issued or to be issued
by the Company; or
(d) termination by the Fund, the Adviser or Underwriter
in the event that formal administrative proceedings are instituted against the
Company or any affiliate by the NASD, the SEC, or the Insurance Commissioner or
like official of any state or any other regulatory body regarding the Company's
duties under this Agreement or related to the sale of the Contracts, the
operation of any Account, or the purchase of the shares of a Designated
Portfolio or the shares of any Unaffiliated Fund, provided, however, that the
Fund, the Adviser or Underwriter determines in its sole judgement exercised in
good faith, that any such administrative proceedings will have a material
adverse effect upon the ability of the Company to perform its obligations under
this Agreement; or
(e) termination by the Company in the event that formal
administrative proceedings are instituted against the Fund, the Adviser or
Underwriter by the NASD, the SEC, or any state securities or insurance
department or any other regulatory body, provided, however, that the Company
determines in its sole judgment exercised in good faith, that any such
administrative proceedings will have a material adverse effect upon the ability
of the Fund or Underwriter to perform its obligations under this Agreement; or
(f) termination by the Company by written notice to the Fund,
the Adviser and the Underwriter with respect to any Designated Portfolio in the
event that such Designated
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Portfolio ceases to qualify as a Regulated Investment Company under Subchapter
M or fails to comply with the Section 817(h) diversification requirements
specified in Article VI hereof, or if the Company reasonably believes that such
Designated Portfolio may fail to so qualify or comply; or
(g) termination by the Fund, the Adviser or Underwriter
by written notice to the Company in the event that the Contracts fail to meet
the qualifications specified in Article VI hereof: or
(h) termination by any of the Fund, the Adviser or the
Underwriter by written notice to the Company, if any of the Fund, the Adviser
or the Underwriter, respectively, shall determine, in their sole judgement
exercised in good faith, that the Company has suffered a material adverse
change in its business, operations, financial condition, insurance company
rating or prospects since the date of this Agreement or is the subject of
material adverse publicity; or
(i) termination by the Company by written notice to the
Fund, the Adviser and the Underwriter, if the Company shall determine, in its
sole judgment exercised in good faith, that the Fund, the Adviser or the
Underwriter has suffered a material adverse change in its business, operations,
financial condition or prospects since the date of this Agreement or is the
subject of material adverse publicity and that material adverse change or
publicity will have a material adverse effect on the Fund's or the
Underwriter's ability to perform its obligations under this Agreement; or
(j) at the option of Company, as one party, or the Fund,
the Adviser and the Underwriter, as one party, upon the other party's material
breach of any provision of this Agreement upon 30 days' notice and opportunity
to cure; or
(k) termination by the Company by written notice to the
Fund, the Adviser and the Underwriter with respect to any Designated Portfolio
in the event that such Portfolio ceases to qualify as a Regulated Investment
Company under Subchapter M or fails to comply with the Section 817(h)
diversification requirements specified in Article VI hereof, or if the Company
reasonably believes that such Portfolio may fail to so qualify or comply.
10.2 Effect of Termination. Notwithstanding any termination of
this Agreement, the Fund and the Underwriter shall, at the option of the
Company, continue to make available additional shares of a Designated Portfolio
pursuant to the terms and conditions of this Agreement, for all Contracts in
effect on the effective date of termination of this Agreement (hereinafter
referred to as "Existing Contracts"). Specifically, the owners of the Existing
Contracts may in such event be permitted to reallocate investments in the
Designated Portfolios, redeem investments in the Designated Portfolios and/or
invest in the Designated Portfolios upon the making of additional purchase
payments under the Existing Contracts. The parties agree that this Section 10.2
shall not apply to any termination under Article VII and the effect of such
Article VII termination shall be governed by Article VII of this Agreement. The
parties further
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agree that this Section 10.2 shall not apply to any termination under Section
10.1(g) of this Agreement.
10.3 Notwithstanding any termination of this Agreement, each
party's obligation under Article VIII to indemnify the other parties shall
survive.
ARTICLE XI
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:
Xxxxxx Variable Series
000 Xxxxx Xxxxxxxxx Xxxxx
Xxxxxxx, XX 00000
Attention: Secretary
If to the Company:
Farmers New World Life Insurance Company
__________________________
__________________________
Attention: ______________
If to the Adviser:
Xxxxxxx Xxxxxx Investments, Inc.
000 Xxxxx Xxxxxxxxx Xxxxx
Xxxxxxx, XX 00000
Attention: Secretary
If to the Underwriter:
Xxxxxx Distributors, Inc.
000 Xxxxx Xxxxxxxxx Xxxxx
Xxxxxxx, XX 00000
Attention: Secretary
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ARTICLE XII
Miscellaneous
--------------
12.1 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.
12.2 This Agreement may be executed simultaneously in two or more
counterparts, each of which taken together shall constitute one and the same
instrument.
12.3 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.
12.4 Each party hereto shall cooperate with each other party and
all appropriate governmental authorities (including without limitation the SEC,
the NASD, and state insurance regulators) and shall permit such authorities
reasonable access to its books and records in connection with any investigation
or inquiry relating to this Agreement or the transactions contemplated hereby.
Notwithstanding the generality of the foregoing, each party hereto further
agrees to furnish the Delaware Insurance Commissioner with any information or
reports in connection with services provided under this Agreement that such
Commissioner may request in order to ascertain whether the variable annuity
operations of the Company are being conducted in a manner consistent with the
Delaware variable annuity laws and regulations and any other applicable law or
regulations.
12.5 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.
12.6 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.
12.7 All persons are expressly put on notice of the Fund's
Agreement and Declaration of Trust and all amendments thereto, all of which on
file with the Secretary of the Commonwealth of Massachusetts, and the
limitation of shareholder and trustee liability contained therein. This
Agreement has been executed by and on behalf of the Fund by its representatives
as such representatives and not individually, and the obligations of the Fund
with respect to a Designated Portfolio hereunder are not binding upon any of
the trustees, officers or shareholders of the Fund individually, but are
binding upon only the assets and property of such Designated Portfolio. All
parties dealing with the Fund with respect to a Designated Portfolio shall look
solely to the assets of such Designated Portfolio for the enforcement of any
claims against the Fund hereunder.
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IN WITNESS WHEREOF, each of the parties has caused this Agreement to
be executed in its name and on behalf by its duly authorized representative and
its seal to be hereunder affixed hereto as of the date first above written.
COMPANY: Farmers New World Life Insurance Company
By: ____________________________________
Title: ____________________________________
FUND: Xxxxxx Variable Series
By: ____________________________________
Title: ____________________________________
ADVISER: Xxxxxxx Xxxxxx Investments, Inc.
By: ____________________________________
Title: ____________________________________
UNDERWRITER: Xxxxxx Distributors, Inc.
By: ____________________________________
Title: ____________________________________
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SCHEDULE A
NAME OF SEPARATE ACCOUNT AND DATE
ESTABLISHED BY BOARD OF DIRECTORS
Farmers Annuity Separate Account A (4/6/99)
Farmers Variable Life Separate Account A (4/6/99)
CONTRACTS FUNDED BY SEPARATE ACCOUNT
DESIGNED PORTFOLIOS
A-1
25
SCHEDULE B
EXPENSES
1. In the event the prospectus, SAI, annual report or other communication
of the Fund is combined with a document of another party, the Fund will
pay the costs based upon the relative number of pages attributable to
the Fund.
======================================== ===================================== =====================================
RESPONSIBLE
ITEM FUNCTION PARTY
======================================== ===================================== =====================================
PROSPECTUS
---------------------------------------- ------------------------------------- -------------------------------------
Update Typesetting Fund (1)
---------------------------------------- ------------------------------------- -------------------------------------
New Sales: Printing Company
Distribution Company
---------------------------------------- ------------------------------------- -------------------------------------
Existing Printing Fund (1)
Owners:
Distribution Fund (1)
---------------------------------------- ------------------------------------- -------------------------------------
---------------------------------------- ------------------------------------- -------------------------------------
STATEMENT OF Same as Prospectus Same
ADDITIONAL
INFORMATION
---------------------------------------- ------------------------------------- -------------------------------------
PROXY MATERIALS OF THE FUND Typesetting Fund
Printing Fund
Distribution Fund
---------------------------------------- ------------------------------------- -------------------------------------
---------------------------------------- ------------------------------------- -------------------------------------
ANNUAL REPORTS & OTHER COMMUNICATIONS
WITH SHAREHOLDERS OF THE FUND
---------------------------------------- ------------------------------------- -------------------------------------
All Typesetting Fund (1)
---------------------------------------- ------------------------------------- -------------------------------------
Marketing: Printing Company
Distribution Company
---------------------------------------- ------------------------------------- -------------------------------------
Existing Owners: Printing Fund (1)
Distribution Fund (1)
---------------------------------------- ------------------------------------- -------------------------------------
B-1
26
---------------------------------------- ------------------------------------- -------------------------------------
OPERATIONS OF FUND All operations and related expenses, Fund
including the cost registration and
qualification of the Fund's shares,
preparation and filing of the Fund's
prospectus and registration
statement, proxy materials and
reports, the preparation of all
statements and notices required by
any federal or state law and all
taxes on the issuance of the Fund's
shares, and all costs of management
of the business affairs of the Fund.
======================================== ===================================== =====================================
B-2
