EXHIBIT 99.(e)(1)
AMENDED & RESTATED
PARTICIPATION AGREEMENT
THIS AMENDED AND RESTATED PARTICIPATION AGREEMENT, made and entered
into this the 5th day of December, 2003, by and between ALLSTATE LIFE
INSURANCE COMPANY, ALLSTATE LIFE INSURANCE COMPANY OF NEW YORK and GLENBROOK
LIFE AND ANNUITY COMPANY (hereinafter, collectively, the "COMPANIES," and,
individually, the "COMPANY"), each on its own behalf and on behalf of each of
the segregated asset accounts of the Company set forth in Schedule A hereto,
as such Schedule A may be amended from time to time, (hereinafter the
"ACCOUNTS") and XXXXXX XXXXXXX VARIABLE INVESTMENT SERIES, an unincorporated
business trust organized under the laws of the Commonwealth of Massachusetts,
(hereinafter the "TRUST") and XXXXXX XXXXXXX DISTRIBUTORS INC., a Delaware
corporation (hereinafter the "DISTRIBUTOR").
WHEREAS, the Trust is engaged in business as an open-end management
investment company consisting of investment portfolios, (hereinafter the
"PORTFOLIOS"), and is registered as such under the Investment Company Act of
1940, as amended, (hereinafter the "1940 ACT") and has filed its registration
statement with the U.S. Securities and Exchange Commission, (hereinafter
"S.E.C."), which declared such registration statement effective on October 5,
1983;
WHEREAS, the Distributor is registered as a broker-dealer with the S.E.C.
under the Securities Exchange Act of 1934, as amended, (hereinafter the "1934
ACT"), and is a member in good standing of the National Association of
Securities Dealers, Inc. (hereinafter "NASD");
WHEREAS, the Trust is available to act as the investment vehicle for
separate accounts established for variable annuity contracts and variable life
insurance contracts offered or to be offered by insurance companies which have
entered into participation agreements with the Trust and the Distributor
(hereinafter "PARTICIPATING INSURANCE COMPANIES");
WHEREAS, the Trust has obtained an order from the S.E.C., dated November
23, 1994 (File No. 812-9128), 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 1940 Act and
Rules 6e-2(b)(15) and 6e-3(T)(b)(15) thereunder, to the extent necessary to
permit shares of the Trust to be sold to and held by variable annuity and
variable life insurance separate accounts of both affiliated and unaffiliated
life insurance companies (hereinafter the "SHARED FUNDING EXEMPTIVE ORDER");
WHEREAS, certain Portfolios of the Trust offered by the Trust to the
Companies and the Accounts are set forth on SCHEDULE A attached hereto;
WHEREAS, the Companies will issue certain variable annuity and/or
variable life insurance contracts (hereinafter the "CONTRACTS") which, if
required by applicable law, will be registered under the Securities Act of 1933,
as amended, (hereinafter the "1933 ACT");
WHEREAS, the Accounts are duly organized, validly existing segregated
asset accounts, established by resolution of the Board of Directors of the
applicable Company, to set aside and
invest assets attributable to the Contracts that are allocated to the Accounts
(the Contracts and the Accounts covered by this Agreement, and each
corresponding Portfolio covered by this Agreement in which the Accounts invest,
are specified in SCHEDULE A attached hereto as such Schedule A may be amended
from time to time);
WHEREAS, the Companies have registered or will register the Accounts as
unit investment trusts under the 1940 Act (unless exempt therefrom);
WHEREAS, to the extent permitted by applicable insurance laws and
regulations, each Company intends by purchasing shares of the Portfolios on
behalf of the Accounts to fund the Contracts and the Distributor is authorized
to sell such shares to the Companies for the benefit of the Accounts at net
asset value without the imposition of any charges;
WHEREAS, Northbrook Life Insurance Company, the Companies, the Trust and
the Distributor entered into that certain Participation Agreement dated as of
May 31, 1997 (the "Participation Agreement"); and
WHEREAS, the Northbrook Life Insurance Company, the Companies, the Trust
and the Distributor previously amended Section 9 of that Participation Agreement
(the "Amendment") to reflect the addition of a monthly service fee payable by
the Distributor to Northbrook Life Insurance Company and the Companies; and
WHEREAS, effective January 1, 2003, Northbrook Life Insurance Company
merged with the Allstate Life Insurance Company such that Northbrook Life
Insurance Company no longer exists as a separate company, but all of its
operations are continuing as part of the Allstate Life Insurance Company; and
WHEREAS, the parties to the Agreement have mutually agreed to delete
Section 12 "Company Approval," as set forth in the Participation Agreement; and
WHEREAS, this Agreement amends and restates, in its entirety, the
Participation Agreement in order to (i) combine the Participation Agreement and
the Amendment into a single Amended and Restated Participation Agreement, (ii)
reflect the current parties, including the reorganization of Northbrook Life
Insurance Company, (iii) to require that the Board approve only material changes
to this Agreement, (iv) to delete the requirement that this Agreement be
approved annually by the Board of Trustees of the Trust, and (v) to make all
other revisions referenced herein and other ministerial changes;
WHEREAS, the Board of Trustees of the Trust approved this Amended and
Restated Participation Agreement in compliance with and in the manner specified
in Section 22 of this Agreement;
NOW, THEREFORE, in consideration of their mutual promises, each Company,
the Trust and the Distributor agrees as follows:
1. PURCHASE OF SHARES. In accordance with the Trust's and the
Distributor's Distribution Agreement dated May 31, 1997, (the "DISTRIBUTION
AGREEMENT"), the Company agrees to purchase and redeem the Trust shares of each
Portfolio offered by the then current prospectus of
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the Trust (hereinafter the "PROSPECTUS") included in the Trust's registration
statement (hereinafter the "REGISTRATION STATEMENT") most recently filed from
time to time with the S.E.C. and effective under the 1933 Act and the 1940 Act
or as the Prospectus may be amended or supplemented and filed with the S.E.C.
pursuant to the 1933 Act. The Portfolios to be offered to each Account are set
forth on SCHEDULE A attached hereto.
2. SALE OF SHARES. The Distributor agrees to sell shares of the Trust to
the Company for allocation to the Account as orders from the Company are
received at the next determined net asset value per share after receipt by the
Trust or its designee of the order for shares of the Trust, of the applicable
Portfolio determined as set forth in the Prospectus, except as provided in
PARAGRAPH 4(b).
3. REDEMPTION OF SHARES. At the Company's request, the Trust agrees to
redeem for cash without charge, any full or fractional shares of the Trust held
by the Company, executing such requests on a daily basis at the net asset value
of the applicable Portfolio computed after receipt of the redemption request;
PROVIDED, HOWEVER, that the Trust reserves the right to suspend the right of
redemption or to postpone the date of payment upon redemption of the shares of
any Portfolio under the circumstances and for the period of time specified in
the Prospectus.
4. AVAILABILITY OF SHARES. (a) Subject to Sections 3(c) and 4(b) of the
Distribution Agreement, the terms of which are incorporated herein by reference,
and except as provided in PARAGRAPH (b) of THIS SECTION, the Trust agrees to
make its shares available indefinitely for purchase by the Company.
(b) With respect to shares made available for purchase by the Company in
connection with products sold outside the Xxxxxx Xxxxxxx distribution system,
the Trust may cease to make such shares available for purchase by the Company,
and the Distributor may cease to sell shares of the Trust to the Company, at the
option of the Trust and the Distributor and upon 60 days' written notice to the
Company, PROVIDED, HOWEVER, that the Trust agrees to continue to make its shares
available for purchase by the Company, and the Distributor agrees to continue to
sell shares of the Trust to the Company, for allocation to the Account in
connection with (i) reinvestments of dividends and distributions on shares of
the Trust allocated to the Account in respect of Contracts in force as of the
date such notice is given by the Trust and the Distributor to the Company, for
which Contracts Trust shares serve as the underlying investment medium
("EXISTING CONTRACTS"), (ii) investments in the Trust upon the making of
additional purchase payments under Existing Contracts, and (iii) reallocation of
investments from one Portfolio of the Trust to other Portfolios of the Trust
under Existing Contracts.
5. PAYMENT OF SHARES. The Company shall pay for Trust shares on the next
business day after it places the order for Trust shares. If the Trust or the
Distributor does not receive payment on the next business day, the Trust may,
without notice, cancel the order and require the Company to reimburse the Trust
promptly for any loss the Trust suffered by reason of the Company failing to
timely pay for its shares.
6. FEE FOR SHARES. The Company shall purchase and redeem shares in the
Trust at net asset value and the Company shall not pay any commission, dealer's
fee or other fee to the Distributor or any other broker-dealer.
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7. TRUST'S REGISTRATION STATEMENT AND PROSPECTUS. The Trust shall amend
the Registration Statement for its shares under the 1933 Act and the 1940 Act
from time to time as required in order to effect the continuous offering of its
shares and, at its own expense, shall provide the Company with as many copies of
its current prospectus as the Company may reasonably request.
8.1 FEES AND EXPENSES. The Trust shall pay no fee or other
compensation to the Company under this Agreement, except that if the Trust or
any Portfolio adopts and implements a service plan and/or a plan pursuant to
Rule 12b-1, then the Distributor may make payments to the Company or to the
underwriter for the Contracts pursuant to such plans if and in amounts agreed to
by the Distributor in writing.
8.2. All expenses incident to performance by the Trust under this
Agreement shall be paid by the Trust. The Trust 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 Trust, in
accordance with applicable state laws prior to their sale. The Trust shall bear
the expenses for the cost of registration and qualification of the Trust's
shares, preparation and filing of the Trust'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 Trust's shares.
8.3. The Company shall bear the expenses of distributing the Trust's
prospectus, statement of additional information, proxy materials and reports to
owners or participants under the Contracts issued by the Company.
8. INVESTMENT OF ASSETS. The Trust agrees to invest its assets in
accordance with Section 817(h) of the Internal Revenue Code and Treasury
Regulation 1.817-5, as amended from time to time, and any Treasury
interpretations thereof, relating to the diversification requirements for
variable annuity contracts and any amendments or other modifications to such
Section or Regulations.
9. ADMINISTRATION OF CONTRACTS. The Company shall be responsible for
administering the Contracts and keeping records on the Contracts.
10. STOCKHOLDER INFORMATION. The Trust shall furnish the Company copies
of its proxy material, reports to stockholders and other communication to
stockholders in such quantity as the Company shall reasonably require for
distributing to owners or participants under the Contracts. The Company will
distribute these materials to such owners or participants as required.
11. VOTING. (a) To the extent required by law, the Company shall vote
Trust shares in accordance with instructions received from contract owners. If,
however, the 1940 Act or any regulation thereunder should be amended or if the
present interpretation thereof should change, and as a result the Company
determines that it is permitted to vote the Trust's shares in its own right, it
may elect to do so. The Company shall vote shares of a Portfolio for which no
instructions have been received in the same proportion as the vote of
shareholders of such Portfolio from which instructions have been received.
Neither the Company nor persons under its control shall recommend action in
connection with solicitation of proxies for Trust shares
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allocated to the Account. The Company shall also vote shares it owns that are
not attributable to contract owners in the same proportion. Participating
Insurance Companies shall be responsible for assuring that each of their
separate accounts participating in the Trust calculates voting privileges in a
manner consistent with other Participating Insurance Companies.
(b) The Trust will comply with all provisions of the 1940 Act requiring
voting by shareholders, and in particular the Trust will either provide for
annual meetings or comply with Section 16(c) of the 1940 Act (although the Trust
is not one of the trusts described in Section 16(c) of that Act) as well as with
Section 16(a) and, if and when applicable, 16(b). Further, the Trust will act in
accordance with the S.E.C.'s interpretation of the requirements of Section 16(a)
with respect to periodic elections of trustees and with whatever rules the
S.E.C. may promulgate with respect thereto.
12. TRUST'S WARRANTY. The Trust represents and warrants that Trust shares
sold pursuant to this Agreement shall be registered under the 1933 Act and duly
authorized for issuance in accordance with all applicable federal and state
laws.
13. COMPANY'S WARRANTY. Allstate Life Insurance Company represents and
warrants that it is an insurance company duly organized and in good standing
under Illinois law and that it has legally and validly established the Accounts
under Section 245.21 of the Illinois Insurance Code. Glenbrook Life and Annuity
Company represents and warrants that it is an insurance company duly organized
and in good standing under Arizona law and that it has legally and validly
established the Accounts under Section 20-651 of the Arizona Revised Statutes.
Allstate Life Insurance Company of New York represents and warrants that it is
an insurance company duly organized and in good standing under New York law and
that it has legally and validly established the Accounts under Section 424.40 of
the New York Insurance Laws. The Company represents that it has registered the
Accounts as unit investment trusts in accordance with the provisions of the 1940
Act, unless exempt therefrom, to serve as segregated investment accounts for
certain Contracts. The Company further represents and warrants that the
Contracts will be registered under the 1933 Act, unless exempt therefrom, and
the Contracts will be issued and sold in compliance with all applicable Federal
and State laws.
14. DISTRIBUTOR'S WARRANTY. The Distributor represents and warrants that
it is a member in good standing of the NASD and is registered as a broker-dealer
with the S.E.C. under the 1934 Act. The Distributor further represents that it
will sell and distribute the shares in accordance with the 1933, 1934 and 1940
Acts and will not make any representations concerning the Account except those
contained in the then current registration statement or related prospectus and
any sales literature approved by the Trust. For purposes of this Section,
Section 6 of the Distribution Agreement is incorporated in this Agreement.
15. TERMINATION OF AGREEMENT. The parties may terminate this Agreement as
follows:
(1)(a) at the option of the Company or the Trust or the Distributor upon
90 days' written notice to the other party;
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(b) at the option of the Company if, for any reason, except for those
specified in Sections 3(c) and 4(b) of the Distribution Agreement, Trust shares
are not available to meet the requirements of the Contracts as determined by the
Company; or
(c) at the option of the Trust upon the NASD, the S.E.C., the Illinois
Insurance Commissioner, the New York Insurance Commissioner or any other
regulatory body instituting legal proceedings against the Company regarding its
duties under this Agreement.
(2) This Agreement shall automatically terminate in the event of its
assignment.
16. COMPANY'S INDEMNIFICATION AGREEMENT. (a) The Company agrees to
indemnify and hold harmless the Trust or Distributor and each of their Directors
or Trustees who is not an "interested person" of the Trust, as defined in the
1940 Act (collectively the "INDEMNIFIED PARTIES" for purposes of THIS SECTION
(16) against any losses, claims, damages, liabilities (including amounts paid in
settlement with the written consent of the Company) or expenses or actions to
which such Indemnified Parties may become subject, under the Federal securities
laws or otherwise, insofar as such losses, claims, damages, liabilities or
expenses (or actions in respect thereof) or settlements arise as a result of any
failure by the Company to provide the services and furnish the materials under
terms of this Agreement or which arise from erroneous instructions by the
Company to the Distributor concerning the particular Portfolio or Portfolios
whose shares are to be allocated to the Account. This indemnity agreement is in
addition to any liability which the Company may otherwise have. PROVIDED,
HOWEVER, that in no case is the indemnity of the Company in favor of the
Distributor deemed to protect the Distributor against any liability to the Trust
or its shareholders to which the Distributor would otherwise be subject by
reason of its bad faith, wilful misfeasance or negligence in the performance of
its duties or by reason of reckless disregard of its obligations and duties
under this Agreement.
(b) The Company will reimburse the Indemnified Parties for any legal or
other expenses reasonably incurred by the Indemnified Parties in connection with
investigating or defending of any such loss, claim, damage, liability or action.
(c) Promptly after receipt by any of the Indemnified Parties of notice of
the commencement of any action, or the making of any claim for which indemnity
may apply under this paragraph, the Indemnified Parties will, if a claim thereof
is to be made against the Trust, notify the Company of the commencement thereof;
but the omission so to notify the Company will not relieve the Company from any
liability which it may have to the Indemnified Parties otherwise than under this
Agreement. In case any such action is brought against the Indemnified Parties,
and the Company is notified of the commencement thereof, the Company will be
entitled to participate therein and to assume the defense thereof, with counsel
satisfactory to the party named in the action, and after notice from the Company
to such party of the Company's election to assume the defense thereof, the
Company will not be liable to such party under this Agreement for any legal or
other expenses subsequently incurred by such party independently in connection
with the defense thereof other than reasonable costs of investigation.
17. TRUST AND DISTRIBUTOR INDEMNIFICATION AGREEMENTS. (a) The Trust and
Distributor each agree to indemnify and hold harmless the Company and each of
its Directors who is not an "interested person" of the Company, as defined in
the 1940 Act (collectively the "COMPANY'S
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INDEMNIFIED PARTIES" for purposes of THIS SECTION 17) against any losses,
claims, damages, liabilities (including amounts paid in settlement with the
written consent of the Trust) or expenses or actions to which such Indemnified
Parties may become subject, under the Federal securities laws or otherwise,
insofar as such losses, claims, damages, liabilities or expenses (or actions in
respect thereof) or settlements:
(i) arise as a result of any failure by the Trust or the
Distributor to provide the services and furnish the materials under the
terms of this Agreement; or
(ii) arise out of or are based upon any untrue statement or
alleged untrue statement of any material fact contained in the
registration statement or prospectus or sales literature of the Trust (or
any amendment or supplement to any of the foregoing), or arise out of or
are based upon the omission or the alleged omission to state therein a
material fact required to be stated therein or necessary to make the
statements therein not misleading, provided that this Agreement to
indemnify shall not apply as to the Company's Indemnified Parties if such
statement or omission was made in reliance upon and in conformity with
information furnished to the Trust or Distributor by or on behalf of the
Company for use in the registration statement or prospectus for the Trust
or in sales literature (or any amendment or supplement) or otherwise for
use in connection with the sale of the Contracts or Trust shares; or
(iii) arise out of or result from any material breach of any
representation and/or warranty made by the Trust or the Distributor in
this Agreement or arise out of or result from any other material breach
of this Agreement by the Trust or the Distributor, including a failure,
whether unintentional or in good faith or otherwise, to comply with the
requirements specified in SECTION 8 of this Agreement.
(b) The Trust represents and warrants that the Trust will at all times
invest its assets in such a manner as to ensure that the Contracts will be
treated as an annuity under the Internal Revenue Code and the regulations
thereunder. Without limiting the scope of the foregoing, the Trust will at all
times comply with Section 817(h) of the Code and Treas. Reg. Sec. 1.817-5, as
amended from time to time, and any Treasury interpretations thereof, relating to
the diversification requirements for variable annuity contracts and any
amendments or other modifications to such section or Regulations.
(c) Trust shares will not be sold to any person or entity that would
result in the Contracts not being treated as annuity contracts in accordance
with the statutes and regulations referred to in the preceding paragraph.
(d) The Trust and the Distributor will reimburse the Company for any
legal or other expenses reasonably incurred by the Company's Indemnified Parties
in connection with investigating or defending any such loss, claim, damage,
liability or action.
(e) Promptly after receipt by any of the Company's Indemnified Parties of
notice of the commencement of any action, or the making of any claim for which
indemnity may apply under this paragraph, the Company's Indemnified Parties
will, if a claim in respect thereof is to be made against the Company, notify
the Trust or the Distributor of the commencement thereof; but
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the omission so to notify the Trust or the Distributor will not relieve the
Trust or the Distributor from any liability which it may have to the Company's
Indemnified Parties otherwise than under this Agreement. In case any such action
is brought against the Company's Indemnified Parties, and the Trust or the
Distributor is notified of the commencement thereof, the Trust or the
Distributor will be entitled to participate therein and to assume the defense
thereof, with counsel satisfactory to the party named in the action, and after
notice from the Trust or the Distributor to such party of the Trust's or the
Distributor's election to assume the defense thereof, the Trust or the
Distributor will not be liable to such party under this Agreement for any legal
or other expenses subsequently incurred by such party independently in
connection with the defense thereof other than reasonable costs of
investigation.
18. INDEMNIFICATION OF TRUST BY OR OF DISTRIBUTOR. For purposes of this
Agreement, the Trust and the Distributor shall indemnify each other according to
the terms of the Distribution Agreement the terms of which are incorporated by
reference.
19. POTENTIAL CONFLICTS. (a) The Trustees of the Trust will monitor the
operations of the Trust for the existence of any material irreconcilable
conflict between the interests of the contract owners of all separate accounts
investing in the Trust. An irreconcilable material conflict may arise for a
variety of reasons, including: (i) an action by any state insurance regulatory
authority; (ii) a change in applicable Federal or state insurance, tax, or
securities laws or regulations, or a public ruling, private letter ruling,
no-action or interpretative letter, or any similar action by insurance, tax, or
securities regulatory authorities; (iii) an administrative or judicial decision
in any relevant proceeding; (iv) the manner in which the investments of any
Portfolio are being managed; (v) a difference in voting instructions given by
variable annuity contract and variable life insurance contract owners; or (vi) a
decision by an insurer to disregard the voting instructions of contract owners.
The Trustees shall promptly inform the Company if they determine that an
irreconcilable material conflict exists and the implications thereof.
(b) The Company will report any potential or existing conflicts of which
it is aware to the Trustees of the Trust. The Company will assist the Trustees
in carrying out their responsibilities under the Shared Funding Exemptive Order,
by providing the Trustees with all information reasonably necessary for the
Trustees to consider any issues raised. This includes, but is not limited to, an
obligation by the Company to inform the Trustees whenever contract owner voting
instructions are disregarded.
(c) If it is determined by a majority of the Trustees, or a majority of
the Trustees who are not parties to this Agreement or interested persons of any
such party and who have no direct or indirect financial interest in this
Agreement or any agreement related thereto (the "INDEPENDENT TRUSTEES"), that a
material irreconcilable conflict exists, the Company shall, at its expense and
to the extent reasonably practicable (as determined by a majority of the
Independent Trustees), take whatever steps are necessary to remedy or eliminate
the irreconcilable material conflict, up to and including: (i) withdrawing the
assets allocable to the affected Account from the Trust or any Portfolio and
reinvesting such assets in a different investment medium, including (but not
limited to) another Portfolio of the Trust, or submitting the question whether
such segregation should be implemented to a vote of all affected contract owners
and, as appropriate, segregating the assets of variable annuity contract owners
invested in the Account from those of any other appropriate group (i.e., annuity
contract owners, life insurance contract owners, or variable contract owners
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of one or more Participating Insurance Companies) that votes in favor of such
segregation, or offering to the contract owners the option of making such a
change; and (ii) establishing a new registered management investment company or
managed separate account.
(d) If a material irreconcilable conflict arises because of a decision by
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 Trust's election, to withdraw the Account's investment
in the Trust and terminate this Agreement; PROVIDED, HOWEVER, that such
withdrawal and termination shall be limited to the extent required by the
foregoing material irreconcilable conflict as determined by a majority of the
Independent Trustees. Any such withdrawal and termination must take place within
six (6) months after the Trust gives written notice that this provision is being
implemented, and until the end of that six month period the Distributor and
Trust shall continue to accept and implement orders by the Company for the
purchase (and redemption) of shares of the Trust.
(e) 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
Account's investment in the Trust and terminate this Agreement within six months
after the Trustees inform the Company in writing that they have determined that
such decision has created an irreconcilable material conflict; PROVIDED,
HOWEVER, that such withdrawal and termination shall be limited to the extent
required by the foregoing material irreconcilable conflict as determined by a
majority of the Independent Trustees. Until the end of the foregoing six month
period, the Distributor and the Trust shall continue to accept and implement
orders by the Company for the purchase (and redemption) of shares of the Trust.
(f) For purposes of PARAGRAPHS (c) through (f) of THIS SECTION, a
majority of the Independent Trustees shall determine whether any proposed action
adequately remedies any irreconcilable material conflict, but in no event will
the Trust be required to establish a new funding medium for the Contracts. The
Company shall not be required by PARAGRAPH (c) 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. In the event that the Trustees determine that any proposed action does
not adequately remedy any irreconcilable material conflict, then the Company
will withdraw the Account's investment in the Trust and terminate this Agreement
within six (6) months after the Trustees inform the Company in writing of the
foregoing determination, PROVIDED, HOWEVER, that such withdrawal and termination
shall be limited to the extent required by any such material irreconcilable
conflict as determined by a majority of the Independent Trustees.
(g) 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 Trust 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) PARAGRAPHS 11(a), 11(b), 20(a), 20(b), 20(c), 20(d), 20(e) and 20(f) of
this Agreement shall continue in effect
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only to the extent that terms and conditions substantially identical to such
paragraphs are contained in such Rule(s) as so amended or adopted.
20. DURATION OF THIS AGREEMENT. This Agreement shall remain in full force
and effect until terminated in accordance with the provisions of Section 15
hereof.
21. AMENDMENTS OF THIS AGREEMENT. No material amendment of this Agreement
shall be effective until approved by (i) the Trustees of the Trust, or by the
vote of a majority of outstanding voting securities of the Trust, and (ii) a
majority of those Trustees of the Trust who are not parties to this Agreement or
interested persons of any such party and who have no direct or indirect,
financial interest in this Agreement or in any agreement related thereto, cast
in person at a meeting called for the purpose of voting on such approval.
The terms "vote of a majority of the outstanding voting securities,"
"assignment" and "interested person," when used in this Agreement, shall have
the respective meanings specified in the 1940 Act.
22. GOVERNING LAW. This Agreement shall be construed in accordance with
the law of the State of Illinois and the applicable provisions of the 1933, 1934
and 1940 Acts and the rules and regulations and rulings thereunder including
such exemptions from those statutes, rules and regulations as the S.E.C. may
grant and the terms hereof shall be interpreted and construed in accordance
therewith. To the extent the applicable law of the State of Illinois, or any of
the provisions herein, conflict with the applicable provisions of the 1940 Act,
the latter shall control. If any provision of this Agreement shall be held or
made invalid by a court decision, statute, rule or otherwise the remainder of
the Agreement shall not be affected thereby.
23. PERSONAL LIABILITY. The Declaration of Trust establishing Xxxx Xxxxxx
Variable Investment Series (renamed the "Xxxxxx Xxxxxxx Variable Investment
Series" as of June 18, 2001), dated February 24, 1983, a copy of which, together
with all amendments thereto (the "DECLARATION"), is on file in the office of the
Secretary of the Commonwealth of Massachusetts, provides that the name Xxxxxx
Xxxxxxx Variable Investment Series refers to the Trustees under the Declaration
collectively as Trustees, but not as individuals or personally; and no Trustee,
shareholder, officer, employee or agent of Xxxxxx Xxxxxxx Variable Investment
Series shall be held to any personal liability, nor shall resort be had to their
private property for the satisfaction of any obligation or claim or otherwise,
in connection with the affairs of said Xxxxxx Xxxxxxx Variable Investment
Series, but the Trust estate only shall be liable.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of December 5, 2003.
Companies:
ATTEST: ALLSTATE LIFE INSURANCE COMPANY
/s/ Xxxx Xxxxxxx By: /s/ Xxxxxxx X. XxxxxxXxx
----------------------------------- ---------------------------------
Relationship Manager Assistant Vice President
ATTEST: ALLSTATE LIFE INSURANCE COMPANY
OF NEW YORK
/s/ Xxxx Xxxxxxx By: /s/ Xxxxxxx X. XxxxxxXxx
----------------------------------- ---------------------------------
Relationship Manager Assistant Vice President
ATTEST: GLENBROOK LIFE AND ANNUITY
COMPANY
/s/ Xxxx Xxxxxxx By: /s/ Xxxxxxx X. XxxxxxXxx
----------------------------------- ---------------------------------
Relationship Manager Assistant Vice President
ATTEST: XXXXXX XXXXXXX VARIABLE
INVESTMENT SERIES
/s/ Xxxx Xxxxx By: /s/ Xxxxx Xxxx
----------------------------------- ---------------------------------
Executive Director Vice President & General Counsel
ATTEST: XXXXXX XXXXXXX DISTRIBUTORS INC.
/s/ Xxxx Xxxxx By: /s/ Xxxx X. Xxxx III
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Executive Director President
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As of December 5, 2003
SCHEDULE A
ACCOUNTS AND PORTFOLIOS
SUBJECT TO THE PARTICIPATION AGREEMENT
NAME OF
SEPARATE ACCOUNT AND DATE
NAME OF ESTABLISHED BY FUND PORTFOLIOS
INSURANCE COMPANY BOARD OF DIRECTORS APPLICABLE TO CONTRACTS
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Allstate Life Insurance Allstate Variable Annuity All
Company Account (February 14, 1983)
Allstate Variable Annuity
Account II (May 18,1990)
Allstate Variable Annuity
Account III (April 8, 1996)
Allstate Life Variable Life
Separate Account A
(January 15, 1996)
Allstate Life Insurance Allstate Life of New York All
Company of New York Variable Annuity Account
(June 26, 1987)
Allstate Life of New York
Variable Annuity Account II
(June 28, 1990)
Glenbrook Life and Glenbrook Life Multi- Manager Dividend Growth Portfolio
Annuity Company Variable Account European Growth Portfolio
(January 15, 1996) Quality Income Plus Portfolio
Utilities Portfolio
Glenbrook Life Variable Life
Separate Account A
(January 15, 1996)
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