PARTICIPATION AGREEMENT
BY AND AMONG
THRIVENT LIFE INSURANCE COMPANY
AND
LB SERIES FUND, INC.,
DATED DECEMBER 15, 2003
TABLE OF CONTENTS
Page
1. Sale of FUND Shares...................................................... 2
2. Representations and Warranties........................................... 4
3. Prospectus and Proxy Statements Voting................................... 5
4. Sales Materials and Information.......................................... 5
5. Fees and Expenses........................................................ 6
6. Diversification.......................................................... 6
7. Monitoring for Material Irreconcilable Conflicts......................... 7
8. Indemnification.......................................................... 9
9. Term and Termination Of This Agreement................................... 13
10. Notices................................................................... 15
11. Miscellaneous............................................................. 16
PARTICIPATION AGREEMENT
This PARTICIPATION AGREEMENT, is made and entered into as of this 15th day of December,
2003, by and among THRIVENT LIFE INSURANCE COMPANY ("Thrivent Life"), on its own behalf and
on behalf of each separate account of THRIVENT LIFE named in Exhibit A to this Agreement
(the "ACCOUNTS"), and LB SERIES FUND, INC. (the "FUND"), (collectively the "Parties").
WITNESSETH:
WHEREAS, THRIVENT LIFE is a corporation stock life insurance company organized under the
laws of the State of Minnesota engaged in the writing of variable products, and serves as
sponsor and depositor of the ACCOUNTS ;
WHEREAS, the ACCOUNTS are legally segregated asset accounts of THRIVENT LIFE, established
pursuant to the laws of the State of Minnesota, with several subaccounts (the
"Subaccounts"), for the purpose of funding certain variable universal life insurance
contracts and variable annuity contracts (collectively the "Contracts");
WHEREAS, the FUND, is registered with the Securities and Exchange Commission (the "SEC"), as
an open-end management investment company under the Investment Company Act of 1940 (the
"1940 Act"), and its shares are registered with the SEC under the Securities Act of 1933
(the "1933 Act");
WHEREAS, the FUND is a series company, meaning its Board of Directors may designate various
series ("Portfolios") into which the FUND's authorized shares are to be divided from time to
time, with each such Portfolio consisting of a specific number of the FUND's authorized
shares, representing an interest in a separate portfolio of securities and other assets, and
having its own investment objectives, policies and restrictions;
WHEREAS, to the extent permitted by applicable insurance, tax and other laws and
regulations, THRIVENT LIFE intends to purchase shares in the FUND on behalf of the ACCOUNTS
to fund the Contracts or on its own behalf for related purposes, and the FUND is authorized
to sell such shares to the ACCOUNTS and to THRIVENT LIFE at net asset value;
NOW, THEREFORE, in consideration of the covenants and mutual promises contained herein, and
other good and valuable consideration, the receipt and legal sufficiency of which are hereby
acknowledged, and intending to be legally bound hereby, the Parties agree as follows:
1. Sale of FUND Shares
A. The Contracts funded through the ACCOUNTS will provide for the allocation of net
amounts among certain Subaccounts for investment in such shares of the Portfolios as
may be offered from time to time in the prospectus of the ACCOUNTS for the
Contracts. The selection of the particular Subaccount is to be made by the Contract
owner, and such selection may be changed in accordance with the terms of the
Contracts.
B. The FUND will sell to THRIVENT LIFE those shares of each available Portfolio that
THRIVENT LIFE orders based on transactions under Contracts, effecting such orders on
a daily basis at the Portfolio's net asset value per share next computed as provided
in the FUND prospectus.
C. The Board of Directors of the FUND (the "Board") may refuse to sell shares of any
Portfolio to THRIVENT LIFE, or suspend or terminate the offering of shares of any
Portfolio, if such action is required by law or by regulatory authorities having
jurisdiction or is, in the sole discretion of the Board, acting in good faith and in
light of their fiduciary duties under federal and any applicable state laws,
necessary in the best interests of the shareholders of the FUND.
D. The FUND agrees that its shares will be sold only to: (a) THRIVENT LIFE, on its own
behalf and on behalf of separate accounts that it establishes from time to time and
maintains to fund variable annuity contracts and variable life insurance contracts of
THRIVENT LIFE, including the ACCOUNTS; (b) Thrivent Financial for Lutherans or other
life insurance companies, whether affiliated or unaffiliated with THRIVENT LIFE, on
behalf of separate accounts funding variable annuity contracts and variable life
insurance contracts of such other insurance companies; and (c) qualified pension or
retirement plans, whether for the benefit of employees of Thrivent Financial for
Lutherans and/or its affiliates or for the benefit of unaffiliated entities
("Qualified Plans"). THRIVENT LIFE separate accounts (including the ACCOUNTS) and
separate accounts of other life insurance companies eligible to purchase shares of
the FUND are referred to in this Agreement as "Separate Accounts." No shares of any
Portfolio will be sold to the general public or to any life insurance company (on its
own behalf, as opposed to a Separate Account maintained by such other insurance
company) other than THRIVENT LIFE.
E. The FUND will redeem for cash from THRIVENT LIFE those full or fractional shares of
each Portfolio that THRIVENT LIFE requests based on transactions under Contracts,
effecting such requests on a daily basis at the Portfolio's net asset value per share
next computed as provided in the FUND prospectus.
F. Issuance and transfer of the FUND's shares will be by book entry only. Stock
Contracts will not be issued to THRIVENT LIFE. Shares ordered from the FUND will be
recorded in an appropriate title for THRIVENT LIFE.
G. The FUND shall furnish notice promptly to THRIVENT LIFE of any income, dividends or
capital gain distributions payable on the shares of any Portfolio. THRIVENT LIFE
hereby elects to receive all such income, dividends and capital gain distributions as
are payable on FUND shares in additional shares of that Portfolio. THRIVENT LIFE
reserves the right to revoke this election and to receive all such income, dividends
and capital gain distributions in cash. The FUND shall notify THRIVENT LIFE of the
number of shares so issued as payment of such income, dividends and distributions.
H. The FUND shall make the net asset value per share for each Portfolio available to
THRIVENT LIFE on a daily basis, as soon as reasonably practical after the net asset
value per share is calculated.
I. The FUND may establish additional Portfolios to provide additional funding media for
the Contracts, or delete, combine, or modify existing Portfolios. The shares of any
additional Portfolio may be made available to the ACCOUNTS by the FUND, pursuant to
the terms of this Agreement, and any applicable reference to any Portfolio, the FUND
or its shares herein shall include a reference to any such Portfolio.
2. Representations and Warranties
A. THRIVENT LIFE represents and warrants that interests in the ACCOUNTS under the
Contracts are or will be registered under the 1933 Act to the extent required by the
1933 Act, that the Contracts will be issued and sold in compliance in all material
respects with all applicable federal and state laws and that the sale of the
Contracts will comply in all material respects with state insurance and federal
securities law suitability requirements. THRIVENT LIFE further represents and
warrants that it is a corporation stock life insurance company organized under the
laws of the State of Minnesota and engaged in the writing of life insurance, annuity
contracts, and other insurance products; that it has legally and validly established
its ACCOUNTS as segregated asset accounts under Minnesota insurance law; and that it
has registered or will register the ACCOUNTS as unit investment trusts in accordance
with the provisions of the 1940 Act to serve as segregated investment accounts for
the Contracts, to the extent required by the 1940 Act.
▇. ▇▇▇▇▇▇▇▇ LIFE represents and warrants that any interests in the ACCOUNTS being
offered for sale under the Contracts are or will be registered under the 1933 Act to
the extent required by the 1933 Act, that the Contracts will be issued and sold in
compliance in all material respects with all applicable federal and state laws, and
that the sale of the Contracts will comply in all material respects with state
insurance law, and federal securities laws, including the rules of the National
Association of Securities Dealers, Inc. ("NASD").
C. The FUND represents and warrants that its shares sold pursuant to this Agreement are
or will be registered under the 1933 Act to the extent required by the 1933 Act, duly
authorized for issuance and sold in compliance with the laws of the state of
Minnesota and all applicable federal securities laws and that the FUND is or will be
registered under the 1940 Act to the extent required by the 1940 Act. The FUND will
amend the registration statement for its shares under the 1933 Act, as well as its
registration statement under the 1940 Act, as required in order to effect the
continuous offering of its shares. The FUND will register or qualify the shares for
sale in accordance with the laws of the various states only if and to the extent
deemed advisable by the FUND.
▇. ▇▇▇▇▇▇▇▇ LIFE represents and warrants that its Contracts are currently treated as
annuity contracts and universal life insurance contracts under applicable provisions
of the Code and that it will make every effort to maintain such treatment.
E. The FUND represents and warrants that each of its Portfolios will qualify as a
regulated investment company under Subchapter M of the Code and that the investments
of each of its Portfolios will comply with the diversification requirements of
Section 817(h) of the Code and the regulations thereunder, and that it will notify
THRIVENT LIFE immediately upon having a reasonable basis for believing that it has
ceased to so qualify or that it might not so qualify in the future.
3. Prospectus and Proxy Statements: Voting
A. The FUND will provide such documentation (including a final copy of any new
prospectus, statement of additional information ("SAI") or supplement) and other
assistance as is reasonably necessary in order for THRIVENT LIFE or its designee to
timely distribute the current FUND prospectus, SAI and any supplement thereto.
B. The FUND will provide such documentation (including a final copy of any proxy
material, report to shareholders, and other communication to shareholders) and other
assistance as is reasonably necessary for THRIVENT LIFE or its designee to timely
distribute the proxy material, report to shareholders, and other communication (such
printing and distribution to be the FUND's expense, as provided in Section 5.1).
C. To the extent required by law, THRIVENT LIFE shall:
1. solicit voting instructions from Contract owners;
2. vote Portfolio shares in accordance with instructions received from Contract
owners;
3. vote Portfolio shares for which no instructions have been received, as well as
Portfolio shares attributable to THRIVENT LIFE other than under Contracts, in the
same proportion as shares of such 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 pass-through voting privileges. THRIVENT LIFE reserves the
right to vote Portfolio shares held in any segregated asset accounts or in
general accounts in its own right, to the extent permitted by law.
D. The FUND reserves the right to take all actions, including but not limited to the
dissolution, merger, and sale of all assets of the FUND solely upon the authorization
of its Board and/or shareholders as required by the 1940 Act.
4. Sales Material and Information
A. THRIVENT LIFE and the FUND will cause to be furnished to each other each piece of
sales literature or other promotional material in which the FUND or THRIVENT LIFE is
named, at least three (3) days prior to its intended use.
B. Neither THRIVENT LIFE nor the FUND will give any information or make any
representation or statement, or cause such information to be given or representation
to be made, on behalf of the PARTIES other than the information or representations
contained in the registration statements, prospectuses, and SAIs for FUND and the
Accounts, as such registration statements, prospectuses, and SAIs may be amended or
supplemented from time to time, or in reports or proxy materials for the FUND or
ACCOUNTS, or in sales literature or other promotional material approved by the FUND
or its designee, except with the permission of the FUND or its designee.
5. Fees and Expenses
A. The FUND will pay all expenses incident to the FUND's performance under this
Agreement. In addition to the investment advisory fee, each Portfolio will bear all
of its operating expenses that are not specifically assumed by THRIVENT LIFE,
including the following: (i) interest and taxes (ii) brokerage commissions; (iii)
insurance premiums; (iv) compensation and expenses for those Directors who are not
"interested" persons under Section 2(a)(19) of the Act; (v) independent legal and
audit expenses; (vi) fees and expenses of the FUND's custodian, shareholder servicing
or transfer agent and accounting services agent; (vii) expenses incident to the
issuance of its shares, or reinvestment of dividends; (viii) fees and expenses
incident to the registration under Federal or state securities laws of the FUND or
its shares; (ix) FUND or portfolio organizational expenses; (x) FUND expenses of
preparing, printing and mailing reports and notices, proxy material and prospectuses
to shareholders of the FUND; (xi) all other expenses incidental to holding meetings
of the FUND's shareholders; (xii) dues or assessments of or contributions to the
Investment Company Institute or any successor or other industry association; (xiii)
such non-recurring expenses as may arise, including litigation affecting the FUND and
the legal obligations which the FUND may have to indemnify its officers and Directors
with respect thereto; and (xiv) cost of daily valuation of each of the Portfolio's
securities and net asset value per share.
▇. ▇▇▇▇▇▇▇▇ LIFE will pay all expenses incident to THRIVENT LIFE's performance under
this Agreement. In addition, THRIVENT LIFE will bear the expenses of printing and
distributing to its Contract owners the FUND proxy materials, proxy cards and voting
instruction forms (collectively "proxy information"), tabulating the results of proxy
solicitations to its Contract owners, printing and distributing to its Contract
owners the FUND prospectus, SAI, supplement, proxy material, report to shareholders,
and other communication to shareholders, and any expenses associated with
administration of its Contracts.
6. Diversification
A. The FUND will make every effort to be invested in such a manner as to ensure that the
Contracts will be treated as variable life insurance contracts and variable annuity
contracts under the Code and the regulations thereunder insofar as such investment is
required for such treatment. Without limiting the scope of the foregoing, the FUND
will at all times comply with Section 817(h) of the Code and Treasury Regulations
Section 1.817-5 relating to the diversification requirements for variable annuity,
endowment, or life insurance contracts and any amendments or other modifications to
such Section or Regulations.
7. Monitoring for Material Irreconcilable Conflicts
A. The FUND's Board of Directors will monitor the FUND for the existence of any material
irreconcilable conflict between and among the interests of the Contractholders of the
Separate Accounts (including the ACCOUNTS) investing in the FUND and the participants
of any of the Qualified Plans investing in the FUND. A material irreconcilable
conflict may arise for a variety of reasons, including: (a) 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 interpretive 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 investment of the FUND are being
managed; (e) a difference in voting instructions given by variable annuity Contract
owners, variable life insurance Contract owners, and trustees of the Qualified Plans;
(f) a decision by THRIVENT LIFE or another life insurance company to disregard the
voting instructions of Contract owners in one or more Separate Accounts; or (g) if
applicable, a decision by the trustee of a Qualified Plan to disregard the voting
instructions of the participants of such Qualified Plan. A determination by the
FUND's Board that a material irreconcilable conflict exists will be a final
determination.
B. If it is determined by a majority of the FUND's Board, or by a majority of its
disinterested directors, that a material irreconcilable conflict exists, the FUND
promptly shall notify THRIVENT LIFE in writing of any determination by the FUND's
Board as to the existence of a material irreconcilable conflict and its
implications. THRIVENT LIFE (on behalf of the ACCOUNTS) shall, at its expense and to
the extent reasonably practicable (as determined by a majority of the disinterested
directors of the FUND), take whatever steps are necessary to remedy or eliminate the
material irreconcilable conflict. Such steps could include: (a) withdrawing the
assets allocable to some or all of the ACCOUNTS from the FUND or any Portfolio of the
FUND and reinvesting such assets in a different investment medium, including another
portfolio of the FUND; (b) submitting the question as to whether such segregation
should be implemented to a vote of all affected Contract owners and, as appropriate,
segregating the assets of any appropriate (i.e., variable annuity Contract owners or
variable life insurance Contract owners of one or more of THRIVENT LIFE and any other
insurance companies with Separate Accounts investing in the FUND) that votes in favor
of such segregation, or offering to the affected Contract owners the option of making
such change; or (c) establishing a new registered management investment company or
managed separate account. If a material irreconcilable conflict arises because of a
decision by THRIVENT LIFE to disregard voting instructions of owners of Contracts in
one or more of the ACCOUNTS, and that decision represents a minority position or
would preclude a majority vote with respect to the vote being taken by shareholders
of the FUND, then THRIVENT LIFE shall, at the election and direction of the FUND's
Board, withdraw each affected ACCOUNT's investment in the FUND (but no charge or
penalty shall be imposed as a result of such withdrawal).
▇. ▇▇▇▇▇▇▇▇ LIFE is responsible, to the extent permitted by applicable law, for taking
remedial action on behalf of the affected ACCOUNT(s) in the event that the FUND's
Board determines a material irreconcilable conflict exists. THRIVENT LIFE will take
remedial action only as it pertains to assets of the affected ACCOUNT(s) and in
accordance with its fiduciary responsibility to Contract owners in such affected
ACCOUNT(s). THRIVENT LIFE, as the sponsor of the affected ACCOUNT(s), will be
responsible for the cost of any such remedial action. For the purpose of this
Section, a majority of the disinterested members of the FUND's Board will determine
whether or not any proposed action adequately remedies any material irreconcilable
conflict. In no event shall the FUND, or THRIVENT LIFE in its capacity as advisor to
the FUND, be required to establish a Portfolio or new funding medium for any Contract
or any ACCOUNT. Nor, in its capacity as sponsor of any ACCOUNT, shall THRIVENT LIFE
be required to establish a new funding medium for any Contract or any ACCOUNT if any
offer to do so has been declined by a vote of a majority of the Contract owners
materially and adversely affected by the material irreconcilable conflict.
D. All reports of potential or existing conflicts received by the FUND's Board and all
Board actions with regard to or determining the existence of a conflict of interest,
notifying THRIVENT LIFE of a conflict, and determining whether any proposed action
adequately remedies a conflict, will be properly recorded in the minutes of the
FUND's Board or other appropriate records, and such minutes or other records will be
made available to the SEC upon request.
E. The FUND will disclose in its prospectus that (a) shares of the FUND may be offered
to Separate Accounts and Qualified Plans; (b) material irreconcilable conflicts may
arise between the interest of various Contract owners investing in the Separate
Accounts and the interests of participants in the Qualified Plans investing in the
FUND; and (c) the FUND's Board will monitor events in order to identify the existence
of any material conflict and determine what action, if any, should be taken in
response to such material irreconcilable conflict.
F. No less than annually, THRIVENT LIFE will submit to the FUND's Board such reports,
materials and data as the Board may reasonably request so that the Board may carry
out fully its obligations under this Section. Such reports, materials and data will
be submitted more frequently if deemed appropriate by the FUND's Board. In any event,
THRIVENT LIFE will promptly notify the FUND's Board in writing if it becomes aware of
any facts or circumstances that could give rise to a material irreconcilable conflict
between the interests of various Contract owners in the ACCOUNTS and the interests of
Qualified Plan participants investing in the FUND. All reports submitted to the
FUND's Board under this Section 7.7 shall include all information reasonably
necessary for the Board to consider the conflict issues raised. In this regard,
THRIVENT LIFE promptly shall notify the FUND's Board whenever THRIVENT LIFE has
determined to disregard voting instructions of the Contract owners of any ACCOUNT(s)
on any matter submitted to a vote of shareholders of the FUND.
8. Indemnification
A. Indemnification by THRIVENT LIFE
1. THRIVENT LIFE will indemnify and hold harmless the FUND and each of its
Directors, officers, and employees and each person, if any, who controls the FUND
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 THRIVENT LIFE) or litigation (including legal and other expenses), to
which the Indemnified Parties may become subject under any statute, regulation,
at common law or otherwise, and which:
(a) arise out of or are based upon any failure by THRIVENT LIFE to perform the
duties or assume the general business responsibilities of THRIVENT LIFE with
respect to the design, drafting, state approvals, issuance, servicing and
administration of the Contracts, or the establishment and maintenance of the
ACCOUNTS; or
(b) 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 SAI for the Contracts, or the ACCOUNTS, 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 will not apply as to any Indemnified
Party if such statement or omission or such alleged statement or omission was
made in reliance upon and in conformity with information furnished in writing
to THRIVENT LIFE by or on behalf of the FUND for use in the registration
statement, prospectus, or SAI for the Contracts or the ACCOUNTS or in the
Contracts or sales literature (or any amendment or supplement) or otherwise
for use in connection with the sale of the Contracts or FUND shares; or
(c) arise out of or are based upon statements or representations (other than
statements or representations contained in the registration statement,
prospectus, SAI, or sales literature of the FUND not supplied by THRIVENT
LIFE, or persons under its control) or wrongful conduct of THRIVENT LIFE or
persons under its control, or failure to supervise persons under THRIVENT
LIFE's control or entities or individuals with which THRIVENT LIFE contracts,
with respect to the sale or distribution of the Contracts or FUND shares; or
(d) arise out of any untrue statement or alleged untrue statement of a material
fact contained in a registration statement, prospectus, or sales literature of
the FUND or any amendment 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 in
writing to the FUND by or on behalf of THRIVENT LIFE; or
(e) arise out of or result from any failure by THRIVENT LIFE to provide the
services and furnish the materials contemplated by this Agreement; or
(f) arise out of or result from any material breach of any representation and/or
warranty made by THRIVENT LIFE in this Agreement or arise out of or result
from any other material breach of this Agreement by THRIVENT LIFE, as limited
by and in accordance with the provisions of Sections 8.1(b). and 8.1(c) hereof.
2. THRIVENT LIFE will not be liable under this indemnification provision with
respect to any losses, claims, damages, liabilities or litigation to which an
Indemnified Party would 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 or duties under this Agreement or to the FUND, whichever
is applicable.
3. THRIVENT LIFE will not be liable under this indemnification provision with
respect to any claim made against an Indemnified Party unless such Indemnified
Party shall have notified THRIVENT LIFE 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 THRIVENT LIFE of any such claim will not relieve
THRIVENT LIFE 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. In case any such action is brought against the
Indemnified Parties, THRIVENT LIFE shall be entitled to participate, at its own
expense, in the defense thereof. THRIVENT LIFE also will be entitled to assume
the defense thereof, with counsel satisfactory to the party named in the action.
After notice from THRIVENT LIFE to such party of THRIVENT LIFE's election to
assume the defense thereof, the Indemnified Party will bear the fees and expenses
of any additional counsel retained by it, and THRIVENT LIFE 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.
4. The Indemnified Party will promptly notify THRIVENT LIFE of the commencement of
any litigation or proceeding against it or any of its respective officers or
directors in connection with transactions that are the subject of this Agreement
whether or not indemnification is being sought hereunder.
B. Indemnification By the FUND
1. The FUND will indemnify and hold harmless THRIVENT LIFE and each of its
directors, officers and employees and each person, if any, who controls THRIVENT
LIFE 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 FUND) or litigation (including legal and other expenses)
to which the Indemnified Parties may become subject under any statute,
regulation, at common law or otherwise, which:
(a) arise out of or are based upon any failure by the FUND to perform the duties
or assume the general business responsibilities required by this Agreement
with respect to the sale of shares of the FUND to THRIVENT LIFE; or
(b) arise out of or are based upon any untrue statements or alleged untrue
statements of any material fact contained in the sales literature for the FUND
and/or the Contracts, 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 will not apply as to any Indemnified Party if
such statement or omission or such alleged statement or omission was made in
reliance upon and in conformity with information furnished in writing to the
FUND by or on behalf of THRIVENT LIFE for use in the registration statement,
prospectus, or SAI for use in the sales literature or otherwise for use in
connection with the sale of Portfolio shares; or
(c) arise out of or are based upon 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 FUND, or
persons under its control) or wrongful conduct of the FUND or persons under
its control, or failure to supervise persons under the FUND's control or
entities or individuals with which the FUND contracts, with respect to the
sale or distribution of the Contracts or FUND shares; or
(d) arise out of any untrue statement or alleged untrue statement of a material
fact contained in a registration statement, prospectus, or sales literature of
the FUND or any amendment 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 in
writing to THRIVENT LIFE by or on behalf of THRIVENT LIFE; or
(e) arise out of or result from any failure by the FUND to provide the services
and furnish the materials contemplated by this Agreement; or
(f) 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, except to the extent
provided in Section 8.2(b) and 8.2(c) hereof.
2. The FUND will not be liable under this indemnification provision with respect to
any losses, claims, damages, liabilities or litigation to which an Indemnified
Party would 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
or duties under this Agreement or to the FUND, whichever is applicable.
3. The FUND will 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 will 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. In case any such
action is brought against the Indemnified Parties, the FUND shall be entitled to
participate, at its own expense, in the defense thereof. The FUND also will be
entitled to assume the defense thereof, with counsel satisfactory to the party
named in the action. After notice from the FUND to such party of the FUND's
election to assume the defense thereof, the Indemnified Party will bear the fees
and expenses of any additional counsel retained by it, and the 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.
4. The Indemnified Party will promptly notify the FUND of the commencement of any
litigation or proceeding against it or any of its respective officers or
directors in connection with transactions that are the subject of this Agreement
whether or not indemnification is being sought hereunder.
9. Term and Termination of this Agreement
A. This Agreement will terminate:
1. as to any party hereto, at the option of that party, upon prior written notice to
the other party as provided in Section 9.3 herein; or
2. at the option of the FUND in the event that formal administrative proceedings are
instituted against THRIVENT LIFE by the NASD, the SEC, any state securities or
insurance commissioner or any other regulatory body regarding THRIVENT LIFE's
duties under this Agreement or related to the sale of the Contracts, the
operation of the ACCOUNTS, or the purchase of FUND shares, provided, however,
that the FUND determines, in its sole judgment exercised in good faith, that any
such administrative proceedings will have a material adverse effect upon the
ability of THRIVENT LIFE to perform its obligations under this Agreement; or
3. at the option of THRIVENT LIFE in the event that formal administrative
proceedings are instituted against the FUND by the NASD, the SEC, or any state
securities or insurance commission or any other regulatory body, regarding the
FUND's duties under this Agreement or related to the sale of FUND shares or the
operation of the FUND, provided, however, that THRIVENT LIFE 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 to perform its
obligations under this Agreement; or
4. at the option of THRIVENT LIFE with respect to the ACCOUNTS, upon requisite
authority to substitute the shares of another investment company for shares of
the FUND in accordance with the terms of the Contracts or in accordance with the
ACCOUNTS investment policy or standards of conduct; or
5. at the option of THRIVENT LIFE, in the event any of the FUND's shares are not
registered, issued, or sold in accordance with applicable federal and any state
law or such law precludes the use of such shares as the underlying investment
media of the Contracts issued or to be issued by THRIVENT LIFE; or
6. at the option of THRIVENT LIFE, if the FUND fails to meet the requirements
specified in Sections 2.3 or 2.6 hereof; or
7. at the option of the FUND, if the investments of the ACCOUNTS fail to satisfy the
diversification requirements of the Code and the regulations thereunder, or
8. at the option of THRIVENT LIFE, if the FUND dissolves or becomes otherwise unable
to sell shares to fund the ACCOUNTS.
B. It is understood and agreed that the right of any party hereto to terminate this
Agreement pursuant to Section 9.1(a) may be exercised for any reason or for no reason.
C. Notice Requirement for Termination
No termination of this Agreement will be effective unless and until the party
terminating this Agreement gives prior written notice to the other party to this
Agreement of its intent to terminate, and such notice shall set forth the basis for
such termination. Furthermore,
1. in the event that any termination is based upon the provisions of Section 9.1(a)
hereof, such prior written notice shall be given at least one hundred eighty
(180) days in advance of the effective date of termination as required by such
provision;
2. in the event that any termination is based upon the provisions of Section 9.1(b)
or Section 9.1(c) hereof, such prior written notice shall be given at least
ninety (90) days in advance of the effective date of termination;
3. in the event that any termination is based upon the provisions of Section 9.1(d)
hereof, THRIVENT LIFE will give at least sixty (60) days prior written notice to
the FUND of the date of any proposed action to substitute FUND shares, including
the filing of any applicable exemptive application under the 1940 Act relating to
the ACCOUNTS; and THRIVENT LIFE will provide the FUND with a copy of any such
exemptive application; and
4. in the event that any termination is based upon the provisions of Section 9.1(e),
Section 9.1(f), or Section 9.1(g) hereof, such prior written notice shall be
given as soon as possible within twenty-four (24) hours after the terminating
party learns of the event causing termination to be required.
D. Partial Termination
It is also understood that this Agreement may be terminated with regard to a specific
Portfolio or Portfolios of the FUND, or the entire FUND at the discretion of the
terminating party. Notwithstanding any termination of this Agreement, the FUND, or
any Portfolio, provided its shares are then available for sale to any persons, shall
at the option of THRIVENT LIFE, continue to make available additional shares of the
FUND pursuant to the terms and conditions of this Agreement, for all Contracts in
effect on the effective date of termination of this Agreement (hereinafter referred
to as "Existing Contracts"). Specifically, without limitation, the owners of the
Existing Contracts shall be permitted to transfer or reallocate investments under the
Contracts, redeem investments in the FUND and/or invest in the FUND upon the making
of additional purchase payments under the Existing Contracts.
10. Notices
Any notice will 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 THRIVENT LIFE: ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇
Secretary, Senior Vice President and General Counsel
If to the FUND: ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇, Secretary
11. Miscellaneous
A. This Agreement will be construed and the provisions hereof interpreted under and
in accordance with the laws of the State of Minnesota; provided, however, that if
such laws or any of the provisions of this Agreement conflict with applicable
Provisions of the 1940 Act, the latter shall control.
B. If any provision of this Agreement will be held or made invalid by a court
decision, statute, rule or otherwise, the remainder of the Agreement will not be
effected thereby.
IN WITNESS WHEREOF, each of the parties hereto has caused this Agreement to be executed in
its name and on its behalf by its duly authorized representative and its seal to be
hereunder affixed hereto as of the 15th day of December, 2003.
THRIVENT LIFE INSRUANCE COMPANY LB SERIES FUND, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------------------- -------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
President and President
Chief Executive Officer
EXHIBIT A
TO
PARTICIPATION AGREEMENT
(Effective December 15, 2003)
1. LBVIP Variable Insurance Account
2. LBVIP Variable Insurance Account II
3. LBVIP Variable Annuity Account I
