EXHIBIT 8 (o)
FUND PARTICIPATION AGREEMENT
THIS AGREEMENT is made as of April ___, 2007, between XTF Advisors
Trust, an open-end management investment company organized as a Delaware
business trust (the "Trust"), XTF Advisors LLC, a registered investment adviser
organized as a limited liability company under the laws of Delaware and
[COMPANY], a __________ company organized under the laws of [STATE] (the
"Company"), on its own behalf and on behalf of each segregated asset account of
the Company set forth on Schedule A, as the parties hereto may amend it from
time to time (the "Accounts") (individually, a "Party", and collectively, the
"Parties").
W I T N E S S E T H:
WHEREAS, the Trust has applied for registration with the Securities and
Exchange Commission ("SEC") as an open-end management investment company under
the Investment Company Act of 1940, as amended (the "1940 Act"), and has applied
for registration of the offer and sale of its shares ("Shares") under the
Securities Act of 1933, as amended (the "1933 Act"); and
WHEREAS, the Trust desires to act as an investment vehicle for separate
accounts established for variable life insurance policies and variable annuity
contracts to be offered by insurance companies that enter into participation
agreements with the Trust (the "Participating Insurance Companies"); and
WHEREAS, the beneficial interest in the Trust may be divided into
several series of Shares, each series representing an interest in a particular
managed portfolio of securities and other assets, and the Trust will make Shares
in each of such series listed on Schedule B hereto as the Parties hereto may
amend from time to time (each a "Portfolio"; reference herein to the "Trust"
includes reference to each Portfolio, to the extent the context requires)
available for purchase by the Accounts; and
WHEREAS, the Trust, to the extent required, has applied for an order
from the SEC granting Participating Insurance Companies and their 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 life insurance
companies and certain qualified pension and retirement plans (the "Exemptive
Order"); and
WHEREAS, the Company will be the issuer of certain variable annuity
contracts and variable life insurance contracts ("Contracts") as set forth on
Schedule A hereto, as the Parties hereto may amend from time to time, which
Contracts (hereinafter collectively, the "Contracts"), will be registered under
the 1933 Act unless an exemption from registration is available; and
WHEREAS, the Company will fund the Contracts through the Accounts, each
of which may be divided into two or more subaccounts ("Subaccounts"; reference
herein to an "Account" includes reference to each Subaccount thereof to the
extent the context requires); and
WHEREAS, the Company will serve as the depositor of the Accounts, each
of which is registered as a unit investment trust investment company under the
1940 Act unless an exemption from registration is available, and the security
interests deemed to be issued by the Accounts under the Contracts will be
registered as securities under the 1933 Act unless an exemption from
registration is available; and
WHEREAS, the Company intends to utilize Shares of one or more Portfolios
as an investment vehicle of the Accounts;
NOW, THEREFORE, in consideration of their mutual promises, the Parties
agree as follows:
ARTICLE I
SALE OF TRUST SHARES
1.1 The Trust shall make Shares of its Portfolios available to the
Accounts at the net asset value of the applicable Portfolio next computed after
receipt of such purchase order by the Trust (or its agent), as established in
accordance with the provisions of the then current prospectus of the Portfolio.
Shares of a particular Portfolio of the Trust shall be ordered in such
quantities and at such times as determined by the Company to be necessary to
meet the requirements of the Contracts. Notwithstanding anything to the contrary
herein, the Trustees of the Trust (the "Trustees") may refuse to sell Shares of
any Portfolio to any person, or suspend or terminate the offering of Shares of
any Portfolio if such action is required by law or by regulatory authorities
having jurisdiction or is deemed in the sole discretion of the Trustees acting
in good faith and in light of their fiduciary duties under federal and any
applicable state laws, in the best interests of the shareholders of such
Portfolio.
The Parties hereto may agree, from time to time, to add other
Portfolios to provide additional funding media for the Contracts, or to delete,
combine, or modify existing Portfolios, by amending Schedule A hereto. Upon such
amendment to Schedule A, any applicable reference to a Portfolio, the Trust, or
its Shares herein shall include a reference to any such additional Portfolio.
Schedule A, as amended from time to time, is incorporated herein by reference
and is a part hereof.
1.2 The Trust will redeem any full or fractional Shares of any Portfolio
when requested by the Company on behalf of an Account at the net asset value of
the applicable Portfolio next computed after receipt by the Trust (or its agent)
of the request for redemption, as established in accordance with the provisions
of the then current prospectus of the applicable Portfolio. With respect to
payment of the purchase price by the Company and of redemption proceeds by the
Trust, the Company and the Trust shall net purchase and redemption orders with
respect to each Portfolio and shall transmit one net payment per Portfolio in
accordance with this Section 1.2 and Section 1.4. The Trust shall make payment
no later than 12:00 noon New York time on the same day as the order is placed,
to the extent practicable, but in no event shall payment be delayed for a
greater period than is permitted by the 1940 Act.
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1.3 For the purposes of Sections 1.1 and 1.2, the Trust hereby appoints
the Company as its agent for the limited purpose of receiving and accepting
purchase and redemption orders resulting from investment in and payments under
the Contracts. Receipt by the Company shall constitute receipt by the Trust
provided that i) such orders are received by the Company in good order prior to
the time the net asset value of each Portfolio is priced in accordance with its
prospectus and ii) the Trust receives notice of such orders by 10:00 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 regular trading, on which the
Trust calculates the Portfolio's net asset value pursuant to the rules of the
SEC and on which the Company is open for business.
1.4 The Company shall wire payment for net purchase orders that are
transmitted to the Trust in accordance with Section 1.3 to a custodial agent
designated by the Trust no later than 12:00 noon New York time on the same
Business Day that the Trust receives notice of the order. Payments shall be made
in federal funds transmitted by wire.
1.5 Issuance and transfer of the Trust's Shares will be by book entry
only. Certificates evidencing the Shares will not be issued to the Company or
the Account. Shares ordered from the Trust will be recorded in the appropriate
title for each Account or the appropriate subaccount of each Account.
1.6 The Trust shall furnish same day notice (by email or telephone
followed by written or email confirmation) to the Company of any income
dividends or capital gain distributions payable on the Trust's Shares. The
Company hereby elects to receive all such income dividends and capital gain
distributions as are payable on a Portfolio's Shares in additional Shares of
that Portfolio. The Company reserves the right to revoke this election and to
receive all such dividends and capital gain distributions in cash. The Trust
shall notify the Company of the number of Shares so issued as payment of such
dividends and distributions.
1.7 The Trust shall make the net asset value per share for each
Portfolio available to the Company on a daily basis as soon as reasonably
practical after the net asset value per share is calculated and shall use its
best efforts to make such net asset value per share available by 6:00 p.m. New
York time.
1.8 The Company shall use the data provided by the Trust each Business
Day pursuant to Section 1.7 above immediately to calculate Account unit values
and to process transactions that receive that same Business Day's Account unit
values. The Company shall perform such Account processing the same Business Day,
and shall place corresponding orders to purchase or redeem Shares with the Trust
by 10:00 a.m. New York time the following Business Day.
1.9 The Trust agrees that its Shares will be sold only to Participating
Insurance Companies and their separate accounts and to certain qualified pension
and retirement plans ("Plans") to the extent permitted by the Exemptive Order.
No Shares of any Portfolio will be sold directly to the general public. The
Company agrees that Trust Shares will be used only for the purposes of funding
the Contracts and Accounts listed in Schedule A, as amended from time to time.
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1.10 The Trust agrees that all Participating Insurance Companies shall
have the obligations and responsibilities regarding pass-through voting and
conflicts of interest corresponding to those contained in Section 2.8 and
Article IV of this Agreement.
1.11 The Trust shall use its best efforts to provide closing net asset
value, dividend and capital gain information on a per-share basis to the Company
on each Business Day. Any material errors in the calculation of net asset value,
dividend and/or capital gain information shall be reported to the Company
promptly upon discovery. Material errors will be corrected in the applicable
Business Day's net asset value per share. The Company will adjust the number of
shares purchased or redeemed for the Accounts to reflect the correct net asset
value per share.
ARTICLE II
OBLIGATIONS OF THE PARTIES
2.1 The Trust shall prepare and be responsible for filing with the SEC
and any state regulators requiring such filing all shareholder reports, notices,
proxy materials (or similar materials such as voting instruction solicitation
materials), prospectuses and statements of additional information of the Trust.
The Trust shall bear the costs of registration and qualification of its Shares,
preparation and filing of the documents listed in this Section 2.1 and all taxes
to which an issuer is subject on the issuance and transfer of its Shares.
2.2 The Trust shall provide the Company (at the Trust's expense) with as
many copies of the Trust's current prospectus, annual report, semi-annual report
and other shareholder communications, including any amendments or supplements to
any of the foregoing, as the Company shall request for existing Contract owners
for whom Shares are held by an Account. The Trust shall provide the Company (at
the Company's expense) with as many copies of the Trust's current prospectus,
including any amendments or supplements thereto, as the Company shall request
for prospective purchasers of Contracts. If requested by the Company in lieu
thereof, the Trust shall provide the Company with a camera ready copy of such
documents in a form suitable for printing (at the Company's expense, except that
the Trust will bear the commercially reasonable, prorated cost of printing the
Trust's prospectus in this format for existing Contract owners up to an amount
the Trust would pay on a per copy basis for its own prospectus). The Trust shall
provide the Company with a copy of its statement of additional information in a
form suitable for duplication by the Company. The Trust (at its expense) shall
provide the Company with copies of any Trust-sponsored proxy materials in such
quantity as the Company shall reasonably require for distribution to Contract
owners. The Trust shall provide the materials described in this Section 2.2
within a reasonable time prior to required printing and distribution of such
materials.
2.3 (a) The Company shall bear the costs of distributing the Trust's
prospectus, statement of additional information, shareholder reports and other
shareholder communications to Contract owners of and applicants for policies for
which the Trust is serving or is to serve as an investment vehicle. The Trust
shall bear the costs of distributing proxy materials (or similar materials such
as voting solicitation instructions) to Contract owners. The Company assumes
sole responsibility for ensuring that such materials are delivered to Contract
owners on a timely basis in accordance with applicable federal and state
securities laws.
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(b) If the Company elects to include any materials provided by
the Trust, specifically prospectuses, statements of additional information,
shareholder reports and proxy materials, on its web site or in any other
computer or electronic format, the Company assumes sole responsibility for
maintaining such materials in the form provided by the Trust and for promptly
replacing such materials with all updates provided by the Trust.
2.4 The Company agrees and acknowledges that it has no rights to the
names and marks "XTF Portfolios" and "XTF Advisors Trust" and that all use of
any designation comprised in whole or part of XTF Portfolios or the names of the
Portfolios or the Trust (each a "Fund Xxxx") under this Agreement shall inure to
the benefit of the Trust. Except as provided in Section 2.5, the Company shall
not use any Fund Xxxx on its own behalf or on behalf of the Accounts or
Contracts in any registration statement, advertisement, sales literature or
other materials relating to the Accounts or Contracts without the prior written
consent of the Trust. Upon termination of this Agreement for any reason, the
Company shall cease all use of any Fund Xxxx as soon as reasonably practicable.
2.5 (a) The Trust will provide the Company with at least one complete
copy of all prospectuses, statements of additional information, annual and
semi-annual reports, proxy statements, applications for exemptions, requests for
no-action letters, and all amendments or supplements to any of the above that
relate to the Trust or its investment adviser promptly after the filing of each
such document with the SEC or other regulatory authority. The Company will
provide the Trust with at least one complete copy of all prospectuses,
statements of additional information, annual and semi-annual reports, proxy
statements, applications for exemptions, requests for no-action letters, and all
amendments or supplements to any of the above promptly after the filing of each
such document with the SEC or other regulatory authority provided that the
document relates to an Account and Contract that include the Trust as one of the
underlying funding vehicles for such Contract.
(b) The Trust shall furnish, or shall cause to be furnished, to
the Company or its designee, each piece of sales literature or other promotional
material in which the Company, the Accounts or the Contracts are named, at least
fifteen Business Days prior to its use. No such material shall be used if the
Company or its designee reasonably objects to such use within fifteen Business
Days after receipt of such material. The Company shall furnish, or shall cause
to be furnished, to the Trust or its designee, each piece of sales literature or
other promotional material in which the Trust or its investment adviser(s) is
named, at least fifteen Business Days prior to its use. No such material shall
be used if the Trust or its designee reasonably objects to such use within
fifteen Business Days after receipt of such material.
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2.6 The Company and its affiliates shall not give any information or
make any representations or statements on behalf of the Trust or concerning the
Trust or any of its affiliates or its investment adviser(s) in connection with
the sale of the Contracts other than information or representations contained in
and accurately derived from the registration statement, including the prospectus
and statement of additional information, for the Trust Shares (as such
registration statement, prospectus and statement of additional information may
be amended or supplemented from time to time), reports of the Trust,
Trust-sponsored proxy statements, or in sales literature or other promotional
material approved by the Trust or its designee, except as required by legal
process or regulatory authorities or with the written permission of the Trust or
its designee.
2.7 The Trust and its affiliates shall not give any information or make
any representations or statements on behalf of the Company or concerning the
Company or any of its affiliates, the Contracts or the Accounts other than
information or representations contained in and accurately derived from the
registration statement, including the prospectus and statement of additional
information, for the Contracts (as such registration statement, prospectus, and
statement of additional information may be amended or supplemented from time to
time), or in materials approved by the Company or its designee for distribution
including sales literature or other promotional materials, except as required by
legal process or regulatory authorities or with the written permission of the
Company or its designee.
2.8 So long as, and to the extent that the SEC interprets the 1940 Act
to require pass-through voting privileges for owners of variable life insurance
policies and/or variable annuity contracts, the Company will provide
pass-through voting privileges to Contract owners whose cash values are
invested, through the Accounts, in Shares of the Trust, and will vote the Shares
held in such Accounts in a manner consistent with voting instructions timely
received from Contract owners. The Trust shall require all Participating
Insurance Companies to calculate voting privileges in the same manner and the
Company shall be responsible for assuring that the Accounts calculate voting
privileges in the manner established by the Trust. With respect to each Account,
the Company will vote Shares of the Trust held by the Account and for which no
timely voting instructions from policyowners are received, as well as Shares it
owns that are held by that Account or directly, in the same proportion as those
Shares for which timely voting instructions are received. The Company and its
affiliates and agents will in no way recommend or oppose or interfere with the
solicitation of proxies for Trust Shares held by Contract owners without the
prior written consent of the Trust, which consent may be withheld in the Trust's
sole discretion.
2.9 The Company shall notify the Trust of any applicable state insurance
laws that restrict the Portfolios' investments or otherwise affect the operation
of the Trust and shall notify the Trust in writing of any changes in such laws.
2.10 The Company shall adopt and implement procedures reasonably
designed to ensure that information concerning the Trust and its affiliates that
is intended for use only by brokers or agents selling the Contracts (i.e.,
information that is not intended for distribution to Contract owners) ("broker
only materials") is so used, and neither the Trust nor any of its affiliates
shall be liable for any losses, damages or expenses relating to the improper use
of such broker only materials.
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2.11 For purposes of Sections 2.6 and 2.7, the phrase "sales literature
or other promotional material" includes, but is not limited to, advertisements
(such as material published, or designed for use in, a newspaper, magazine, or
other periodical, radio, television, telephone or tape recording, videotape
display, signs or billboards, motion pictures, or other public media, (e.g.,
on-line networks such as the Internet or other electronic messages), sales
literature (i.e., any written communication distributed or made generally
available to customers or the public, including brochures, circulars, research
reports, market letters, form letters, seminar texts, reprints or excerpts of
any other advertisement, sales literature, or published article), educational or
training materials or other communications distributed or made generally
available to some or all agents or employees, registration statements,
prospectuses, statements of additional information, shareholder reports, and
proxy materials and any other material constituting sales literature or
advertising under the NASD rules, the 1933 Act or the 0000 Xxx.
2.12 The Trust will immediately notify the Company of (i) the issuance
by any court or regulatory body of any stop order, cease and desist order, or
other similar order with respect to the Trust's registration statement under the
1933 Act or the Trust prospectus, (ii) any request by the SEC for any amendment
to such registration statement or the Trust prospectus that may affect the
offering of Shares of the Trust, (iii) the initiation of any proceedings for
that purpose or for any other purpose relating to the registration or offering
of the Trust's Shares, or (iv) any other action or circumstances that may
prevent the lawful offer or sale of Shares of any Portfolio in any state or
jurisdiction, including, without limitation, any circumstances in which (a) such
Shares are not registered and, in all material respects, issued and sold in
accordance with applicable state and federal law, or (b) such law precludes the
use of such Shares as an underlying investment medium of the Contracts issued or
to be issued by the Company. The Trust will make every reasonable effort to
prevent the issuance, with respect to any Portfolio, of any such stop order,
cease and desist order or similar order and, if any such order is issued, to
obtain the lifting thereof at the earliest possible time.
2.13 The Company will immediately notify the Trust of (i) the issuance
by any court or regulatory body of any stop order, cease and desist order, or
other similar order with respect to each Account's registration statement under
the 1933 Act relating to the Contracts or each Account prospectus, (ii) any
request by the SEC for any amendment to such registration statement or Account
prospectus that may affect the offering of Shares of the Trust, (iii) the
initiation of any proceedings for that purpose or for any other purpose relating
to the registration or offering of each Account's interests pursuant to the
Contracts, or (iv) any other action or circumstances that may prevent the lawful
offer or sale of said interests in any state or jurisdiction, including, without
limitation, any circumstances in which said interests are not registered and, in
all material respects, issued and sold in accordance with applicable state and
federal law. The Company will make every reasonable effort to prevent the
issuance of any such stop order, cease and desist order or similar order and, if
any such order is issued, to obtain the lifting thereof at the earliest possible
time.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
3.1 The Company represents and warrants (i) that it is an insurance
company duly organized and in good standing under the laws of the Commonwealth
of Virginia and has full corporate power, authority and legal right to execute,
deliver and perform its duties and comply with its obligations under this
Agreement, (ii) that it has legally and validly established and maintained each
Account as a segregated asset account under such law and the regulations
thereunder, and (iii) that the Contracts comply in all material respects with
all other applicable federal and state laws and regulations.
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3.2 The Company represents and warrants that (i) each Account has been
registered or, prior to any issuance or sale of the Contracts, will be
registered and each Account will remain registered as a unit investment trust in
accordance with the provisions of the 1940 Act unless an exemption from
registration is available, (ii) each registered Account does and will comply in
all material respects with the requirements of the 1940 Act and the rules
thereunder, (iii) each registered Account's 1933 Act registration statement
relating to the Contracts, together with any amendments thereto, will at all
times comply in all material respects with the requirements of the 1933 Act and
the rules thereunder, (iv) the Company will amend the registration statement for
its Contracts under the 1933 Act and for its registered Accounts under the 1940
Act from time to time as required in order to effect the continuous offering of
its Contracts or as may otherwise be required by applicable law, and (v) each
registered Account prospectus will at all times comply in all material respects
with the requirements of the 1933 Act and the rules thereunder.
3.3 The Company represents and warrants that the Contracts or interests
in the Accounts are or, prior to issuance, will be registered as securities
under the 1933 Act unless an exemption from registration is available. The
Company further represents and warrants that: (i) the Contracts will be issued
and sold in compliance in all material respects with all applicable federal and
state laws, (ii) the Company has adopted policies and procedures reasonably
designed to comply with the US PATRIOT Act, and (iii) the Company does not
encourage or facilitate active trading and has adopted policies and procedures
reasonably designed to prevent market timing within the Portfolios.
3.4 The Trust represents and warrants (i) that it is duly organized and
validly existing under the laws of the State of Delaware, (ii) that it does and
will comply in all material respects with the requirements of the 1940 Act and
the rules thereunder, (iii) that its 1933 Act registration statement, together
with any amendments thereto, will at all times comply in all material respects
with the requirements of the 1933 Act and rules thereunder, and (iv) that its
Prospectus will at all times comply in all material respects with the
requirements of the 1933 Act and the rules thereunder.
3.5 The Trust represents and warrants that the Trust Shares offered and
sold pursuant to this Agreement shall be registered under the 1933 Act to the
extent required by the 1933 Act and the Trust shall be registered under the 1940
Act to the extent required by the 1940 Act prior to any issuance or sale of such
Shares. The Trust shall amend its registration statement for its shares under
the 1933 Act and itself under the 1940 Act from time to time as required in
order to effect the continuous offering of its Shares. The Trust shall register
and qualify its Shares for sale in accordance with the laws of the various
states only if and to the extent deemed advisable by the Trust.
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3.6 The Trust represents and warrants that each Portfolio intends to
comply with the diversification requirements set forth in Section 817(h) of the
Internal Revenue Code of 1986, as amended, (the "Code") and the regulations
thereunder and that the Trust will notify the Company promptly upon having a
reasonable basis for believing that a Portfolio does not so comply. In the event
of any such non-compliance, the Trust will take all reasonable steps to
adequately diversify the Portfolio so as to achieve compliance within the grace
period afforded by Section 1.817-5 of the regulations under the Code.
Notwithstanding any other provision of this Agreement, the
Company agrees that if the Internal Revenue Service ("IRS") asserts in writing
in connection with any governmental audit or review of the Company or, to the
Company's knowledge, of any Contract owners or annuitants, insureds or
participants under the Contracts (as appropriate) (collectively,
"Participants"), that any Portfolio has failed to comply with the
diversification requirements of Section 817(h) of the Code or the Company
otherwise becomes aware of any facts that could give rise to any claim against
the Trust or its affiliates as a result of such a failure or alleged failure:
(a) the Company shall promptly notify the Trust of such assertion
or potential claim;
(b) the Company shall consult with the Trust as to how to
minimize any liability that may arise as a result of such failure or alleged
failure.
(c) the Company shall use its best efforts to minimize any
liability of the Trust or its affiliates resulting from such failure, including,
without limitation, demonstrating, pursuant to Treasury Regulations Section
1.817-5(a)(2), to the Commissioner of the IRS that such failure was inadvertent;
(d) the Company shall permit the Trust, its affiliates and their
legal and accounting advisors to participate in any conferences, settlement
discussions or other administrative or judicial proceeding or contests
(including judicial appeals thereof) with the IRS, any Participant or any other
claimant regarding any claims that could give rise to liability to the Trust or
its affiliates as a result of such a failure or alleged failure; provided,
however, that the Company will retain control of the conduct of such conferences
discussions, proceedings, contests or appeals;
(e) any written materials to be submitted by the Company to the
IRS, any Participant or any other claimant in connection with any of the
foregoing proceedings or contests (including, without limitation, any such
materials to be submitted to the IRS pursuant to Treasury Regulations Section
1.817-5(a)(2)), shall be provided by the Company to the Trust (together with any
supporting information or analysis) at least ten (10) business days or such
shorter period to which the Parties hereto agree prior to the day on which such
proposed materials are to be submitted;
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(f) the Company shall provide the Trust or its affiliates and
their accounting and legal advisors with such cooperation as the Trust shall
reasonably request (including, without limitation, by permitting the Trust and
its accounting and legal advisors to review the relevant books and records of
the Company) in order to facilitate review by the Trust or its advisors of any
written submissions provided to it pursuant to the preceding clause or its
assessment of the validity or amount of any claim against its arising from such
a failure or alleged failure; and
(g) the Company shall not with respect to any claim of the IRS or
any Participant that would give rise to a claim against the Trust or its
affiliates (a) compromise or settle any claim, (b) accept any adjustment on
audit, or (c) forego any allowable administrative or judicial appeals, without
first notifying the Trust or its affiliates; provided that the Company reserves
the right, after exhausting all administrative remedies, not to appeal any
adverse judicial decision; provided, further, that if the Trust or its
affiliates shall have provided an opinion of independent counsel to the effect
that a reasonable basis exists for taking such appeal and the Company agrees
thereto, that the costs of any such appeal shall be borne by the Trust.
The Company may, in its discretion, authorize the Trust or its
affiliates to act in the name of the Company in, and to control the conduct of,
such conferences, discussions, proceedings, contests or appeals and all
administrative or judicial appeals thereof, and if such arrangement is agreed to
in writing by the Trust or its affiliates, the Trust or its affiliates shall
bear the fees and expenses associated with the conduct of the proceedings that
it is so authorized to control; provided, that in no event shall the Company
have any liability resulting from the Trust's refusal to accept the proposed
settlement or compromise with respect to any failure caused by the Trust. As
used in this Agreement, the term "affiliates" shall have the same meaning as
"affiliated person" as defined in Section 2(a)(3) of the 0000 Xxx.
3.7 The Trust represents that each Portfolio 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 provision) and that it will notify the Company promptly
upon having a reasonable basis for believing that a Portfolio has ceased to so
qualify.
3.8 Certain classes of the Trust's Shares intend to make payments to
finance distribution expenses pursuant to Rule 12b-1 under the 1940 Act (the
"12b-1 Plan"). The Trust represents that the 12b-1 Plan for each class of each
applicable Portfolio has or will be approved by the Trust's board of trustees,
including a majority of whom are not interested persons of the Trust, prior to
the date the class commences operations.
3.9 The Trust represents and warrants that all of its trustees, officers
and employees are and shall continue to be at all times covered by a blanket
fidelity bond or similar coverage for the benefit of the Trust in an amount not
less than the minimal coverage as required currently by Rule 17g-(1) under the
1940 Act or 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.
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3.10 The Company represents and warrants that the Contracts currently
are and will be treated as annuity contracts or life insurance contracts under
applicable provisions of the Code and that it will make every effort to maintain
such treatment; the Company will notify the Trust immediately upon having a
reasonable basis for believing that any of the Contracts have ceased to be so
treated or that they might not be so treated in the future.
3.11 The Company represents and warrants that each Account is a
"segregated asset account" and that interests in each Account are offered
exclusively through the purchase of or transfer into a "variable contract,"
within the meaning of such terms under Section 817 of the Code and the
regulations thereunder. The Company will make every effort to continue to meet
such definitional requirements, and it will notify the Trust immediately upon
having a reasonable basis for believing that such requirements have ceased to be
met or that they might not be met in the future.
3.12 Each of the Parties represents and warrants that it shall perform
its obligations hereunder in compliance with any applicable state and federal
laws.
ARTICLE III-A
CONTRACT HOLDER INFORMATION
3A.1 AGREEMENT TO PROVIDE CONTRACT HOLDER INFORMATION PURSUANT TO RULE 22C-2
(a) To the extent required by Rule 22c-2 under the 1940 Act, the
Company agrees to provide the Trust, upon written request, the taxpayer
identification number ("TIN"), if known, of any or all Contract holders and the
amount, date, name or other identifier of any investment professional(s)
associated with the Contract holder(s) or account(s) (if known), and transaction
type (purchase, redemption, transfer or exchange) of every purchase, redemption,
transfer or exchange of shares of the Portfolio(s) held through one or more
account(s) maintained by the Company during the period covered by the request
("transaction information").
(b) Requests must set forth a specific period, not to exceed
ninety (90) business days from the date of the request, for which transaction
information is sought. The Trust may request transaction information older than
ninety (90) business days from the date of the request as it deems necessary to
investigate compliance with policies established by the Trust for the purpose of
eliminating or reducing any dilution of the value of the outstanding shares of
the Portfolio(s) issued by the Trust.
(c) The Company agrees to transmit the requested transaction
information that is on its books and records to the Trust or its designee
promptly, but in any event not later than five (5) business days after receipt
of a request. If the requested transaction information is not on the Company's
books and records, the Company agrees to: (i) provide or arrange to provide to
the Trust the requested transaction information from Contract holders who hold
an account with an indirect intermediary; or (ii) if directed by the Trust,
block further purchases of shares of the Portfolio(s) from such indirect
intermediary. In such instance, the Company agrees to inform the Trust whether
it plans to perform (i) or (ii). Responses required by this paragraph must be
communicated in writing and in a format mutually agreed upon by the parties. To
the extent practicable, the format for any transaction information provided to
the Trust should be consistent with the NSCC Standardized Data Reporting Format.
For purposes of this provision, an "indirect intermediary" has the same meaning
as in Rule 22c-2 under the 1940Act.
11
3A.2 AGREEMENT TO RESTRICT TRADING; INSTRUCTIONS; CONFIRMATIONS
(a) To the extent required by Rule 22c-2 the Company agrees to
execute written instructions from the Trust to restrict or prohibit further
purchases or exchanges of shares of the Portfolio(s) by a Contract holder that
has been identified by the Trust as having engaged in transactions of Portfolio
shares (directly or indirectly through the Company's account) that violate
market timing or frequent trading policies established by the Trust for the
purpose of eliminating or reducing any dilution of the value of the outstanding
Portfolio shares issued by the Trust.
(b) Instructions must include the TIN, if known, and the specific
restrictions(s) to be executed. If the TIN is not known, the instructions must
include an equivalent identifying number of the Contract holder(s) or account(s)
or other agreed upon information to which the instruction relates.
(c) The Company agrees to execute instructions as soon as
reasonably practicable, but not later than five (5) business days after receipt
of the instructions by the Company.
(d) The Company must provide written confirmation to the Trust
that instructions have been executed. The Company agrees to provide confirmation
as soon as reasonably practicable, but not later than ten (10) business days
after the instructions have been executed.
3A.3 LIMITATIONS ON USE OF INFORMATION
The Trust agrees not to use any transaction information received from
the Company solely pursuant to this Agreement for marketing or any other similar
purpose without the prior written consent of the Company, except where it is
required to do so under law, rule, or regulation.
ARTICLE IV
POTENTIAL CONFLICTS
4.1 The Parties acknowledge that the Trust's Shares may be made
available for investment to other Participating Insurance Companies. In such
event, the Trustees will monitor the Trust for the existence of any material
irreconcilable conflict between the interests of the contract owners of all
12
Participating Insurance Companies. An irreconcilable material conflict may arise
for a variety of reasons, including: (a) an action by any state insurance
regulatory authority; (b) a change in applicable federal or state insurance,
tax, or securities laws or regulations, or a public ruling, private letter
ruling, no-action or interpretative letter, or any similar action by insurance,
tax, or securities regulatory authorities; (c) an administrative or judicial
decision in any relevant proceeding; (d) the manner in which the investments of
any Portfolio are being managed; (e) a difference in voting instructions given
by variable annuity contract and variable life insurance policyowners; or (f) 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.
4.2 The Company agrees to promptly report any potential or existing
conflicts of which it is aware to the Trustees. The Company will assist the
Trustees in carrying out their responsibilities under the Exemptive Order by
providing the Trustees with all information reasonably necessary for the
Trustees to consider any issues raised including, but not limited to,
information as to a decision by the Company to disregard Contract owner voting
instructions.
4.3 If it is determined by a majority of the Trustees, or a majority of
its disinterested Trustees, that a material irreconcilable conflict exists that
affects the interests of Contract owners, the Company shall, in cooperation with
other Participating Insurance Companies whose contract owners are also affected,
at its expense and to the extent reasonably practicable (as determined by a
majority of the disinterested Trustees) take whatever steps are necessary to
remedy or eliminate the irreconcilable material conflict, which steps could
include: (a) withdrawing the assets allocable to some or all of the Accounts
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 of whether or not such segregation should be
implemented to a vote of all affected Contract owners and, as appropriate,
segregating the assets of any appropriate group (i.e., annuity contract owners,
life insurance 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.
4.4 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 Trust's election, to withdraw each affected Account's
investment in the Trust and terminate this Agreement with respect to such
Account; provided, however that such withdrawal and termination shall be limited
to the extent required to adequately remedy the foregoing material
irreconcilable conflict as determined by a majority of the disinterested
Trustees. No charge or penalty will be imposed as a result of such withdrawal.
Any such withdrawal and termination must take place within six (6) months after
the Trust gives written notice that this provision is being implemented. Until
the end of such six (6) month period, the Trust shall continue to accept and
implement orders by the Company for the purchase and redemption of Shares of the
applicable Portfolio.
13
4.5 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 Trust and terminate this Agreement with
respect to such Account within six (6) months after the Trustees inform 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 to adequately remedy the
foregoing material irreconcilable conflict as determined by a majority of the
disinterested Trustees. Until the end of such six (6) month period, the Trust
shall continue to accept and implement orders by the Company for the purchase
and redemption of Shares of the applicable Portfolio.
4.6 The Company agrees that any remedial action taken by it in resolving
any material irreconcilable conflict will be carried out at its expense and with
a view only to the interests of Contract owners.
4.7 For purposes of Sections 4.3 through 4.6 of this Agreement, a
majority of the disinterested Trustees shall determine whether any proposed
action adequately remedies any irreconcilable material conflict, but in no event
will the Company be required 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.
4.8 The Company shall at least annually submit to the Trustees such
reports, materials or data as the Trustees may reasonably request so that the
Trustees may fully carry out the duties imposed upon them by the Exemptive
Order, and said reports, materials and data shall be submitted more frequently
if deemed appropriate by the Trustees.
4.9 The provisions of this Article IV are intended to be consistent with
the terms, conditions and requirements of the Exemptive Order. As of the date of
this Agreement, the Trust has not received the Exemptive Order. If and when the
Exemptive Order is granted, the Parties shall take all such steps as may be
necessary to amend this Agreement to conform with the provisions and conditions
of the Exemptive Order, as granted. In addition, the Parties shall take all such
steps as may be necessary to amend this Agreement to assure compliance with all
federal and state laws to the extent any Trust Shares are to be sold to any
unregistered accounts or to any Plan.
4.10 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 Exemptive Order) on terms and conditions materially
different from those contained in the Exemptive Order, then 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.
14
ARTICLE V
INDEMNIFICATION
5.1 Indemnification By the Company. The Company agrees to indemnify and
hold harmless the Trust, its affiliates and each of its Trustees, officers,
employees and agents and each person, if any, who controls the Trust or any of
its affiliates within the meaning of Section 15 of the 1933 Act (collectively,
the "Trust Indemnified Parties" for purposes of this Article V) against any and
all losses, claims, damages, liabilities (including amounts paid in settlement
with the written consent of the Company) or expenses (including the reasonable
costs of investigating or defending any alleged loss, claim, damage, liability
or expense and reasonable legal counsel fees incurred in connection therewith)
(collectively, "Losses"), to which the Trust Indemnified Parties may become
subject under any statute or regulation, or at common law or otherwise, insofar
as such Losses:
(a) arise out of or are based upon any untrue statements or
alleged untrue statements of any material fact contained in a registration
statement or prospectus for the Contracts or in the Contracts themselves or in
advertising or sales literature for the Contracts (or any amendment or
supplement to any of the foregoing) (collectively, "Company Documents" for the
purposes of this Article V), 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 indemnity shall not apply as to any Trust Indemnified Party if such
statement or omission or such alleged statement or omission was made in reliance
upon and was accurately derived from written information furnished to the
Company or its affiliates by or on behalf of the Trust or its affiliates for use
in Company Documents or otherwise for use in connection with the sale of the
Contracts or Trust Shares; or
(b) arise out of or result from statements or representations
(other than statements or representations contained in and accurately derived
from Trust Documents as defined in Section 5.2(a)) or the negligent or wrongful
conduct of the Company, or persons under its control (including, without
limitation, its employees), in connection with the sale or distribution of the
Contracts or Trust Shares; or
(c) arise out of or result from any untrue statement or alleged
untrue statement of a material fact contained in Trust Documents as defined in
Section 5.2(a) or the omission or alleged omission to state therein a material
fact required to be stated therein or necessary to make the statements therein
not misleading if such statement or omission was made in reliance upon and
accurately derived from written information furnished to the Trust or its
affiliates by or on behalf of the Company or its affiliates; or
(d) arise out of or result from any failure by the Company to
perform the obligations, provide the services or furnish the materials required
under the terms of this Agreement; or
15
(e) 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.
5.2 Indemnification By the Trust. The Trust agrees to indemnify and hold
harmless the Company, its affiliates and each of its directors, officers,
employees and agents and each person, if any, who controls the Company or any of
its affiliates within the meaning of Section 15 of the 1933 Act (collectively,
the "Company Indemnified Parties" for purposes of this Article V) against any
and all losses, claims, damages, liabilities (including amounts paid in
settlement with the written consent of the Trust) or expenses (including the
reasonable costs of investigating or defending any alleged loss, claim, damage,
liability or expense and reasonable legal counsel fees incurred in connection
therewith) (collectively, "Losses"), to which the Company Indemnified Parties
may become subject under any statute or regulation, or at common law or
otherwise, insofar as such Losses:
(a) arise out of or are based upon any untrue statements or
alleged untrue statements of any material fact contained in the registration
statement or prospectus for the Trust or in advertising or sales literature for
the Trust (or any amendment or supplement to any of the foregoing),
(collectively, "Trust Documents" for the purposes of this Article V), 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 indemnity shall not apply as to any
Company Indemnified Party if such statement or omission or such alleged
statement or omission was made in reliance upon and was accurately derived from
written information furnished to the Trust or its affiliates by or on behalf of
the Company or its affiliates for use in Trust Documents or otherwise for use in
connection with the sale of the Contracts or Trust Shares; or
(b) arise out of or result from statements or representations
(other than statements or representations contained in and accurately derived
from Company Documents) or the negligent or wrongful conduct of the Trust or
persons under its control (including, without limitation, its employees), in
connection with the sale or distribution of the Contracts or Trust Shares; or
(c) arise out of or result from any untrue statement or alleged
untrue statement of a material fact contained in Company Documents or the
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading if
such statement or omission was made in reliance upon and accurately derived from
written information furnished to the Company or its affiliates by or on behalf
of the Trust or its affiliates; or
(d) arise out of or result from any failure by the Trust to
perform the obligations, provide the services or furnish the materials required
under the terms of this Agreement;
16
(e) arise out of or result from any material breach of any
representation and/or warranty made by the Trust in this Agreement or arise out
of or result from any other material breach of this Agreement by the Trust; or
(f) arise out of the failure of the Trust or any Portfolio to
comply with the diversification requirements set forth in Section 817(h) of the
Code or to qualify as a "regulated investment company" under Subchapter M of the
Code.
5.3 No Party shall be liable under the indemnification provisions of
Sections 5.1 or 5.2, as applicable, with respect to any Losses incurred or
assessed against a Trust Indemnified Party or a Company Indemnified Party, as
applicable (as to each, an "Indemnified Party") to the extent the Losses arise
from such Indemnified Party's willful misfeasance, bad faith or 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.
5.4 No Party shall be liable under the indemnification provisions of
Sections 5.1 or 5.2, as applicable, with respect to any claim made against an
Indemnified Party unless such Indemnified Party shall have notified the Party
against whom Indemnification is sought (the "Indemnifying Party") in writing
within a reasonable time after the summons, or other first written notification,
giving information of the nature of the claim that shall have been served upon
or otherwise received by such Indemnified Party (or after such Indemnified Party
shall have received notice of service upon or other notification to any
designated agent), but failure to notify the Indemnifying Party of any such
claim shall not relieve such Indemnifying Party from any liability which it may
have to the Indemnified Party in the absence of Sections 5.1 and 5.2.
5.5 In case any such action is brought against the Indemnified Parties,
the Indemnifying Party shall be entitled to participate, at its own expense, in
the defense of such action. The Indemnifying Party also shall be entitled to
assume the defense thereof, with counsel reasonably satisfactory to the Party
named in the action. After notice from the Indemnifying Party to the Indemnified
Party of an election to assume such defense, the Indemnified Party shall
cooperate with the Indemnifying Party and bear the fees and expenses of any
additional counsel retained by it, and the Indemnifying Party will not be liable
to the Indemnified Party under this Agreement for any legal or other expenses
subsequently incurred by such Indemnified Party independently in connection with
the defense thereof other than reasonable costs of investigation.
ARTICLE VI
CONFIDENTIALITY
6.1 The Trust acknowledges that the identities of the customers of
Company or any of its affiliates (collectively, the "Company Protected Parties"
for purposes of this Article VI), information maintained regarding those
customers, and all computer programs and procedures or other information
developed by the Company Protected Parties or any of their employees or agents
in connection with Company's performance of its duties under this Agreement are
the valuable property of the Company Protected Parties. The Trust agrees that if
it comes into possession of any list or compilation of the identities of or
17
other information about the Company Protected Parties' customers, or any other
information or property of the Company Protected Parties, other than such
information as may be independently developed or compiled by the Trust from
information supplied to it by the Company Protected Parties' customers who also
maintain accounts directly with the Trust, the Trust will hold such information
or property in confidence and refrain from using, disclosing or distributing any
of such information or other property except: (a) with Company's prior written
consent; or (b) as required by law or judicial process. The Company acknowledges
that the identities of the customers of the Trust or any of its affiliates
(collectively, the "the Trust Protected Parties" for purposes of this Article
VI), information maintained regarding those customers, and all computer programs
and procedures or other information developed by the Trust Protected Parties or
any of their employees or agents in connection with the Trust's performance of
its duties under this Agreement are the valuable property of the Trust Protected
Parties. The Company agrees that if it comes into possession of any list or
compilation of the identities of or other information about the Trust Protected
Parties' customers or any other information or property of the Trust Protected
Parties, other than such information as may be independently developed or
compiled by Company from information supplied to it by the Trust Protected
Parties' customers who also maintain accounts directly with the Company, the
Company will hold such information or property in confidence and refrain from
using, disclosing or distributing any of such information or other property
except: (a) with the Trust's prior written consent; or (b) as required by law or
judicial process. Each Party acknowledges that any breach of the agreements in
this Article VI would result in immediate and irreparable harm to the other
Party for which there would be no adequate remedy at law and agree that in the
event of such a breach, the other Party will be entitled to equitable relief by
way of temporary and permanent injunctions, as well as such other relief as any
court of competent jurisdiction deems appropriate.
ARTICLE VII
TERMINATION
7.1 (a) This Agreement may be terminated by either Party for any reason
by ninety (90) days advance written notice delivered to the other Party.
(b) This Agreement may be terminated by the Company immediately
upon written notice to the Trust with respect to any Portfolio:
(i) based upon the Company's determination that Shares of
such Portfolio are not reasonably available to meet the requirements of the
Contracts; or
(ii) in the event any of the Portfolio's Shares are not
registered, and in all material respects issued or sold in accordance with
applicable state and/or federal law or such law precludes the use of such Shares
as the underlying investment media of the Contracts issued or to be issued by
the Company; or
(iii) upon the Trust's breach of any material provision of
this Agreement, which breach has not been cured to the satisfaction of the
Company within ten days after written notice of such breach is delivered to the
Trust;
18
(iv) in the event that such Portfolio ceases to qualify as
a Regulated Investment Company under Subchapter M of the Code or under any
successor or similar provision, or if the Company reasonably believes that the
Trust may fail to so qualify; or
(v) in the event that such Portfolio fails to meet the
diversification requirements specified in this Agreement.
(c) This Agreement may be terminated immediately by the Trust
upon the Company's breach of any material provision of this Agreement, which
breach has not been cured to the satisfaction of the Trust within ten days after
written notice of such breach is delivered to the Company.
(d) This Agreement will terminate as to a Portfolio upon at least
ninety (90) days advance written notice:
(i) at the option of the Trust upon institution of formal
proceedings against the Company by the NASD, the SEC, or any state securities or
insurance department or any other regulatory body if the Trust shall determine,
in its sole judgment exercised in good faith, that the Company has suffered a
material adverse change in its business, operations, financial condition, or
prospects since the date of this Agreement or is the subject of material adverse
publicity; or
(ii) at the option of the Company upon institution of
formal proceedings against the Trust, its principal underwriter, or its
investment adviser by the NASD, the SEC, or any state securities or insurance
department or any other regulatory body if the Company shall determine, in its
sole judgment exercised in good faith, that the Trust, its principal
underwriter, or its investment adviser has suffered a material adverse change in
its business, operations, financial condition, or prospects since the date of
this Agreement or is the subject of material adverse publicity.
7.2 Notwithstanding any termination of this Agreement under Section 7.1,
the Trust shall, at the option of the Company, continue to make available
additional Shares of the Trust (or any Portfolio) for at least 180 days,
pursuant to the terms and conditions of this Agreement, for all Contracts in
effect on the effective date of termination of this Agreement, provided that the
Company continues to pay the costs set forth in Section 2.3 and meet all
obligations of the Company under this Agreement (treating it as being in full
force and effect), and further provided that Shares of the Trust (or any
Portfolio) shall only be required to be made available with respect to owners of
the Contracts for whom Shares are held by an Account on the effective date of
the termination. Such Contract owners will be permitted to reallocate
investments in the Portfolio and/or invest in the Portfolio upon the making of
additional purchase payments under the Contracts. The provisions of this Section
7.2 shall not apply to any termination pursuant to Article IV or in the event
the Trust determines to liquidate the Portfolio and end the Portfolio's
existence.
19
7.3 The provisions of Articles V and VI shall survive the termination of
this Agreement, and the provisions of Articles II and IV shall survive the
termination of this Agreement so long as Shares of the Trust are held on behalf
of Contract owners in accordance with Section 7.2.
7.4 This Agreement will terminate as to a Portfolio immediately at the
option of the Trust if the Contracts issued by the Company cease to qualify as
annuity contracts or life insurance contracts under the Code (other than by
reason of the Portfolio's noncompliance with Section 817(h) or Subchapter M of
the Code) or if interests in an Account under the Contracts are not registered,
or, in all material respects, are not issued or sold in accordance with any
applicable federal or state law, upon prior written notice which shall be given
as soon as possible within twenty-four (24) hours after the Trust learns of the
event.
7.5 The Parties hereto agree to cooperate and give reasonable assistance
to one another in taking all necessary and appropriate steps for the purpose of
ensuring that an Account owns no Shares of a Portfolio after the effective date
of this Agreement's termination with respect to such Shares or, if such
ownership following termination cannot be avoided, that the duration thereof is
as brief as reasonably practicable. Such steps may include, for example,
combining the affected Account with another Account, substituting other
Portfolio shares for those of the affected Portfolio, or otherwise terminating
participation by the Contracts in such Portfolio.
ARTICLE VIII
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 Trust: XTF Advisors Trust
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
with a copy to: XxXxx X. Xxxxxxxx, Esq.
Xxxxxxxx Xxxx LLP
000 Xxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxxxx, Xxxx 00000
If to the Company:
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ARTICLE IX
MISCELLANEOUS
9.1 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.
9.2 This Agreement may be executed simultaneously in two or more
counterparts, each of which taken together shall constitute one and the same
instrument.
9.3 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.
9.4 This Agreement shall be construed and the provisions hereof
interpreted under and in accordance with the laws of State of New York without
regard for that state's principles of conflict of laws.
9.5 The Parties acknowledge and agree that all liabilities of the Trust
arising, directly or indirectly, under this Agreement, of any and every nature
whatsoever, shall be satisfied solely out of the assets of the Trust and that no
Trustee, officer, agent or holder of Shares of beneficial interest of the Trust
shall be personally liable for any such liabilities.
9.6 Each Party 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.
9.7 The rights, remedies and obligations contained in this Agreement are
cumulative and are in addition to any and all rights, remedies and obligations,
at law or in equity, which the Parties hereto are entitled to under state and
federal laws.
9.8 The Parties acknowledge and agree that this Agreement shall not be
exclusive in any respect.
9.9 Neither this Agreement nor any of its rights or obligations
hereunder may be assigned by any Party without the prior written approval of the
other Party.
9.10 No provisions of this Agreement may be amended or modified in any
manner except by a written agreement properly authorized and executed by all
Parties hereto.
21
IN WITNESS WHEREOF, the Parties have caused their duly authorized
officers to execute this Agreement as of the date and year first above written.
XTF ADVISORS TRUST
By:
----------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Chairman
XTF ADVISORS LLC
By:
----------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Chief Executive Officer
[COMPANY]
By:
----------------------------------------
Name:
Title:
22
SCHEDULE A
SEPARATE ACCOUNTS AND ASSOCIATED CONTRACTS
NAME OF SEPARATE ACCOUNT AND POLICIES/CONTRACTS FUNDED
DATE ESTABLISHED BY BOARD OF DIRECTORS BY SEPARATE ACCOUNT
SCHEDULE B
PARTICIPATING PORTFOLIOS
---------------------------------------
XTF Advisors Trust - ETF 40 Portfolio
---------------------------------------
XTF Advisors Trust - ETF 60 Portfolio
---------------------------------------
XTF Advisors Trust - ETF 80 Portfolio
---------------------------------------
