RETAIL FUND PARTICIPATION AGREEMENT
THIS AGREEMENT, made and entered into this 12 of October, 2000, by and among
HARTFORD LIFE INSURANCE COMPANY, a stock life insurance company organized under
the laws of Connecticut (hereinafter the "Company"), on its own behalf and on
behalf of each separate account of the Company set forth in Schedule A hereto,
as may be amended from time to time (each such account hereinafter referred to
as a "Separate Account"), each of the open-ended diversified management
investment companies listed on Schedule B, each organized under the laws of
Maryland (hereinafter individually referred to as the "Fund" or collectively as
the "Funds"), INVESCO FUNDS GROUP, INC., a Delaware corporation (hereinafter the
"Advisor"), and INVESCO DISTRIBUTORS, INC., a Delaware corporation (hereinafter
the "Underwriter").
WITNESSETH:
WHEREAS, beneficial interests in the Fund are divided into several series of
shares, as set forth in Schedule B hereto, each representing the interest in a
particular managed portfolio of securities and other assets (the "Portfolios"),
which Portfolios qualify as Regulated Investment Companies under Sub-chapter M
of the Internal Revenue Code of 1986, as amended (the "Code"); and
WHEREAS, the Fund is registered as an open-end management investment company
under the Investment Company Act of 1940, as amended (hereinafter the "1940
Act") and its shares are registered under the Securities Act of 1933, as amended
(hereinafter the "1933 Act"); and
WHEREAS, the Company issues certain group variable annuity contracts and group
funding agreements (the "Contracts") in connection with retirement plans
intended to meet the qualification requirements of Sections 401, 403(b) or 457
of the Code; and
WHEREAS, each Separate Account is a duly organized, validly existing segregated
asset account, established by resolution of the Board of Directors of the
Company under the insurance laws of the State of Connecticut to set aside and
invest assets attributable to the Contracts; and
WHEREAS, the Adviser is the investment adviser of the Portfolios of the Fund and
is duly registered as an investment adviser under the Investment Advisers Act of
1940, as amended (the "Advisers Act"), and any applicable state securities laws;
and
WHEREAS, the Underwriter is the principal underwriter for the Fund and is
registered as a broker-dealer with the Securities and Exchange Commission
(hereinafter the "SEC") under the Securities Exchange Act of 1934, as amended
(hereinafter the "1934 Act"), and is a member in good standing of the National
Association of Securities Dealers, Inc. (hereinafter "NASD"); and
WHEREAS, to the extent permitted by applicable insurance laws and regulations,
the Company intends to purchase shares in the Portfolios on behalf of each
corresponding Separate Account set forth on such Schedule A to fund the
Contracts and the Underwriter is authorized to sell such shares to unit
investment trusts such as the Separate Accounts at net asset value.
NOW, THEREFORE, in consideration of their mutual promises, the Company, the Fund
and the Underwriter agree as follows:
ARTICLE I. Purchase and Redemption of Fund Shares.
1.1 The Fund and the Underwriter agree to sell to the Company those shares of
the Portfolios which the Company orders on behalf of any Separate Account,
executing such orders on a daily basis at the net asset value ("NAV") next
computed after receipt and acceptance by the Fund or its designee of such order.
For purposes of this Section 1.1, the Company shall be the designee of the Fund
for receipt of such orders from each Separate Account. Receipt by such designee
shall constitute receipt by the Fund; provided that the Fund or the Underwriter
receives notice of such order via the National Securities Clearing Corporation
("NSCC") in accordance with the NSCC's Defined Contribution Clearance &
Settlement ("DCC&S") platform guidelines on the next following Business Day. The
Fund will receive all orders to purchase Portfolio shares using the NSCC's DCC&S
platform. The Fund will also provide the Company with account positions and
activity data using the NSCC's Networking platform. The Company shall pay for
Portfolio shares by the scheduled close of federal funds transmissions on the
same Business Day it places an order to purchase Portfolio shares in accordance
with this section using the NSCC's Continuous Net Settlement ("CNS") System.
Payment shall be in federal funds transmitted by wire from the Fund's designated
Settling Bank to the NSCC. "Business Day" shall mean any day on which the New
York Stock Exchange is open for trading and on which the Fund calculates its NAV
pursuant to the rules of the SEC. "Networking" shall mean the NSCC's product
that allows Fund's and Companies to exchange account level information
electronically. "Settling Bank" shall mean the entity appointed by the Fund to
perform such settlement services on behalf of the Fund and agrees to abide by
the NSCC's Rules and Procedures insofar as they relate to the same day funds
settlement.
If the Company is somehow prohibited from submitting purchase and settlement
instructions to the Fund for Portfolio shares via the NSCC's DCC&S platform the
following shall apply to this Section 1.1:
The Fund and the Underwriter agree to sell the Company those shares of the
Portfolios which the Company orders on behalf of any Separate Account, executing
such orders on a daily basis at the NAV next computed after receipt and
acceptance by the Fund or its
designee of such order. For purposes of this Section 1.1, the Company shall be
the designee of the Fund for the receipt of such orders from the Separate
Account. Receipt by such designee shall constitute receipt by the Fund; provided
that the Fund or the Underwriter receives notice of such order by 10:00 a.m.
Eastern Time on the next following Business Day. The Company shall pay for
Portfolio shares by the scheduled close of federal funds transmissions on the
next Business Day it places an order to purchase Portfolio shares in accordance
with this section. Payment shall be in federal funds transmitted by wire to the
Fund's designated custodian. Business Day shall mean any day on which the New
York Stock Exchange is open for trading and on which the Fund calculates it NAV
pursuant to the rules of the SEC. The Company shall submit trades using DCC&S if
it is available; otherwise facsimiles shall be used.
1.2 The Fund and the Underwriter agree to make shares of the Portfolios
available for purchase at the applicable NAV per share by the Company on
Business Days; subject, however, to the termination provisions of Article VIII.
1.3 The Fund and the Underwriter agree to redeem for cash, upon the Company's
request, any full or fractional shares of the Portfolios held by the Company on
behalf of a Separate Account, executing such requests on a daily basis at the
NAV next computed after receipt and acceptance by the Fund or its designee of
the request for redemption. For purposes of this Section 1.3, the Company shall
be the designee of the Fund for receipt of requests for redemption from each
Separate Account and receipt by such designee shall constitute receipt by the
Fund; provided the Fund or the Underwriter receives notice of such request for
redemption via the NSCC in accordance with the NSCC's Defined Contribution
Clearance & Settlement ("DCC&S") platform guidelines on the next following
Business Day. The Fund will receive all orders to redeem Portfolio shares using
the NSCC's DCC&S platform. The Fund will also provide the Company with account
positions and activity data using the NSCC's Networking platform. Payment for
Fund shares redeemed shall be made in accordance with this section using the
NSCC's CNS system. Payment shall be in federal funds transmitted by the NSCC to
the Separate Account's Settling Bank as designated by the Company, on the same
Business Day the Fund or the Underwriter receives notice of the redemption order
from the Company provided that the Fund or the Underwriter receives notice by
10:00 a.m. eastern time on such Business Day.
If the Company is somehow prohibited from submitting redemption and settlement
instructions to the Fund for Portfolio shares via the NSCC's DCC&S platform the
following shall apply to this Section 1.3:
The Fund and the Underwriter agree to redeem for cash. Upon the Company's
request, any full or fractional shares of the Fund held by the Company on behalf
of a Separate Account, executing such requests on a daily basis at the NAV next
computed after receipt and acceptance by the Fund or its designee of the request
for redemption. For purposes of this Section 1.3, the Company shall be the
designee of the Fund for receipt of requests for redemption from each Separate
Account. Receipt by such designee shall constitute receipt by the Fund; provided
the Fund or the Underwriter receives notice of such request for redemption by
10:00
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a.m. Eastern Time on the next following Business Day. Payment shall be in
federal funds transmitted by wire to the Separate Account as designated by the
Company, on the next Business Day the Fund or the Underwriter receives notice of
the redemption order from the Company provided that the Fund or the Underwriter
receives notice by 10:00 a.m. Eastern Time on such Business Day. The Company
shall submit trades using DCC&S if it is available; otherwise facsimiles shall
be used.
1.4 The Company agrees to purchase and redeem the shares of the Portfolios
named in Schedule B offered by the then current prospectus of the Fund in
accordance with the provisions of the applicable prospectus.
1.5 The Company will place separate orders to purchase or redeem shares of each
Portfolio.
1.6 Issuance and transfer of the Fund's shares will be by book entry only.
Share certificates will not be issued to the Company or any Separate Account.
Purchase and redemption orders for Fund shares will be recorded in an
appropriate title for each Separate Account or the appropriate subaccount of
each Separate Account.
1.7 The Underwriter shall furnish same day notice to the Company of any income,
dividends or capital gain distributions payable on the Fund's shares. The
Company hereby elects to receive all such dividends and distributions as are
payable on a Portfolio's shares in the form of additional shares of that
Portfolio. The Fund shall notify the Company of the number of shares so issued
as payment of such dividends and distributions no later than one Business Day
after issuance. The Company reserves the right to revoke this election and to
receive in cash all such dividends and distributions declared after receipt of
notice of revocation by the Fund.
1.8 The Underwriter shall use its best efforts to make the NAV per share for
each Portfolio available to the Company by 6:30 p.m. after the close of trading
each Business Day, but in no event later than 7:00 p.m. Eastern Time on such
Business Day.
1.9 In the event of an error in the computation or reporting of a Fund's NAV or
any dividend or capital gain distribution (each, a "Pricing Error"), Underwriter
shall promptly notify Company as soon as possible after discovery of the error.
Such notification may be verbal, but shall be confirmed promptly in writing. A
Pricing Error shall be corrected as follows: (a) if the Pricing Error results in
a difference between the erroneous NAV and the correct NAV of less than $0.01
per share, then no corrective action need be taken; (b) if the Pricing Error
results in a difference between the erroneous NAV and the correct NAV equal to
or greater than $0.01 per share, but less than 1/2 of 1% of the Fund's NAV at
the time of the error, then Underwriter shall reimburse the Fund and its direct
shareholders for any loss; and (c) of the pricing error results in a difference
between the erroneous NAV and the correct NAV equal to or greater than 1/2 of 1%
of the Fund's NAV at the time of the error, then Underwriter shall reimburse the
Fund for any loss and shall reimburse Company for reasonable reprocessing costs
incurred in adjusting Contract owner accounts; however, in no case shall such
costs of adjustment exceed $3,000.00 per
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occurrence. In the event that Fund Party provides an incorrect price and said
error causes a monetary loss to any Plan participant account maintained by
Company, then pursuant to the provisions of this Article, Underwriter shall be
responsible for compensating all direct shareholders held in the applicable Fund
so that any underlying Contracts which have incurred such a loss may be made
whole by Company to the same extent as though said error had not occurred.
In addition, if Contract owners of Company or its participating correspondents
have received amounts in excess of the amounts to which they otherwise would
have been entitled prior to an adjustment for a price error, Company or its
participating correspondents will make a good faith attempt to collect such
excess amounts from their Contract owners. However, Company shall have no
obligation to initiate legal action against any Contract owner or participant.
In no event, however, shall Company be liable to Fund for any such amounts,
provided the overpayment was not caused by the Company.
1.10 If the Company provides incorrect processing information through no fault
of the Fund, the Underwriter or the Adviser, the Fund shall be entitled to an
adjustment with respect to the Fund shares purchased or redeemed to reflect the
correct information. Any error in the information provided by the Company shall
be reported to the Fund, the Underwriter and the Adviser promptly upon
discovery.
ARTICLE II. Representations and Warranties
2.1. The Company represents and warrants that the Contracts are or will be
registered unless exempt and that it will make every effort to maintain such
registration under the 1933 Act to the extent required by the 1933 Act; that the
Contracts are intended to be issued and sold in compliance in all material
respects with all applicable federal and state laws. The Company further
represents and warrants that it is an insurance company duly organized and in
good standing under applicable law and that it has legally and validly
established each Separate Account prior to any issuance or sale of Contracts,
shares or other interests therein, as a segregated asset account under the
insurance laws of the State of Connecticut and has registered or, prior to any
issuance or sale of the Contracts, will register and will maintain the
registration of each Separate Account as a unit investment trust in accordance
with and to the extent required by the provisions of the 1940 Act, unless exempt
therefrom, to serve as a segregated investment account for the Contracts. Unless
exempt, the Company shall amend its registration statement for its Contracts
under the 1933 Act and the 1940 Act from time to time as required in order to
effect the continuous offering of its Contracts. The Company shall register and
qualify the Contracts for sale in accordance with securities laws of the various
states only if and to the extent deemed necessary by the Company.
2.2 The Fund and the Underwriter represent and warrant that (i) Fund shares
sold pursuant to this Agreement shall be registered under the 1933 Act and duly
authorized for issuance in accordance with applicable law and that the Fund is
and shall remain registered under the 1940 Act for as long as the Fund shares
are sold; (ii) the Fund shall amend the registration
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statement for its shares under the 1933 Act and the 1940 Act from time to time
as required in order to effect the continuous offering of its shares; and (iii)
the Fund shall register and qualify its shares for sales in accordance with the
laws of the various states only if and to the extent deemed advisable by the
Fund or the Underwriter.
2.3 The Fund represents that each Portfolio (a) is currently qualified as a
Regulated Investment Company under Subchapter M of the Code; (b) will make every
effort to maintain such qualification (under Subchapter M or any successor or
similar provision); and (c) will notify the Company immediately upon having a
reasonable basis for believing that such Portfolio has ceased to so qualify or
might not so qualify in the future.
2.4 To the extent that the Fund finances distribution expenses pursuant to Rule
12b-1 under the 1940 Act, the Fund represents that its Board of Trustees or
Directors, as applicable, including a majority of its Trustees/Directors who are
not interested persons of the Fund, have formulated and approved a plan under
Rule 12b-1 to finance distribution expenses.
2.5 The Fund makes no representation as to whether any aspect of its operations
(including, but not limited to, fees and expenses and investment policies)
complies with the insurance laws or insurance regulations of the various states
except that the Fund represents that the fund's investment policies, fees and
expenses are and shall at all times remain in compliance with the laws of the
States of Connecticut and California. The Fund and the Underwriter represent
that their respective operations are and shall at all times remain in material
compliance with the applicable laws of the State of Connecticut to the extent
required to perform this Agreement.
2.6 The Underwriter represents and warrants that it is a member in good
standing of the NASD and is registered as a broker-dealer with the SEC. The
Underwriter further represents that it will sell and distribute the Fund shares
in accordance in all material respects with all applicable federal and state
securities laws, including without limitation the 1933 Act, the 1934 Act, and
the 0000 Xxx.
2.7 The Fund represents that it is lawfully organized and validly existing
under the laws of the State of Maryland and that it does and will comply in all
material respects with applicable provisions of the 0000 Xxx.
2.8 The Fund represents and warrants that all of its Trustees/Directors,
officers, employees, investment advisers, and other individuals/entities having
access to the funds and/or securities of the Fund are and continue to be at all
times covered by a blanket fidelity bond or similar coverage for the benefit of
the Fund in an amount not less than the minimal coverage as required by Rule
17g-1 under the 1940 Act or related provisions as may be promulgated from time
to time. The aforesaid Bond includes coverage for larceny and embezzlement and
is issued by a reputable bonding company.
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2.9 The Company represents and warrants that all of its directors, officers,
employees, investment advisers, and other individuals/entities dealing with the
money and/or securities of the Fund are covered by a blanket fidelity bond,
errors and omissions policy, or similar coverage in an amount not less than $5
million. The aforesaid includes coverage for larceny and embezzlement and is
issued by a reputable bonding company.
2.10 The Underwriter represents and warrants that the Adviser is and shall
remain duly registered in all material respects under all applicable federal and
state securities laws and that the Adviser shall perform its obligations for the
Fund in compliance in all material respects with the laws of the State of
Connecticut and any applicable state and federal securities laws.
2.11 The foregoing representations and warranties shall be made by the party
hereto that makes the representation or warranty as of the date first written
above and at the time of each purchase and each sale of the Fund's shares
pursuant to this Agreement.
ARTICLE III. Prospectuses; Reports and Proxy Statements; Voting
3.1 The Fund shall provide the Company at no charge with as many printed copies
of the Fund's current prospectus and statement of additional information as the
Company may reasonably request. If requested by the Company, in lieu of
providing printed copies of the Fund's current prospectus and statement of
additional information, the Fund may provide camera-ready film, computer
diskettes, e-mail transmissions or PDF files containing the Fund's prospectus
and statement of additional information, and such other assistance as is
reasonably necessary in order for the Company once each year (or more frequently
if the prospectus and/or statement of additional information for the Fund are
amended during the year) to have the prospectus for the Contracts (if
applicable) and the Fund's prospectus printed together in one document or
separately. The Company may elect to print the Fund's prospectus and/or its
statement of additional information in combination with other fund companies'
prospectuses and statements of additional information.
3.2(a). The Fund shall provide the Company at no charge with copies of the
Fund's proxy statements, Fund reports to shareholders, and other Fund
communications to shareholders in such quantity as the Company shall reasonably
require for distributing to Contract owners.
3.2(b). The Fund shall pay for the cost of typesetting, printing and
distributing all Fund prospectuses, statements of additional information, Fund
reports to shareholders and other Fund communications to Contract owners and
prospective Contract owners. The Fund shall pay for all costs for typesetting,
printing and distributing proxy materials to Contract owners.
3.3 The Fund's statement of additional information shall be obtainable by
Contract owners from the Fund, the Underwriter, the Company or such other person
as the Fund may designate.
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3.4 If and to the extent required by law the Company shall distribute all proxy
material furnished by the Fund to Contract owners to whom voting privileges are
required to be extended and shall:
A. solicit voting instructions from Contract owners;
B. vote the Fund shares held in the Separate Account in accordance with
instructions received from Contract owners; and
C. so long as and to the extent that the SEC continues to interpret the
1940 Act to require pass through voting privileges for variable
annuity contract owners, vote Fund shares held in the Separate
Account for which no timely instructions have been received, in the
same proportion as Fund shares of such Portfolio for which
instructions have been received from the Company's Contract owners.
The Company reserves the right to vote Fund shares held in any
segregated asset account for its own account, to the extent permitted
by law. Notwithstanding the foregoing, with respect to the Fund
shares held by unregistered Separate Accounts that issue Contracts
issued in connection with employee benefit plans subject to the
provisions of the Employee Retirement Income Security Act of 1974, as
amended, the Company shall vote such Fund shares allocated to such
Contracts only in accordance with the Company's agreements with such
Contract owners.
3.5 The Fund will comply with all provisions of the 1940 Act requiring voting
by shareholders. The Fund will not hold annual meetings but will hold such
special meetings as may be necessary from time to time. Further, the Fund will
act in accordance with the SEC interpretation of the requirements of Section
16(a) with respect to periodic elections of directors or trustees and with
whatever rules the SEC may promulgate with respect thereto.
ARTICLE IV. Sales Material and Information
4.1 The Company shall furnish, or shall cause to be furnished, to the Fund, the
Underwriter or their designee, each piece of sales literature or other
promotional material prepared by the Company or any person contracting with the
Company in which the Fund, the Adviser or the Underwriter is described, at least
five calendar days prior to its use. No such literature or material shall be
used without prior approval from the Fund, the Underwriter or their designee,
however, the failure to object in writing within two Business days will be
deemed approval Such approval process shall not apply to subsequent usage of
materials that are substantially similar to prior approved materials.
4.2 Neither the Company nor any person contracting with the Company shall give
any information or make any representations or statements on behalf of the Fund
or concerning
8
the Fund in connection with the sale of the Contracts other than the information
or representations contained in the registration statement or prospectus for the
Fund shares, as such registration statement and prospectus may be amended or
supplemented from time to time, or in reports to shareholders or proxy
statements for the Fund, 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.
4.3 The Fund 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 or any Separate Account is named, at least five calendar days
prior to its use. No such literature or material shall be used without prior
approval from the Company or its designee, however, the failure to object in
writing within two Business Days will be deemed approval. Such approval process
shall not apply to subsequent usage of materials that are substantially similar
to prior approved materials.
4.4 Neither the Fund nor the Underwriter shall give any information or make any
representations on behalf of the Company or concerning the Company, each
Separate Account, or the Contracts other than the information or representations
contained in the Contracts, a disclosure document, registration statement or
prospectus for the Contracts (if applicable), as such registration statement and
prospectus may be amended or supplemented from time to time, or in published
reports for each Separate Account which are in the public domain or approved by
the Company for distribution to Contract owners or participants, or in sales
literature or other promotional material approved by the Company, except with
the permission of the Company.
4.5 The Fund will provide to the Company at least one complete copy of all
prospectuses, statements of additional information, reports to shareholders,
proxy statements, and all amendments to any of the above, that relate to the
Fund or its shares, promptly after the filing of such document with the SEC or
other regulatory authorities.
4.6. The Company will provide to the Fund at least one complete copy of all
prospectuses, statements of additional information, reports, solicitations for
voting instructions, and all amendments to any of the above, if applicable to
the investment in a Separate Account or Contract, promptly after the filing of
such document with the SEC or other regulatory authorities.
4.7 For purposes of this Article IV, 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, internet, or other public media), sales
literature (i.e., any written communication distributed or made generally
available to customers or the public, including brochures, circulars, research
reports, market letters, form letters, electronic mail, 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
9
statements, disclosure documents, prospectuses, statements of additional
information, shareholder reports, and proxy materials.
4.8 The Company agrees and acknowledges that the Company has no right, title or
interest in the names and marks of the Fund and that all use of any designation
comprised in whole or part or such names or marks under this Agreement shall
inure to the benefit of the Fund and the Underwriter. Except as provided in
Section 4.1, the Company shall not use any such names or marks on its own behalf
or on behalf of a Separate Account in connection with marketing the Contracts
without prior written consent of the Fund and the Underwriter. Upon termination
of this Agreement for any reason, the Company shall cease all use of any such
names or marks.
4.9 The Fund and Underwriter agrees and acknowledge that each has no right,
title or interest in the names and marks of the Company, and that all use of any
designation comprised in whole or part or such names or marks under this
Agreement shall inure to the benefit of the Company. Except as provided in
Section 4.3, the Fund and Underwriter shall not use any such names or marks on
its own behalf or on behalf of a Fund in connection with marketing the Fund
without prior written consent of the Company. Upon termination of this Agreement
for any reason, the Fund and Underwriter shall cease all use of any such names
or marks.
ARTICLE V. Fees and Expenses
5.1 The Fund shall pay the fees and expenses provided for in this Agreement
under the Master Shareholder Services Agreement for the Payment of Shareholder
Servicing/Sub-Transfer Agency Fees, executed concurrently with this Agreement.
ARTICLE VI. Indemnification
6.1 Indemnification By The Company
(a) The Company agrees to indemnify and hold harmless the Fund, the Underwriter
and each of their respective trustees, directors, officers, employees or agents
and each person, if any, who controls the Fund or the Underwriter within the
meaning of section 15 of the 1933 Act (collectively, the "Indemnified Parties"
for purposes of this Section 6.1) against any and all losses, claims, damages,
liabilities (including amounts paid in settlement with the written consent of
the Company) or litigation (including reasonable legal and other expenses), to
which the Indemnified Parties may become subject under any statute, regulation,
at common law or otherwise, insofar as such losses, claims, damages, liabilities
or expenses (or actions in respect thereof) or settlements are related to the
sale or acquisition of the Fund's shares or the Contracts and:
(i) arise out of or are based upon any untrue statement or alleged
untrue statement of any material fact contained in the disclosure
statement, registration
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statement, prospectus or statement of information for the Contracts
or contained in the Contracts or sales literature or other
promotional material for the Contracts (or any amendment or
supplement to any of the foregoing), or arise out of or are based
upon the omission or the alleged omission to state therein a
material fact required to be stated therein or necessary to make the
statements therein not misleading; provided that this agreement to
indemnify shall not apply as to an Indemnified Party if such
statement or omission or such alleged statement or omission was made
in reliance upon and in conformity with information furnished by
such Indemnified Party or the Fund to the Company on behalf of the
Fund for use in the registration statement, prospectus or statement
of additional information for the Contracts or in the Contracts or
sales literature (or any amendment or supplement) or otherwise for
use in connection with the sale of the Contracts or Fund shares; or
(ii) arise out of or as a result of (a) statements or representations by
or on behalf of the Company (other than statements or
representations contained in the Fund registration statement, Fund
prospectus or sales literature or other promotional material of the
Fund not supplied by the Company, or persons under its control and
other than statements or representations authorized by the Fund, the
Underwriter or the Adviser); or (b) the willful misfeasance, bad
faith, gross negligence or reckless disregard of duty of the Company
or persons under its control, with respect to the sale or
distribution of the Contracts or Fund shares; or
(iii) arise out of or as a result of any untrue statement or alleged
untrue statement of a material fact contained in the Fund
registration statement, Fund prospectus, statement of additional
information or sales literature or other promotional material of
the Fund (or any amendment thereof or supplement thereto) or the
omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements
therein not misleading, if such a statement or omission was made in
reliance upon and in conformity with information furnished to the
Fund or the Underwriter by the Company or persons under its
control; or
(iv) arise as a result of any material failure by the Company to provide
the services and furnish the materials under the terms of this
Agreement; or
(v) arise out of or result from any material breach of any
representation and/or warranty made by the Company in this Agreement
or arise out of or result from any other material breach by the
Company of this Agreement; except to the extent provided in Sections
6.1(b) and 6.3 hereof.
(b) No party shall be entitled to indemnification to the extent that such loss,
claim, damage, liability or litigation is due to the willful misfeasance, bad
faith, gross negligence or reckless disregard of duty by the party seeking
indemnification.
(c) In accordance with Section 6.4 hereof, the Indemnified Parties will
promptly notify the Company of the commencement of any litigation or proceedings
against
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them in connection with the issuance or sale of the Fund shares or the Contracts
or the operation of the Fund.
6.2 Indemnification By the Underwriter
(a) The Underwriter agrees, with respect to each Portfolio that it distributes,
to indemnify and hold harmless the Company and each of its directors, officers,
employees or agents and each person, if any, who controls the Company within the
meaning of section 15 of the 1933 Act (collectively, the "Indemnified Parties"
for purposes of this Section 6.2) against any and all losses, claims, damages,
liabilities (including amounts paid in settlement with the written consent of
the Underwriter) or litigation (including reasonable legal and other expenses)
to which the Indemnified Parties may become subject under any statute,
regulation, at common law or otherwise, insofar as such losses, claims, damages,
liabilities or expenses (or actions in respect thereof) or settlements are
related to the sale or acquisition of the shares of the Portfolios that it
distributes or the Contracts and:
(i) arise out of or are based upon any untrue statement or alleged
untrue statement of any material fact contained in the registration
statement, prospectus or statement of additional information for the
Fund or sales literature or other promotional material of the Fund
(or any amendment or supplement to any of the foregoing), or arise
out of or are based upon the omission or the alleged omission to
state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading; provided
that this agreement to indemnify shall not apply as to any
Indemnified Party if such statement or omission or such alleged
statement or omission was made in reliance upon and in conformity
with information furnished by such Indemnified Party or the Company
to the Fund or the Underwriter on behalf of the Company for use in
the registration statement, prospectus or statement of additional
information for the Fund or in sales literature of the Fund (or any
amendment or supplement thereto) or otherwise for use in connection
with the sale of the Contracts or the Portfolio shares; or
(ii) arise out of or as a result of (a) untrue statements or
representations by or on behalf of the Underwriter (other than
statements or representations contained in the registration
statement, prospectus or sales literature for the Contracts not
supplied by the Fund or the Underwriter or persons under their
respective control and other than statements or representations
authorized by the Company); or (b) the willful misfeasance, bad
faith, gross negligence or reckless disregard of duty of the Fund or
the Underwriter or persons under the control of the Fund or the
Underwriter, respectively, with respect to the sale or distribution
of the Contracts or Portfolio shares; or
(iii) arise out of any untrue statement or alleged untrue statement of a
material fact contained in a registration statement, prospectus,
statement of additional information or sales literature or other
promotional material with respect to the Contracts (or any
amendment thereof or supplement thereto), or the omission or
alleged omission to state therein a material fact required to be
stated therein or necessary to make the statement or statements
12
therein not misleading, if such statement or omission was made in
reliance upon and in conformity with information furnished to the
Company by the Fund or the Underwriter or persons under the control
of the Fund or the Underwriter, respectively; or
(iv) arise as a result of any material failure by the Underwriter to
provide the services and furnish the materials under the terms of
this Agreement; or
(v) arise out of or result from any material breach of any
representation and/or warranty made by the Underwriter or the Fund
in this Agreement or arise out of or result from any other material
breach of this Agreement by the Underwriter or the Fund; except to
the extent provided in Sections 6.2(b) and 6.4 hereof.
(b) No party shall be entitled to indemnification to the extent that such loss,
claim, damage, liability or litigation is due to the willful misfeasance, bad
faith, gross negligence or reckless disregard of duty by the party seeking
indemnification.
(c) In accordance with Section 6.4 hereof, the Indemnified Parties will
promptly notify the Underwriter of the commencement of any litigation or
proceedings against them in connection with the issuance or sale of the Fund
shares or the Contracts or the operation of the Separate Accounts.
6.3 Indemnification by the Fund
(a) The Fund agrees to indemnify and hold harmless the Company and each of its
directors, officers, employees or agents and each person, if any, who controls
the Company within the meaning of section 15 of the 1933 Act (collectively, the
"Indemnified Parties" for purposes of this Section 6.3) against any and all
losses, claims, damages, liabilities (including amounts paid in settlement with
the written consent of the Fund) or litigation (including reasonable legal and
other expenses) to which the Indemnified Parties may become subject under any
statute, regulation, at common law or otherwise, insofar as such losses, claims,
damages, liabilities or expenses (or actions in respect thereof) or settlements
are related to the sale or acquisition of the shares of the Portfolios or the
Contracts and:
(i) arise out of or are based upon any untrue statement or alleged
untrue statement of any material fact contained in the registration
statement, prospectus or statement of additional information for the
Fund or sales literature or other promotional material of the Fund
(or any amendment or supplement to any of the foregoing), or arise
out of or are based upon the omission or the alleged omission to
state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading; provided
that this agreement to indemnify shall not apply as to any
Indemnified Party if such statement or omission or such alleged
statement or omission was made in reliance upon and in conformity
with information furnished by such Indemnified Party or the Company
to the Fund or the Underwriter on behalf of the Company for use in
the registration statement, prospectus or statement of additional
information for the Fund or in sales literature of the Fund (or any
amendment or
13
supplement thereto) or otherwise for use in connection with the sale
of the Contracts or the Portfolio shares; or
(ii) arise out of or as a result of (a) untrue statements or
representations by or on behalf of the Fund (other than statements
or representations contained in the registration statement,
prospectus or sales literature for the Contracts not supplied by the
Fund or the Underwriter or persons under their respective control
and other than statements or representations authorized by the
Company); or (b) the willful misfeasance, bad faith, gross
negligence or reckless disregard of duty of the Fund or the
Underwriter or persons under the control of the Fund or the
Underwriter, respectively, with respect to the sale or distribution
of the Contracts or Portfolio shares; or
(iii) arise out of any untrue statement or alleged untrue statement of a
material fact contained in a registration statement, prospectus,
statement of additional information or sales literature or other
promotional material with respect to the Contracts (or any
amendment thereof or supplement thereto), or the omission or
alleged omission to state therein a material fact required to be
stated therein or necessary to make the statement or statements
therein not misleading, if such statement or omission was made in
reliance upon and in conformity with information furnished to the
Company by the Fund or the Underwriter or persons under the control
of the Fund or the Underwriter, respectively; or
(iv) arise as a result of any material failure by the Fund to provide the
services and furnish the materials under the terms of this
Agreement; or
(v) arise out of or result from any material breach of any
representation and/or warranty made by the Underwriter or the Fund
in this Agreement or arise out of or result from any other material
breach of this Agreement by the Underwriter or the Fund; except to
the extent provided in Sections 6.3(b) and 6.4 hereof.
(b) No party shall be entitled to indemnification to the extent that such loss,
claim, damage, liability or litigation is due to the willful misfeasance, bad
faith, gross negligence or reckless disregard of duty by the party seeking
indemnification.
(c) In accordance with Section 6.4 hereof, the Indemnified Parties will
promptly notify the Underwriter of the commencement of any litigation or
proceedings against them in connection with the issuance or sale of the Fund
shares or the Contracts or the operation of the Separate Accounts.
6.4. Indemnification Procedure
(a) Any person obligated to provide indemnification under this Article VI
("Indemnifying Party" for the purpose of this Section 6.4) shall not be liable
under the indemnification provisions of this Article VI with respect to any
claim made against a party entitled to indemnification under this Article VI
("Indemnified Party" for the purpose of this
14
Section 6.4) unless such Indemnified Party shall have notified the Indemnifying
Party 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 party shall have received notice of
such service on any designated agent), but failure to notify the Indemnifying
Party of any such claim shall not relieve the Indemnifying Party from any
liability which it may have to the Indemnified Party against whom such action is
brought otherwise than on account of the indemnification provision of this
Article VI. In case any such action is brought against the Indemnified Party,
the Indemnifying Party will be entitled to participate, at its own expense, in
the defense thereof. The Indemnifying Party also shall be entitled to assume the
defense thereof, with counsel satisfactory to the party named in the action.
After notice from the Indemnifying Party to the Indemnified Party of the
Indemnifying Party's election to assume the defense thereof, the Indemnified
Party shall bear the fees and expenses of any additional counsel retained by the
Indemnified Party, and the Indemnifying Party 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, unless:
(i) the Indemnifying Party and the Indemnified Party shall have mutually
agreed to the retention of such counsel, or
(ii) the named parties to any such proceeding (including any impleaded
parties) include both the Indemnifying Party and the Indemnified
Party and representation of both parties by the same counsel would
be inappropriate due to actual or potential differing interests
between them.
A successor by law of the parties to this Agreement shall be entitled to the
benefits of the indemnification contained in this Article VI. The
indemnification provisions contained in this Article VI shall survive any
termination of this Agreement.
ARTICLE VII. Applicable Law
7.1 This Agreement shall be construed and the provisions hereof interpreted
under and in accordance with the laws of the State of Connecticut.
7.2 This Agreement shall be subject to the provisions of the 1933 Act, 1934
Act, and 1940 Act, and the rules and regulations and rulings thereunder,
including such exemptions from those statutes, rules and regulations as the SEC
may grant and the terms hereof shall be interpreted and construed in accordance
therewith.
15
ARTICLE VIII. Termination
8.1 The parties hereto agree to make shares of the Portfolios available for
purchase by Company at the applicable NAV per share on any Business Day;
provided, however, that the Board of Directors ("Directors") of the Fund 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, in the sole discretion of the
Directors, acting in good faith and in compliance with their fiduciary duties
under federal and any applicable state laws, necessary in the best interests of
the shareholders of any Portfolio.
8.2 Any party may terminate this Agreement without cause upon ninety (90) days
advance written notice to a non-terminating party, unless otherwise agreed upon
in a separate written agreement among the parties.
8.3 Any party may terminate this Agreement if the terminating party determines
in its sole judgment, exercised in good faith, that the non-terminating party
has suffered a material adverse change in its business, operations or financial
condition since the date of this Agreement or is the subject of material adverse
publicity that is likely to have a material adverse impact upon the business and
operation of the terminating party; such termination shall be effective upon
sixty (60) days prior written notice of termination.
8.4 Any party may terminate this Agreement for material breach of any provision
of this Agreement by a non-terminating party; such termination shall be
effective upon failure by the party in breach to cure such breach within thirty
(30) days of written notice of termination.
8.5 This Agreement shall terminate automatically (without penalty): (i) in the
event of its assignment, the term "assignment" for this purpose having the
meaning defined in Section 2(a)(4) of the 1940 Act, as amended; (ii) in the
event that a 12b-1 plan terminates with respect to a Fund, upon written notice
of termination; (iii) in the event of a party's violation of applicable state or
federal laws, rules, or regulations of authorized regulatory agencies, upon
written notice of termination; or (iv) in the event of institution of formal
proceedings against the non-terminating party by the NASD, NASD Regulation, Inc.
("NASDR"), SEC, or applicable state regulatory organization, which in the
judgment of the terminating party ore reasonably likely to have a material
adverse effect on the non-terminating party's ability to perform its obligations
under this Agreement, said termination to become effective upon written notice
of termination.
8.6 Any party's failure to terminate for any cause stall not constitute a
waiver of the right to terminate later for cause.
8.7 In the event this Agreement is terminated, no party hereto will continue
use of another party's name or any other words that may be reasonably construed
to falsely imply a continuing relationship with the other party.
16
8.8 After the date of termination pursuant to Sections 8.1, 8.3, 8.4, 8.5, or
if this Agreement is terminated by Company for any reasons as to any Fund, we
will not be obligated to pay you fees with respect to any shares of such Fund
that are first placed or purchased in your Contract owners' accounts after the
date of such termination. In the event that Advisor, Underwriter, or Fund
terminates this Agreement as to any Fund pursuant to Section 8.2, then any
applicable fees payable to Company under this Agreement shall remain in effect
for so long as assets of Contract owners or a separate account remain invested
in a Portfolio of a Fund and the Company continues to provide the services
contemplated hereunder.
ARTICLE IX. Notices
9.1 (a) Any notice shall be deemed duly given only if sent by hand or overnight
express delivery, evidenced by written receipt or by certified mail, return
receipt requested, 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. All notices shall be deemed given the date received
or rejected by the addressee.
If to the Company:
Hartford Life Insurance Company
000 Xxxxxxxxx Xxxxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
Attention: Vice President, Investment Products Division
with a copy to:
Xxxxx Xxxxxx, General Counsel
Hartford Life Insurance Company
000 Xxxxxxxxx Xxxxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
17
If to the Fund:
(Address to Relevant Company listed in Schedule B.)
0000 Xxxx Xxxxx Xxxxxx, XX 000
Xxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxxx, Senior Vice President
If to the Advisor:
INVESCO Funds Group, Inc.
0000 Xxxx Xxxxx Xxxxxx, XX 000
Xxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxxx, Senior Vice President
If to the Underwriter:
INVESCO Distributors, Inc.
0000 Xxxx Xxxxx Xxxxxx, XX 201
Xxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxxx, Senior Vice President
ARTICLE X Miscellaneous
10.1 Subject to law and regulatory authority, each party hereto shall treat as
confidential the names and addresses of the owners of the Contracts and all
other information reasonably identified as such in writing by any other party
hereto, and, except as contemplated by this Agreement, shall not disclose,
disseminate or utilize such confidential information without the express prior
written consent of the affected party until such time as it may come into the
public domain.
10.2 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.
10.3 This Agreement may be executed simultaneously in two or more counterparts,
each of which taken together shall constitute one and the same instrument.
10.4 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.
10.5 This Agreement shall not be assigned by any party hereto without the prior
written consent of all the parties.
18
10.6 Each party hereto shall cooperate with each other party and all
appropriate governmental authorities (including without limitation the SEC, the
NASD, NASDR and state insurance regulators) and shall permit each other and such
authorities (and the parties hereto) reasonable access to its books and records
in connection with any investigation or inquiry relating to this Agreement or
the transactions contemplated hereby. Notwithstanding the foregoing, each party
hereto further agrees to furnish the California Insurance Commissioner with any
information or reports in connection with services provided under this Agreement
which such Commissioner may request in order to ascertain whether the insurance
operations of the Company are being conducted in a manner consistent with the
California laws and regulations.
10.7 Each party represents that (a) the execution and delivery of this
Agreement and the consummation of the transactions contemplated herein have been
duly authorized by all necessary corporate or trust action, as applicable, by
such party and when so executed and delivered this Agreement will be the valid
and binding obligation of such party enforceable in accordance with its terms
subject to bankruptcy, insolvency, reorganization, moratorium and similar laws
of general applicability relating to or affecting creditor's rights and to
general equity principles; (b) the party has obtained, and during the term of
this Agreement will maintain, all authorizations, licenses, qualifications or
registrations required to be maintained in connection with the performance of
its duties under this Agreement; and (c) the party will comply in all material
respects with all applicable laws, rules and regulations.
10.8 The parties to this Agreement may amend the Schedules to this Agreement
from time to time to reflect changes in or relating to the Contracts, the
Separate Accounts or the Portfolios of the Fund.
19
IN WITNESS WHEREOF, each of the parties hereto has caused this Agreement to be
executed in its name and behalf by its duly authorized representative as of the
date first written above.
HARTFORD LIFE INSURANCE COMPANY
By: /s/ Xxxx Xxxxxxxx
------------------------------
Name: Xxxx Xxxxxxxx
Title: Assistant Actuary
Insert Name
INVESCO Bond Funds, Inc.
INVESCO Combination Stock & Bond Funds, Inc.
INVESCO International Funds, Inc.
INVESCO Sector Funds, Inc.
INVESCO Stock Funds, Inc.
By: /s/ Xxxxxx X. Xxxxxx
------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Senior Vice President
INVESCO Funds Group, Inc.
By: /s/ Xxxxxx X. Xxxxxx
------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Senior Vice President
INVESCO Distributors, Inc.
By: /s/ Xxxxxx X. Xxxxxx
------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Senior Vice President
20
SCHEDULE A
SEPARATE ACCOUNTS
Each Separate Account established by resolution of the Board of Directors of the
Company under the insurance laws of the State of Connecticut to set aside and
invest assets attributable to the Contracts.
21
SCHEDULE B
Retail Fund Participation Agreement
List of Funds and Corresponding Portfolios
INVESTMENT COMPANY PORTFOLIOS
------------------------------------------------------------------------
INVESCO BOND FUNDS, INC.
High Yield Fund -- Investor Class
Select Income Fund -- Investor
Class
Tax-Free Bond Fund -- Investor
Class
U.S. Government Securities Fund --
Investor Class
INVESCO COMBINATION STOCK & BOND
FUNDS, INC.
Balanced Fund -- Investor Class
Equity Income Fund -- Investor
Class
Total Return Fund -- Investor Class
INVESCO INTERNATIONAL FUNDS, INC.
European Fund -- Investor Class
International Blue Chip Value Fund
-- Investor Class
INVESCO SECTOR FUNDS, INC.
Energy Fund -- Investor Class
Financial Services Fund -- Investor
Class
Gold Fund -- Investor Class
Health Sciences Fund -- Investor
Class
Leisure Fund -- Investor Class
Real Estate Opportunity Fund --
Investor Class
Technology Fund -- Investor Class
Telecommunications Fund -- Investor
Class
Utilities Fund -- Investor Class
INVESCO STOCK FUNDS, INC. Blue Chip Growth Fund -- Investor
Class
Dynamics Fund -- Investor Class
Endeavor Fund -- Investor Class
Growth & Income Fund -- Investor
Class
S&P 500 Index Fund -- Investor
Class
Small Company Growth Fund --
Investor Class
Value Equity Fund -- Investor Class
22
Master Shareholder Services Agreement for the Payment of Shareholder
Servicing/Sub-Transfer Agency Fees
We understand that you currently provide recordkeeping and administrative
services to certain qualified defined contribution employee benefit plans
("Benefit Plans"), and that you have entered into agreements with Benefit Plans
under which you establish and maintain Benefit Plan participant investment
accounts and provide other administrative and personal services to Benefit Plans
and their participants.
As principal underwriter and transfer agent, respectively, for the open-end
investment companies listed in Exhibit A, (collectively the "Funds" or
individually a "Fund") we desire to enter into an Agreement with you for the
servicing of certain shareholders of, and the administration of certain
shareholder accounts in, the Funds. Such shareholders and accounts are those
which have been established on behalf of the Benefit Plans which meet the
criteria stated in each Fund's prospectus to purchase shares of the Funds at net
asset value. These criteria are set forth in the Funds' prospectuses, which may
be amended from time to time. The terms and conditions of the Agreement shall be
as follows:
1. You shall provide shareholder and administrative services for certain
beneficial shareholders of the Funds who are participants in the Benefit Plans.
Such services shall include, without limitation, some or all of the following:
answering inquiries regarding the Funds; assistance in changing account
designations and addresses; performance of sub-accounting; establishment and
maintenance of shareholder accounts and records; assistance in processing
purchase and redemption transactions; providing periodic statements showing a
shareholder's account balance and the integration of such statements with those
of other transactions and balances in the shareholder's other accounts serviced
by you, if any; and such other information and services as we reasonably may
request, to the extent you are permitted by applicable statute, rule or
regulation to provide such information or services.
2. We shall recognize, and we shall instruct the Funds to recognize, each
Benefit Plan as a single shareholder and not to maintain separate accounts for
Benefit Plan participants. You may at your option elect to maintain an omnibus
account for more than one Benefit Plan, and we would then recognize the account
holder as a single shareholder. Neither we, nor the Funds, nor any affiliate
thereof shall have any responsibility with respect to administrative services,
including tax reporting, for participants in each Benefit Plan.
3. You represent that you have notified the appropriate Benefit Plan sponsors
of the arrangements provided for in this Agreement and that the appropriate
sponsors have agreed to such arrangements. You agree to notify us promptly in
the event that a Benefit Plan or all of a Benefit Plan's participants redeem all
of their shares in the Funds.
1
4. You represent and warrant that your performance and receipt of compensation
or other benefits under this Agreement will not violate any applicable law, rule
or regulation, including federal and state securities laws and the Employee
Retirement Income Security Act of 1974.
5. Neither you nor any of your employees or agents are authorized to make any
representations concerning the shares of the Funds, without our prior written
consent, except those contained in, and not taken out of context from, the then
current prospectuses and statements of additional information, and current
printed sales literature of the Funds, copies of which will be supplied to you
by us upon request. You shall have no authority to act as agent for the Funds or
for us except where necessary to perform specific services under this Agreement.
Any materials which contain the names of either party will be subject to review
and approval by the other party in accordance with the terms of the
Participation Agreement, prior to their use with the participants and/or Benefit
Plans.
6. Both parties agree to hold harmless and indemnify the other, including any
employees, officers, directors or trustees, against any claims or actions
resulting from a party's violation of any law, rule, or regulation, or breach of
any previsions of this Agreement, or any misstatements or omissions to state a
material fact by the party, or its affiliates, employees or agents, which claims
or actions result in liability to any of the aforementioned parties, such
indemnification to include the payment of any reasonable legal fees incurred in
connection with investigating or defending such claims or actions.
7.A. In consideration of the services described herein to be provided by you
which consist primarily of recordkeeping and subaccounting services for Benefit
Plans and participants investing in shares of the Funds through the Benefit
Plans, similar to those which would be provided by INVESCO Funds Group, Inc.,
the Funds' transfer agent, if each participant invested directly in such Funds,
and providing shareholder services in maintaining the accounts of Benefit Plans
and Benefit Plan participants who invest in shares of the Funds, you shall be
entitled to receive from Distributor and/or INVESCO Funds Group, Inc. such fees
as are set forth in Exhibit A hereto. Shareholder services may include
distributing Fund prospectuses, annual reports and other Fund related
information or communications to Benefit Plans and participants investing in the
Funds, and answering participant and Benefit Plan sponsor inquiries regarding
the Funds. Recordkeeping and subaccounting services include establishing and
maintaining participant account balances invested in the Funds through Benefit
Plans, processing and accounting for participant exchanges among fund options,
and processing redemptions in accordance with Benefit Plan requirements.
B. In order to receive payment, you must present to Transfer Agent within a
reasonable time, but no later than 60 days following the month for which the
invoice is submitted accompanied by (i) information providing INVESCO Funds
Group, Inc. an adequate basis for computation of the fees, including (if
requested) records or communications necessary to determine the number of
shareholders in each correspondent omnibus account, if applicable.
2
C. For the payment period in which this Agreement terminates, there shall be an
appropriate proration of the fees noted above, on the basis of the number of
days that the Agreement is in effect during the month.
8. Except as otherwise agreed in writing, you shall bear all expenses
incidental to the performance of the services described herein. We shall,
however, provide you with such copies of relevant prospectuses for all
participants making an initial Fund purchase as well as relevant prospectuses,
proxy material, periodic reports to shareholders, and other material as shall
reasonably be requested by you to disseminate to Benefit Plan participants who
purchase shares of the Funds. We shall pay for the cost of typesetting, printing
and distributing all Fund prospectuses, statements of additional information,
proxy materials, Fund reports to shareholders and other Fund communications to
the Company.
9. Upon our request, you shall provide copies of historical records relating to
transactions between the Funds and the participants investing in such Funds,
written communications regarding the Funds to or from such shareholders and
other materials, in each case as may reasonably be requested to enable us or any
other designated entity, including, without limitation, auditors, investment
advisers or transfer agents for the Funds to monitor and review the services
being provided under this Agreement, or to comply with any request of a
governmental body or self-regulatory organization or a shareholder. You also
agree that you will permit us or the Funds, or any duly designated
representative to have reasonable access to your personnel and records in order
to facilitate the monitoring of the quality of the services being provided under
this Agreement.
10. You may delegate your obligation to provide recordkeeping and
administrative services under this Agreement to another entity, provided that
such entity has all appropriate and necessary licenses, registrations and
authorizations to perform the services delegated.
3
11. This Agreement shall become effective as of the date indicated on the
signature page below.
12. A. We agree to make shares of the Fund available for purchase by you at the
applicable net asset value ("NAV") per share on any day on which the New York
Stock Exchange is open for trading and on which the Fund calculates its NAV
pursuant to the rules of the Securities and Exchange Commission ("SEC");
provided, however, that the Board of Directors ("Directors") of the Fund may
refuse to sell shares of any Fund to any person or suspend or terminate the
offering of shares of any Fund if such action is required by law or by
regulatory authorities having jurisdiction or is, in the sole discretion of the
Directors, acting in good faith and in compliance with their fiduciary duties
under federal and any applicable state laws, necessary in the best interests of
the shareholders of any Fund.
B. Either party may terminate this Agreement without cause upon ninety (90)
days advance written notice to the other party, unless otherwise agreed upon in
a separate written agreement among the parties.
C. Either party may terminate this Agreement if the terminating party
determines in its sole judgment, exercised in good faith, that the
non-terminating party has suffered a material adverse change in its business,
operations or financial condition since the date of this Agreement or is the
subject of material adverse publicity that is likely to have a material adverse
impact upon the business and operation of the terminating party; such
termination shall be effective upon sixty (60) days prior written notice of
termination.
D. Either party may terminate this Agreement for material breach of any
provision of this Agreement by the other party; such termination shall be
effective upon failure by the party in breach to cure such breach within thirty
(30) days of written notice of termination.
E. This Agreement shall terminate automatically (without penalty): (i) in the
event of its assignment, the term "assignment" for this purpose having the
meaning defined in Section 2(a)(4) of the Investment Company Act of 1940, as
amended; (ii) in the event that a 12b-1 plan terminates with respect to a Fund,
upon written notice of termination; (iii) in the event of a party's violation of
applicable state or federal laws, rules, or regulations of authorized regulatory
agencies, upon written notice of termination; or (iv) in the event of
institution of formal proceedings against the non-terminating party by the
National Association of Securities Dealers, Inc. ("NASD"), NASD Regulation, Inc.
("NASDR"), SEC, or applicable state regulatory organization, which in the
judgment of the terminating party are reasonably likely to have a material
adverse effect on the non-terminating party's ability to perform its obligations
under this Agreement, said termination to become effective upon written notice
of termination.
F. Either party's failure to terminate for any cause shall not constitute a
waiver of the right to terminate later for cause.
4
G. In the event this Agreement is terminated, neither party will continue use
of the other party's name or any other words that may be reasonably construed to
imply a continuing relationship with the other party.
H. After the date of termination pursuant to Paragraphs 12. A, 12. C., 12. D.,
12. E, or if this Agreement is terminated by you for any reason as to any Fund,
we will not be obligated to pay you fees with respect to any shares of such Fund
that are first placed or purchased in your Contract owners' accounts after the
date of such termination. In the event we terminate this Agreement as to any
Fund pursuant to Paragraph 12. B. above, then any applicable fees payable to you
by us under this Agreement shall remain in affect for so long as assets of
Contract owners or a separate account remain invested in a Portfolio of a Fund
and you continue to provide the services contemplated hereunder.
13. This Agreement contains the entire agreement between the parties with
respect to the subject matter and supersedes all prior agreements or
understandings between the parties.
14. We acknowledge and agree that you may enter into agreements similar to this
Agreement with organizations other than us which also serve as principal
underwriters for, or distributors of, or transfer agents for, mutual funds. You
acknowledge and agree that, nothing contained herein shall prohibit us or the
Funds from entering into agreements similar to this Agreement with organizations
other than you or from soliciting any employee benefit plan or sponsor thereof
to enter into an arrangement with us, the Funds for services similar to those to
be provided under this Agreement.
15. You and we agree to keep confidential all proprietary data, software,
processes, information, and documentation related to this Agreement, except as
may be necessary or useful to perform obligations under this Agreement or
otherwise as may be agreed to, from time to time, by the parties.
5
16. Communications with respect to this Agreement shall be sent as follows:
If to you, to:
Hartford Life Insurance Company
000 Xxxxxxxxx Xxxxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
Attention: Vice President, Investment Products Division
with a copy to:
Xxxxx Xxxxxx, General Counsel
Hartford Life Insurance Company
000 Xxxxxxxxx Xxxxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
If to us, to:
INVESCO Funds Group, Inc.
0000 X. Xxxxx Xxxxxx, XX 000
Xxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxxx, Senior Vice President
and:
INVESCO Distributors, Inc.
0000 X. Xxxxx Xxxxxx, XX 000
Xxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxxx, Senior Vice President
17. This Agreement and all the rights and obligations of the parties shall be
governed by and construed under the laws of the State of
Connecticut without
giving effect to the principles of conflicts of laws and the provisions shall be
continuous. In the event that any provision of this Agreement, or the
application of any such provision to any person or set of circumstances, shall
be determined to be invalid, unlawful, void or unenforceable to any extent, the
remainder of this Agreement, and the application of such provision to persons or
circumstances other than those as to which it is determined to be invalid,
unlawful, void or unenforceable, shall not be impaired or otherwise affected and
shall continue to be valid and enforceable to the fullest extent permitted by
law.
6
INVESCO Funds Group, Inc.
By: /s/ Xxxxxx X. Xxxxxx
------------------------------
Xxxxxx X. Xxxxxx, Senior Vice
President
INVESCO Distributors, Inc.
By: /s/ Xxxxxx X. Xxxxxx
------------------------------
Xxxxxx X. Xxxxxx, Senior Vice
President
Accepted and Agreed To:
HARTFORD LIFE INSURANCE COMPANY
By: /s/ Xxxx Xxxxxxxx
-------------------------------------------------------
Name: Xxxx Xxxxxxxx
Title: Assistant Actuary
Date: 10/12/00
7
EXHIBIT A
INVESCO FUNDS
PARTICIPATING IN SHAREHOLDER SERVICING ARRANGEMENTS
WITH HARTFORD LIFE INSURANCE COMPANY
FEE SCHEDULE
With respect to accounts in which the average shareholder account balance
exceeds $1,000 per Portfolio and the total omnibus investment amount exceeds
$1,000,000, the Company shall be paid an annual service fee rate of 35 basis
points of the average daily market value of Portfolio shares, to be paid monthly
upon receipt of invoice from Company. However, for each month that the Company's
average shareholder account balance falls below $1,000 per Portfolio, or the
total omnibus investment amount falls below $1,000,000, the Company shall be
paid an annual service fee rate of 25 basis points of the average daily market
value of Portfolio shares, to be paid monthly upon receipt of invoice from
Company. All fees shall be invoiced by Company in accordance with instructions
as provided by Underwriter or Transfer Agent and must be received in proper form
within a reasonable time, but no later than 60 days after the end of each month
following the month for which the invoice is submitted. Company shall also
include with the invoice a report showing the total number of active individual
customers or participants owning shares in each Portfolio through Company's
omnibus account(s). No fees shall be payable with respect to Portfolio shares
held by Company in Company brokerage accounts until an invoice is timely
provided in proper form.
PORTFOLIO BASIS POINTS
--------------------------------------------------------------------------------
INVESCO Balanced Fund -- Investor Class 35
INVESCO Blue Chip Growth Fund -- Investor Class 35
INVESCO Dynamics Fund -- Investor Class 35
INVESCO Endeavor Fund -- Investor Class 35
INVESCO Energy Fund -- Investor Class 35
INVESCO Equity Income Fund -- Investor Class 35
INVESCO European Fund -- Investor Class 35
INVESCO Financial Services Fund -- Investor Class 35
INVESCO Gold Fund -- Investor Class 35
INVESCO Growth & Income Fund -- Investor Class 35
INVESCO Health Sciences Fund -- Investor Class 35
INVESCO High Yield Fund -- Investor Class 35
INVESCO International Blue Chip Value Fund -- Investor Class 35
INVESCO Leisure Fund -- Investor Class 35
INVESCO Real Estate Opportunity Fund -- Investor Class 35
INVESCO S&P 500 Index Fund -- Investor Class 35
INVESCO Select Income Fund -- Investor Class 35
INVESCO Small Company Growth Fund -- Investor Class 35
B-1
EXHIBIT A CONTINUED
PORTFOLIO BASIS POINTS
--------------------------------------------------------------------------------
INVESCO Tax -- Free Bond Fund -- Investor Class 35
INVESCO Technology Fund -- Investor Class 35
INVESCO Telecommunications Fund -- Investor Class 35
INVESCO Total Return Fund -- Investor Class 35
INVESCO U.S. Government Securities Fund -- Investor Class 35
INVESCO Utilities Fund -- Investor Class 35
INVESCO Value Equity Fund -- Investor Class 35
B-2
