EXHIBIT 23(H)(XX) UNDER FORM N-1A
EXHIBIT 10(H) UNDER ITEM 601/REG. S-K
FUND PARTICIPATION AGREEMENT
AMONG
THE HUNTINGTON FUNDS,
HUNTINGTON ASSET ADVISORS, INC.,
EDGEWOOD SERVICES, INC.
AND
HARTFORD LIFE INSURANCE COMPANY
FUND PARTICIPATION AGREEMENT
THIS AGREEMENT, made as of the 23rd day of June, 2006 by and among
Hartford Life Insurance Company, a Connecticut corporation ("Hartford"), on its
behalf and on behalf of each separate account set forth on Schedule A attached
as it may be amended from time to time (the "Separate Accounts"); The Huntington
Funds, a Delaware statutory trust (the "Trust"), on its behalf and on behalf of
each of its series set forth on Schedule B attached as it may be amended from
time to time (the "Funds"); Edgewood Services, Inc., a New York corporation (the
"Distributor") and Huntington Asset Advisors, Inc., a registered investment
adviser (the "Adviser").
WHEREAS, the Trust engages in business as an open-end management
investment company and its Funds are available to act as the investment vehicle
for separate accounts established by insurance companies for life insurance
policies and annuity contracts; and
WHEREAS, the Distributor is registered as a broker/dealer under the
Securities Exchange Act of 1934, as amended (the "1934 Act"), is a member in
good standing of the National Association of Securities Dealers, Inc. (the
"NASD") and serves as principal underwriter of the shares of the Trust; and
WHEREAS, the Adviser is registered as an investment adviser under the
Investment Advisers Act of 1940, as amended, and serves as the investment
adviser to the Trust; and
WHEREAS, Hartford is an insurance company which has registered or will
register the variable annuities and/or variable life insurance policies listed
on Schedule A attached as may be amended from time to time under the Securities
Act of 1933 (the "1933 Act") and the Investment Company Act of 1940 (the "1940
Act") to be issued by it for distribution (the "Contracts"); and
WHEREAS, the Trust intends to make available shares of the Funds to the
Separate Accounts of Hartford; and
WHEREAS, to the extent permitted by applicable insurance laws and
regulations, the Separate Accounts wish to purchase shares of the Funds to serve
as an investment medium for the Contracts funded by the Separate Accounts, and
the Distributor is authorized to sell shares of the Funds; and
WHEREAS, the Fund shares may be made available to separate accounts of one
or more insurance companies that fund variable annuity contracts or variable
life insurance policies, subject to receipt of any required relief pursuant to
an exemptive order from the Securities and Exchange Commission ("SEC"), granting
exemptions from the provisions of various sections of the 1940 Act and Rules
thereunder, to the extent necessary to permit shares of the Funds to be sold to
and held by variable annuity and variable life insurance separate accounts of
life insurance companies that may or may not be affiliated with one another
(hereinafter the "Mixed and Shared Funding Exemptive Order");
NOW, THEREFORE, in consideration of their mutual promises, Hartford, the
Trust, the Distributor and the Adviser agree as follows:
ARTICLE I. FUND SHARES
1.5 The Trust and the Distributor agree to make shares of the Funds available
for purchase on each Business Day (as defined below) by the Separate
Accounts. Each Fund will execute orders placed for each Separate Account
on a daily basis at the net asset value next computed after receipt and
acceptance by the Trust or its designee of such order.
A. For purposes of this Agreement, Hartford shall be the designee of
the Trust for receipt of orders from each Separate Account and receipt by
Hartford constitutes receipt by the Trust, provided that the Distributor
receives notice of orders by 8:30 a.m. (Eastern time) on the next following
Business Day.
B. For purposes of this Agreement, "Business Day" shall mean each day on
which the New York Stock Exchange is open for trading and on which each Fund
calculates its net asset value pursuant to the rules of the Securities and
Exchange Commission ("SEC") as set forth in the Trust's registration statement
on Form N-1A (the "Registration Statement").
1.5 The Trust agrees to make available on each Business Day shares of the
Funds for purchase at the applicable net asset value per share by the
Separate Accounts; provided, however, that the Board of Trustees of the
Trust (the "Board"), acting in good faith and in the exercise of its
fiduciary responsibilities, may refuse to permit the Trust 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 over the sale of shares or if the Board determines
that such action is necessary in the best interests of the shareholders of
any Fund.
1.5 The Trust and Distributor agree that shares of the Funds will be sold only
to insurance companies, for use in conjunction with variable life
insurance policies or variable annuities to separate accounts of insurance
companies, and to other persons consistent with the diversification rules
under Section 817(h) of the Internal Revenue Code of 1986, as amended (the
"Code"), and the regulations thereunder. No shares of the Funds will be
sold to the general public unless otherwise permitted by the Mixed and
Shared Funding Exemptive Order and any applicable provisions of the Code.
1.4 Upon receipt of a request for redemption in proper form from Hartford on
any Business Day, the Trust agrees to redeem any full or fractional shares of
the Funds held by the Separate Accounts at the net asset value next computed
after receipt and acceptance by the Trust or its designee of the request for
redemption, except that the Trust reserves the right to suspend redemptions
temporarily to the extent permitted under the 1940 Act. Such redemption shall
be paid consistent with applicable rules of the SEC and procedures and policies
of the Trust as described in the Trust's current registration statement.
A. For purposes of this Agreement, Hartford shall be the designee of
the Trust for receipt of redemption requests from each Separate Account and
receipt by Hartford constitutes receipt by the Trust, provided that the
Distributor receives notice of the redemption request by 8:00 a.m. (Eastern
time) on the next following Business Day. Hartford agrees to submit such orders
electronically through secured trading systems as described on Schedule C to
this Agreement or, if it is unable to submit orders electronically, Hartford
shall submit such orders through manual transmissions using the procedures
described in Schedule C to this Agreement.
1.5 Hartford agrees that purchases and redemptions of Fund shares shall be
made in accordance with the provisions of the then current prospectuses of
the Funds.
A. Hartford will place separate orders to purchase or redeem shares of
each Fund. Each order shall describe the net amount of shares and dollar amount
of each Fund to be purchased or redeemed.
B. Unless otherwise specified in Schedule C, Hartford shall pay for
shares of the Funds on the next Business Day after Hartford's receipt of an
order to purchase shares of a Fund, and payment shall be in federal funds
transmitted by wire.
C. In the event of net redemptions, a Fund shall pay the redemption
proceeds in federal funds transmitted by wire on the next Business Day after
Hartford's receipt of an order to redeem shares.
1.6 Issuance and transfer of a Fund's shares will be by book entry only.
Share certificates will not be issued to Hartford or any Separate Account.
Shares purchased will be recorded in an appropriate title for each Separate
Account or the appropriate sub-account of each Separate Account. The Trust
shall furnish to Hartford the CUSIP number assigned to each Fund identified in
Schedule B attached as may be amended from time to time.
1.7 The Trust or its designee shall notify Hartford in advance of any
dividends or capital gain distributions payable on a Fund's shares, but by no
later than same day notice by 6:00 p.m. Eastern time (by wire or telephone,
followed by written confirmation). Hartford elects to receive all such
dividends and capital gain distributions in additional shares of the paying
Fund. The Trust or its agent shall notify Hartford of the number of shares
issued as payment of dividends and distributions. Hartford reserves the right
to revoke this election and to receive all such dividends and capital gain
distributions in cash.
1.8 Unless otherwise specified in Schedule C, the Trust or its agent shall
advise Hartford on each Business Day of the net asset value per share for each
Fund 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 6:30 p.m. Eastern time.
A. If the Trust or its agent provides materially incorrect share net
asset value information through no fault of Hartford, the Separate Accounts
shall be entitled to an adjustment with respect to the Fund shares purchased or
redeemed to reflect the correct net asset value per share.
B. The determination of the materiality of any net asset value pricing
error and its correction shall be based on the SEC's recommended guidelines
regarding these errors. Any material error in the calculation or reporting of
net asset value per share, dividend or capital gain information shall be
reported promptly to Hartford upon discovery. The Trust and/or its agents shall
indemnify and hold harmless Hartford against any amount Hartford is legally
required to pay qualified plans ("Plans") or Contract owners, and which amount
is due to the Trust's or its agents' material miscalculation and/or incorrect
reporting of the daily net asset value, dividend rate or capital gains
distribution rate. Hartford shall submit an invoice to the Trust or its agents
for such losses incurred as a result of the above which shall be payable within
sixty (60) days of receipt. Should a material miscalculation by the Trust or
its agents result in a gain to Hartford, Hartford shall immediately reimburse
the Trust or its agents for any amount lost by the Trust or its agents as a
result of the incorrect calculation. Should a material miscalculation by the
Trust or its agents result in a gain to the Plans or Contract owners, Hartford
will consult with the Trust or its designee as to what reasonable efforts shall
be made to recover the money and repay the Trust or its agents. Hartford shall
then make such reasonable effort, at the expense of the Trust or its agents, to
recover the money and repay the Trust or its agents; but Hartford shall not be
obligated to take legal action against the Plans or Contract owners.
With respect to the material errors or omissions relating to net asset
value pricing, this section shall control over other indemnification provisions
in this Agreement.
ARTICLE II. GENERAL DUTIES
2.1 Hartford shall take all such actions as are necessary under applicable
federal and state law to permit the sale of the Contracts issued by Hartford,
including registering each Separate Account as an investment company to the
extent required under the 1940 Act, and registering the Contracts or interests
in the Separate Accounts under the Contracts to the extent required under the
1933 Act, and obtaining all necessary approvals to offer the Contracts from
state insurance commissioners.
2.2 Hartford shall make every effort to maintain the treatment of the
Contracts issued by Hartford as annuity contracts or life insurance policies,
whichever is appropriate, under the applicable provisions of the Code, and shall
notify the Trust and the Distributor immediately upon having a reasonable basis
for believing that such Contracts have ceased to be so treated or that they
might not be so treated in the future. In that regard, Hartford shall make
every effort to remedy any Contract's failure to be treated as annuity contracts
or life insurance policies, as appropriate, under applicable provisions of the
Code, including Section 72 and regulations thereunder within the required time
frames.
2.3 Hartford or its agents shall offer and sell the Contracts in accordance
with applicable provisions of the 1933 Act, the 1934 Act, the 1940 Act, the NASD
Rules of Fair Practice, and state insurance law respecting the offering of
variable life insurance policies and variable annuity contracts.
2.4 The Distributor shall sell and distribute the shares of the Funds in
accordance with the applicable provisions of the 1933 Act, the 1934 Act, the
1940 Act, the NASD Rules of Fair Practice, and state law.
2.5 During such time as the Trust engages in activities that require a Mixed
and Shared Funding Exemptive Order, a majority of the Trust's Board shall
consist of persons who are not "interested persons" of the Trust ("Independent
Trustees"), as defined by Section 2(a)(19) of the 1940 Act and the rules
thereunder, and as modified by any applicable orders of the SEC, except that if
this provision of this Article 2.5 is not met by reason of the death,
disqualification, or bona fide resignation of any Trustee or Trustees, then the
operation of this provision shall be suspended (a) for a period of 45 days if
the vacancy or vacancies may be filled by the Trust's Board; (b) for a period of
60 days if a vote of shareholders is required to fill the vacancy or vacancies;
or (c) for such longer period as the SEC may prescribe by rule or order upon
application.
2.6 As long as pass through voting is required by the SEC, and provided it is
consistent with their fiduciary duties, Hartford and its agents will not in any
way recommend any proposal in opposition to, or oppose or interfere with, any
proposal submitted by the Trust at a meeting of owners of Contracts or
shareholders of the Funds, and will in no way recommend any proposal in
opposition to, or oppose or interfere with, the solicitation of proxies by the
Trust of shares held by Contract owners, without the prior written consent of
the Trust.
2.7 Each party hereto shall cooperate with each other party and all
appropriate governmental authorities having jurisdiction (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.
ARTICLE III. REPRESENTATIONS AND WARRANTIES
0.1 Hartford represents and warrants that:
A. The Contracts or the interests in the Separate Accounts under such
Contracts are or prior to issuance will be registered as securities under the
1933 Act unless exempt and that the registrations will be maintained to the
extent required by law.
B. The Contracts will be issued in compliance with all applicable
federal and state laws and regulations.
C. Hartford is a life insurance company duly organized and in good
standing under Connecticut law and that it is taxed as an insurance company
under applicable provisions of the Code.
D. Hartford has legally and validly established each Separate Account
prior to any issuance or sale as a segregated asset account under the
Connecticut Insurance Code 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 the 1940 Act, and
each of the Separate Accounts is a validly existing separate account under the
applicable federal and state law.
E. The Contracts are treated as annuity contracts under applicable
provisions of the Code. Hartford will make every effort to maintain such
treatment and will notify the Trust and the Adviser immediately in writing upon
having a reasonable basis for believing that the Contracts have ceased to be
treated as such or might not be treated as such in the future.
0.2 The Trust and the Distributor represent and warrant that:
A. Fund shares sold pursuant to this Agreement shall be registered
under the 1933 Act and the regulations thereunder to the extent required.
B. Fund shares shall be duly authorized for issuance in accordance with
the laws of each jurisdiction in which shares will be offered.
C. Fund shares shall be offered in compliance with all applicable
federal and state securities laws and regulations.
D. The Trust is or will be registered under the 1940 Act and the
regulations thereunder to the extent required.
E. The Trust shall amend the Registration Statement for Fund 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.
3.3 The Trust and the Adviser represent and warrant that each Fund will
qualify as a Regulated Investment Company under Subchapter M of the Code. The
Trust and Adviser will make every effort to maintain such qualification and that
both will notify Hartford immediately in writing upon having a reasonable basis
for believing that the Trust has ceased to qualify or that the Trust might not
qualify in the future. In the event the Trust ceases to so qualify, it will
immediately take all steps necessary (a) to notify Hartford of such event and
(b) where available, achieve compliance within any grace period afforded under
the Code.
3.4 The Trust represents and warrants that:
A. The Trust is duly organized and validly existing under the laws of
the State of Delaware.
B. The Trust does and will comply in all material respects with the
1940 Act.
C. If the Trust determines that it is necessary, the Trust will obtain
prior to sale or issuance of the Contracts, an order from the SEC, granting
participating insurance companies and variable insurance product separate
accounts exemptions from the provisions of the 1940 Act, as amended, and the
rules thereunder, to the extent necessary to permit shares of the Trust to be
sold to and held by variable insurance product separate accounts of both
affiliated and unaffiliated life insurance companies.
3.5 The Distributor represents and warrants that:
A. It is and shall remain duly registered under all applicable federal
and state laws and regulations necessary for the performance of its obligations
to the Trust and Hartford and that it will perform its obligations to the Trust
and Hartford in compliance with the laws and regulations and any applicable
state and federal laws and regulations.
ARTICLE IV. PROSPECTUSES; REPORTS TO SHAREHOLDERS
AND PROXY STATEMENTS; VOTING
4.1 The Trust, at its expense, will print and provide Hartford with as many
copies of each Fund's current prospectus and statement of additional information
as Hartford may reasonably request to deliver to existing Contract owners. At
Hartford's request, the Trust will provide, in lieu of the printed prospectuses,
camera-ready film or computer diskettes containing a Fund's prospectus and
statement of additional information or electronic files of the same for printing
by Hartford at the Trust's expense. If Hartford chooses to receive camera-ready
film, computer diskettes or electronic files in lieu of receiving printed copies
of a Fund's prospectus and statement of additional information, the Trust shall
bear the cost of providing the information in that format. Hartford will
deliver, at the Trust's expense, such prospectuses, and statements of additional
information to existing Contract owners as required under applicable law.
A. Hartford may elect to print a Fund's prospectus and/or its statement
of additional information in combination with the prospectuses and statements of
additional information of other registered investment companies. In such event,
the Trust shall bear its pro rata share of printing expenses based on the number
of combined printed pages.
4.2 Hartford, at its expense, will print the Contract prospectus for use with
prospective owners of Contracts.
4.3 The Trust, at its expense, will provide Hartford with printed or
electronic copies of its reports to shareholders, and other communications to
shareholders in such quantity as Hartford shall reasonably require for
distributing, at the Trust's expense, to Contract owners.
4.4 The Trust will provide Hartford with copies of its proxy solicitations.
Hartford, at its own expense, will, to the extent required by law, (a)
distribute proxy materials to eligible Contract owners, (b) solicit voting
instructions from eligible Contract owners, (c) vote the Fund shares in
accordance with instructions received from Contract owners; and (d) if required
by law, vote Fund shares for which no instructions have been received in the
same proportion as shares of the Fund for which instructions have been received.
A. To the extent permitted by applicable laws and subject to Article
2.6, Hartford reserves the right to vote Fund shares held in any Separate
Account in its own right.
4.5 The Trust will comply with all provisions and interpretations of the 1940
Act and the rules thereunder requiring voting by shareholders.
4.6 If and during the time as the Trust engages in activities that require a
Mixed and Shared Funding Exemptive Order, the Trust shall disclose in its
prospectus that (1) the Funds are intended to be a funding vehicle for variable
annuity and variable life insurance contracts offered by various insurance
companies, (2) material irreconcilable conflicts possibly may arise, and (3) the
Board will monitor events in order to identify the existence of any material
irreconcilable conflicts and to determine what action, if any, should be taken
in response to any such conflict. The Trust hereby notifies Hartford that
prospectus disclosure may be appropriate regarding potential risks of offering
shares of the Funds to separate accounts funding both variable annuity contracts
and variable life insurance policies and to separate accounts funding Contracts
of unaffiliated life insurance companies.
ARTICLE V. SALES MATERIAL AND INFORMATION
5.1 Hartford shall furnish, or shall cause to be furnished, to the Trust and
the Adviser at least ten (10) Business Days prior it is use, each piece of sales
literature or other promotional material prepared by Hartford in which the Trust
(or any Fund in the Trust), the Adviser or the Distributor is described. No
sales literature or other promotional material will be used if the Trust, the
Adviser, or the Distributor reasonably objects to its use within ten (10)
Business Days after receipt by the Trust or the Adviser.
5.2 Hartford and its affiliates and agents will not, without the permission of
the Trust, give any information or make any representations or statements on
behalf of the Trust or Adviser or concerning the Funds, the Trust or the
Adviser, in connection with the advertising or sale of the Contracts, other than
information or representations contained in: (a) the Trust's Registration
Statement or any Fund prospectus, (b) reports to shareholders, (c) proxy
statements for the Funds, or, (d) sales literature or other promotional material
approved by the Trust.
5.3 The Trust or Adviser shall furnish, or shall cause to be furnished, to
Hartford or its designee at least ten (10) Business Days prior to its use, each
piece of sales literature or other promotional material prepared by the Trust or
the Adviser in which Hartford, the Contracts or Separate Accounts, are
described. No sales literature or other promotional material will be used if
Hartford reasonably objects to its use within ten (10) Business Days after
receipt by Hartford.
5.4 Neither the Trust, the Adviser nor the Distributor will, without the
permission of Hartford, give any information or make any representations or
statements on behalf of Hartford, the Contracts, or the Separate Accounts or
concerning Hartford, the Contracts or the Separate Accounts, in connection with
the advertising or sale of the Contracts, other than the information or
representations contained in: (a) the registration statement or prospectus for
the Contracts, (b) reports to shareholders, (c) in sales literature or other
promotional material approved by Hartford.
5.5 The Trust will provide to Hartford at least one complete copy of all
registration statements, prospectuses, statements of additional information,
reports to shareholders, proxy statements, solicitations for voting
instructions, sales literature or other promotional materials, applications for
exemptions and requests for no-action letters, and all amendments, that relate
to the Trust or its shares, promptly after the filing of such document with the
SEC or other regulatory authority.
5.6 With respect to the Contracts listed on Schedule A attached as may be
amended from time to time, Hartford will provide to the Trust upon request all
registration statements, prospectuses, statements of additional information and
amendments and supplements thereto which are filed with the SEC on or after the
date of this Agreement, all reports, solicitations for voting instructions,
sales literature or other promotional materials, applications for exemptions,
and requests for no action letters, and all amendments thereto.
5.7 For purposes of this Agreement, 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, computerized media, Web site or other
public media), sales literature or other promotional material (i.e. any written
communication distributed or made generally available to customers or the
public, including brochures, circulars, information provided on a Web site,
research reports, market letters, form letters, seminar texts, reprints or
excerpts of any other advertisement, sales literature or other promotional
material, or published article), educational or training materials or other
communications distributed or made generally available to some or all agents or
employees (but not including materials exclusively used internally by licensed
representatives).
ARTICLE VI. DIVERSIFICATION
6.1 The Trust and the Adviser represent and warrant that, at all times, they
will comply with Section 817(h) of the Code, the regulations promulgated
thereunder, and any Internal Revenue Service guidance, relating to the
diversification requirements for variable annuity, endowment, or life insurance
contracts and any amendments or other modifications to such statutory,
regulatory or administrative authority. In the event a Fund ceases to so
qualify, the Trust and the Adviser will immediately take all steps necessary (a)
to notify Hartford of such event and (b) to adequately diversify the Fund so as
to achieve compliance within the period afforded by Treasury Regulation 817-5.
ARTICLE VII. POTENTIAL CONFLICTS
If and during the time that the Trust engages in activities that require a
Mixed and Shared Funding Exemptive Order, the parties shall comply with the
conditions in this Article VII.
7.1 The Board will monitor the Trust for the existence of any material
irreconcilable conflict (1) between the interests of owners of variable annuity
contracts and variable life insurance policies, and (2) between the interests of
owners of Contracts issued by different participating life insurance companies
that invest in the Trust.
A. The Board shall promptly inform Hartford if it determines that a
material irreconcilable conflict exists and the implications thereof. A
material irreconcilable 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 interpretive letter, or
any similar action by insurance, tax, or securities regulatory authorities; (c)
an administrative or judicial decision in any relevant proceeding; (d) the
manner in which the investments of any Fund are being managed; (e) a difference
in voting instructions given by variable annuity and variable life insurance
Contract owners; or (f) disregard of a Contract owner's voting instructions.
7.2 Hartford will report any potential or existing material irreconcilable
conflict of which it is aware to the Board. This includes, but is not limited
to, an obligation by Hartford to inform the Board whenever Contract owner voting
instructions are disregarded. Hartford will be responsible for assisting the
Board in carrying out its responsibilities under any Mixed and Shared Funding
Exemptive Order, or, if the Trust is engaged in mixed funding or shared funding
in reliance on Rule 6e-2, 6e-3(T), or any other regulation under the 1940 Act,
Hartford will be responsible for assisting the Board in carrying out its
responsibilities under such regulation, by providing the Board with access to
all information reasonably necessary for the Board to consider any issues
raised. Hartford shall carry out its responsibility under this Article 7.2 with
a view only to the interests of the Contract owners.
7.3 If it is determined by a majority of the Trust's Board, or a majority of
its Independent Trustees, that a material irreconcilable conflict exists due to
issues relating to the Contracts, Hartford will, at its expense and to the
extent reasonably practicable, take whatever steps it can which are necessary to
remedy or eliminate the material irreconcilable conflict, including, without
limitation, withdrawal of the affected Separate Account's investment in the
Funds. No charge or penalty will be imposed as a result of such withdrawal.
7.4 Hartford and the Adviser, at least annually, will submit to the Board such
reports, materials or data as the Board may reasonably request so that the Board
may fully carry out the obligations imposed upon them. All reports received by
the Board of potential or existing conflicts, and all Board action with regard
to determining the existence of a conflict, and determining whether any proposed
action adequately remedies a conflict, shall be properly recorded in the minutes
of the Board or other appropriate records, and such minutes or other records
shall be made available to the SEC upon request.
ARTICLE VIII. INDEMNIFICATION
8.1 Indemnification by Hartford
A. Hartford agrees to indemnify and hold harmless the Distributor, the
Adviser, the Trust and each of its directors, trustees, officers, employees and
agents and each person, if any, who controls the Trust within the meaning of
Section 15 of the 1933 Act (collectively, the "Indemnified Parties" and
individually, the "Indemnified Party" for purposes of this Article 8.1) against
any and all losses, claims, damages, liabilities (including amounts paid in
settlement with the written consent of Hartford, which consent shall not be
unreasonably withheld) 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 Indemnified Parties may become subject
under any statute or regulation, or at common law or otherwise, insofar as such
Losses are related to the offer, sale or acquisition of Fund shares or the
Contracts or to the operation of the Separate Accounts and:
1. Arise out of or are based upon any untrue statements or
alleged untrue statements of any material fact contained in a registration
statement, prospectus or other disclosure document for the Contracts or in the
Contracts themselves or in sales literature generated or approved by Hartford on
behalf of the Contracts or Separate Accounts (or any amendment or supplement to
any of the foregoing) (collectively, "Company Documents"), 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
Indemnified Party if such statement or omission or such alleged statement or
omission was made in reliance upon and was accurately derived from information
furnished to Hartford by or on behalf of the Trust for use in Company Documents
or otherwise for use in connection with the offer or sale of the Contracts or
Fund shares; or
2. Arise out of or result from statements or representations
(other than statements or representations contained in and accurately derived
from Fund Documents as defined in Article 8.2(A)(1) not supplied by Hartford or
persons under its control) or wrongful conduct of Hartford or persons under its
control, with respect to the offer, sale, acquisition or distribution of the
Contracts or Fund shares; or
3. Arise out of or result from any untrue statement or alleged
untrue statement of a material fact contained in Fund Documents as defined in
Article 8.2(A)(1) 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 information furnished by or on behalf of Hartford;
or
4. Arise out of or result from any failure by Hartford to provide
the services or furnish the materials required under the terms of this
Agreement; or
5. Arise out of or result from any material breach of any
representation and/or warranty made by Hartford in this Agreement or arise out
of or result from any other material breach of this Agreement by Hartford, as
limited by and in accordance with the provisions of Articles 8.1(B) and 8.5
hereof.
B. Hartford shall not be liable under this indemnification provision
with respect to any Losses to which an Indemnified Party would otherwise be
subject by reason of such Indemnified Party's willful misfeasance, bad faith, or
gross negligence in the performance of such Indemnified Party's duties or by
reason of such Indemnified Party's reckless disregard of obligations and duties
under this Agreement or to the Adviser, the Trust or the Distributor, whichever
is applicable.
8.2 Indemnification by the Distributor
A. The Distributor agrees to indemnify and hold harmless the Trust, the
Adviser and Hartford and each of their respective trustees, directors, officers,
employees and agents and each person, if any, who controls the Trust, the
Adviser or Hartford, respectively, within the meaning of Section 15 of the 1933
Act (collectively, the "Indemnified Parties" and individually, an "Indemnified
Party" for purposes of this Article 8.2) against any and all losses, claims,
damages, liabilities (including amounts paid in settlement with written consent
from the Distributor, which consent shall not be unreasonably withheld) or
expenses (including the reasonable costs of investigating or defending any
losses, claims, damages, liabilities or expenses and reasonable legal counsel
fees incurred in connection therewith) (collectively, "Losses") to which the
Indemnified Parties may become subject under any statute or regulation, at
common law or otherwise, insofar as such Losses are related to the sale or
acquisition of the Fund's shares or the Contracts and:
1. Arise out of or are based upon any untrue statement or alleged
untrue statement of any material fact contained in a registration statement,
prospectus or sales literature of the Trust (or any amendment or supplement to
any of the foregoing) (collectively, the "Fund Documents") 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
Indemnified Party if such statement or omission or such alleged statement or
omission was made in reliance upon and in conformity with information furnished
to the Distributor or Trust or the designee of either by or on behalf of the
Indemnified Party for use in Fund Documents or otherwise for use in connection
with the offer or sale of the Contracts or Fund shares; or
2. Arise out of or result from statements or representations
(other than statements or representations contained in Company Documents not
supplied by the Distributor or persons under its control) or wrongful conduct of
the Distributor or persons under its control, with respect to the offer, sale or
distribution of the Contracts or Fund shares; or
3. 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 statement or statements therein not
misleading, if such statement or omission was made in reliance upon information
furnished to Hartford by or on behalf of the Distributor; or
4. Arise out of or result from any failure by the Distributor to
provide the services and furnish the materials under the terms of this
Agreement; or
5. Arise out of or result from any material breach of any
representation and/or warranty made by the Distributor in this Agreement or
arise out of or result from any other material breach of this Agreement by the
Distributor as limited by and in accordance with the provisions of Articles
8.2(B) and 8.5 hereof.
B. The Distributor shall not be liable under this indemnification
provision with respect to any Losses to which an Indemnified Party would
otherwise be subject by reason of such Indemnified Party's willful misfeasance,
bad faith, or gross negligence in the performance of such Indemnified Party's
duties or by reason of such Indemnified Party's reckless disregard of
obligations and duties under this Agreement or to Hartford or the Separate
Account, whichever is applicable.
8.3 Indemnification by the Trust
A. The Trust agrees to indemnify and hold harmless Hartford and each of
its trustees, directors, officers, employees and agents and each person, if any,
who controls Hartford within the meaning of Section 15 of the 1933 Act
(collectively, the "Indemnified Parties" and individually, an "Indemnified
Party" for purposes of this Article 8.3) against any and all losses, claims,
damages, liabilities (including amounts paid in settlement with written consent
from the Trust, which consent shall not be unreasonably withheld) or expenses
(including the reasonable costs of investigating or defending any losses,
claims, damages, liabilities or expenses and reasonable legal counsel fees
incurred in connection therewith) (collectively, "Losses") to which the
Indemnified Parties may become subject under any statute or regulation, at
common law or otherwise, insofar as such Losses are related to the sale or
acquisition of the Fund's shares or the Contracts and:
1. Arise out of or are based upon any untrue statement or alleged
untrue statement of any material fact contained in Fund Documents 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
Indemnified Party if such statement or omission or such alleged statement or
omission was made in reliance upon and in conformity with information furnished
to the Distributor or Trust or designee of either by or on behalf of Hartford
for use in Fund Documents or otherwise for use in connection with the sale of
the Contracts or Fund shares; or
2. Arise out of or result from statements or representations
(other than statements or representations contained in Company Documents not
supplied by the Distributor or persons under its control) or wrongful conduct of
the Trust, or persons under its control, with respect to the sale or
distribution of the Contracts or Fund shares; or
3. 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 statement or statements therein not
misleading, if such statement or omission was made in reliance upon information
furnished by or on behalf of the Trust; or
4. Arise out of or result from any failure by the Trust to
provide the services and furnish the materials under the terms of this
Agreement; or
5. 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, as
limited by and in accordance with the provisions of Articles 8.3(B) and 8.5
hereof.
B. The Trust shall not be liable under this indemnification provision
with respect to any Losses to which an Indemnified Party would otherwise be
subject by reason of such Indemnified Party's willful misfeasance, bad faith, or
gross negligence in the performance of such Indemnified Party's duties or by
reason of such Indemnified Party's reckless disregard of obligations and duties
under this Agreement or to Hartford or the Separate Accounts, whichever is
applicable.
8.4 Indemnification by the Adviser
A. The Adviser agrees to indemnify and hold harmless Hartford, the
Trust or the Distributor and each of their trustees, directors, officers,
employees and agents and each person, if any, who controls Hartford, the Trust
and the Distributor, respectively, within the meaning of Section 15 of the 1933
Act (collectively, the "Indemnified Parties" and individually, an "Indemnified
Party" for purposes of this Article 8.4) against any and all losses, claims,
damages, liabilities (including amounts paid in settlement with written consent
from the Adviser, which consent shall not be unreasonably withheld) or expenses
(including the reasonable costs of investigating or defending any losses,
claims, damages, liabilities or expenses and reasonable legal counsel fees
incurred in connection therewith) (collectively, "Losses") to which the
Indemnified Parties may become subject under any statute or regulation, at
common law or otherwise, insofar as such Losses are related to the sale or
acquisition of the Fund's shares or the Contracts and;
1. Arise out of or are based upon any untrue statement or alleged
untrue statement of any material fact provided by the Adviser and contained in a
Fund Document or arise out of or are based upon the omission or the alleged
omission to state therein a material fact about the Adviser required to be
stated therein or necessary to make the statements therein not misleading,
provided that this indemnity 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 to the Adviser or Trust or the
designee of either by or on behalf of Hartford for use in Fund Documents or
otherwise for use in connection with the sale of the Contracts or Fund shares;
or
2. Arise out of or result from statements or representations
(other than statements or representations contained in Company Documents not
supplied by the Adviser or persons under its control) or wrongful conduct of the
Adviser or persons under its control, with respect to the sale or distribution
of the Contracts or Fund shares; or
3. 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 statement or statements therein not
misleading, if such statement or omission was made in reliance upon information
furnished by or on behalf of the Adviser; or
4. Arise out of or result from any failure by the Adviser to
provide the services and furnish the materials under the terms of this
Agreement; or
5. Arise out of or result from any material breach of any
representation and/or warranty made by the Adviser in this Agreement or arise
out of or result from any other material breach of this Agreement by the
Adviser, as limited by and in accordance with the provisions of Articles 8.4(B)
and 8.5 hereof.
B. The Adviser shall not be liable under this indemnification provision
with respect to any Losses to which an Indemnified Party would otherwise be
subject by reason of such Indemnified Party's willful misfeasance, bad faith, or
gross negligence in the performance of such Indemnified Party's duties or by
reason of such Indemnified Party's reckless disregard of obligations and duties
under this Agreement or to Hartford or the Separate Accounts, whichever is
applicable.
8.5 Notice of Indemnification; Retention of Counsel
A. Any party seeking indemnification (each a "Potential Indemnitee")
shall promptly notify any party from whom it intends to seek indemnification
(each a "Potential Indemnitor") of all demands made and/or actions commenced
against the Potential Indemnitee which may require a Potential Indemnitor to
provide such indemnification. A Potential Indemnitor shall not be liable under
this indemnification provision with respect to any claim made against a
Potential Indemnitee unless such Potential Indemnitee shall have notified the
Potential Indemnitor 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 Potential Indemnitee (or after such Potential
Indemnitee shall have received notice of such service on any designated agent),
but failure to notify the Potential Indemnitor of any such claim shall not
relieve the Potential Indemnitor from any liability which it may have to the
Potential Indemnitee against whom such action is brought otherwise than on
account of this indemnification provision.
B. In case any such action is brought against a Potential Indemnitee,
the Potential Indemnitor shall be entitled to participate, at its own expense,
in the defense of such action. The Potential Indemnitor also shall be entitled
to assume the defense thereof, with counsel satisfactory to the party named in
the action. After notice from the Potential Indemnitor to such party of the
Potential Indemnitor's election to assume the defense thereof, the Potential
Indemnitee shall bear the fees and expenses of any additional counsel retained
by it, and the Potential Indemnitor 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.
8.6 With respect to any claim for indemnification made under this Agreement,
the parties each shall give the other reasonable access during normal business
hours to its books, records, and employees and those books, records, and
employees within its control pertaining to such claim, and shall otherwise
cooperate with one another in the defense of any claim. Regardless of which
party defends a particular claim, the defending party shall give the other
parties written notice of any significant development in the case as soon as
practicable, and such other party, at all times, shall have the right to
intervene in the defense of the case.
8.7 If a party is defending a claim and indemnifying one or more parties to
this Agreement, and: (i) a settlement proposal is made by the claimant, or (ii)
the defending party desires to present a settlement proposal to the claimant,
then the defending party promptly shall notify the other party or parties to
this Agreement being indemnified of such settlement proposal together with its
counsel's recommendation. If the defending party desires to enter into the
settlement and any of the other parties fails to consent within five (5)
Business Days (unless such period is extended, in writing, by mutual agreement
of the parties hereto), then each such other party withholding consent, from the
time it fails to consent forward, shall defend the claim and shall further
indemnify the defending party and other remaining parties subject to this
Agreement, if any, for all costs associated with the claim which are in excess
of the proposed settlement amount.
Regardless of which party is defending the claim: (i) if a settlement requires
an admission of liability by the non-defending party or would require the non-
defending party to either take action (other than purely ministerial action) or
refrain from taking action (due to an injunction or otherwise) (a "Specific
Performance Settlement"), the defending party may agree to such settlement only
after obtaining the express, written consent of the non-defending party. If a
non-defending party fails to consent to a Specific Performance Settlement, the
consequences described in the last sentence of the first paragraph of this
Article 8.7 shall not apply.
8.8 The parties shall use good faith efforts to resolve any dispute concerning
this indemnification obligation. Should those efforts fail to resolve the
dispute, the ultimate resolution shall be determined in a de novo proceeding,
separate and apart from the underlying matter complained of, before a court of
competent jurisdiction. Either party may initiate such proceedings with a court
of competent jurisdiction at any time following the termination of the efforts
by such parties to resolve the dispute (termination of such efforts shall be
deemed to have occurred thirty (30) days from the commencement of the same
unless such time period is extended by the written agreement of the parties).
The prevailing party in such a proceeding shall be entitled to recover
reasonable attorneys' fees, costs, and expenses.
ARTICLE IX. APPLICABLE LAW
9.1 This Agreement shall be construed and the provisions hereof interpreted
under and in accordance with the laws of the State of Connecticut.
9.2 This Agreement, its terms and definitions, shall be subject to the
provisions of the 1933, 1934 and 1940 Acts, and the rules and regulations and
rulings thereunder, including such exemptions from those statutes, rules and
regulations as the SEC may grant.
ARTICLE X. TERMINATION
10.1 This Agreement may be terminated without penalty:
A. By any party for any reason upon six months' advance written notice
delivered to all of the other parties, it being understood that no party may
give notice under this provision until one (1) year from the effective date of
this Agreement; or
B. By Hartford by written notice to the Trust, the Adviser and the
Distributor with respect to any Fund in the event any of the Fund's shares are
not registered, 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 vehicle of the Contracts issued or to be issued by Hartford; or
C. By Hartford upon written notice to the Trust with respect to any
Fund in the event that such Fund ceases to qualify as a Regulated Investment
Company under Subchapter M of the Code or under any successor or similar
provision; or
D. By Hartford upon written notice to the Trust and the Distributor
with respect to any Fund in the event that such Fund fails to meet the
diversification requirements specified in this Agreement; or
E. By Hartford upon institution of formal proceedings against the
Trust, the Adviser or the Distributor by the NASD, the SEC, or any state
securities or insurance department or any other regulatory body; or
F. By the Distributor, the Adviser or the Trust upon written notice to
Hartford with respect to any Separate Account in the event that such Separate
Account ceases to be qualified as a segregated asset account under the
Connecticut Insurance Code; or
G. By the Distributor, the Adviser or the Trust upon written notice
with respect to any Separate Account in the event that effective registration as
a unit investment trust under the 1940 Act for such Separate Account is not
maintained; or
H. By the Distributor, the Adviser or the Trust in the event that the
Contracts cease to be treated as annuity contracts under the applicable
provisions of the Code; or
I. By the Distributor, the Adviser or the Trust in the event that
effective registration or exemption from registration under the 1933 Act of the
Contracts is not maintained; or
J. By the Distributor or the Trust upon institution of formal
proceedings against Hartford or its agent by the NASD, the SEC, or any state
securities or insurance department or any other regulatory body regarding
Hartford's duties under this Agreement or related to the sale of the Contracts
issued by Hartford, the operation of the Separate Accounts, or the purchase of
shares of the Funds; or
K. By any party to the Agreement upon a determination by a majority of
the Board, or a majority of its Independent Trustees, that a material
irreconcilable conflict, as described in Article VII hereof, exists; or
L. By any party to the Agreement upon requisite vote of the Contract
owners having an interest in the Separate Accounts (or any subaccounts thereof)
to substitute the shares of another investment company for the corresponding
shares of a Fund in accordance with the terms of the Contracts for which those
shares had been selected or serve as the underlying investment media; or
M. By either the Adviser or the Distributor in the event of a
termination of either of their contracts with the Trust, but each shall use
their best efforts to substitute themselves under this Agreement with any
successor investment adviser or distributor to the Trust.
10.2 Each party to this Agreement shall promptly notify the other parties to
the Agreement of the institution against such party of any such formal
proceedings as described in Articles 10.1(E) and (J) hereof. Hartford shall
give 60 days prior written notice to the Trust of the date of any proposed vote
of Contract owners to replace the Fund's shares as described in Article 10.1(M)
hereof.
10.3 Effect of Termination
A. Notwithstanding any termination of this Agreement, the Trust and the
Distributor shall at the option of Hartford, continue to make available
additional shares of the Funds, for the limited purposes set forth in this
Section 10.3(A), pursuant to the terms and conditions of this Agreement, for all
Contracts in effect on the effective date of termination of this Agreement (the
"Existing Contracts") unless such further sale of Fund shares is proscribed by
law, regulation or applicable regulatory body. Specifically, without
limitation, the owners of the Existing Contracts will be permitted to reinvest
dividends in the Funds, direct allocation and reallocation of investments in the
Funds, redeem investments in the Funds and invest in the Funds through
additional purchase payments.
B. Hartford agrees not to redeem Fund shares attributable to the
Contracts except (i) as necessary to implement Contract owner initiated or
approved transactions, or (ii) as required by state and/or federal laws or
regulations or judicial or other legal precedent of general application or (iii)
as permitted by an order of the SEC pursuant to Section 26(h) of the 1940 Act.
Upon request, Hartford will promptly furnish to the Trust the opinion of counsel
for Hartford to the effect that any redemption pursuant to clause (ii) above is
a legally required redemption.
C. In addition to the foregoing, Article VIII Indemnification, Article
IX and Article 12.1 shall survive any termination of this Agreement.
10.4 Notwithstanding the termination of this Agreement, Huntington will
continue to pay service fees in accordance with Article 1.9 so long as net
assets of Hartford or a Separate Account remain in a Fund and Hartford continues
to provide services, provided such continued payment is in accordance with
applicable law and regulation.
ARTICLE XI. NOTICES
11.1 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: With a copy to:
The Huntington Funds Xxxxx Xxxxxxxx, Esq.
c/o The Huntington National Bank Xxxxxxxx & Worcester LLP
00 Xxxxx Xxxx Xxxxxx 0000 X Xxxxxx XX
Xxxxxxxx, Xxxx 00000 Xxxxxxxxxx, XX 00000
Attn: President
And
Xxxxxx X. Xxxxxxx, Secretary
Xxxx Xxxxx LLP
0000 Xxxxxxx Xxxxxx
00xx Xxxxx
Xxxxxxxxxx, XX 00000-0000
IF TO THE DISTRIBUTOR:
Edgewood Services, Inc.
0000 Xxxxxxxxx Xxxxx
Xxxxxxxxxx, XX 00000-0000
Attn: Secretary
IF TO THE ADVISER: With a copy to:
Huntington Asset Advisors, Inc. Xxxxx Xxxxxxxx, Esq.
00 Xxxxx Xxxx Xxxxxx Xxxxxxxx & Xxxxxxxxx XXX
Xxxxxxxx, Xxxx 00000 0000 X Xxxxxx XX
Attn: Chief Investment Officer Xxxxxxxxxx, XX 00000
IF TO HARTFORD: With a copy to:
Hartford Life Insurance Co. Hartford Life Insurance Co.
000 Xxxxxxxxx Xxxxxx 000 Xxxxxxxxx Xxxxxx
Xxxxxxxx, Xxxxxxxxxxx 00000 Xxxxxxxx, Xxxxxxxxxxx 00000
Attn: Xxxxxx X. Xxxxx Attn: Xxxxxxxxx Xxxxxx, General Counsel
ARTICLE XII. MISCELLANEOUS
12.1 Subject to the requirements of legal process and regulatory authority,
each party will treat as confidential the names and addresses of the owners of
the Contracts and all information reasonably identified as confidential in
writing by any other parties and, except as permitted by this Agreement or as
required by any governmental agency, regulator or other authority, shall not
without the express written consent of the affected party disclose, disseminate
or utilize such names and addresses and other confidential information until
such time as it may come into the public domain. Each party further agrees to
use and disclose Personal Information, as defined herein, only to carry out the
purposes for which it was disclosed to them and will not use or disclose
Personal Information if prohibited by applicable law, including, without
limitation, statutes and regulations enacted pursuant to the Xxxxx-Xxxxx-Xxxxxx
Act (Public Law 106-102). For purposes of this Agreement, "Personal
Information" means financial and medical information that identifies an
individual personally and is not available to the public, including, but not
limited to, credit history, income, financial benefits, policy or claim
information and medical records. If either party outsources services to a third-
party, such third party will agree in writing to maintain the security and
confidentiality of any information shared with them.
12.2 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.
12.3 This Agreement may be executed simultaneously in two or more counterparts,
each of which taken together shall constitute one and the same instrument.
12.4 If any provision of this Agreement shall be held or made invalid by a
court decision, statute, rule or otherwise, the remainder of this Agreement
shall not be affected thereby.
12.5 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 (and other
parties) reasonable access to its books and records in connection with any
investigation or inquiry relating to this Agreement or the transactions
contemplated hereby.
12.6 The rights, remedies and obligations contained in this Agreement are
cumulative and are in addition to any and all rights, remedies and obligations
at law or in equity, which the parties hereto are entitled to under state and
federal laws.
12.7 This Agreement or any of the rights and obligations hereunder may not be
assigned by any party without the prior written consent of all parties.
IN WITNESS WHEREOF, each of the parties has caused this Agreement to be
executed in its name and on its behalf by its duly authorized representative as
of the date specified above.
HARTFORD LIFE INSURANCE COMPANY, EDGEWOOD SERVICES,
on its behalf and on behalf of each Separate Account named in Schedule A, as may be amended from time to time INC.
By:
Name:
Its:
By:
Name: Xxxxxxx X.
Xxxxx, Xx.
Its: President
THE HUNTINGTON FUNDS, on its behalf and on behalf of each Fund named in this Schedule B, as may be amended from HUNTINGTON ASSET
time to time ADVISORS, INC.
By:
Name: Xxxxxx X. Xxxxxxx
Its: Vice President
By:
Name: B. Xxxxxxxx
Xxxxxxx
Its: President
