PARTICIPATION AGREEMENT
AMONG
PIONEER VARIABLE CONTRACTS TRUST,
HARTFORD LIFE INSURANCE COMPANY,
PIONEER INVESTMENT MANAGEMENT, INC.
AND
PIONEER FUNDS DISTRIBUTOR, INC.
THIS AGREEMENT, made this November 4, 2005, by and among PIONEER VARIABLE
CONTRACTS TRUST, a Delaware business trust (the "Trusts"), HARTFORD LIFE
INSURANCE COMPANY, a Connecticut life insurance company (the "Company"), on its
own behalf and on behalf of each of the segregated asset accounts of the Company
set forth in Schedule A hereto, as may be amended from time to time (the
"Accounts"), PIONEER INVESTMENT MANAGEMENT, INC., a Delaware corporation ("PIM")
and PIONEER FUNDS DISTRIBUTOR, INC. ("PFD"), a corporation organized under the
laws of The Commonwealth of Massachusetts.
WHEREAS, the Trust is registered as an open-end management investment company
under the Investment Company Act of 1940, as amended (the "1940 Act"), and its
shares are registered or xxxx be registered under the Securities Act of 1933, as
amended (the "1933 Act");
WHEREAS, shares of beneficial interest of the Trust are divided into several
series and classes of shares, each series being designated a "Portfolio" and
representing an interest in a particular managed pool of securities and other
assets;
WHEREAS, the Trust is available to act as the investment vehicle for separate
accounts established for variable life insurance policies and/or variable
annuity contracts to be offered by insurance companies, including Hartford,
which have entered into participation agreements with the Trust (the
"Participating Insurance Companies");
WHEREAS, the Trust has obtained an order from the Securities and Exchange
Commission (the "SEC"), dated July 9, 1997 (File No. 812-10494) (the "Mixed and
Shared Funding Exemptive Order") granting Participating Insurance Companies and
variable annuity and variable life insurance separate accounts exemptions from
the provisions of Sections 9(a), 13(a), 15(a) and 15(b) of the 1940 Act and
Rules 6e-2(b)(15) and 6e-3(T)(b)(15) thereunder, to the extent necessary to
permit shares of the Trust to be sold to and held by variable annuity and
variable life insurance companies that may or may not be affiliated with one
another and qualified pension and retirement plans ("Qualified Plans");
WHEREAS, PIM is duly registered as an investment adviser under the Investment
Advisers Act of 1940, as amended, and any applicable state securities Law, and
is the Trust's investment adviser;
1
WHEREAS, the Company will issue certain variable annuity and/or variable life
insurance contracts (individually, the "Contract" or, collectively, the
"Contracts") which, if required by applicable law, will be registered under the
1933 Act;
WHEREAS, the Accounts are duly organized, validly existing segregated asset
accounts, established by resolution of the Board of Directors of the Company, to
set aside and invest assets attributable to the aforesaid variable annuity
and/or variable life insurance contracts that are allocated to the Accounts (the
Contracts and the Accounts covered by this Agreement, and each corresponding
Portfolio covered by this Agreement in which the Accounts may invest, is
specified in Schedule A attached hereto as may be modified from time to time);
WHEREAS, the Company has registered or will register the Accounts as unit
investment trusts under the 1940 Act (unless exempt therefrom);
WHEREAS, the Portfolios offered by the Trust to the Company and the Accounts are
set forth on Schedule A attached hereto;
WHEREAS, PFD is registered as a broker-dealer with the Securities and Exchange
Commission (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. (the "NASD") and is authorized to sell
shares of the Portfolios to unit investment trusts such as the Accounts;
WHEREAS, to the extent permitted by applicable insurance laws and regulations,
the Company intends to purchase shares in one or more of the Portfolios
specified in Schedule A attached hereto (the "Shares") on behalf of the Accounts
to fund the Contracts, and PFD intends to sell such Shares to the Accounts at
net asset value; and
NOW, THEREFORE, in consideration of their mutual promises, the Trust, PIM, PFD
and the Company agree as follows:
ARTICLE I. SALE OF TRUST SHARES
1.1. PFD and the Company agree to provide pricing information, execute orders
and wire payments for purchases and redemptions of Fund shares as set forth in
this Article I until such time as they mutually agree to utilize the National
Securities Clearing Corporation ("NSCC"). Upon such mutual agreement, PFD and
the Company agree to execute orders and wire payments for purchases and
redemptions of Fund shares through NSCC and its subsidiary systems as set forth
in Exhibit I.
1.2. PFD agrees to sell to the Company those Shares which the Accounts order in
accordance with the terms of this Agreement (based on orders placed by Contract
owners or participants on that Business Day, as defined below) and which are
available for purchase by such Accounts. Each such order will be executed on a
daily basis at the net asset value next computed after receipt by the Trust or
its designee of the order for the Shares. For purposes of this Section 1.2, the
Company shall be the designee of the Trust for receipt of such orders from
Contract owners or participants and receipt by such designee shall constitute
receipt by the Trust; provided that the Trust or its designee receives written
(or facsimile) notice of such orders by the time the Trust ordinarily calculates
its net asset value as described from time to time in the Trust's prospectus
(which as of
2
the date of this Agreement is 4:00 p.m. New York time on such Business Day.
"Business Day" shall mean any day on which the New York Stock Exchange, Inc.
(the "NYSE") is open for trading and on which the Trust calculates its net asset
value pursuant to the rules of the SEC.
1.3. PFD agrees to make the Shares available for purchase at the applicable net
asset value per share by the Company and the Accounts on those days on which the
Trust calculates its net asset value in accordance with the rules of the SEC.
Notwithstanding the foregoing, the Board of Trustees of the Trust (the "Board")
may refuse to sell any Shares to the Company and the Accounts, or suspend or
terminate the offering of the Shares to the Company and the Accounts if such
action is required by law or by regulatory authorities having jurisdiction over
PIM, PFD or the Trust or is, in the sole discretion of the Board acting in good
faith and in light of its fiduciary duties under federal and any applicable
state laws, in the best interest of the Shareholders of such Portfolio.
1.4. The Trust and PFD will sell Trust shares only to Participating Insurance
Companies and Qualified Plans which have agreed to participate in the Trust to
fund their Separate Accounts and/or Qualified Plans all in accordance with the
requirement of Section 817(h) of the Internal Revenue Code, as amended (the
"Code") and the Treasury regulations thereunder. The Company will not resell the
Shares except to the Trust or its agents.
1.5. The Trust agrees, upon the Company's request, to redeem for cash, any full
or fractional Shares held by the Accounts (based on orders placed by Contract
owners on that Business Day). Each such redemption request shall be executed on
a daily basis at the net asset value next computed after receipt by the Trust or
its designee of the request for redemption. For purposes of this Section 1.5,
the Company shall be the designee of the Trust for receipt of requests for
redemption from Contract owners or participants and receipt by such designee
shall constitute receipt by the Trust; provided that the Trust or its designee
receives written (or facsimile) notice of such request for redemption by the
time the Trust ordinarily calculates its net asset value as described from time
to time in the Trust's prospectus (which as of the date of this Agreement is
4:00 p.m. New York time on such Business Day).
1.6. Each purchase, redemption and exchange order placed by the Company shall
be placed separately for each Portfolio and shall not be netted with respect to
any Portfolio. However, with respect to payment of the purchase price by the
Company and of redemption proceeds by the Trust, the Company and the Trust shall
net purchase and redemption orders with respect to each Portfolio and shall
transmit one net payment for all of the Portfolios in accordance with Section
1.7 hereof.
1.7. In the event of net purchases, the Company shall pay for the Shares by the
close of business New York time on the next Business Day after an order to
purchase the Shares is made in accordance with the provisions of Section 1.2.
hereof. Company shall transmit all such payments in federal funds by wire. In
the event of net redemptions, the Trust ordinarily shall pay and transmit the
proceeds of redemptions of Shares by 3:00 p.m. New York time on the next
Business Day after a redemption order is received from the Company in accordance
with Section 1.5. hereof, although the Trust reserves the right to postpone the
date of payment or satisfaction upon redemption consistent with Section 22(e) of
the 1940 Act and any rules pomulgated thereunder. Payments for net redemptions
shall be in federal funds transmitted by wire.
1.8. Issuance and transfer of the Shares will be by book entry only. Stock
certificates will not be issued to the Company or the Accounts. The Shares
ordered from the Trust will be recorded in an appropriate title for the Accounts
or the appropriate subaccounts of the Accounts.
3
1.9. The Trust shall furnish notice (by wire or telephone, followed by written
confirmation) no later than 6:00 p.m. New York time on the ex-dividend date to
the Company of any dividends or capital gain distributions payable on the
Shares. The Company hereby elects to reinvest all such dividends and
distributions as are payable in cash or Shares on a Portfolio's Shares in
additional Shares of that Portfolio. The Trust shall notify the Company by the
end of the next following Business Day of the number of Shares so issued as
payment of such dividends and distributions. Hartford reserves the right to
revoke this election and to receive all such dividends and capital gain
distributions in cash.
1.10. The Trust or its custodian shall provide the net asset value per share
for each Portfolio to the Company on each Business Day as soon as reasonably
practical after the net asset value per share is calculated and shall use its
best efforts to make such net asset value per share available by 6:00 p.m. New
York time. In the event of an error in the computation or delay in receipt of a
Portfolio's net asset value per share ("NAV") or any dividend or capital gain
distribution (each, a "pricing error"), PIM or the Trust shall notify the
Company as soon as possible after the discovery of the error. Such notification
may be verbal, but shall be confirmed promptly in writing in accordance with
Article XII of this Agreement. The Trust shall indemnify and hold harmless the
Company against any amount the Company is legally required to pay annuity or
life insurance contract owners that have selected a Series as an investment
option ("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. The Trust shall
reimburse Hartford for any and all costs and expenses that result from the Trust
providing materially incorrect share net asset value. The Company 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 the
Company, the Company shall immediately reimburse the Trust, the applicable
Series or its agents as for any material losses incurred by the Trust, the
applicable Series 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
Contract Owners, the Company will consult with the Trust or its designee as to
what reasonable efforts shall be made to recover the money and repay the Trust,
the applicable Series or its agents; but the Company shall not be obligated to
take legal action against Contract Owners.
1.11. The parties agree that the Contracts are not intended to serve as
vehicles for frequent transfers among the Funds in response to short-term stock
market fluctuations. The Trust and Hartford agree to cooperate with one another
to deter and detect transfer activity in the Funds where such activity occurs
through the Contracts and has been identified by either Hartford or the Trust as
abusive or following a "market timing" pattern ("Abusive Transfers").
A. 1. During the period from the effective date of this Agreement through the
final compliance date of Rule 22c-2 under the 1940 Act, SEC Rel. No. IC-26782
(Mar. 11, 2005), as such Rule may be amended from time to time ("Rule
22c-2")(currently, October 15, 2006, and which date shall be referred to as the
"Effective Date"), Hartford agrees that it will use its best efforts to provide,
promptly upon request by the Trust, the Taxpayer Identification Number or other
identifying information contained in Hartford's records, of all Contract Owners
that purchased, redeemed, transferred, or exchanged shares of the Funds, and the
amount and dates of such purchases, redemptions, transfers and exchanges. The
parties acknowledge that during this period, Hartford may be unable to provide
such information for each Contract Owner due to restrictions set forth in one or
more Contracts, Hartford privacy
4
policies prevailing as of the date hereof and/or limitations on Hartford's
operational capabilities. In using its best efforts to meet its obligations
under this Section 1.11.A.1., Hartford agrees to provide the same efforts and
resources it expends to track and/or collate "shareholder information" (as such
term is defined in Rule 22c-2) as it currently expends to track such data for
other investment options under the Contracts, including, without limitation,
Hartford's proprietary investment options.
2. Effective as of the Effective Date, Hartford agrees to provide, promptly
upon request by the Trust, the Taxpayer Identification Number or other
identifying information contained in Hartford's records, of all Contract Owners
that purchased, redeemed, transferred, or exchanged shares of the Funds, and the
amount and dates of such purchases, redemptions, transfers and exchanges.
B. The Trust agrees to notify Hartford of transfer activity that the Trust
deems to be Abusive Transfer activity.
1. During the period from the effective date of this Agreement through the
Effective Date, after receiving such notice from the Trust, Hartford agrees that
it will use its best efforts to execute any instructions from the Trust to
restrict or prohibit further purchases or exchanges of Fund shares by a Contract
Owner who has been identified by the Trust as having engaged in transactions of
such shares held directly or indirectly by Hartford that violate the Trust's
policies established for the purpose of eliminating or reducing Abusive
Transfers. The Trust and the Adviser acknowledge that during this period,
Hartford may be prohibited or restrained from executing such instructions due to
restrictions contained in one or more Contracts or pursuant to applicable state
insurance laws and regulations. In using its best efforts to meet its
obligations under this Section 1.11.A.2., Hartford shall enforce such
instructions to the same degree that it enforces its own restrictions on Abusive
Transfers.
2. Effective no later than the Effective Date, after receiving such notice from
the Trust, Hartford agrees that it will execute any instructions from the Trust
to restrict or prohibit further purchases or exchanges of Fund shares by a
Contract Owner who has been identified by the Trust as having engaged in
transactions of such shares held directly or indirectly by Hartford that violate
the Trust's policies established for the purpose of eliminating or reducing
Abusive Transfers.
3. Notwithstanding anything possibly to the contrary set forth in this section
1.11B, until the Effective Date, Hartford shall not be obligated to honor any
instructions from the Trust which (x) implement, or has the effect of
implementing, a restriction on trading, market timing policies, or any other
trading policy or procedure that is more restrictive, as determined by Hartford
in its reasonable discretion, than Hartford's Abusive Trading Restrictions
(which, for the purposes hereof, shall refer to the restrictions on trading,
market timing policies, or any other trading policy or procedure pertaining to
"abusive transfers" described in the registration statements for the Contracts
effective as of November 1, 2005), (y) is illegal, or (z) exposes Hartford to
regulatory investigation or enforcement action pursuant to applicable Contract
restrictions or governing law, or otherwise causes or results in Hartford having
to bring or defend against a civil action involving a Contract Owner with
respect to the enforcement of any Abusive Transfer restrictions or instructions
relating to the same.
5
C. Effective on or after the Effective Date, the Trust may offer Series and/or
share classes that impose redemption fees in certain circumstances ("Redemption
Fee Funds") and, with respect to such Redemption Fee Funds offered through the
Separate Accounts, Hartford agrees to maintain required records and otherwise
comply with Rule 22c-2 or any applicable regulation issued by the Securities and
Exchange Commission or other agency relating to the assessment and collection of
redemption fees by such Redemption Fee Funds.
ARTICLE II. CERTAIN REPRESENTATIONS, WARRANTIES AND COVENANTS
2.1. The Company represents and warrants that the Contracts are or will be
registered under the 1933 Act or are exempt from or not subject to registration
thereunder, and that the Contracts will be issued, sold, and distributed in
compliance in all material respects with all applicable state and federal laws,
including without limitation the 1933 Act, the Securities Exchange Act of 1934,
as amended (the "1934 Act"), and the 1940 Act. The Company further represents
and warrants that it (i) is an insurance company duly organized and in good
standing under applicable law; (ii) has legally and validly established each
Account as a segregated asset account under applicable law; (iii) has registered
or, prior to any issuance or sale of the Contracts, will register the Accounts
as unit investment trusts in accordance with the provisions of the 1940 Act
(unless exempt therefrom) to serve as segregated investment accounts for the
Contracts, and (iv) will maintain such registration for so long as any Contracts
are outstanding. The Company shall amend the registration statements under the
1933 Act for the Contracts and the registration statements under the 1940 Act
for the Accounts from time to time as required in order to effect the continuous
offering of the Contracts or as may otherwise be required by applicable law. The
Company shall register and qualify the Contracts for sales in accordance with
the securities laws of the various states only if and to the extent deemed
necessary by the Company.
2.2. The Company represents and warrants that the Contracts are currently and
at the time of issuance will be treated as life insurance, endowment or annuity
contracts under applicable provisions of the Code, that it will maintain such
treatment and that it will notify the Trust or PIM immediately upon having a
reasonable basis for believing that the Contracts have ceased to be so treated
or that they might not be so treated in the future.
2.3. The Trust represents and warrants that the Shares sold pursuant to this
Agreement shall be registered under the 1933 Act, duly authorized for issuance
in compliance with the laws of Delaware and that the Trust is and shall remain
registered under the 1940 Act. The Trust shall amend the registration statement
for its Shares under the 1933 Act and the 1940 Act from time to time as required
in order to effect the continuous offering of its Shares. The Trust shall
register and qualify the Shares for sale in accordance with the laws of the
various states only if and to the extent deemed necessary by the Trust.
2.4. The Trust represents that it is lawfully organized and validly existing
under the laws of the State of Delaware. The Trust further represents that it
has adopted a plan pursuant to Rule 12b-1 under the 1940 Act and imposes an
asset-based charge to finance its distribution expenses with respect to the
Class II shares of certain of the Trust's Portfolios as permitted by applicable
law and regulation.
2.5. PFD represents and warrants that it is a member in good standing of the
NASD and is registered as a broker-dealer with the SEC. PFD represents that it
will sell and distribute the Shares in accordance in all material respects with
all applicable state and federal securities laws, including without limitation
the 1933 Act, the 1934 Act, and the 0000 Xxx.
6
2.6. PIM represents and warrants that it is and shall remain duly registered as
an investment adviser under the Investment Advisers Act of 1940, as amended.
2.7. No less frequently than annually, the Company shall submit to the Board
such reports, material or data as the Board may reasonably request so that it
may carry out fully the obligations imposed upon it by the conditions contained
in the Mixed and Shared Funding Exemptive Order pursuant to which the SEC has
granted exemptive relief to permit mixed and shared funding.
2.8. The Trust and PIM represent and warrant that all of their respective
officers, employees, investment advisers, and other individuals or entities
dealing with the money and/or securities of the Trust are, and shall continue to
be at all times, covered by one or more blanket fidelity bonds or similar
coverage for the benefit of the Trust in an amount not less than the minimal
coverage required by Rule 17g-1 under the 1940 Act or related provisions as may
be promulgated form time to time. The aforesaid bonds shall include coverage for
larceny and embezzlement and shall be issued by a reputable bonding company. The
Company represents and warrants that all of its respective officers, employees,
and other individuals or entities employed or controlled by the Company dealing
with the money and/or securities of the Trust are, and shall continue to be at
all times, covered by a blanket fidelity bond or similar coverage in an deemed
appropriate by the Company. The aforesaid bond shall include coverage for
larceny and embezzlement and shall be issued by a reputable bonding company. The
Company agrees that any amounts received under such bond relating to a claim
arising under this Agreement will be held by the Company for the benefit of the
Trust. The Company agrees to make all reasonable efforts to maintain such bond
and agrees to notify the Trust and PIM in writing in the event such coverage
terminates.
2.9. The Company represents and warrants, for purposes other than
diversification under Section 817 of the Code, that the Contracts are currently
at the time of issuance and, assuming the Trust meets the requirements of
Article VI, will be treated as annuity contracts under applicable provisions of
the Code, and that it will make every effort to maintain such treatment and that
it will notify the Trust, PFD and PIM immediately upon having a reasonable basis
for believing that the Contracts have ceased to be so treated or that they might
not be so treated in the future. In addition, the Company represents and
warrants that each Account is a "segregated asset account" and that interests in
the Account are offered exclusively through the purchase of or transfer into a
"variable contract" within the meaning of such terms under Section 817 of the
Code and the regulations thereunder. The Company will use every effort to
continue to meet such definitional requirements, and it will notify the Trust,
PIM and PFD immediately upon having a reasonable basis for believing that such
requirements have ceased to be met or that they might not be met in the future.
The Company represents and warrants that it will not purchase Trust shares with
assets derived from tax-qualified retirement plans except, indirectly, through
Contracts purchased in connection with such plans.
ARTICLE III. PROSPECTUS AND PROXY STATEMENTS; VOTING
3.1. At least annually, the Trust or its designee shall provide the Company,
free of charge, with as many copies of the current prospectus (describing only
the Portfolios listed in Schedule A hereto) for the Shares as the Company may
reasonably request for distribution to existing Contract owners whose Contracts
are funded by such Shares. The Trust or its designee shall provide the Company,
at the Company's expense, with as many copies of the current prospectus for the
Shares as the Company may reasonably request for distribution to prospective
purchasers of Contracts. If requested by the Company in lieu thereof, the Trust
or its designee shall provide such
7
documentation (including a "camera ready" copy of the new prospectus as set in
type or, at the request of the Company, as a diskette in the form sent to the
financial printer) and other assistance as is reasonably necessary in order for
the parties hereto once each year (or more frequently if the prospectus for the
Shares is supplemented or amended) to have the prospectus for the Contracts and
the prospectus for the Shares printed together in one document; the expenses of
such printing to be apportioned between (a) the Company and (b) the Trust or its
designee in proportion to the number of pages of the Contract and Shares'
prospectuses, taking account of other relevant factors affecting the expense of
printing, such as covers, columns, graphs and charts; the Trust or its designee
to bear the cost of printing the Trust's prospectus portion of such document for
distribution to owners of existing Contracts funded by the Shares and the
Company to bear the expenses of printing the portion of such document relating
to the Accounts; provided, however, that the Company shall bear all printing
expenses of such combined documents where used for distribution to prospective
purchasers or to owners of existing Contracts not funded by the Shares. In the
event that the Company requests that the Trust or its designee provides the
Trust's prospectus in a "camera ready," diskette format or other mutually agreed
upon format, the Trust shall be responsible for providing the prospectus in the
format in which it or PIM is accustomed to formatting prospectuses and shall
bear the expense of providing the prospectus in such format (e.g., typesetting
expenses), and the Company shall bear the expense of adjusting or changing the
format to conform with any of its prospectuses, subject to PIM's approval which
shall not be unreasonably withheld. Notwithstanding the foregoing, the Trust
shall also provide the Company, at the Trust's expense, no less frequently than
annually, copies of the Portfolios prospectuses in PDF format for use on the
Company's and/or affiliated producer's websites.
3.2. The prospectus for the Shares shall state that the statement of additional
information for the Shares is available from the Trust or its designee. The
Trust or its designee, at its expense, shall print and provide such statement of
additional information to the Company (or a master of such statement suitable
for duplication by the Company) for distribution to any owner of a Contract
funded by the Shares. The Trust shall also provide such statement of additional
information to the Company in a mutually agreed upon electronic format. The
Trust or its designee, at the Company's expense, shall print and provide such
statement to the Company (or a master of such statement suitable for duplication
by the Company) for distribution to a prospective purchaser who requests such
statement or to an owner of a Contract not funded by the Shares.
3.3. The Trust or its designee shall provide the Company free of charge, if and
to the extent applicable to the Shares, copies of the Trust's proxy materials,
reports to Shareholders and other communications to Shareholders in such
quantity as the Company shall reasonably require for distribution to Contract
owners. The cost of distributing such documents shall be borne the Trust or its
designee.
3.4 The Trust or PIM will provide the Company with as much notice as is
reasonably practicable of any proxy solicitation for any Portfolio, and of any
material change in the Trust's registration statement, particularly any change
resulting in change to the registration statement or prospectus or statement of
additional information for any Account. The Trust and PIM will cooperate with
the Company so as to enable the Company to solicit proxies from Contract owners
or to make-changes to its prospectus, statement of additional information or
registration statement, in an orderly manner. The Trust and PIM will make
reasonable efforts to attempt to have changes affecting Contract prospectuses
become effective simultaneously with the annual updates for such prospectuses.
8
3.5. The Trust hereby notifies the Company that it may be appropriate to
include in the prospectus pursuant to which a Contract is offered disclosure
regarding the potential risks of mixed and shared funding.
3.6. If and to the extent required by law, the Company shall:
(a) solicit voting instructions from Contract owners;
(b) vote the Shares in accordance with instructions received from
Contract owners; and
(c) vote the Shares for which no instructions have been received in the
same proportion as the Shares of such Portfolio for which
instructions have been received from Contract owners;
so long as and to the extent that the SEC continues to interpret the 1940 Act to
require pass through voting privileges for variable contract owners. The Company
will in no way recommend action in connection with or oppose or interfere with
the solicitation of proxies for the Shares held for such Contract owners. The
Company reserves the right to vote shares held in any segregated asset account
in its own right, to the extent permitted by law. Participating Insurance
Companies shall be responsible for assuring that each of their separate accounts
holding Shares calculates voting privileges in the manner required by the Mixed
and Shared Funding Exemptive Order. The Trust and PIM will notify the Company of
any changes of interpretations or amendments to the Mixed and Shared Funding
Exemptive Order.
ARTICLE IV. SALES MATERIAL AND INFORMATION
4.1. The Company shall furnish, or shall cause to be furnished, to PFD or its
designee, each piece of sales literature or other promotional material in which
the Trust, PIM, any other investment adviser to the Trust, or any affiliate of
PIM are named, at least five (5) Business Days prior to its use. No such
material shall be used if PFD or its designee reasonably objects to such use
within five (5) Business Days after receipt of such material. PFD or its
designee shall notify the Company within five (5) Business Days of receipt of
its approval or disapproval of such materials, otherwise such material is deemed
approved by PFD.
4.2. The Company shall not make any representation on behalf of the Trust, PIM,
any other investment adviser to the Trust or any affiliate of PIM and shall not
give any information on behalf of the Trust, PIM, any other investment adviser
to the Trust, or any affiliate of PIM or concerning the Trust or any other such
entity in connection with the sale of the Contracts other than the information
contained in the registration statement, prospectus or statement of additional
information for the Shares, as such registration statement, prospectus and
statement of additional information may be amended or supplemented from time to
time, or in reports or proxy statements for the Trust, or in sales literature or
other promotional material approved by the Trust, PIM, PFD or their respective
designees, except with the permission of the Trust, PIM or their respective
designees. The Trust, PIM, PFD or their respective designees each agrees to
respond to any request for approval on a prompt and timely basis. The Company
shall adopt and implement procedures reasonably designed to ensure that
information concerning the Trust, PIM, PFD or any of their affiliates which is
intended for use only by brokers or agents selling the Contracts (i.e.,
information that is not intended for distribution to Contract owners or
prospective Contract
9
owners) is so used, and neither the Trust, PIM, PFD nor any of their affiliates
shall be liable for any losses, damages or expenses relating to the improper use
of such broker only materials.
4.3. PFD 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 and/or the Accounts is named, at least five (5) Business Days prior
to its use. No such material shall be used if the Company or its designee
reasonably objects to such use within five (5) Business Days after receipt of
such material. The Company shall notify PFD within five (5) Business Days of
receipt of its approval or disapproval of such materials.
4.4. The Trust, PIM and PFD shall not give any information or make any
representations on behalf of the Company or concerning the Company, the
Accounts, or the Contracts in connection with the sale of the Contracts other
than the information or representations contained in a registration statement,
prospectus, or statement of additional information for the Contracts, as such
registration statement, prospectus and statement of additional information may
be amended or supplemented from time to time, or in reports for the Accounts, or
in sales literature or other promotional material approved by the Company or its
designee, except with the permission of the Company. The Company or its designee
agrees to respond to any request for approval on a prompt and timely basis. The
parties hereto agree that this Section 4.4. is neither intended to designate nor
otherwise imply that PIM is an underwriter or distributor of the Contracts.
4.5. At the request of any Party to this Agreement, the Company and the Trust
shall provide, or shall cause to be provided, to the other at least one complete
copy of all registration statements, prospectuses, statements of additional
information, reports, proxy statements, sales literature and other promotional
materials, and all amendments to any of the above, that relate to the Contracts,
or to the Trust or its Shares, prior to or contemporaneously with the filing of
such document with the SEC or other regulatory authorities.
4.6. For purpose of this Article IV and Article VIII, 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, electronic messages
or tape recording, videotape display, signs or billboards, motion pictures, or
other public media, including, for example, on-line networks such as the
Internet or other electronic media), and sales literature (such as brochures,
electronic messages, circulars, reprints or excerpts or any other advertisement,
sales literature, or published articles), distributed or made generally
available to customers or the public, educational or training materials or
communications distributed or made generally available to some or all agents or
employees, and shareholder reports, proxy materials (including solicitations for
voting instructions) and any other material constituting sales literature or
advertising under the NASDR Conduct Rules, the 1933 Act or the 1940 Act.
However, such phrase "sales literature or other promotional material" shall not
include any material that simply lists the names of Portfolios of the Trust in a
list of investment options.
4.7. At the request of any party to this Agreement, each other party will make
available to the other party's independent auditors and/or representative of the
appropriate regulatory agencies, reasonable access to its books and records in
connection with any investigation or inquiry related to the Agreement or any
party's obligations under this Agreement.
4.8 Subject to the terms of Sections 4.1 and 4.2 of this Agreement, the Trust
(and its Portfolios), PIM and PFD hereby each consents in connection with the
marketing of the Contracts to the Company's use of their names or other
identifying marks, including PIONEER
10
INVESTMENTS(R) and Pioneer's sail logo, in connection with the marketing of the
Contracts. The Trust, PIM or PFD or their affiliates may withdraw this
authorization as to any particular use of any such name or identifying xxxx at
any time: (i) upon a reasonable determination that such use would have a
material adverse effect on its reputation or marketing efforts or its affiliates
or (ii) if any of the Portfolios of the Trust cease to be available through the
Company. Except as set forth in the previous sentence, the Company will not
cause or permit, without prior written permission, the use, description or
reference to a Pioneer party's name, or to the relationship contemplated in this
Agreement, in any advertisement, or promotional materials or activities,
including without limitation, any advertisement or promotional materials
published, distributed, or made available, or any activity conducted through,
the Internet or any other electronic medium.
ARTICLE V. FEES AND EXPENSES
5.1. Neither the Trust, PIM nor PFD shall pay any fee or other compensation to
the Company under this agreement other than payments pursuant to a Rule 12b-1
plan. However, the parties reserve the right to agree to compensate the Company
in return for services it provides pursuant to Schedule C of this Agreement.
5.2. All expenses incident to the performance by the Trust under this Agreement
shall be paid by the Trust or its designee. The Trust shall see to it that all
of its shares are registered and authorized for issuance in accordance with
applicable federal law and, if and to the extent deemed advisable by the Trust,
in accordance with applicable state laws prior to their sale. The Trust or its
designee shall bear the expenses for the cost of registration and qualification
of the Trust's shares preparation and filing of the Trust's prospectus and
registration statement, proxy materials and reports, setting the prospectus in
type and printing the proxy materials and reports to shareholders (including the
costs of printing a prospectus that constitutes an annual report), the
preparation of all statements and notices required by any federal or state law,
and all taxes on the issuance or transfer of the Trust's shares
ARTICLE VI. DIVERSIFICATION AND RELATED LIMITATIONS
6.1. The Trust and PIM represent and warrant that each Portfolio of the Trust
in which an Account invests will meet the diversification requirements of
Section 817(h)(1) of the Code and Treas. Reg. 1.817-5, relating to the
diversification requirements for variable annuity, endowment, or life insurance
contracts, as they may be amended from time to time (and any revenue rulings,
revenue procedures, notices, and other published announcements of the Internal
Revenue Service interpreting these sections), as if those requirements applied
directly to each such Portfolio.
6.2. The Trust and PIM represent that each Portfolio will elect to be qualified
as a Regulated Investment Company under Subchapter M of the Code and that they
will maintain such qualification (under Subchapter M or any successor or similar
provision).
6.3. No Shares of the Trust will be sold directly to the general public.
11
ARTICLE VII. POTENTIAL MATERIAL CONFLICTS
7.1. The Trust agrees that the Board, constituted with a majority of
disinterested trustees, will monitor each Portfolio of the Trust for the
existence of any material irreconcilable conflict between the interests of the
variable annuity contract owners and the variable life insurance policy owners
of the Company and/or affiliated companies ("contract owners") investing in the
Trust. 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 nay
relevant proceeding; (d) the manner in which the investments of any Portfolio
are being managed; (e) a difference in voting instructions given by variable
annuity contract and variable life insurance contract owners or by contract
owners of different Participating Insurance Companies; or (f) a decision by a
Participating Insurance Company to disregard the voting instructions of contract
owners. The Board shall have the sole authority to determine if a material
irreconcilable conflict exists, and such determination shall be binding on the
Company only if approved in the form of a resolution by a majority of the Board,
or a majority of the disinterested trustees of the Board. The Board will give
prompt notice of any such determination to the Company.
7.2. The Company agrees that it will be responsible for assisting the Board in
carrying out its responsibilities under the conditions set forth in the Trust's
exemptive application pursuant to which the SEC has granted the Mixed and Shared
Funding Exemptive Order by providing the Board, as it may reasonably request,
with all information necessary for the Board to consider any issues raised and
agrees that it will be responsible for promptly reporting any potential or
existing conflicts of which it is aware to the Board including, but not limited
to, an obligation by the Company to inform the Board whenever contract owner
voting instructions are disregarded. The Company also agrees that, if a material
irreconcilable conflict arises, it will at its own cost remedy such conflict up
to and including (a) withdrawing the assets allocable to some or all of the
Accounts from the Trust or any Portfolio and reinvesting such assets in a
different investment medium, including (but not limited to) another Portfolio of
the Trust, or submitting to a vote of all affected contract owners whether to
withdraw assets from the Trust or any Portfolio and reinvesting such assets in a
different investment medium and, as appropriate, segregating the assets
attributable to any appropriate group of contract owners (e.g., annuity contract
owners, life insurance owners or variable contract owners of one or more
Participating Insurance Companies) that votes in favor of such segregation, or
offering to any of the affected contract owners the option of segregating the
assets attributable to their contracts or policies, and (b) establishing a new
registered management investment company and segregating the assets underlying
the Contracts, unless a majority of Contract owners materially adversely
affected by the conflict have voted to decline the offer to establish a new
registered management investment company.
7.3. A majority of the disinterested trustees of the Board shall determine
whether any proposed action by the Company adequately remedies any material
irreconcilable conflict. In the event that the Board determines that any
proposed action does not adequately remedy any material irreconcilable conflict,
the Company will withdraw from investment in the Trust each of the Accounts
designated by the disinterested trustees and terminate this Agreement within six
(6) months after the Board informs the Company in writing of the foregoing
determination; provided, however, that such withdrawal and termination shall be
limited to the extent required to remedy any such material irreconcilable
conflict as determined by a majority of the disinterested trustees of the Board.
12
7.4 If a material irreconcilable conflict arises because of a decision by the
Company to disregard Contract owner voting instructions and that decision
represents a minority position or would preclude a majority vote, the Company
may be required, at the Trust's election, to withdraw the Account's investment
in the Trust and terminate this Agreement; provided, however, that such
withdrawal and termination shall be limited to the extent required by the,
foregoing material irreconcilable conflict as determined by a majority of the
Trust's independent trustees. Any such withdrawal and termination must take
place within six (6) months after the Trust gives written notice that this
provision is being implemented, and until the end of that six-month period PFD
and the Trust shall continue to accept and implement orders by the Company for
the purchase and redemption of shares of the Trust.
7.5. If material irreconcilable conflict arises because of particular state
insurance regulator's decision applicable to the Company conflicts with the
majority of other state regulators, then the Company will withdraw the Account's
investment in the Trust and terminate this Agreement within six (6) months after
the Trust's Board informs the Company in writing that it has determined that
such decision has created a material irreconcilable conflict; provided, however,
that such withdrawal and termination shall be limited to the extent required by
the foregoing material irreconcilable conflict as determined by a majority of
the disinterested members of the Trust's Board. Until the end of the foregoing
six (6) month period, the Trust and PFD shall continue to accept and implement
orders by the Company for the purchase and redemption of shares of the Trust.
7.6 For purposes of Sections 7.3 through 7.6 of this Agreement, a majority of
the disinterested members of the Board shall determine whether any proposed
action adequately remedies any material irreconcilable conflict, but in no event
will the Trust be required to establish a new funding medium for the Contracts.
The Company shall not be required by Section 7.2 to establish a new funding
medium for the contracts if an offer to do so has been declined by vote of a
majority of Contract owners affected by the material irreconcilable conflict. In
the event that the Board determines that any proposed action does not adequately
remedy any material irreconcilable conflict, then the Company will withdraw the
Account's investment in the Trust and terminate this Agreement within six (6)
months after the Board informs the Company in writing of the foregoing
determination; provided, however, that such withdrawal and termination shall be
limited to the extent required by any such material irreconcilable conflict as
determined by a majority of the independent trustees.
7.7. If and to the extent that Rule 6e-2 and Rule 6e-3(T) are amended, or Rule
6e-3 is adopted, to provide exemptive relief from any provision of the 1940 Act
or the rulei promulgaterlthereunder with respect to mixed or shared funding (as
defined in the Mixed and Shared Funding Exemptive Order) on terms and conditions
materially different from those contained in the Mixed and Shared Funding
Exemptive Order, then (a) the Trust and/or the Participating Insurance
Companies, as appropriate, shall take such steps as may be necessary to comply
with Rule 6e-2 and 6e-3(T), as amended, and Rule 6e-3, as adopted, to the extent
such rules are applicable; and (b)Sections 3.5, 3.6, 7.1, 7.2, 7.3 and 7.7 of
this Agreement shall continue in effect only to the extent that terms and
conditions substantially identical to such Sections are contained in such
Rule(s) as so amended or adopted.
13
ARTICLE VIII. INDEMNIFICATION
8.1. INDEMNIFICATION BY THE COMPANY
The Company agrees to indemnify and hold harmless the Trust, PIM, PFD, any
affiliates of PIM, and each of their respective directors, trustees, officers
and each person, if any, who controls the Trust or PIM within the meaning of
Section 15 of the 1933 Act, and any agents or employees of the foregoing (each
an "Indemnified Party," or collectively, the "Indemnified Parties" for purposes
of this Section 8.1) against any and all losses, claims, damages, liabilities
(including amounts paid in settlement with the written consent of the Company)
or expenses (including reasonable counsel fees) to which any Indemnified Party
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:
(a) 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
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 any Indemnified Party if such
statement or omission or such alleged statement or omission was made
in reasonable reliance upon and in conformity with information
furnished to the Company or its designee by or on behalf of the
Trust, PIM or PFD for use in the registration statement, prospectus
or statement of additional information for the Contracts or in the
Contracts or sales literature or other promotional material (or any
amendment or supplement) or otherwise for use in connection with the
sale of the Contracts or Shares; or
(b) arise out of or as a result of statements or representations not
supplied by the Company or its designee, or persons under its control
(other than statements or representations contained in the Trust's
registration statement, prospectus, statement of additional
information or in sales literature or other promotional material of
the Trust and on which the Company has reasonably relied) or wrongful
conduct of the Company or persons under its control, with respect to
the sale or distribution of the Contracts or Shares; or
(c) arise out of any untrue statement or alleged untrue statement of a
material fact contained in the registration statement, prospectus,
statement of additional information, or sales literature or other
promotional literature of the Trust, 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 information
furnished to the Trust by or on behalf of the Company; or
(d) arise out of or result from any material breach of any representation
and/or warranty made by the Company in this Agreement or arise out of
or result from any other material breach of this Agreement by the
Company; or
(e) arise as a result of any failure by the Company to perform any of
its obligations under this Agreement;
14
as limited by and in accordance with the provisions of this Article VIII.
8.2. INDEMNIFICATION BY PIM AND PFD
PIM and PFD agree to indemnify and hold harmless the Company and Policy
Underwriter and each of their trustees and officers and each person, if any, who
controls the Company or Policy Underwriter within the meaning of Section 15 of
the 1933 Act, and any agents or employees of the foregoing (each an "Indemnified
Party," or collectively, the "Indemnified Parties" for purposes of this Section
8.2) against any and all losses, claims, damages, liabilities (including amounts
paid in settlement with the written consent of the Trust) or expenses (including
reasonable counsel fees) to which any Indemnified Party may become subject under
any statute, 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 or the Contracts and:
(a) arise out of or are based upon any untrue statement or alleged
untrue statement of any material fact contained in the registration
statement, prospectus, statement of additional information or sales
literature or other promotional material of the Trust (or any
amendment or supplement to any of the foregoing), or arise out of or
are based upon the omission or the alleged omission to state therein
a material fact required to be stated therein or necessary to make
the statement 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 reasonable reliance upon and in conformity with information
furnished to the Trust, PIM, PFD or their respective designees by or
on behalf of the Company for use in the registration statement,
prospectus or statement of additional information for the Trust or
in sales literature or other promotional material for the Trust (or
any amendment or supplement) or otherwise for use in connection with
the sale of the Contracts or Shares; or
(b) arise out of or as a result of statements or representations (other
than statements or representations contained in the Contract's
registration statement, prospectus, statement of additional
information or in sales literature or other promotional material for
the Contracts not supplied by the Trust, PIM, PFD or any of their
respective designees or persons under their respective control and on
which any such entity has reasonably relied) or wrongful conduct of
the Trust, PIM, PFD or persons under their control, with respect to
the sale or distribution of the Contracts or Shares; or
(c) arise out of any untrue statement or alleged untrue statement of a
material fact contained in the registration statement, prospectus,
statement of additional information, or sales literature or other
promotional literature of the Accounts or relating 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 information furnished to the Company by or on behalf
of the Trust, PIM or PFD; or
(d) arise out of or result from any material breach of any representation
and/or warranty made by the Trust in this Agreement (including a
failure, whether
15
unintentional or in good faith or otherwise, to comply with the
diversification requirements specified in Article VI of this
Agreement) or arise out of or result from any other material breach
of this Agreement by the Trust; or
(e) arise out of or result from the materially incorrect or untimely
calculation or reporting of the daily net asset value per share or
dividend or capital gain distribution rate; or
(f) arise as a result of any failure by PIM or PFD to perform any of
their respective obligations under this Agreement;
as limited by and in accordance with the provisions of this Article VIII.
8.3. In no event shall the Trust, PIM or PFD be liable under the
indemnification provisions contained in this Agreement to any individual or
entity, including without limitation, the Company, or any Participating
insurance Company or any Contract owner, with respect to any losses, claims,
damages, liabilities or expenses that arise out of or result from (i) a breach
of any representation, warranty, and/or covenant made by the Company hereunder
or by any Participating Insurance Company under an agreement containing
substantially similar representations, warranties and covenants; (ii) the
failure by the Company or any Participating Insurance Company to maintain its
segregated asset account (which invests in any Portfolio) as a legally and
validly established segregated asset account under applicable state law and as a
duly registered unit investment trust under the provisions of the 1940 Act
(unless exempt therefrom); or (iii) the failure by the Company or any
Participating Insurance Company to maintain its variable annuity and/or variable
life insurance contracts (with respect to which any Portfolio serves as an
underlying funding vehicle) as life insurance, endowment or annuity contracts
under applicable provisions of the Code.
8.4. Neither the Company, the Trust, PIM nor PFD shall be liable under the
indemnification provisions contained in this Agreement with respect to any
losses, claims, damages, liabilities or expenses to which an Indemnified Party
would otherwise be subject by reason of such Indemnified Party's willful
misfeasance, willful misconduct, 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.
8.5. Promptly after receipt by an Indemnified Party under this Section 8.5. of
notice of commencement of any action, such Indemnified Party will, if a claim in
respect thereof is to be made against the indemnifying party under this section,
notify the indemnifying party of the commencement thereof; but the omission so
to notify the indemnifying party will not relieve it from any liability which it
may have to any Indemnified Party otherwise than under this section. In case any
such action is brought against any Indemnified Party, and it notified the
indemnifying party of the commencement thereof, the indemnifying party will be
entitled to participate therein and, to the extent that it may wish, assume the
defense thereof, with counsel satisfactory to such Indemnified Party. After
notice from the indemnifying party of its intention to assume the defense of an
action, the Indemnified Party shall bear the expenses of any additional counsel
obtained by it, and the indemnifying party shall not be liable to such
Indemnified Party under this section for any legal or other expenses
subsequently incurred by such Indemnified Party in connection with the defense
thereof other than reasonable costs of investigation.
16
8.6. A successor by law of the parties to this Agreement shall be entitled to
the benefits of the indemnification contained in this Article VIII. The
indemnification provisions contained in this Article VIII shall survive any
termination of this Agreement.
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 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
(including, but not limited to, the Mixed and Shared Funding Exemptive Order)
and the terms hereof shall be interpreted and construed in accordance therewith.
ARTICLE X. NOTICE OF FORMAL PROCEEDINGS OR LITIGATION
The Trust, PIM, PFD and the Company agree that each such party shall promptly
notify the other parties to this Agreement, in writing, of the institution of
any formal proceedings brought against such party or its designees by the NASD,
the SEC, or any insurance department or any other regulatory body regarding such
party's duties under this Agreement or related to the sale of the Contracts, the
operation of the Accounts, or the purchase of the Shares. Each of the parties
further agrees promptly to notify the other parties of the commencement of any
litigation or proceeding against it or any of its respective officers,
directors, trustees, employees or 1933 Act control persons in connection with
this Agreement, the issuance or sale of the Contracts, the operation of the
Accounts, or the sale or acquisition of Shares in connection with this
Agreement. The indemnification provisions contained in this Article X shall
survive any termination of this Agreement.
ARTICLE XI. TERMINATION
11.1. This Agreement shall terminate with respect to the Accounts, or one,
some, or all Portfolios:
(a) at the option of any party upon six (6) months' advance written
notice delivered to the other parties; provided, however, that such
notice shall not be given earlier than six (6) months following the
date of this Agreement; or
(b) immediately at the option of the Company to the extent that the
Shares of Portfolios are not reasonably available to meet the
requirements of the Contracts or are not "appropriate funding
vehicle? for the Contracts, as reasonably determined by the Company.
Without limiting the generality of the foregoing, the Shares of a
Portfolio would not be "appropriate funding vehicles" if, for
example, such Shares did not meet the diversification or other
requirements referred to in Article VI hereof; or if the Company
would be permitted to disregard Contract owner voting instructions
pursuant to Rule 6e-2 or 6e-3(T) under the 1940 Act. Prompt notice of
the election to terminate for such cause and an explanation of such
cause shall be furnished to the Trust by the Company; or
17
(c) at the option of the Trust, PIM or PFD upon institution of formal
proceedings against the Company by the NASD, the SEC, or any
insurance department or any other regulatory body regarding the
Company's duties under this Agreement or related to the sale of the
Contracts, the operation of the Accounts, or the purchase of the
Shares; provided that the party terminating this Agreement under
this provision shall give notice of such termination to the other
parties to this Agreement; or
(d) immediately at the option of the Company upon institution of formal
proceedings against the Trust by the NASD, the SEC, or any state
securities or insurance department or any other regulatory body
regarding the duties of the Trust, PIM or PFD under this Agreement or
related to the sale of the Shares; provided that the party
terminating this Agreement under this provision shall give notice of
such termination to the other parties to this Agreement; or
(e) at the option of the Company, the Trust, PIM or PFD upon receipt of
any necessary regulatory approvals and/or the vote of the Contract
owners having an interest in the Accounts (or any subaccounts) to
substitute the shares of another investment company for the
corresponding Portfolio Shares in accordance with the terms of the
Contracts for which those Portfolio Shares had been selected to
serve as the underlying investment media. In the event that the
Trust, PIM or PFD request the Company to substitute the shares of
another investment company for corresponding portfolio shares, the
Trust, PIM or PFD will be responsible for all costs associated with
such substitution. The Company will give thirty (30) days' prior
written notice to the Trust of the Date of any proposed vote or
other action taken to replace the Shares; or
(f) at the option of the Trust, PIM or PFD by written notice to the
Company, if any one or all of the Trust, PIM or PFD respectively,
shall determine, in their sole judgment exercised in good faith,
that the Company has suffered a material adverse change in its
business, operations, financial condition, or prospects since the
date of this Agreement or is the subject of material adverse
publicity; or
(g) immediately at the option of the Company by written notice to the
Trust, PIM or PFD, if the Company shall determine, in its sole
judgment exercised in good faith, that the Trust, PIM or PFD has
suffered a material adverse change in this business, operations,
financial condition or prospects since the date of this Agreement or
is the subject of material adverse publicity; or
(h) at the option of any party to this Agreement, upon another
unaffiliated party's material breach of any provision of or
representation contained in this Agreement.
11.2. The notice shall specify the Portfolio or Portfolios, Contracts and, if
applicable, the Accounts as to which the Agreement is to be terminated.
11.3. It is understood and agreed that the right of any party hereto to
terminate this Agreement pursuant to Section 11.1(a) may be exercised for cause
or for no cause.
18
11.4. Except as necessary to implement Contract owner initiated transactions,
or as required by state insurance laws or regulations, the Company shall not
redeem the Shares attributable to the Contracts (as opposed to the Shares
attributable to the Company's assets held in the Accounts), and the Company
shall not prevent Contract owners from allocating payments to a Portfolio that
was otherwise available under the Contracts, until thirty (30) days after the
Company shall have notified the Trust of its intention to do so.
11.5. Notwithstanding any termination of this Agreement, the Trust and PFD
shall, at the option of the Company, continue for a period not exceeding six (6)
months to make available additional shares of the Portfolios 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"),
except as otherwise provided under Article VII of this Agreement; provided,
however, that in the event of a termination pursuant to Section 11.1. (c), (f)
or (h), the Trust, PIM and PFD shall at their option have the right to terminate
immediately all sales of Shares to the Company. Specifically, without
limitation, the owners of the Existing Contracts shall be permitted to transfer
or reallocate investment under the Contracts, redeem investments in any
Portfolio and/or invest in the Trust upon the making of additional purchase
payments under the Existing Contracts.
11.6 Notwithstanding any termination of this Agreement, each party's
obligations under Article VIII to indemnify the other parties shall survive and
not be affected by any termination of this Agreement. In addition, with respect
to Existing Contracts, all provisions of this Agreement shall also survive and
not be affected by any termination of this Agreement
ARTICLE XII. NOTICES
Any notice shall be sufficiently given when sent by registered or certified
mail, overnight courier or facsimile 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:
PIONEER VARIABLE CONTRACTS TRUST
00 Xxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attn: Xxxxxxxxxxx Xxxxxx, Assistant Secretary
If to the Company:
HARTFORD LIFE INSURANCE CO.
000 Xxxxxxxxx Xxxxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
Legal Attn: Xxxx Xxxxxxx, Deputy General Counsel
If to PIM:
PIONEER INVESTMENT MANAGEMENT, INC.
00 Xxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
19
Attn: Xxxxxxx X. Xxxxxxxx, General Counsel
If to PFD:
PIONEER FUNDS DISTRIBUTOR, INC.
00 Xxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attn: Xxxxxx Xxxxxxxx, Executive Vice President
ARTICLE XIII. MISCELLANEOUS
13.1. Subject to the requirements of legal process and regulatory authority,
each party hereto shall treat as confidential all information reasonably
identified as confidential in writing by any party hereto and, except as
permitted by this Agreement or as otherwise required by applicable law or
regulation, shall not disclose, disseminate or utilize such other confidential
information without the express written consent of the affected party until such
time as it may come into the public domain. Notwithstanding anything to the
contrary in this Agreement, in addition to and not in lieu of other provisions
in this Agreement:
(a) "Confidential Information" includes without limitation all
information regarding the customers of the Company, the Trust, PIM,
PFD or any of their subsidiaries, affiliates or licensees; or the
accounts, account numbers, names, addresses, social security numbers
or any other personal identifier of such customers; or any
information derived therefrom.
(b) Neither the Company, the Trust, PIM or PFD may disclose Confidential
Information for any purpose other than to carry out the purpose for
which Confidential Information was provided to the Company, the
Trust, PIM or PFD as set forth in this Agreement; and the Company,
the Trust, PIM and PFD agree to cause their employees, agents and
representatives, or any other party to whom the Company, the Trust,
PIM or PFD may provide access to or disclose Confidential Information
to limit the use and disclosure of Confidential Information to that
purpose.
(c) The Company, the Trust, PIM and PFD agree to implement appropriate
measures designed to ensure the security and confidentiality of
Confidential Information, to protect such information against any
anticipated threats or hazards to the security and integrity of such
information, and to protect against unauthorized access to, or use
of, Confidential Information that could result in substantial harm
or inconvenience to any of the customers of the Company or any of
its subsidiaries, affiliates or licensees; the Company, the Trust,
PIM and PFD further agree to cause all their respective agents,
representatives or subcontractors, or any other party to whom they
provide access to or disclose Confidential Information, to implement
appropriate measures to meet the objectives set forth in this
Section 13.1.
13.2. 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.
20
13.3. This Agreement may be executed simultaneously in one or more
counterparts, each of which taken together shall constitute one and the same
instrument.
13.4. 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.
13.5. The Schedule attached hereto, as modified from time to time, is
incorporated herein by reference and is part of this Agreement.
13.6. Each party hereto shall cooperate with each other party in connection
with inquiries by appropriate governmental authorities (including without
limitation the SEC, the NASD, and state insurance regulators) and shall permit
such authorities reasonable access to its books and records in connection with
any investigation or inquiry relating to this Agreement or the transactions
contemplated hereby.
13.7. The rights, remedies and obligations contained in this Agreement are
cumulative and are in addition to any and all rights, remedies and obligations,
at law or in equity, which the parties hereto are entitled to under state and
federal laws.
13.8. A copy of the Trust's Certificate of Trust is on file with the Secretary
of State of Delaware. The Company acknowledges that the obligations of or
arising out of this instrument are not binding upon any of the Trust's trustees,
officers, employees, agents or shareholders individually, but are binding solely
upon the assets and property of the Trust in accordance with its proportionate
interest hereunder. The Company further acknowledges that the assets and
liabilities of each Portfolio are separate and distinct and that the obligations
of or arising out of this instrument are binding solely upon the assets or
property of the Portfolio on whose behalf the Trust has executed this
instrument. The Company also agrees that the obligations of each Portfolio
hereunder shall be several and not joint, in accordance with its proportionate
interest hereunder, and the Company agrees not to proceed against any Portfolio
for the obligations of another Portfolio.
13.9. Any controversy or claim arising out of or relating to this Agreement, or
breach thereof, shall be settled by arbitration in a forum jointly selected by
the relevant parties (but if applicable law requires some other forum, then,
such other forum) in accordance with the Commercial Arbitration Rules of the
American Arbitration Association, and judgment upon the award rendered by the
arbitrators may be entered in any court having jurisdiction thereof.
13.10. Neither this Agreement nor any of the rights and obligations hereunder
may be assigned by any party without the prior written consent of all parties
hereto.
13.11. The Trust, PIM and PFD agree that the obligations assumed by the Company
shall be limited in any case to the Company and its assets and neither the
Trust, PIM nor PFD shall seek satisfaction of any such obligation from the
shareholders of Company, the directors, officers, employees or agents of the
Company, or any of them.
13.12. No provision of the Agreement may be deemed or construed to modify or
supersede any contractual rights, duties, or indemnifications, as between PIM
and the Trust and PFD and the Trust.
21
13.13. This Agreement, including any Schedules or Exhibits hereto, may be
amended only by a written instrument executed by each party hereto.
13.14. Entire Agreement. This Agreement contains the full and complete
understanding of the parties and supersedes all prior representations, promises,
statements, arrangements, warranties and understandings between the parties with
respect to the subject matter hereof, whether oral or written, express or
implied.
22
IN WITNESS WHEREOF, each of the parties hereto has caused this Agreement to be
executed in its name and on its behalf by its duly authorized representative and
its seal to be hereunder affixed hereto as of the date specified above.
HARTFORD LIFE INSURANCE COMPANY
By: /s/ [ILLEGIBLE]
----------------------------------------
[ILLEGIBLE]
Date: 2/27/06
PIONEER VARIABLE CONTRACTS TRUST,
ON BEHALF OF THE PORTFOLIOS
By its authorized officer and not
individually,
By: /s/ Xxxxxxxxxxx Xxxxxx
----------------------------------------
Xxxxxxxxxxx Xxxxxx
Assistant Secretary
Date:
PIONEER INVESTMENT MANAGEMENT, INC.
By its authorized officer,
By: /s/ Xxxx-Xxxxxxx
----------------------------------------
Xxxx-Xxxxxxx
Executive Vice President
Date:
PIONEER FUNDS DISTRIBUTOR, INC.
By its authorized officer,
By: /s/ Xxxxxx Xxxxxxxx
----------------------------------------
Xxxxxx Xxxxxxxx
Executive Vice President
Date:
23
SCHEDULE A
ACCOUNTS, CONTRACTS AND PORTFOLIOS
SUBJECT TO THE PARTICIPATION AGREEMENT
As of November 4, 2005
NAME OF SEPARATE PORTIONS AND
ACCOUNT AND DATE CONTRACTS FUNDED CLASS OF SHARES
ESTABLISHED BY BOARD OF DIRECTORS BY SEPARATE ACCOUNT AVAILABLE TO CONTRACTS
-----------------------------------------------------------------------------------------------------------------
Separate Account Two AmSouth Variable Annuity Series Pioneer VCT Portfolio (Class II)
(June 2, 1986) III/IIIR, AmSouth Variable Annuity Pioneer Value VCT Portfolio (Class II)
Plus Series II/IIR, AmSouth Pioneer Oak Ridge Large Cap Growth
Variable Annuity Outlook Series Portfolio (VCT Class II)
II/IIR, AmSouth Variable Annuity
Plus Series I/IR, AmSouth Variable
Annuity Series II/IIR, AmSouth
Variable Annuity Outlook Series
I/IR, AmSouth Variable Annuity
Series I
Separate Account Three AmSouth Variable Annuity M, AmSouth
(June 22, 1994) Variable Annuity M Plus, AmSouth
Variable Annuity M Outlook
24
SCHEDULE B
1. Administrative Services
Administrative services to Contract owners and participants shall be the
responsibility of the Company and shall not be the responsibility of the Trust
or PFD. The Company will provide properly registered and licensed personnel and
any systems needed for all Contract owners servicing and support -- for both
fund and annuity and life insurance information and questions, including:
- Communicate all purchase, withdrawal, and exchange orders it receives
from its customers to PFD;
- Respond to Contract owner and participant inquires;
- Delivery of both Trust and Contract prospectuses as required under
applicable law;
- Entry of initial and subsequent orders;
- Transfer of cash to Portfolios;
- Explanations of Portfolio objectives and characteristics;
- Entry of transfers between Portfolios;
- Portfolio balance and allocation inquires; and
- Mail Trust proxies.
2. Administrative Service Fees
For the administrative services set forth above, PIM or any of its affiliates
shall pay a servicing fee based on the annual rate of 0.25% of the average
aggregate net daily assets invested in the Class II Shares of the Portfolios
through the Accounts at the end of each calendar quarter. Such payments will be
made to the Company within thirty (30) days after the end of each calendar
quarter. Such fees shall be paid quarterly in arrears. Each payment will be
accompanied by a statement showing the calculation of the fee payable to the
Company for the quarter and such other supporting data as may be reasonably
requested by the Company. The Company will calculate the asset balance on each
day on which the fee is to be paid pursuant to this Agreement with respect to
each Portfolio for the purpose of reconciling its calculation of average
aggregate net daily assets with PIM's calculation. Annually (as of December 31)
or upon reasonable request of PIM, Company will provide PIM a statement showing
the number of subaccounts in each Class of Shares of each Portfolio as of the
most recent calendar quarter end.
3. 12b-1 Distribution of Related Fees (Class II Shares Only)
In accordance with the Portfolios' plans pursuant to Rule 12b-1 under the
Investment Company Act of 1940, PFD will make payments to the Company at an
annual rate of 0.25% of the average daily net assets invested in the Class II
shares of the Portfolios through the Accounts in each calendar quarter. PFD will
make such payments to the Company within thirty (30) days after the end of each
calendar quarter. Each payment will be accompanied by a statement showing the
calculation of the fee payable to the Company for the quarter and such other
supporting data as may be reasonably requested by the Company. The Rule 12b-1
distribution related fees will be paid to the Company for as long as the
Accounts own any Shares of a Portfolio and (i) distribution services are being
provided pursuant to this Agreement and (ii) a Rule 12b-1 plan is in effect with
respect to such Portfolio.
25
SCHEDULE C
ALLOCATION OF EXPENSES
PAID BY HARTFORD PAID BY THE TRUST
--------------------------------------------------------------------------------------------------------------------
Preparing and filing the Separate Account's registration Preparing and filing the Trust's registration statement
statement
Text composition for Separate Account prospectus and Text composition for Series prospectuses and supplements
supplements
Text alterations of Separate Account prospectus and Text alterations of Series prospectuses and supplements
supplements
Printing Separate Account prospectuses and supplements Printing Series prospectus and supplements for use with
for use with prospective Contract owners; existing Contract owners; or if requested by Hartford,
Printing Series prospectuses and supplements for use with providing camera-ready film, computer diskettes or
prospective Contract owners typeset electronic document files of such documents and
printing such documents for use with existing Contract
owners (1)
Text composition and printing of Separate Account Text composition and printing of Trust statement of
statement of additional information additional information (1)
Mailing and distributing Separate Account prospectuses, Mailing and distributing Series prospectuses, supplements
supplements and statement of additional information to and statement Of additional information to existing
existing Contract owners as required by applicable law; Contract owners (1)
Mailing and distributing Separate Account prospectuses PRINTING, MAILING AND DISTRIBUTING SERIES AND SEPARATE
and supplements to prospective Contract Owners; ACCOUNT SUPPLEMENTS AND OTHER COMMUNICATIONS RELATED TO
Mailing and distributing Series prospectuses and FUND SUBSTITUTIONS, FUND CLOSINGS, FUND MERGERS AND OTHER
supplements to prospective Contract owners SIMILAR FUND TRANSACTIONS
Text composition of any annual and semi-annual reports of Text composition of annual and semi-annual reports of the
the Separate Account, printing, mailing, and distributing Series; printing, mailing, and distributing annual and
any annual and semi-annual reports of the Separate semi-annual reports of the Series to existing Contract
Account owners (1)
Text composition, printing, mailing, distributing, and Text composition, printing, mailing, distributing, and
tabulation of proxy statements and voting instruction tabulation of proxy statements and voting instruction
solicitation materials to Contract owners with respect to solicitation materials to Contract owners with respect to
proxies sponsored by the Separate Accounts proxies sponsored by the Series or the Trust
------------
(1) Hartford may choose to print the Series' prospectus(es), statement of
additional information, and its semi annual and annual reports, or any of
such documents, in combination with such documents of other fund companies.
In this case, the Trust's share of the total expense for printing and
delivery of the combined materials shall be determined pro-rata based upon
the page count of the Series' documents as compared to the total page count
for the combined materials containing all other funds offered under the
Contracts.
26
EXHIBIT I
TO
PARTICIPATION AGREEMENT
Procedures for Pricing and Order/Settlement Through National Securities Clearing
Corporation's Mutual Fund Profile System and Mutual Fund Settlement, Entry and
Registration Verification System
1. As provided in Section 1.1 of the
Participation Agreement, the parties
hereby agree to provide pricing information, execute orders and wire payments
for purchases and redemptions of Fund shares through National Securities
Clearing Corporation ("NSCC") and its subsidiary systems as follows:
(a) Distributor or the Funds will furnish to Company or its affiliate
through NSCC's Mutual Fund Profile System ("MFPS") or via facsimile
or other for acceptable by Hartford (1) the most current net asset
value information for each Fund, (2) a schedule of anticipated
dividend and distribution payment dates for each Fund, which is
subject to change without prior notice, ordinary income and capital
gain dividend rates on the Fund's ex-date, and (3) in the case of
fixed income funds that declare daily dividends, the daily accrual
or the interest rate factor. All such information shall be furnished
to Company or its affiliate by 6:30 p.m. Eastern Time on each
business day that the Fund is open for business (each a "Business
Day") or at such other time as that information becomes available.
Changes in pricing information will be communicated to both NSCC and
Company.
(b) Upon receipt of Fund purchase, exchange and redemption instructions
for acceptance as of the time at which a Fund's net asset value is
calculated as specified in such Fund's prospectus ("Close of
Trading") on each Business Day ("Instructions"), and upon its
determination that there are good funds with respect to Instructions
involving the purchase of Shares, Company or its affiliate will
calculate the net purchase or redemption order for each Fund. Orders
for net purchases or net redemptions derived from Instructions
received by Company or its affiliate prior to the Close of Trading on
any given Business Day will be sent to the Defined Contribution
Interface of NSCC's Mutual Fund Settlement, Entry and Registration
Verification System ("Fund/SERV") by 5:00 a.m. Eastern Time on the
next Business Day. Subject to Company's or its affiliate's compliance
with the foregoing, Company or its affiliate will be considered the
agent of the Distributor and the Funds, and the Business Day on which
Instructions are received by Company or its affiliate in proper form
prior to the Close of Trading will be the date as of which shares of
the Funds are deemed purchased, exchanged or redeemed pursuant to
such Instructions. Instructions received in proper form by Company or
its affiliate after the Close of Trading on any given Business Day
will be treated as if received on the next following Business Day.
Dividends and capital gains distributions will be automatically
reinvested at net asset value in accordance with the Fund's then
current prospectuses.
(c) Company or its affiliate will wire payment for net purchase orders
by the Fund's NSCC Firm Number, in immediately available funds, to
an NSCC settling bank account designated by Company or its affiliate
no later than 5:00 p.m. Eastern time on the same Business Day such
purchase orders are communicated to NSCC. For purchases of shares of
daily dividend accrual funds, those shares will not begin to accrue
dividends until the day the payment for those shares is received.
27
(d) NSCC will wire payment for net redemption orders by fund, in
immediately available funds, to an NSCC settling bank account
designated by Company or its affiliate, by 5:00 p.m. Eastern Time on
the Business Day such redemption orders are communicated to NSCC,
except as provided in a Fund's prospectus and statement of additional
information.
(e) With respect to (c) or (d) above, if Distributor does not send a
confirmation of Company's or its affiliate's purchase or redemption
order to NSCC by the applicable deadline to be included in that
Business Day's payment cycle, payment for such purchases or
redemptions will be made the following Business Day.
(f) If on any day Company or its affiliate, or Distributor is unable to
meet the NSCC deadline for the transmission of purchase or
redemption orders, it may at its option transmit such orders and
make such payments for purchases and redemptions directly to
Distributor or Company or its affiliate, as applicable, as is
otherwise provided in the Agreement.
(g) These procedures are subject to any additional terms in each Fund's
prospectus and the requirements of applicable law. The Funds reserve
the right, at their discretion and without notice, to suspend the
sale of shares or withdraw the sale of shares of any Fund.
2. Company or its affiliate, Distributor and clearing agents (if applicable)
are each required to have entered into membership agreements with NSCC and met
all requirements to participate in the MFPS and Fund/SERV systems before these
procedures may be utilized. Each party will be bound by the terms of their
membership agreement with NSCC and will perform any and all duties, functions,
procedures and responsibilities assigned to it and as otherwise established by
NSCC applicable to the MFPS and Fund/SERV system and the Networking Matrix Level
utilized.
3. Except as modified hereby, all other terms and conditions of the Agreement
shall remain in full force and effect. Unless otherwise indicated herein, the
terms defined in the Agreement shall have the same meaning as in this Exhibit.
28
