EXHIBIT 1.(8) (J)
Form of Amended and Restated Participation Agreement
in the Vanguard Variable Insurance Funds
AMENDED AND RESTATED
PARTICIPATION AGREEMENT
AMONG
VANGUARD VARIABLE INSURANCE FUNDS
AND
THE VANGUARD GROUP, INC.
AND
VANGUARD MARKETING CORPORATION
AND
AMERITAS LIFE INSURANCE CORP.
THIS AGREEMENT, made and entered into as of the 30th day of April,
2001, by and among VANGUARD VARIABLE INSURANCE FUNDS (hereinafter the "Fund"), a
Delaware business trust, THE VANGUARD GROUP, INC. (hereinafter the "Sponsor"), a
Pennsylvania corporation, VANGUARD MARKETING CORPORATION (hereinafter the
"Distributor"), a Delaware corporation, and AMERITAS LIFE INSURANCE CORP.
(hereinafter the "Company"), a Nebraska corporation, on its own behalf and on
behalf of each segregated asset account of the Company named in Schedule A
hereto as may be amended from time to time (each such account hereinafter
referred to as the "Account").
WHEREAS, the Company, the Fund and the Sponsor entered into a
Participation Agreement dated as of July 9, 1996, which the parties desire to
amend and restate on the terms and conditions set forth herein;
WHEREAS, the Fund was organized to act as the investment vehicle for
variable life insurance policies and variable annuity contracts to be offered by
separate accounts of insurance companies which have entered into participation
agreements with the Fund and the Sponsor (hereinafter "Participating Insurance
Companies"); and
WHEREAS, the beneficial interest in the Fund is divided into several
series of shares, each designated a "Portfolio," and representing the interest
in a particular managed portfolio of securities and other assets; and
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WHEREAS, the Fund 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 under the Securities Act of 1933, as amended (the
"1933 Act"); and
WHEREAS, the assets of each Portfolio of the Fund are managed by
several entities (the "Advisers"), each of which is duly registered as an
investment adviser under the federal Investment Advisers Act of 1940 and any
applicable state securities laws; and
WHEREAS, the Company has established or will establish one or more
Accounts to fund certain variable life insurance policies (the "Variable
Insurance Products"), the offering of each of which will be made pursuant to a
private placement memorandum ("PPM") in reliance on certain exemptions from the
requirements of federal securities law for placement of securities other than by
means of a public offering, and the Accounts and the interests in the Variable
Insurance Products funded thereby will not be registered under the 1933 Act
and/or the 1940 Act in reliance upon exemptions therein; and
WHEREAS, each Account is duly organized, validly existing segregated
asset account, established by resolution in the Board of Directors of the
Company, on the date shown for each Account on Schedule A hereto, to set aside
and invest assets attributable to the Variable Insurance Products; and
WHEREAS, the Distributor is a wholly-owned subsidiary of the Sponsor,
is registered as a broker dealer with the Securities and Exchange Commission
("SEC") under the Securities Exchange Act of 1934, as amended (the "1934 Act")
and is a member in good standing of the National Association of Securities
Dealers, Inc. "NASD"); and
WHEREAS, to the extent permitted by applicable insurance laws and
regulations, the Company has purchased and intends to purchase shares of the
Portfolios on behalf of each Account to fund the Variable Insurance Products and
the Sponsor is authorized to sell such shares to the Accounts at net asset
value;
WHEREAS, the Sponsor has established or will establish an account or
accounts on its mutual fund shareholder accounting system to reflect the
Company's ownership of shares of the Fund and all transactions by the Company
involving such shares;
NOW, THEREFORE, in consideration of their mutual promises, the Company,
the Fund, the Sponsor and the Distributor agree as follows:
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ARTICLE I. SALE OF FUND SHARES
1.1 Subject to and in accordance with the terms and procedures in
Section 1.2 hereof, the Company is hereby appointed as the designee of the Fund
to receive orders for the purchase and redemption of shares of the Portfolios of
the Fund by the Accounts. The Company shall maintain records for the Accounts
reflecting all shares of the Fund purchased and redeemed by the Accounts
(including the date and price for all transactions and share balances) and all
reinvestments of dividends and capital gains distributions paid by the Fund. The
Company shall reconcile on each day which the New York Stock Exchange ("NYSE")
is open for trading (a "Business Day") all transactions by the Accounts
involving shares of the Fund (including purchases, redemptions and reinvestments
of dividends and capital gains distributions) with the corresponding
transactions at the Variable Insurance Product owner level on the Company's
record-keeping system.
The Company shall promptly notify the Sponsor if the Company
experiences difficulty in maintaining the records described above in an accurate
and complete manner. The Company agrees to furnish the Sponsor with such
information as the Sponsor may reasonably request from time to time in order for
the Sponsor to verify the Company's compliance with the terms of this Agreement.
1.2 (a) As provided in Section 1.1, and in accordance with the
procedures set forth below, the Company will act as the designee of the
Fund to receive orders by the Accounts for purchases and redemptions by
the Accounts of shares of the Portfolios of the Fund. In the case of
any such purchase or redemption order received by the Company on any
Business Day prior to the time the net asset value of shares of the
Fund is determined (the close of trading on the New York Stock
Exchange, generally 4:00 p.m. Eastern time) (the "Market Close"), the
order shall be accorded a trade date on the Fund's accounting system
that is the date of receipt of the order by the Company. In the case of
any such purchase or redemption order received by the Company on any
Business Day after the Market Close, the order shall be accorded a
trade date on the Fund's accounting system that is the next Business
Day.
(b) It is understood by the parties that the Company may
receive orders from Variable Insurance Product owners for purchases and
redemptions of shares of the Fund by the Accounts in various formats,
including directions in writing, by computer magnetic tape, diskette or
electronic data transmission, through interactive voice response
system, or by any other accepted method for transmitting transaction
instructions that is adopted by the Company. All such Variable
Insurance product owner transactions shall be received and processed by
the Company in accordance with its standard transaction processing
procedures that apply to all investment options offered under the
Variable Insurance Products. The Company shall maintain records
sufficient to identify the date and time of receipt of all such
transactions involving the Fund and shall make such records available
upon request for examination by the
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Sponsor or its designated representative or, at the request of the
Sponsor, by appropriate governmental authorities. Under no
circumstances shall the Company change, alter or manipulate any orders
for purchases or redemptions of shares of the Fund received by it in
good order.
(c) Based on the aggregate authorized Variable Insurance
Product owner-level transactions for the Accounts received by the
Company on each Business Day, the Company shall transmit to the Fund by
5:00 a.m. Eastern time on the following calendar day (including
Saturdays and holidays) a file containing the net purchase or
redemption order, in dollars, by each Account (or in the aggregate for
all Accounts, if that has been agreed to in advance by the parties) for
shares of each Portfolio of the Fund for the preceding Business Day.
Each transmission by the Company of a net purchase or redemption order
shall constitute a representation by the Company that such net order
was based solely on authorized Variable Insurance Product owner-level
transactions received by the Company prior to the Market Close on the
previous Business Day, and that such net order included all such
transactions so received by the Company. In the event that an Account
in a Portfolio of the Fund is redeemed in full, the Company shall not
transmit such redemption order to the Fund pursuant to this paragraph,
but instead shall, not later than 4:00 p.m. Eastern time on the trade
date, either fax such order to (000) 000-0000 or call the Company's
assigned Vanguard associate. Notwithstanding the foregoing, if the
payment of redemption proceeds on the next Business Day would require
the Fund to dispose of Portfolio securities or otherwise incur
substantial additional costs, the Fund may determine to settle one or
more redemption transactions on a delayed basis, in which case proceeds
shall be wired to the Company with seven (7) days and the Fund shall
notify the Company of such a delay by 3:00 Eastern time on the same
Business Day that the Company transmits the redemption order to the
Fund. Furthermore, notwithstanding the foregoing, the Fund reserves the
right to suspend redemption privileges or pay redemptions in kind, as
disclosed in the Fund's prospectus or statement of additional
information. The Fund agrees to treat the Company like any other
shareholder in similar circumstances in making these determinations.
1.3 The Fund, subject to the provisions of Article IX of this
Agreement, agrees to make its shares available indefinitely for purchase at the
applicable net asset value per share by the Company and its Accounts on those
days on which the Fund calculates its net asset value pursuant to the rules of
the SEC and the Fund shall use its best efforts to calculate such net asset
value on each day which the NYSE is open for trading. Notwithstanding the
foregoing, the Board of Trustees of the Fund (hereinafter the "Board") may
refuse to sell shares of any Portfolio to any person including, but not limited
to, the Company, or suspend or terminate the offering of shares of any Portfolio
if such action is required by law or by regulatory authorities having
jurisdiction or is, in the sole discretion of the Board, acting in good faith
and in light of their fiduciary duties under federal and any applicable state
laws, necessary in the best interests of the shareholders of such Portfolio.
Further, it is
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acknowledged and agreed that the availability of shares of the Fund shall be
subject to the Fund's then current prospectus and statement of additional
information, federal and state securities laws and applicable rules and
regulations of the Securities and Exchange Commission and the National
Association of Securities Dealers, Inc.
1.4 The Fund and the Sponsor agree that shares of the Fund will be
sold only to Participating Insurance Companies and their separate accounts. No
shares of any Portfolio will be sold to the general public.
1.5 The Fund and the Sponsor will not sell Fund shares to any
Participating Insurance Company or its separate account unless an agreement
containing a provision substantially the same as Section 2.4 of Article II of
this Agreement is in effect to govern such sales.
1.6 The Company agrees to purchase and redeem the shares of each
Portfolio offered by the then current prospectus of the Fund and in accordance
with the provisions of such prospectus and the accompanying statement of
additional information.
1.7 With respect to payment of the purchase price by the Company and of
redemption proceeds by the Fund, the Company and the Fund shall net all purchase
and redemption orders on a given Business Day and shall transmit one net payment
for all of the Portfolios in accordance with Section 1.8 hereof.
1.8 In the event of net purchases, the Company shall pay for Fund shares by
4:00 p.m. Eastern time on the next Business Day after an order to purchase the
Shares is received by the Company in accordance with the provisions of Section
1.2 hereof. In the event of net redemptions, the Fund shall pay the redemption
proceeds by 4:00 p.m. Eastern time on the next Business Day after an order to
redeem the shares is received by the Company in accordance with the provisions
of Section 1.2 hereof. If net redemption proceeds are not received by 4:00 p.m.
Eastern time on the next Business Day, the Fund will reimburse the Company for
all costs reasonable incurred as a result of the delay. Payment shall be in
federal funds transmitted by wire. For purposes of Section 2.10, upon receipt by
the Fund of the federal funds so wired, such funds shall cease to be the
responsibility of the Company and shall become the responsibility of the Fund.
If the Company fails to pay for Fund shares as required by this Section 1.8,
then the Fund shall be entitled to redeem the shares to cover the cost. The
Company shall be responsible for any shortfall between the purchase and the
redemption; the Fund shall be entitled to retain any gain.
1.9 Issuance and transfer of a Fund's shares will be by book entry
only. Stock certificates will not be issued to the Company or any Account.
Shares ordered from the Fund will be recorded in an appropriate title for each
Account or the appropriate subaccount of each Account. The Fund shall furnish to
the Company the CUSIP number assigned to each Portfolio of the Fund identified
in Schedule B hereto.
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1.10 The Fund shall furnish advance notice, as practicable, but at the
latest same day notice (by wire or telephone, followed by written confirmation)
to the Company of any income, dividends or capital gain distributions on the
Fund's shares. The Company hereby elects to receive all such income, dividends
and capital gain distributions as are payable on the Portfolio shares in
additional shares of that Portfolio. The Company reserves the right to revoke
this election and to receive all such income dividends and capital gain
distributions in cash. The Fund shall notify the Company of the number of shares
so issued as payment of dividends and distributions.
1.11 The Fund shall make the daily net asset value, dividend and
capital gain information for each Portfolio available on a per share basis to
the Company as soon as reasonable practical after the information is calculated
(normally by 6:30 p.m. Eastern time) and shall use its best efforts to make such
net asset value per share available by 7:00 p.m. Eastern time on each Business
Day. Related to this obligation, the Fund shall provide a contact name or names
and telephone numbers of the persons responsible for providing daily net asset
value, dividend and capital gain information to the Company. If the Fund
provides materially incorrect share net asset value information, the Fund, in
cooperation with the Company, shall make an adjustment to the number of shares
purchased or redeemed for the Accounts to reflect the correct net asset value
per share. Any material error in the calculation or reporting of net asset value
per share, dividend or capital gains information shall be reported promptly upon
discovery the Company. The Fund or the Sponsor shall reimburse the Account and
Variable Insurance Product owners for any loss caused by any error in its
calculation of net asset value, dividend and capital gain information, including
any direct costs incurred by any Account to correct the error.
1.12 The Fund shall transmit to the Company by 8:30 a.m. Eastern time
on each Business Day a confirmation of any net purchase or redemption orders of
shares of the Fund with a trade date of the second preceding Business Day.
However, on any Business Day that is the first Business Day of the month,
Vanguard shall transmit such confirmation by 11:00 a.m. Eastern time.
1.13 In the event a communication, systems or other failure occurs, and
the Company is unable to transmit, or the Fund is unable to receive, purchase or
redemption orders through the normal procedures, the Company agrees to comply
with the Contingency Procedures set forth on Schedule C, attached hereto and
incorporated herein. The Fund and the Sponsor reserve the right, in their sole
discretion, to amend the Contingency Procedures from time to time and shall
provide 48 hours' advance notice of such amendment to the Company.
36787 v3 04/05/01 6
ARTICLE II. REPRESENTATIONS AND WARRANTIES
2.1 The Company represents and warrants that (a) the Variable Insurance
Products are exempt from or not subject to registration under the 1933 Act and
(b) the Variable Insurance Products will be issued and sold in compliance in all
material respects with all applicable federal and state laws and with state
insurance suitability requirements. The Company further represents and warrants
that it is an insurance company duly organized and in good standing under
applicable law and that it has legally and validly established each Account
prior to any issuance or sale thereof as a segregated asset account under
Section 44-4-2.01 of the Nebraska Insurance Code and each Account is exempt from
registration under the 1940 Act. The Company will notify the Fund if it believes
an Account will cease to qualify for the exception from the definition of
investment company provided under Sections 3(c)(1), 3(c)(7), or 3(c)(11) of the
1940 Act. Notification shall be made prior to the end of the calendar quarter in
which the Company becomes aware that the Account may cease to qualify.
2.2 The Fund represents and warrants that Fund shares sold pursuant to this
Agreement shall be registered under the 1933 Act, duly authorized for issuance
and sold in compliance with the laws of the State of Nebraska and all applicable
federal and state securities laws and that the Fund is and shall remain
registered under the 0000 Xxx. The Fund 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 Fund shall
register and qualify the shares for sale in accordance with the laws of the
various states only if and to the extent deemed advisable by the Fund, the
Distributor, or the Sponsor.
2.3 The Fund represents that it is qualified as a Regulated Investment
Company under Subchapter M of the Internal Revenue Code of 1986, as amended (the
"Code"), and that: (i) it will make every effort to maintain qualification
(under Subchapter M or any successor or similar provision; (ii) it will notify
the Company immediately upon having a reasonable basis for believing that it
ceased to so qualify or that it might not so qualify in the future; and (iii) it
will adequately diversify so as to achieve compliance within the grace period
afforded by Regulation 817-5. The Fund acknowledges that any failure to qualify
as a Regulated Investment Company will eliminate the ability of the subaccounts
to avail themselves of the "look through" provisions of Section 817(h) of the
Code, and that as a result the Variable Insurance Products will almost certainly
fail to qualify as endowment or life insurance contracts under Section 817(h) of
the Code.
36787 v3 04/05/01 7
2.4 The Company represents that the Variable Insurance Products will be
treated as endowment or life insurance contracts under applicable provisions of
the Code and that it will make every effort to maintain such treatment and that
it will notify the Fund and the Sponsor immediately upon having a reasonable
basis for believing that the Variable Insurance Products have ceased to be so
treated or that they might not be so treated in the future.
2.5 The Fund currently does not intend to make any payments to finance
distribution expenses pursuant to Rule 12b-1 under the 1940 Act or otherwise
2.6 The Fund makes no representation as to whether any aspect of its
operations (including, but not limited to, fees and expenses and investment
policies) complies with the insurance laws or regulations of the various states
except that the Fund represents that the Fund's investment policies, fees and
expenses are and shall at all times remain in compliance with the laws of the
State of Nebraska and the Fund and the Sponsor represent that their respective
operations are and shall at all times remain in material compliance with the
laws of the State of Nebraska to the extent required to perform this Agreement.
2.7 The Distributor represents and warrants that it is a member in good
standing of the NASD and is registered as a broker-dealer with the SEC. The
Distributor further represents that it will sell and distribute the Fund shares
in accordance with the laws of the State of Nebraska and all applicable state
and federal securities laws, including without limitation the 1933 Act, the 1934
Act, and the 0000 Xxx.
2.8 The Fund represents that it is lawfully organized and validly existing
under the laws of the State of Delaware and that it does and will comply in all
material respects with the 1940 Act and any applicable regulations thereunder.
2.9 The Sponsor represents and warrants that the Advisers to the Fund are,
and the Sponsor shall use its best effort to cause the Advisers to, remain duly
registered in all material respects under all applicable federal and state
securities laws and to perform their obligations for the Fund in compliance in
all material respects with the laws of the State of Nebraska and any applicable
state and federal securities laws.
2.10 The Fund and Sponsor represent and warrant that all of their trustees,
directors, officers, employees, investment advisers, and other
individuals/entities dealing with the money and/or securities of the Fund are
and shall continue to be at all times covered by a blanket fidelity bond or
similar coverage for the benefit of the Fund in an amount not less than the
minimum coverage required currently by Rule 17g-1 under the 1940 Act or other
applicable laws or regulations as may be promulgated from time to time. The
aforesaid bond shall include coverage for larceny and embezzlement and shall be
issued by a reputable bonding company.
2.11 With respect to the Accounts, which are exempt from registration under
the 1940 Act in reliance upon Section 3(c)(1) or Section 3(c)(7) thereof, the
Company represents and warrants that:
36787 v3 04/05/01 8
(a) Ameritas Investment Corp. is the principal underwriter for each
such Account and any subaccounts thereof and is a registered broker-dealer
with the SEC under the 1934 Act;
(b) the shares of the Portfolios of the Fund are and will continue to
be the only investments securities held by the corresponding subaccounts;
(c) the number of Portfolios of the Fund available for investment by
the Accounts will not constitute a majority of the total number of mutual
funds or portfolio selections available for investment by the Accounts in
any Variable Insurance Product; and
(d) with regard to each Portfolio, the Company, if permitted by law,
on behalf of the corresponding subaccount, will:
(i) vote such shares held by it in the same proportion as the
vote of all other holders of such shares; and
(ii) refrain from substituting shares of another security for
such shares unless the SEC has approved such substitution in
the manner provided in Section 26 of the 0000 Xxx.
2.12 The Fund represents that it will comply with all provisions of the
1940 Act requiring voting by shareholders, and in particular the Fund will
either provide for annual meetings or comply with Section 16(c) of the 1940 Act
(although the Fund is not one of the trusts described in Section 16(c) of that
Act) as well as with Sections 16(a) and, if an when applicable, 16(b). Further,
the Fund will act in accordance with the SEC's interpretation of the
requirements of Section 16(a) with respect to periodic elections of trustees and
with whatever rules the SEC may promulgate with respect thereto.
ARTICLE III. OFFERING DOCUMENTS AND REPORTS
3.1 The Fund, the Sponsor or their designee shall provide the Company (at the
Sponsor's expense) with as many copies of the Fund's current prospectus as the
Company may reasonably request. The Company shall provide a copy of the Fund's
prospectus to each person to whom it provides the PPM for the Variable Insurance
Products. If requested by the Company in lieu thereof, the Fund or the Sponsor
shall provide such documentation (including a final copy of the new prospectus
as set in type at the Fund's or the Sponsor's expense) and other assistance as
is reasonably necessary in order for the Company once each year (or more
frequently if the prospectus for the Fund is amended) to have the PPM for the
Variable Insurance Products and the Fund's prospectus printed together in one
document (such printing to be at the Company's expense).
36787 v3 04/05/01 9
3.2 The Fund's prospectus shall state that the statement of additional
information for the Fund is available from the Sponsor (or in the Fund's
discretion, the prospectus shall state that the statement of additional
information is available from the Fund) and the Sponsor (or the Fund), at its
expense, shall print and provide such statement free of charge to the Company
and to any owner of a Variable Insurance Product or prospective owner who
requests such statement.
3.3 The Fund, at its own expense, shall provide the Company with copies of
its reports to shareholders, other communications to shareholders, and, if
required by applicable law, proxy material, in such quantity as the Company
shall reasonably require for distributing to Variable Insurance Product owners.
The Fund shall provide to the Company the prospectuses and annual reports
referenced in this Agreement within fifteen (15) days prior to the Company's
obligation to mail, and the Company agrees to provide the Fund with advance
notice of such date. If the documents are not delivered to the Company within
ten (10) days of the Company's obligation to mail, the Fund shall reimburse the
Company for any extraordinary out-of-pocket costs (including, but not limited
to, overtime for printing and mailing).
ARTICLE IV. SALES MATERIAL AND INFORMATION
4.1 The Company shall furnish, or shall cause to be furnished, to the Fund
or its designee, each piece of sales literature or other promotional material in
which the Fund, its Advisers or the Sponsor is named, at least five Business
Days prior to its use. The Company may use such material in fewer than five
Business Days if it receives the written consent of the Fund or its designee. No
such material shall be used if the Fund or its designee reasonably objects to
such use within five Business Days after receipt of such material. In connection
with the identification of the Portfolios in any such material, the use of the
Sponsor's name or identification of the Portfolios shall be given no greater
prominence than any other mutual fund or portfolio selection offered in a
Variable Insurance Product.
4.2 The Company shall not give any information or make any representations
or statements on behalf of the Fund or concerning the Fund in connection with
the sale of the Variable Insurance Products other than the information or
representations contained in the registration statement or prospectus for the
Fund shares, as such registration statement and prospectus may be amended or
supplemented from time to time, or in reports or proxy statements for the Fund,
or in sales literature or other promotional material approved by the Fund or its
designee or by the Sponsor, except with the permission of the Fund or the
Sponsor or the designee of either.
4.3 The Fund, Sponsor, Distributor or their designee shall furnish, or
shall cause
36787 v3 04/05/01 10
to be furnished, to the Company or its designee, each piece of sales literature
or other promotional material in which the Company or an Account is named at
least five 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 Business Days
after receipt of such material.
4.4 The Fund, the Distributor and the Sponsor shall not give any
information or make any representations on behalf of the Company or concerning
the Company, each Account, or the Variable Insurance Products other than the
information or representations contained in a PPM for the Variable Insurance
Products, as such PPM may be amended or supplemented from time to time, or in
published reports for each Account which are in the public domain or approved by
the Company for distribution to contract owners, or in sales literature or other
promotional material approved by the Company or its designee, except with the
permission of the Company.
4.5 The Fund will provide to the Company at least one complete copy of all
registration statements, prospectuses, statements of additional information,
reports, proxy statements, sales literature and other promotional materials,
applications for exemptions, requests for no-action letters, and all amendments
to any of the above, that relate to the Fund or its shares, prior to or
contemporaneously with the filing of each document with the SEC or other
regulatory authorities.
4.6 The Company will provide to the Fund at least one complete copy of all
PPMs, reports, solicitations for voting instructions, sales literature and other
promotional materials, applications for exemption, requests for no action
letters, and all amendments to any of the above, that relate to the Variable
Insurance Products or each Account, prior to or contemporaneously with the
filing of such document with the SEC or other regulatory authorities, or, in the
case of a PPM, at least three Business Days before any sales are made by use of
the relevant PPM.
4.7 The Company and the Fund shall also each promptly inform the other of
the results of any examination by the SEC (or other regulatory authorities) that
relates to the Variable Insurance Products, the Fund or its shares, and the
party that was the subject of the examination shall provide the other party with
a copy of relevant portions of any "deficiency letter" or other correspondence
or written report regarding any such examination.
4.8 The Fund and the Sponsor will provide the Company with as much notice
as is reasonable practicable of any proxy solicitation for any Portfolio, and of
any material change in the Fund's registration statement, particularly any
change resulting in a change to the PPM for any Account. The Fund and the
Sponsor will cooperate with the Company so as to enable the Company to solicit
voting instructions from owners of Variable Insurance Products, to the extent a
solicitation is required by applicable law, or to make changes to its PPM in a
orderly manner.
36787 v3 04/05/01 11
4.9 For purposes of this Article IV, the phrase "sales literature and
other promotional material" is subject to applicable laws and regulations
governing the private placement of securities, particularly the prohibition
against making a general solicitation. The phrase includes, but is not limited
to, sales literature (i.e., any written communication distributed or made
generally available to customers, including brochures, circulars, research
reports, market letters, form letters, seminar texts, reprints or excerpts of
any other advertisement, sales literature, or published articles), educational
or training materials or other communications distributed or made generally
available to some or all agents or employees, and PPMs, shareholder reports, and
proxy materials.
ARTICLE V. FEES AND EXPENSES
5.1 The Fund and Sponsor shall pay no fee or other compensation to the
Company under this Agreement. Nothing herein shall prevent the parties hereto
from otherwise agreeing to perform, and arranging for appropriate compensation
for, other services relating to the Fund and or to the Accounts.
5.2 All expenses incident to performance by the Fund under this Agreement
shall be paid by the Fund. The Fund shall see to it that all its shares are
registered and authorized for issuance in accordance with applicable federal law
and, if and to the extent deemed advisable by the Fund, in accordance with
applicable state laws prior to their sale. The Fund shall bear the fees and
expenses for the cost of registration and qualification of the Fund's shares,
preparation and filing of the Fund's prospectus and registration statement,
proxy materials and reports, setting the prospectus in type, setting 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, all taxes on the
issuance or transfer of the Fund's shares.
5.3 The Fund shall bear the expenses of printing, and the Company shall
bear the expenses of distributing, the Fund's prospectus to owners of Variable
Insurance Products issued by the Company. The Company shall bear the expenses of
distributing the Fund's proxy materials (to the extent such proxy solicitation
is required by law) and reports to owners of Variable Insurance Products.
ARTICLE VI. DIVERSIFICATION
6.1 The Fund will at all times invest money from the Variable Insurance
Products in such a manner as to ensure that the Variable Insurance Products will
be treated as variable contracts under the Code and the regulations issued
thereunder. Without limiting the scope of the foregoing, the Fund and the
Sponsor represent and warrant that each Portfolio of the Fund will meet the
diversification requirements of Section 817(h) of the Code and Treasury
36787 v3 04/05/01 12
Regulation 1.817-5, relating to the diversification requirements for endowment
or life insurance contracts and any amendments or other modifications to such
Section or Regulations, as if those requirements applied directly to each such
Portfolio. In the event of a breach of this Article VI by the Fund, it will take
all reasonable steps (a) to notify Company of such breach and (b) to adequately
diversify, each Portfolio of the Fund so as to achieve compliance with the grace
period afforded by Regulation 817-5.
6.2 The Fund and the Sponsor represent that each Portfolio will elect to be
qualified as a Regulated Investment Company under Subchapter M of the Code and
they will maintain such qualification (under Subchapter M or any successor or
similar provision).
ARTICLE VII. INDEMNIFICATION
7.1 Indemnification by the Company
(a) The Company agrees to indemnify and hold harmless the Fund
and each trustee of the Board and officers and each person, if any, who
controls the Fund within the meaning of Section 15 of the 1933 Act, the
Sponsor and the Distributor (collectively, the "Indemnified Parties"
for purposes of this Section 7.1) against any and all losses, claims,
damages, liabilities (including amounts paid in settlement with the
written consent of the Company) or litigation (including legal and
other expenses) to which the Indemnified Parties may become subject
under any statute, regulation, at common law or otherwise, insofar as
such losses, claims, damages, liabilities or expenses (or actions in
respect thereof) or settlements are related to the sale or acquisition
of the Fund's shares or the Variable Insurance Products and:
(i) arise out of or are based upon any untrue statements or
alleged untrue statements of any material fact contained in
the PPM for the Variable Insurance Products or contained in
the contract or policy or sales literature for the Variable
Insurance Products (or any amendment or supplement to any of
the foregoing), or arise out of or are based upon the
omission or the alleged omission to state therein a material
fact required to be stated therein or necessary to make the
statements therein not misleading, provided that this
agreement to indemnify shall not apply as to any Indemnified
Party if such statement or omission or such alleged
statement or omission was made in reliance upon and in
conformity with information furnished to the Company by or
on behalf of the Fund for use in the PPM for the Variable
Insurance Products or in the contract or policy sales
literature (or any amendment or supplement) or otherwise
36787 v3 04/05/01 13
for use in connection with the sale of the Variable
Insurance Products or the Fund shares; or
(ii) arise out of or as a result of statements or representations
(other than statements or representations contained in the
registration statement, prospectus or sales literature of
the Fund not supplied by the Company, or persons under its
control) or unlawful conduct of the Company or persons under
its control, with respect to the sale or distribution of the
Variable Insurance Products or the Fund Shares; or
(iii)arise out of any untrue statement or alleged untrue
statement of a material fact contained in a registration
statement, prospectus, or sales literature of the Fund or
any amendment or supplement thereto or the omission or
alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements
therein not misleading if such a statement or omission was
made in reliance upon information furnished to the Fund by
or on behalf of the Company; or
(iv) result from any failure by the Company to provide the
services and furnish the materials under the terms of this
Agreement; or
(v) arise out of or result from any material breach of any
representation and/or warranty made by the Company in this
Agreement or arise out of or result from any material breach
of this Agreement by the Company;
as limited by and in accordance with the provisions of Section 7.1(b) and
7.1(c) hereof.
(b) The Company shall not be liable under this indemnification
provision with respect to any losses, claims, damages, liabilities or
litigation incurred or assessed against an Indemnified Party as such may
arise from such Indemnified Party's willful malfeasance, bad faith, or
gross negligence in the performance of such Indemnified Party's duties or
by reason of such Indemnified Party's reckless disregard of obligations or
duties under this Agreement or to the Fund, whichever is applicable.
(c) The Company shall not be liable under this indemnification
provision with respect to any claim made against an Indemnified party
unless such Indemnified Party shall have notified the Company in writing
within a reasonable time after the summons or other first legal process
giving information of the nature of the claim
36787 v3 04/05/01 14
shall have been served upon such Indemnified Party (or after such
Indemnified Party shall have received notice of such service on a
designated agent), but failure to notify the Company of any such claim
shall not relieve the Company from any liability which it may have to
the Indemnified Party against whom such action is brought otherwise
than on account of this indemnification provision. In case any such
action is brought against the Indemnified Parties, the Company shall
be entitled to participate, at its own expense, in the defense of such
action. The Company also shall be entitled to assume the defense
thereof, with counsel satisfactory to the party named in the action.
After notice from the Company to such a party of the Company's
election to assume the defense thereof, the Indemnified party shall
bear the fees and expenses of any additional counsel retained by it,
and the Company 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.
(d) The Indemnified Parties will promptly notify the Company
of the commencement of any litigation or proceedings against them in
connection with the issuance or sale of the Fund shares or the Variable
Insurance Products or the operation of the Fund.
7.3 Indemnification by the Sponsor
(a) The Sponsor agrees to indemnify and hold harmless the
Company and each of its directors and officers and each person, if any,
who controls the Company within the meaning of Section 15 of the 1933
Act (collectively, the "Indemnified Parties" for purposes of this
Section 7.2) against any and all losses, claims, damages, liabilities
(including amounts paid in settlement with the written consent of the
Sponsor) or litigation (including legal and other expenses) to which
the Indemnified Parties 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 Fund's shares or the Variable
Insurance Products and:
(i) arise out of or are based upon any untrue statement or
alleged untrue statement of any material fact contained in
the registration statement or prospectus or sales literature
of the Fund (or any amendment or supplement to any of the
foregoing), or arise out of or are based upon the omission
or the alleged omission to state therein a material fact
required to be stated therein or necessary to make the
statements therein not misleading, provided that this
agreement to indemnify shall not apply as to any Indemnified
Party if such statement or omission or such alleged
statement or omission was made in
36787 v3 04/05/01 15
reliance upon and in conformity with information furnished to the
Sponsor or Fund by or on behalf of the Company for use in the
registration statement or prospectus for the Fund or in sales
literature (or any amendment or supplement) or otherwise for use
in connection with the sale of the Variable Insurance Products or
Fund shares; or
(ii) arise out of or as a result of statements or
representations (other than statements or representations
contained in the PPM or sales literature for the Variable
Insurance Products not supplied by the Sponsor or persons under
its control) or unlawful conduct of the Fund, the Advisers or
persons under their control, with respect to the sale or
distribution of the Variable Insurance Products or Fund shares;
or
(iii) arise out of any untrue statement or alleged untrue
statement of a material fact contained in a PPM or sales
literature covering the Variable Insurance Products, or any
amendment 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 Fund; or
(iv) result from any failure by the Sponsor or the Fund to
provide the services and furnish the materials under the terms of
this Agreement (including a failure to comply with the
diversification requirements specified in Article VI of this
Agreement); or
(v) arise out of or result from any material breach of any
representation and/or warranty made by the Sponsor or the Fund in
this Agreement or arise out of or result from any other material
breach of this Agreement by the Sponsor or the Fund;
as limited by and in accordance with the provisions of Sections 7.2(b) and
7.2(c) hereof.
(b) The Sponsor shall not be liable under this indemnification
provision with respect to any losses, claims, damages, liabilities or
litigation 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
36787 v3 04/05/01 16
Indemnified Party's duties or by reason of such Indemnified Party's
reckless disregard of obligations and duties under this Agreement or to the
Company or the Accounts, whichever is applicable.
(c) The Sponsor shall not be liable under this indemnification
provision with respect to any claim made against an Indemnified Party
unless such Indemnified Party shall have notified the Sponsor in
writing within a reasonable time after the summons or other first legal
process giving information of the nature of the claim shall have been
served upon such Indemnified Party (or after such Indemnified Party
shall have received notice of any such service on any designated
agent), but failure to notify the Sponsor of any such claim shall not
relieve the Sponsor from any liability which it may have to the
Indemnified Party against whom such action is brought otherwise than on
account of this indemnification provision. In any case any such action
is brought against the Indemnified Parties, the Sponsor will be
entitled to participate, at its own expense, in the defense thereof.
The Sponsor also shall be entitled to assume the defense thereof, with
counsel satisfactory to the party named in the action. After notice
from the Sponsor to such party of the Sponsor's election to assume the
defense thereof, the Indemnified Party shall bear the fees and expenses
of any additional counsel retained by it, and the Sponsor will not be
liable to such party under this Agreement for any legal or other
expenses subsequently incurred by each party independently in
connection with the defense thereof other than reasonable costs of
investigation.
(d) The Company agrees promptly to notify the Sponsor of the
commencement of any litigation or proceedings against it or any of its
officers or directors in connection with the issuance or sale of the
Variable Insurance Products or the operation of each Account.
7.3 Indemnification by the Fund
(a) The Fund agrees to indemnify and hold harmless the
Company, and each of its directors and officers and each person, if
any, who controls the Company within the meaning of Section 15 of the
1933 Act (collectively, the "Indemnified Parties" for purposes of this
Section 7.3) against any and all losses, claims, damages, liabilities
(including amounts paid in settlement with the written consent of the
Fund) or litigation (including legal and other expenses) to which the
Indemnified Parties may become subject under any statute, at common law
or otherwise, insofar as such losses, claims damages, liabilities or
expenses (or action in respect thereof) or settlements resulting from
the gross negligence, bad faith or willful misconduct of the Board or
any member thereof, are related to the operations of the Fund and:
(i) arise as a result of any failure by the Fund
to provide the services and furnish the
materials under the terms of this
36787 v3 04/05/01 17
Agreement (including a failure to comply
with the diversification requirements
specified in Article VI of this Agreement);
or
(ii) arise out of or result from any material
breach of any representation and/or warranty
made by the Fund in this Agreement or arise
out of or result from any other material
breach of this Agreement by the Fund;
as limited by and in accordance with the provisions of Sections 7.3(b) and
7.3(c) hereof.
(b) The Fund shall not be liable under this indemnification
provision with respect to any losses, claims, damages, liabilities or
litigation incurred or assessed against an Indemnified Party as such
may arise from 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 Company, the
Fund, the Sponsor or each Account, whichever is applicable.
(c) The Fund shall not be liable under this indemnification
provision with respect to any claim made against an Indemnified Party
unless such Indemnified Party shall have notified the Fund in writing
within a reasonable time after the summons or other first legal process
giving information of the nature of the claim shall have been served
upon such Indemnified Party (or after such Indemnified Party shall have
received notice of such service on any designated agent), but failure
to notify the Fund of any such claim shall not relieve the Fund from
any liability which it may have to the Indemnified Party against whom
such action is brought otherwise than on account of this
indemnification provision. In case any such action is brought against
the Indemnified Parties, the Fund will be entitled to participate, at
its own expense, in the defense thereof. The Fund also shall be
entitled to assume the defense thereof, with counsel satisfactory to
the party named in the action. After notice from the Fund to such party
or the Fund's election to assume the defense thereof, the Indemnified
Party shall bear the fees and expenses of any additional counsel
retained by it, and the Fund will not be liable to such party
independently in connection with the defense thereof other than
reasonable costs of litigation.
(d) The Company and the Sponsor agree promptly to notify the
Fund of the commencement of any litigation or proceedings against it or
any of its respective officers or directors in connection with this
Agreement, the issuance or sale of the Variable Insurance Products,
with respect to the operation of an Account, or the sale or acquisition
of shares of the Fund.
36787 v3 04/05/01 18
7.4 Indemnification by the Distributor
(a) The Distributor agrees to indemnify and hold harmless the
Company and each of its directors and officers and each person, if any,
who controls the Company within the meaning of Section 15 of the 1933
Act (collectively, the "Indemnified Parties" for purposes of this
Section 7.4) against any and all losses, claims, damages, liabilities
(including amounts paid in settlement with the written consent of the
Sponsor) or litigation (including legal and other expenses) to which
the Indemnified Parties 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 Fund's shares or the Variable
Insurance Products and:
(i) arise out of or are based upon any untrue statement or
alleged untrue statement of any material fact contained in
the registration statement or prospectus or sales literature
of the Fund (or any amendment or supplement to any of the
foregoing), or arise out of or are based upon the omission
or the alleged omission to state therein a material fact
required to be stated therein or necessary to make the
statements therein not misleading, provided that this
agreement to indemnify hall 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
Fund by or on behalf of the Company for use in the
registration statement or prospectus for the Fund or in
sales literature (or any amendment or supplement) or
otherwise for use in connection with the sale of the
Variable Insurance Products or Fund shares; or
(ii) arise out of or as a result of statements or representations
(other than statements or representations contained in the
PPM or sales literature for the Variable Insurance Products
not supplied by the Distributor or persons under its
control) or unlawful conduct of the Fund, the Advisers or
persons under their control, with respect to the sale or
distribution of the Variable Insurance Products or Fund
shares; or
(iii)arise out of any untrue statement or alleged untrue
statement of a material fact contained in a PPM or sales
literature covering the Variable Insurance Products, or any
amendment or supplement thereto, or the omission or alleged
omission to state therein a material fact required to be
stated therein or necessary
36787 v3 04/05/01 19
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
Fund; or
(iv) result from any failure by the Distributor or the Fund to
provide the services and furnish the materials under the
terms of this Agreement; or
(v) arise out of or result from any material breach of any
representation and/or warranty made by the Distributor or
the Fund in this Agreement or arise out of or result from
any other material breach of this Agreement by the
Distributor of the Fund;
as limited by and in accordance with the provisions of Sections 7.4(b) and
7.4(c) hereof.
(b) The Distributor shall not be liable under this
indemnification provision with respect to any losses, claims, damages,
liabilities or litigation 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
Company or the Accounts, whichever is applicable.
(c) The Distributor shall not be liable under this
indemnification provision with respect to any claim made against an
Indemnified Party unless such Indemnified Party shall have notified the
Distributor in writing within a reasonable time after the summons or
other first legal process giving information of the nature of the claim
shall have been served upon such Indemnified Party (or after such
Indemnified Party shall have received notice of any such service on any
designated agent), but failure to notify the Distributor of any such
claim shall not relieve the Distributor from any liability which it may
have to the Indemnified Party against whom such action is brought
otherwise than on account of this indemnification provision. In any
case any such action is brought against the Indemnified Parties, the
Distributor will be entitled to participate, at its own expense, in the
defense thereof. The Sponsor also shall be entitled to assume the
defense thereof, with counsel satisfactory to the party named in the
action. After notice from the Distributor to such party of the
Distributor's election to assume the defense thereof, the Indemnified
Party shall bear the fees and expenses of any additional counsel
retained by it, and the Distributor will not be liable to such party
under this Agreement for any legal or other expenses
36787 v3 04/05/01 20
subsequently incurred by each party independently in connection with
the defense thereof other than reasonable costs of investigation.
(d) The Company agrees promptly to notify the Distributor of
the commencement of any litigation or proceedings against it or any of
its officers or directors in connection with the issuance or sale of
the Variable Insurance Products or the operation of each account.
ARTICLE VIII. APPLICABLE LAW
8.1 This Agreement shall be construed and the provisions hereof interpreted
under and in accordance with the laws of the State of Nebraska.
8.2 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, and
the terms hereof shall be interpreted and construed in accordance therewith.
ARTICLE IX. TERMINATION
9.1 This Agreement shall continue in full force and effect until the first
to occur of:
(a) termination by any party for any reason by sixty (60) days'
advance written notice delivered to the other parties; or
(b) termination by the Company by written notice to the Fund and the
Sponsor with respect to any Portfolio based upon the Company's
determination that shares of such Portfolio are not reasonably available to
meet the requirements of the Variable Insurance Products; or
(c) termination by the Company by written notice to the Fund and the
Sponsor with respect to any Portfolio in the event any of the Portfolio'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 media of the Variable Insurance Products issued
or to be issued by the Company; or
(d) termination by the Company by written notice to the Fund and the
Sponsor with respect to any Portfolio in the event that such Portfolio
ceases to qualify as a Regulated Investment Company under Subchapter M of
the Code or under any successor or similar provision, or if the Company
reasonably believes that the Fund
36787 v3 04/05/01 21
may fail to so qualify (in the event of such termination, the Company
shall withdraw all assets allocable to the separate accounts from the
Portfolio and shall reinvest such assets in a different investment
medium, including, but not limited to, another Portfolio of the Fund);
or
(e) termination by the Company by written notice to the Fund and the
Sponsor with respect to any Portfolio in the event that such Portfolio
fails to meet the diversification requirements as specified in Article VI
hereof (in the event of such termination, the Company shall withdraw all
assets allocable to the separate accounts from the Portfolio and shall
reinvest such assets in a different investment medium, including, but not
limited to, another Portfolio of the Fund); or
(f) termination by the Fund, Sponsor, or Distributor by written notice
to the Company, if any of the Fund, Sponsor, or Distributor shall
determine, in its sole judgment exercised in good faith, that the Company
and/or its affiliated companies has suffered a material adverse change in
its business, operations, or financial condition since the date of this
Agreement or is the subject of material adverse publicity; or
(g) termination by the Company by written notice to the Fund and the
Sponsor, if the Company shall determine, in its sole judgment exercised in
good faith, that either the Fund, Sponsor, or Distributor has suffered a
material adverse change in its business, operations or financial condition
since the date of this Agreement or is the subject of material adverse
publicity.
9.2 Notwithstanding any termination of this Agreement, the Fund and the
Sponsor shall at the option of the Company, continue to make available shares of
the Fund pursuant to the terms and conditions of this Agreement, for all
Variable Insurance Products in effect on the effective date of termination of
this Agreement (hereinafter referred to as "Existing Contracts"). Specifically,
without limitation, the owners of the Existing Contracts shall be permitted to
reallocate investments in the Fund, redeem investment sin the Fund and/or invest
in the Fund upon the making of additional purchase payments under the Existing
Contracts.
9.3 The Company shall not redeem Fund shares attributable to the Variable
Insurance Products (as opposed to Fund shares attributable to the Company's
assets held in the Accounts) except (a) as necessary to implement Variable
Insurance Products owner initiated or approved transactions, or (b) as required
by state and/or federal laws or regulations or judicial or other legal precedent
of general application (hereinafter referred to as a "Legally Required
Redemption"). Upon request, the Company will promptly furnish to the Fund and
the Sponsor the opinion of counsel for the Company (which counsel shall be
reasonably satisfactory to the Fund and the Sponsor) to the effect that any
redemption pursuant to clause (b) above is a Legally Required Redemption.
Furthermore, except in cases
36787 v3 04/05/01 22
where permitted under the terms of the Contracts, the Company shall not prevent
owners of Variable Insurance Products from allocating payments to a Portfolio
that was otherwise available under the Contracts without first giving the Fund
or the Sponsor 90 days' notice of its intention to do so.
ARTICLE X. 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 Fund: Vanguard Variable Insurance Funds
X.X. Xxx 0000
Xxxxxx Xxxxx, XX 00000
Attn: Xxxxxxx X. Xxxxxxxxx
If to the Sponsor: The Vanguard Group, Inc.
X.X. Xxx 0000
Xxxxxx Xxxxx, XX 00000
Attn: R. Xxxxxxx Xxxxxx
If to the Distributor: Vanguard Marketing Corporation
X.X. Xxx 0000
Xxxxxx Xxxxx, XX 00000
Attn: R. Xxxxxxx Xxxxxx
If to the Company: Ameritas Life Insurance Corp.
X.X. Xxx 00000
Xxxxxxx, XX 00000-0000
Attn: General Counsel
ARTICLE XI. MISCELLANEOUS
11.1 It is understood and stipulated that neither the shareholders of any
Portfolio nor the officers or trustees of the Fund shall be personally liable
hereunder.
11.2 Subject to the requirements of the legal process and regulatory
authority, each party hereto shall treat as confidential the names and addresses
of the owners of the Variable Insurance Products and all information reasonably
identified as confidential in writing by any other party hereto and, except as
permitted by this Agreement, shall not (unless it has obtained the express
written consent of the affected party) disclose,
36787 v3 04/05/01 23
disseminate or utilize such names and addresses and other confidential
information until such time as it may come into the public domain.
11.3 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.
11.4 This Agreement may be executed simultaneously in two or more
counterparts, each of which taken together shall constitute one and the same
instrument.
11.5 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.
11.6 Each party hereto shall cooperate with each party and all appropriate
governmental authorities (including without limitation the SEC, the NASD and
state insurance regulators) and shall permit such authorities reasonable access
to its books and records in connection with any investigation or inquiry
relating to this Agreement or the transactions contemplated hereby.
11.7 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.
11.8 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
hereto.
11.9 The Company shall furnish, or cause to be furnished, to the Fund or
its designee copies of the following reports:
(a) the Company's Annual Financial Statement on Statutory Basis as
soon as practical and in any event within 90 days after the end of each
fiscal year; and
(b) any PPM or other materials distributed in connection with the sale
of the Variable Insurance Products to the extent such PPM or other
materials reference the Fund.
11.10 The Company shall maintain back-up computer tape files on a daily
basis stored in an off-premises location at no cost to the Fund or the Sponsor.
The purpose of backup and recovery procedures is to permit file recovery in the
event of disruption of normal processing.
11.11 This Agreement, including any Schedule hereto, may be amended or
modified only by written instrument, executed by duly authorized officers of the
parties.
36787 v3 04/05/01 24
11.12 This Agreement supersedes all prior discussions and writings with
respect to the subject matter hereof, including the Participation Agreement
dated as of July 9, 1996, and constitutes the entire agreement between the
parties with respect to the subject matter hereof.
36787 v3 04/05/01 25
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 as of the date specified above.
VANGUARD VARIABLE INSURANCE FUND
By: ____________________________________
Name: _________________________________
Title: __________________________________
THE VANGUARD GROUP, INC.
By: ____________________________________
Name: _________________________________
Title: __________________________________
VANGUARD MARKETING CORPORATION
By: ____________________________________
Name: _________________________________
Title: __________________________________
AMERITAS LIFE INSURANCE CORP.
By: ____________________________________
Name: _________________________________
Title: __________________________________
36787 v3 04/05/01 26
SCHEDULE A
SEPARATE ACCOUNTS AND ASSOCIATED CONTRACTS
Variable Insurance Products
NAME OF SEPARATE ACCOUNT FUNDED BY SEPARATE ACCOUNT
LLVL Low Load Variable Universal Life
Low Load Survivorship Variable Universal Life
NLVA No Load Variable Annuity
36787 v3 04/05/01 27
SCHEDULE B
PORTFOLIOS
The following Portfolios of the Vanguard Variable Insurance Funds shall
be made available as investments underlying the Variable Insurance Products,
subject to the limitations set forth in Section 2.11(c) hereof:
Money Market Portfolio
High-Grade Bond Portfolio
High-Yield Bond Portfolio
Balanced Portfolio
Diversified Value Portfolio
Equity Income Portfolio
Equity Index Portfolio
Growth Portfolio
Mid-Cap Index Portfolio
REIT Index Portfolio
Small Company Growth Portfolio
International Portfolio
36787 v3 04/05/01 28
SCHEDULE C
CONTINGENCY PROCEDURES
The Company can fax and must provide the details on voice-mail for the IIS -
Daily Valuation Administrator at (000) 000-0000. Additionally, THE COMPANY MUST
FAX THE BUY/SELL INSTRUCTIONS BY 6:00 A.M. EST to the following Sponsor
personnel at the numbers listed below:
(a) IIC-Money Movement Unit
(000) 000-0000
(000) 000-0000 (alternate)
(b) IIS-Daily Valuation Unit
(000) 000-0000
(000) 000-0000 (alternate)
THE FUND CANNOT GUARANTEE TRADE DATE COMMITMENTS IF THE BUY/SELL INSTRUCTIONS
ARE NOT RECEIVED BY 6:00 A.M. EST IN GOOD ORDER.
"GOOD ORDER" SHALL MEAN THE FOLLOWING INFORMATION IS ON THE FAX BUY/SELL
INSTRUCTIONS:
>> Company name
>> Contact name
>> Contact phone number between 6 a.m. EST and 9 a.m. EST
>> Current date
>> Trade date
>> Fund Portfolio number
>> Vanguard account number
>> Purchase, redemption, rebalance redemption, rebalance purchase amount
>> Purchase total, redemption total, rebalance redemption total, rebalance
purchase total.
36787 v3 04/05/01 29
