JANUS ASPEN SERIES
FUND PARTICIPATION AGREEMENT
THIS AGREEMENT is made this 1st day of May, 2000, between JANUS ASPEN SERIES, an
open-end management investment company organized as a Delaware business trust
(the "Trust"), JANUS DISTRIBUTORS, INC. ("Distributor"), a Colorado corporation
and distributor of the Trust's shares, and HARTFORD LIFE INSURANCE COMPANY, a
life insurance company organized under the laws of the State of Connecticut (the
"Company"), on its own behalf and on behalf of each segregated asset account of
the Company set forth on Schedule A, as may be amended from time to time (the
"Accounts").
WITNESSETH:
WHEREAS, the Trust has registered with the Securities and Exchange Commission as
an open-end management investment company under the Investment Company Act of
1940, as amended (the "1940 Act"), and has registered the offer and sale of its
Service Shares ("shares") under the Securities Act of 1933, as amended (the
"1933 Act"); and
WHEREAS, the Trust desires to act as an investment vehicle for separate accounts
established for variable life insurance policies and variable annuity contracts
to be offered by insurance companies that have entered into participation
agreements with the Trust (the "Participating Insurance Companies"); and
WHEREAS, the beneficial interest in the Trust is divided into several series of
shares, each series representing an interest in a particular managed portfolio
of securities and other assets (the "Portfolios"); and
WHEREAS, the Trust has received an order from the Securities and Exchange
Commission ("SEC") granting Participating Insurance Companies and their separate
accounts exemptions from the provisions of Sections 9(a), 13(a), 15(a) and 15(b)
of the 1940 Act, and Rules 6e-2(b)(l5) and 6e-3(T)(b)(15) thereunder, to the
extent necessary to permit shares of the Trust to be sold to and held by
variable annuity and variable life insurance separate accounts of both
affiliated and unaffiliated life insurance companies and certain qualified
pension and retirement plans (the "Exemptive Order"); and
WHEREAS, the Company has registered or will register (unless registration is not
required under applicable law) certain variable life insurance policies under
the 1933 Act (the "Contracts"); and
WHEREAS, the Company has registered or will register (unless registration is not
required under applicable law) each Account as a unit investment trust under the
1940 Act; and
1
WHEREAS, the Company desires to utilize shares of one or more Portfolios as an
investment vehicle of the Accounts; and
WHEREAS, the Distributor serves as distributor of the Trust's shares;
NOW, THEREFORE, in consideration of their mutual promises, the parties agree as
follows:
ARTICLE I
SALE OF TRUST SHARES
1.1 The Trust shall make shares of its Portfolios available to the
Accounts at the net asset value next computed after receipt of such purchase
order by the Trust (or its agent), as established in accordance with the
provisions of the then current prospectus of the Trust. Shares of a particular
Portfolio of the Trust shall be ordered in such quantities and at such times as
determined by the Company to be necessary to meet the requirements of the
Contracts. The Trustees of the Trust (the "Trustees") may refuse to sell shares
of any Portfolio to any person, or suspend or terminate the offering of shares
of any Portfolio if such action is required by law or by regulatory authorities
having jurisdiction or is, in the sole discretion of the Trustees acting in good
faith and in light of their fiduciary duties under federal and any applicable
state laws, necessary in the best interests of the shareholders of such
Portfolio.
1.2 The Trust will redeem any full or fractional shares of any Portfolio
when requested by the Company on behalf of an Account at the net asset value
next computed after receipt by the Trust (or its agent) of the request for
redemption, as established in accordance with the provisions of the then current
prospectus of the Trust. The Trust shall make payment for such shares in the
manner established from time to time by the Trust, but in no event shall payment
be delayed for a greater period than is permitted by the 0000 Xxx.
1.3 For the purposes of Sections 1.1 and 1.2, the Trust hereby appoints
the Company as its agent for the limited purpose of receiving and accepting
purchase and redemption orders resulting from investment in and payments under
the Contracts. Receipt by the Company shall constitute receipt by the Trust
provided that i) such orders are received by the Company in good order prior to
the time the net asset value of each Portfolio is priced in accordance with its
prospectus and ii) the Trust receives notice of such orders by 10:00 a.m. New
York time on the next following Business Day. "Business Day" shall mean any day
on which the New York Stock Exchange is open for trading and on which the Trust
calculates its net asset value pursuant to the rules of the SEC.
1.4 Purchase orders that are transmitted to the Trust in accordance with
Section 1.3 shall be paid for no later than 12:00 noon New York time on the same
Business Day that the Trust receives notice of the order. Payments shall be made
in federal funds transmitted by wire.
2
1.5 Issuance and transfer of the Trust's shares will be by book entry
only. Stock certificates will not be issued to the Company or the Account.
Shares ordered from the Trust will be recorded in the appropriate title for each
Account or the appropriate subaccount of each Account.
1.6 The Trust shall furnish the Company with advance notice of any income
dividends or capital gain distributions payable on the Trust's shares. The
Company hereby elects to receive all such income dividends and capital gain
distributions as are payable on a Portfolio's shares in additional shares of
that Portfolio. The Trust shall notify the Company of the number of shares so
issued as payment of such dividends and distributions. The Company reserves the
right to revoke this election and to receive all such dividends and capital
gains distributions in cash.
1.7 The Trust shall make the net asset value per share for each Portfolio
available to the Company on a daily basis as soon as reasonably practical after
the net asset value per share is calculated and shall use its best efforts to
make such net asset value per share available by 6 p.m. New York time. If the
Trust provides materially incorrect share net asset value information through no
fault of the Company, the Separate Account shall be entitled to an adjustment
with respect to the Fund shares purchased or redeemed to reflect the correct net
asset value per share. The determination of the materiality of any net asset
value pricing error shall be based on the SEC's recommended guidelines regarding
these errors. The correction of any such errors will be made pursuant to the
SEC's recommended guidelines. Any material error in the calculation or reporting
of net asset value per share, dividend or capital gain information shall be
reported promptly to the Company upon discovery.
1.8 The Trust agrees that its shares will be sold only to Participating
Insurance Companies and their separate accounts and to certain qualified pension
and retirement plans to the extent permitted by the Exemptive Order. No shares
of any Portfolio will be sold directly to the general public. The Company agrees
that Trust shares will be used only for the purposes of funding the Contracts
and Accounts listed in Schedule A, as amended from time to time.
1.9 The Trust agrees that all Participating Insurance Companies shall
have the obligations and responsibilities regarding pass-through voting and
conflicts of interest corresponding to those contained in Section 2.8 and
Article IV of this Agreement.
ARTICLE II
OBLIGATIONS OF THE PARTIES
2.1 The Trust shall prepare and be responsible for filing with the SEC
and any state regulators requiring such filing all shareholder reports, notices,
proxy materials (or similar materials such as voting instruction solicitation
materials), prospectuses and statements of additional information of the Trust.
The Trust shall
3
bear the costs of registration and qualification of its shares, preparation and
filing of the documents listed in this Section 2.1 and all taxes to which an
issuer is subject on the issuance and transfer of its shares.
2.2 At the option of the Company, the Trust shall either (a) provide the
Company (at the Company's expense) with as many copies of the Trust's current
prospectus, annual report, semi-annual report and other shareholder
communications, including any amendments or supplements to any of the
foregoing, as the Company shall reasonably request; or (b) provide the Company
with a camera ready copy of such documents in a form suitable for printing. The
Trust shall provide the Company with a copy of its statement of additional
information in a form suitable for duplication by the Company. The Trust (at its
expense) shall provide the Company with copies of any Trust-sponsored proxy
materials in such quantity as the Company shall reasonably require for
distribution to Contract owners.
2.3 (a) The Company shall bear the costs of printing and distributing
the Trust's prospectus, statement of additional information, shareholder reports
and other shareholder communications to owners of and applicants for policies
for which the Trust is serving or is to serve as an investment vehicle. The
Company shall bear the costs of distributing proxy materials (or similar
materials such as voting solicitation instructions) to Contract owners. The
Company assumes sole responsibility for ensuring that such materials are
delivered to Contract owners in accordance with applicable federal and state
securities laws.
(b) If the Company elects to include any materials provided by the Trust,
specifically prospectuses, SAIs, shareholder reports and proxy materials, on its
web site or in any other computer or electronic format, the Company assumes sole
responsibility for maintaining such materials in the form provided by the Trust
and for promptly replacing such materials with all updates provided by the
Trust.
2.4 (a) The Company agrees and acknowledges that the Trust's adviser,
Janus Capital Corporation ("Janus Capital"), is the sole owner of the name and
xxxx "Xxxxx" and that all use of any designation comprised in whole or part of
Janus (a "Xxxxx Xxxx") under this Agreement shall inure to the benefit of Janus
Capital. Except as provided in Section 2.5, the Company shall not use any Xxxxx
Xxxx on its own behalf or on behalf of the Accounts or Contracts in any
registration statement, advertisement, sales literature or other materials
relating to the Accounts or Contracts without the prior written consent of Janus
Capital. Upon termination of this Agreement for any reason, the Company shall
cease all use of any Xxxxx Xxxx(s) as soon as reasonably practicable.
(b) The Trust and Distributor agree and acknowledge that the Company is
the sole owner of the name and xxxx "Hartford" and that all use of any
designation comprised in whole or part of Hartford (a "Xxxxxxxx Xxxx") under
this Agreement shall inure to the benefit of the Company. Except as provided in
Section 2.5, neither the Trust nor the Distributor will use any Xxxxxxxx Xxxx in
any registration statement, advertisement, sales literature or other materials
relating to the Trust without the prior
4
written consent of Hartford. Upon removal of the Portfolios from the Accounts
for any reason, the Trust and the Distributor shall cease all use of any
Xxxxxxxx Xxxx(s) as soon as reasonably practicable.
2.5 The Company shall furnish, or cause to be furnished, to the Trust or
its designee, a Private Placement Memorandum ("PPM") or prospectus, as required
by applicable law, in which the Trust or its investment adviser is named. The
Company shall furnish, or shall cause to be furnished, to the Trust or its
designee, each piece of sales literature or other promotional material in which
the Trust or its investment adviser is named, at least ten Business Days prior
to its use. No such material shall be used if the Trust or its designee
reasonably objects to such use within ten Business Days after receipt of such
material.
2.6 The Company shall not give any information or make any
representations or statements on behalf of the Trust or concerning the Trust or
its investment adviser in connection with the sale of the Contracts other than
information or representations contained in and accurately derived from the
registration statement or prospectus for the Trust shares (as such registration
statement and prospectus may be amended or supplemented from time to time),
reports of the Trust, Trust-sponsored proxy statements, or in sales literature
or other promotional material approved by the Trust or its designee, except as
required by legal process or regulatory authorities or with the written
permission of the Trust or its designee.
2.7 Neither the Trust nor the Distributor shall give any information or
make any representations or statements on behalf of the Company or concerning
the Company, the Accounts or the Contracts other than information or
representations contained in and accurately derived from the PPM for the
Contracts (as such PPM may be amended or supplemented from time to time), the
prospectus for the Contracts, or in materials approved by the Company for
distribution including sales literature or other promotional materials, except
as required by legal process or regulatory authorities or with the written
permission of the Company.
2.8 For its registered Accounts, so long as, and to the extent that the SEC
interprets the 1940 Act to require pass-through voting privileges for variable
policyowners, the Company will provide pass-through voting privileges to owners
of policies whose cash values are invested, through the Accounts, in shares of
the Trust. The Trust shall require all Participating Insurance Companies to
calculate voting privileges in the same manner and the Company shall be
responsible for assuring that the Accounts calculate voting privileges in the
manner established by the Trust. With respect to each Account, the Company will
vote shares of the Trust held by the Account and for which no timely voting
instructions from policyowners are received as well as shares it owns that are
held by that Account, in the same proportion as those shares for which voting
instructions are received. The Company and its agents will in no way recommend
or oppose or interfere with the solicitation of proxies for Trust shares held by
Contract owners without the prior written consent of the Trust, which consent
may be withheld in the Trust's sole discretion.
5
2.9 For its unregistered Accounts which are exempt from registration
under the 1940 Act in reliance upon Section 3(c)(l) or Section 3(c)(7) thereof,
the Company represents and agrees that:
(a) the principal underwriter for each such unregistered Account and
its subaccounts is registered as a broker-dealer under the
Securities and Exchange Act of 1934 (the "1934 Act");
(b) the shares of the Series of the Trust are and will continue to be
the only investment securities held by the corresponding Account
subaccounts; and
(c) with regard to each Series, the Company, on behalf of the
corresponding Account 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 approves such substitution in the
manner provided in Section 26 of the 1940 Act.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
3.1 The Company represents and warrants that it is an insurance company
duly organized and in good standing under the laws of the State of Connecticut
and that it has legally and validly established each Account as a segregated
asset account under such law on the date set forth in Schedule A.
3.2 The Company represents and warrants that each Account has been
registered or, prior to any issuance or sale of the Contracts, will be
registered unless an exemption from registration is available, as a unit
investment trust in accordance with the provisions of the 0000 Xxx.
3.3 The Company represents and warrants that the Contracts or interests
in the Accounts (1) are or, prior to issuance, will be registered as securities
under the 1933 Act or, alternatively (2) are not registered because they are
properly exempt from registration under the 1933 Act or will be offered
exclusively in transactions that are properly exempt from registration under the
1933 Act. The Company further represents and warrants that the Contracts will be
issued and sold in compliance in all material respects with all applicable
federal and state laws; and the sale of the Contracts shall comply in all
material respects with state insurance requirements.
6
3.4 The Trust represents and warrants that it is duly organized and
validly existing under the laws of the State of Delaware.
3.5 The Trust represents and warrants that the Trust shares offered and
sold pursuant to this Agreement will be registered under the 1933 Act and the
regulations thereunder to the extent required and the Trust is and shall remain
registered under the 1940 Act and the regulations thereunder to the extent
required prior to any issuance or sale of such shares. The Trust shall amend its
registration statement 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 its shares for sale in accordance with the laws of
the various states only if and to the extent deemed advisable by the Trust.
Trust shares shall be duly authorized for issuance in accordance with the laws
of each jurisdiction which shares will be offered. Trust shares shall be sold in
compliance with all applicable federal state securities laws and regulations.
3.6 The Trust represents and warrants that the investments of each
Portfolio will comply with the diversification requirements for variable
annuity, endowment or life insurance contracts, set forth in Section 817(h) of
the Internal Revenue Code of 1986, as amended, and the rules and regulations
thereunder. In the event the Portfolios cease to qualify, the Trust will take
reasonable steps (i) to notify the Company immediately of such event and (ii) to
adequately diversify the Portfolios so as to achieve compliance within the grace
period afforded by Regulation 817-5.
3.7 The Distributor represents and warrants that it is registered as a
broker-dealer under the Securities Exchange Act of 1934.
ARTICLE IV
POTENTIAL CONFLICTS
4.1 The parties acknowledge that the Trust's shares may be made available
for investment to other Participating Insurance Companies. In such event, the
Trustees will monitor the Trust for the existence of any material irreconcilable
conflict between the interests of the contract owners of all Participating
Insurance Companies. An irreconcilable material conflict may arise for a variety
of reasons, including: (a) an action by any state insurance regulatory
authority; (b) a change in applicable federal or state insurance, tax, or
securities laws or regulations, or a public ruling, private letter ruling,
no-action or interpretative letter, or any similar action by insurance, tax, or
securities regulatory authorities; (c) an administrative or judicial decision in
any relevant proceeding; (d) the manner in which the investments of any
Portfolio are being managed; (e) a difference in voting instructions given by
variable annuity contract and variable life insurance contract owners; or (f) a
decision by an insurer to disregard the voting instructions of contract owners.
The Trustees shall promptly inform the Company if they determine that an
irreconcilable material conflict exists and the implications thereof.
7
4.2 The Company agrees to promptly report any potential or existing
material irreconcilable conflicts of which it is aware to the Trustees. The
Company will assist the Trustees in carrying out their responsibilities under
the Exemptive Order by providing the Trustees with all information reasonably
necessary for the Trustees to consider any issues raised including, but not
limited to, information as to a decision by the Company to disregard Contract
owner voting instructions.
4.3 If it is determined by a majority of the Trustees, or a majority of
its disinterested Trustees, that a material irreconcilable conflict exists that
affects the interests of Contract owners, the Company shall, in cooperation with
other Participating Insurance Companies whose contract owners are also affected,
at its expense and to the extent reasonably practicable (as determined by the
Trustees) take whatever steps are necessary to remedy or eliminate the
irreconcilable material conflict, which steps could include: (a) withdrawing the
assets allocable to some or all of the Accounts from the Trust or any Portfolio
and reinvesting such assets in a different investment medium, including (but not
limited to) another Portfolio of the Trust, or submitting the question of
whether or not such segregation should be implemented to a vote of all affected
Contract owners and, as appropriate, segregating the assets of any appropriate
group (I.E., annuity contract owners, life insurance contract owners, or
variable contract owners of one or more Participating Insurance Companies) that
votes in favor of such segregation, or offering to the affected Contract owners
the option of making such a change; and (b) establishing a new registered
management investment company or managed separate account.
4.4 If a material irreconcilable conflict arises because of a decision by
the Company to disregard Contract owner voting instructions and that decision
represents a minority position or would preclude a majority vote, the Company
may be required, at the Trust's election, to withdraw the affected Account's
investment in the Trust and terminate this Agreement with respect to such
Account; provided, however that such withdrawal and termination shall be limited
to the extent required by the foregoing material irreconcilable conflict as
determined by a majority of the disinterested 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. Until the end of such six (6)
month period, the Trust shall continue to accept and implement orders by the
Company for the purchase and redemption of shares of the Trust.
4.5 If a material irreconcilable conflict arises because a particular
state insurance regulator's decision applicable to the Company conflicts with
the majority of other state regulators, then the Company will withdraw the
affected Account's investment in the Trust and terminate this Agreement with
respect to such Account within six (6) months after the Trustees inform the
Company in writing that it has determined that such decision has created an
irreconcilable material conflict; provided, however, that such withdrawal and
termination shall be limited to the extent required by the foregoing material
irreconcilable conflict as determined by a majority of the disinterested
Trustees. Until the end of such six (6) month period, the Trust shall continue
to accept and implement orders by the Company for the purchase and redemption of
shares of the Trust.
8
4.6 For purposes of Sections 4.3 through 4.6 of this Agreement, a
majority of the disinterested Trustees shall determine whether any proposed
action adequately remedies any irreconcilable material conflict, but in no event
will the Company be required to establish a new funding medium for the Contracts
if an offer to do so has been declined by vote of a majority of Contract owners
materially adversely affected by the irreconcilable material conflict. In the
event that the Trustees determine that any proposed action does not adequately
remedy any irreconcilable material conflict, then the Company will withdraw the
Account's investment in the Trust and terminate this Agreement within six (6)
months after the Trustees inform that 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 disinterested Trustees.
4.7 The Company shall at least annually submit to the Trustees such
reports, materials or data as the Trustees may reasonably request so that the
Trustees may fully carry out the duties imposed upon them by the Exemptive
Order, and said reports, materials and data shall be submitted more frequently
if deemed appropriate by the Trustees.
4.8 If and to the extent that Rule 6e-2 and Rule 6e-3(T) are amended, or
Rule 6e-3 is adopted, to provide exemptive relief from any provision of the 1940
Act or the rules promulgated thereunder with respect to mixed or shared finding
(as defined in the Exemptive Order) on terms and conditions materially different
from those contained in the Exemptive Order, then the Trust and/or the
Participating Insurance Companies, as appropriate, shall take such steps as may
be necessary to comply with Rules 6e-2 and 6e-3(T), as amended, and Rule 6e-3,
as adopted, to the extent such rules are applicable.
ARTICLE V
INDEMNIFICATION
5.1 Indemnification by the Company
(a) Company agrees to indemnify and hold harmless the Trust, the
Distributor, and each of their Directors, Trustees, officers, employees and
agents and each person, if any, who controls the Trust within the meaning of
Section 15 of the 1933 Act (collectively, the "Non-Company Indemnified Parties")
against any and all losses, claims, damages, liabilities (including amounts paid
in settlement with the written consent of 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 Portfolio shares or
the Contracts and:
9
(i) Arise out of or are based upon any untrue statement or alleged
untrue statement of any material fact contained in the registration
statement, prospectus or PPM for the Contracts or contained in the Contracts
or sales literature 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 statement therein not misleading, provided
that this agreement to indemnify shall not apply as to any Non-Company
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 Trust for use in the
registration statement or prospectus for the Contracts or in the Contracts or
sales literature (or any amendment or supplement) or otherwise for use in
connection with the sale of the Contracts or Portfolio 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 Trust not supplied by the
Company or persons under its control, and other than statements or
representations authorized by the Trust) or unlawful conduct of the Company
or persons under its control, with respect to the sale or distribution of the
Contracts or Portfolio shares; or
(iii) Arise out of or as a result of any untrue statement or alleged
untrue statement of a material fact contained in a registration statement,
prospectus, or sales 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
statements therein not misleading, if such statement or omission was made in
reliance upon and in conformity with information furnished to the Trust by or
on behalf of the Company; or
(iv) Arise as a result of 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 other material breach of this Agreement by the
Company.
(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 a Non-Company Indemnified Party as such may arise from such
Non-Company Indemnified Party's willful malfeasance or negligence in the
performance of such Non-Company Indemnified Party's duties or by reason of such
10
Non-Company Indemnified Party's failure to fulfill its obligations or duties
under this Agreement.
(c) The Company shall not be liable under this indemnification provision
with respect to any claim made against a Non-Company Indemnified Party unless
such Non-Company 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 shall have been served upon such
Non-Company Indemnified Party (or after such Non-Company Indemnified Party
shall have received notice of such service on any 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 Non-Company 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 Non Company
Indemnified Parties, the Company shall be entitled to participate, at its own
expense, in the defense of such action. The Company shall also be entitled to
assume the defense thereof, with counsel satisfactory to the party named in the
action. After notice from the Company to such party of the Company's election to
assume the defense thereof, the Non-Company Indemnified Party shall bear the
fees and expenses under this Agreement for 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 Non-Company 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 Portfolio shares or the Contracts or the
operation of the Trust or the Company's failure to perform any of its
obligations hereunder if Non-Company Indemnified Party intends to seek
indemnification hereunder.
5.2 Indemnification by the Trust.
(a) The Trust agrees to indemnify and hold harmless the Company and
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 "Company
Indemnified Parties") against any and all losses, claims, damages, liabilities
(including amounts paid in settlement with the written consent of the Trust) 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, claim, damages, liabilities or expenses (or actions in
respect thereof) or settlements are related to the operations of the Trust 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 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
11
stated therein or necessary to make the statement therein not misleading,
provided that this agreement to indemnify shall not apply as to any Company
Indemnified Party if such statement or omission or such alleged statement or
omission was made in reliance upon and in conformity with information
furnished to the Trust by or on behalf of the Company for use in the
registration statement or prospectus for the Trust or in sales literature (or
any amendment or supplement) or otherwise for use in connection with the sale
of the Contracts or Portfolio 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 for the Contracts not
supplied by the Trust or persons under its control and other than statements
or representations authorized by the Company) or unlawful conduct of the
Trust or persons under its control, with respect to the sale or distribution
of the Contracts or Portfolio shares; or
(iii) Arise out of or as a result of any untrue statement or
alleged untrue statement of a material fact contained in a registration
statement, prospectus, or sales literature covering 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; or
(iv) Arise as a result of any failure by the Trust 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 Trust in this Agreement or arise
out of or result from any other material breach of this Agreement by the
Trust.
(b) The Trust shall not be liable under this indemnification
provision with respect to any losses, claims, damages, liabilities or litigation
incurred or assessed against Company Indemnified Party as may arise from such
Company Indemnified Party's willful malfeasance or negligence in the performance
of such Company Indemnified Party's duties or by reason of such Company
Indemnified Party's failure to fulfill its obligations and duties under this
Agreement.
(c) The Trust shall not be liable under this indemnification
provision with respect to any claim made against a Company Indemnified Party
unless such Company Indemnified Party shall have notified the Trust 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 Company
Indemnified Party (or after such Company Indemnified Party shall have received
notice of such service on any designated agent), but failure to notify the Trust
of any such claim shall not
12
relieve the Trust from any liability which it may have to the Company
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 Company Indemnified Parties, the Trust shall be entitled to participate, at
its own expense, in the defense of such action. The Trust also shall be
entitled to assume the defense thereof, with counsel satisfactory to the party
named in the action. After notice from the Trust to such party of the Trust's
election to assume the defense thereof, the Company Indemnified Party shall
bear the fees and expenses of any additional counsel retained by it, and the
Trust 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 Company will promptly notify the Trust of the commencement
of any litigation or proceedings against it or any of its officers or directors
in connection with this Agreement, with the issuance or sale of the Contracts,
with respect to the operation of each Separate Account, with the sale or
acquisition of shares of the Portfolios or with the failure of the Trust to
perform any of its obligations hereunder.
5.3 Indemnification by the Distributor.
(a) The Distributor agrees to indemnify and hold harmless the
Company and 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
"Company Indemnified Parties") against any and all losses, claims, damages,
liabilities (including amounts paid in settlement with the written consent of
the Distributor) 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, claim, damages, liabilities or
expenses (or actions in respect thereof) or settlements are related to the
operations of the Distributor 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 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 Company
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 Trust by or on behalf of the Company for use in the
registration statement or prospectus for the Trust or in sales literature (or
any amendment or supplement) or otherwise for use in connection with the sale
of the Contracts or Portfolio shares; or
(ii) Arise out of or as a result of statements or
representations (other than statements or representations contained in the
13
registration statement, prospectus or sales literature for the Contracts not
supplied by the Distributor or persons under its control and other than
statements or representations authorized by the Company) or unlawful conduct
of the Distributor or persons under its control, with respect to the sale or
distribution of the Contracts or Portfolio shares; or
(iii) Arise out of or as a result of any untrue statement or
alleged untrue statement of a material fact contained in a registration
statement, prospectus, or sales literature covering 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 Distributor; or
(iv) Arise as a result of any failure by the Distributor 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 in this Agreement or
arise out of or result from any other material breach of this Agreement by
the Distributor.
(b) The Distributor shall not be liable under this indemnification
provision with respect to any losses, claims, damages, liabilities or litigation
incurred or assessed against Company Indemnified Party as may arise from such
Company Indemnified Party's willful malfeasance or negligence in the performance
of such Company Indemnified Party's duties or by reason of such Company
Indemnified Party's failure to fulfill its obligations and duties under this
Agreement.
(c) The Distributor shall not be liable under this indemnification
provision with respect to any claim made against a Company Indemnified Party
unless such Company Indemnified Party shall have notified the Trust 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
Company Indemnified Party (or after such Company Indemnified Party shall have
received notice of 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 Company 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 Company Indemnified Parties, the
Distributor shall be entitled to participate, at its own expense, in the defense
of such action. The Distributor 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 Company 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
14
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 Company will promptly notify the Distributor of the
commencement of any litigation or proceedings against it or any of its officers
or directors in connection with this Agreement, with the issuance or sale of the
Contracts, with respect to the operation of each Separate Account, with the sale
or acquisition of shares of the Portfolios or with the failure of the
Distributor to perform any of its obligations hereunder.
ARTICLE VI
TERMINATION
6.1 This Agreement may be terminated by
(a) any party for any reason by six months advance written notice
delivered to the other parties;
(b) immediately, at the option of the Company upon completion of
formal proceedings against the Trust or the Distributor by the NASD, the SEC, or
any state securities or insurance department or any other regulatory body if the
Company shall determine, in its sole judgement exercised in good faith, that the
Trust has suffered a material adverse change in its business, operations,
financial condition, or prospectus since the date of this Agreement or is the
subject of material adverse publicity;
(c) immediately, at the option of the Trust or Distributor upon
completion of formal proceedings against the Company by the NASD, the SEC, or
any state securities or insurance department or any other regulatory body if the
Trust or Distributor shall determine, in its sole judgement 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;
(d) immediately, at the option of any party to the Agreement upon a
determination by a majority of the Trustees of the Trust, or a majority of
disinterested Trustees, that an irreconcilable material conflict exists;
(e) immediately, at the option of the Company upon a material
breach of this Agreement or of any representation or warranty herein by the
Trust, or at the option of the Trust or upon a material breach of this Agreement
or any representation or warranty herein by the Company.
6.2 (a) Notwithstanding any termination of this Agreement, the Trust
shall, at the option of the Company, continue to make available additional
shares of the Trust (or any Portfolio) pursuant to the terms and conditions of
this Agreement for
15
all Contracts in effect on the effective date of termination of this Agreement
(the "Existing Contracts"), provided that the Company continues to pay the costs
set forth in Section 2.3 unless such further sale of Trust shares is proscribed
by law, regulation or applicable regulatory body. Specifically, without
limitation, the owners of the Existing Contracts will be permitted to direct
allocation and reallocation of investments in the Portfolios, redeem
investments in the Trust and invest in the Trust through additional purchase
payments.
(b) The Company agrees not to redeem Trust shares attributable to
the Contracts except (i) as necessary to implement Contract owner initiated or
approved transactions, or (ii) as required by state and/or federal laws or
regulations or judicial or other legal precedent of general application or (iii)
as permitted by an order of the SEC. Upon request, the Company will promptly
furnish to the Trust the opinion of counsel for the Company to the effect that
any redemption pursuant to clause (ii) above is a legally required redemption.
6.3 The provisions of Article V shall survive the termination of this
Agreement, and the provisions of Article IV and Section 2.8 shall survive the
termination of this Agreement as long as shares of the Trust are held on behalf
of Contract owners in accordance with Section 6.2.
ARTICLE VII
NOTICES
Any notice shall be sufficiently given when sent by registered or certified mail
to the other party at the address of such party set forth below or at such other
address as such party may from time to time specify in writing to the other
party.
If to the Trust:
Janus Aspen Series
000 Xxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxx 00000
Attention: General Counsel
If to the Distributor:
Janus Distributors, Inc.
l00 Xxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxx 00000
Attention: General Counsel
16
If to the Company:
Hartford Life Insurance Company
000 Xxxxxxxxx Xx.
Xxxxxxxx, XX 00000
Attention: Xxxxxx Xxxxx, President
with a copy to:
International Corporate Marketing Group
000 Xxxxxx Xxxxx, Xxxxx 000
Xxxxxxx Xxxx, XX 00000-0000
Attention: President
ARTICLE VIII
MISCELLANEOUS
8.1 The captions in this Agreement are included for convenience of
reference only and in no way define or delineate any of the provisions hereof or
otherwise affect their construction or effect.
8.2 This Agreement may be executed simultaneously in two or more
counterparts, each of which taken together shall constitute one and the same
instrument.
8.3 If any provision of this Agreement shall be held or made invalid by a
court decision, statute, rule or otherwise, the remainder of the Agreement shall
not be affected thereby.
8.4 This Agreement shall be construed and the provisions hereof
interpreted under and in accordance with the laws of State of Colorado.
8.5 The parties to this Agreement acknowledge and agree that all
liabilities of the Trust arising, directly or indirectly, under this Agreement,
of any and every nature whatsoever, shall be satisfied solely out of the assets
of the Trust and that no Trustee, officer, agent or holder of shares of
beneficial interest of the Trust shall be personally liable for any such
liabilities.
8.6 Each party shall cooperate with each other party and all appropriate
governmental authorities (including without limitation the SEC, the National
Association of Securities Dealers, Inc., 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.
17
8.7 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.
8.8 The parties to this Agreement acknowledge and agree that this
Agreement shall not be exclusive in any respect.
8.9 Neither this Agreement nor any rights or obligations hereunder may be
assigned by either party without the prior written approval of the other party.
8.10 No provisions of this Agreement may be amended or modified in any
manner except by a written agreement properly authorized and executed by duly
authorized officers of both parties.
8.11 This Agreement, its terms and definitions, shall be subject to the
provisions of the 1933 Act, the Securities Exchange Act of 1934 and the 1940
Act, and the rules and regulations and rulings thereunder, including such
exemptions from those statutes, rules and regulations as the SEC may grant.
IN WITNESS WHEREOF, the parties have caused their duly authorized officers to
execute this Participation Agreement as of the date and year first above
written.
JANUS ASPEN SERIES
By: /s/ Xxxxxx X. Xxxx
-----------------------------------------
Name: Xxxxxx X. Xxxx
---------------------------------------
Title: Vice President
--------------------------------------
JANUS DISTRIBUTORS, INC.
By: /s/ Xxxxxxxx X. Xxxxx
-----------------------------------------
Name: Xxxxxxxx X. Xxxxx
---------------------------------------
Title: Asst. Vice President
--------------------------------------
HARTFORD LIFE INSURANCE COMPANY
By: /s/ Xxxxx X. Xxx Xxxxx
-----------------------------------------
Name: Xxxxx X. Xxx Xxxxx
---------------------------------------
Title: Asst. Vice President
--------------------------------------
18
SCHEDULE A
SEPARATE ACCOUNTS AND ASSOCIATED CONTRACTS
NAME OF SEPARATE ACCOUNT AND CONTRACTS FUNDED
DATE ESTABLISHED BY BOARD OF DIRECTORS BY SEPARATE ACCOUNT
-------------------------------------- -------------------
Separate Account ICMG Series III-B (February 8, GVL-93P
1996)
Separate Account ICMG Series VII (April 1, IVL-99P
1999)
Separate Account ICMG Series VII (April 1, GVL-93P
1999)
ICMG Registered Variable Life Separate Account GVL-95P
A (April 14, 1998)
19
AMENDMENT #1 TO THE
FUND PARTICIPATION AGREEMENT DATED MAY 1, 2000 BETWEEN
HARTFORD LIFE INSURANCE COMPANY, JANUS ASPEN SERIES
AND JANUS DISTRIBUTORS, INC. FOR SERVICE SHARES
All defined terms in the Agreement are applicable to this Amendment.
Effective September 1, 2000, the Agreement is amended as follows:
Exhibit A is hereby deleted in its entirety and replaced with the following:
EXHIBIT A
Name of Separate Account
Separate Account ICMG Series II-C
Separate Account ICMG Series III-B
Separate Account ICMG Series VII
ICMG Registered Variable Life Separate Account A
In Witness Whereof, the following duly authorized officers have caused this
one (1) page Amendment to be executed:
HARTFORD LIFE INSURANCE COMPANY
By: /s/ Xxxxx X. Xxx Xxxxx
------------------------------------
As its: Vice President
------------------------------------
Date: 9/5/00
------------------------------------
JANUS ASPEN SERIES
By: /s/ Xxxxxx Xxxx
------------------------------------
As its: Vice President
------------------------------------
Date: 8/30/2000
------------------------------------
JANUS DISTRIBUTORS, INC.
By: /s/ [Illegible]
------------------------------------
As its: Vice President
------------------------------------
Date: 8/30/00
------------------------------------
AMENDMENT #2 TO THE
FUND PARTICIPATION AGREEMENT DATED MAY 1, 2000 BETWEEN
HARTFORD LIFE INSURANCE COMPANY, JANUS ASPEN SERIES
AND JANUS DISTRIBUTORS LLC FOR SERVICE SHARES
All defined terms in the Agreement are applicable to this Amendment. Effective
April 5, 2004, the Agreement is amended as follows:
Exhibit A is hereby deleted in its entirety and replaced with the attached.
In Witness Whereof, the following duly authorized officers have caused this
Amendment to be executed:
HARTFORD LIFE INSURANCE COMPANY
By: /s/ [Illegible]
------------------------------------
As its: AVP
------------------------------------
Date: 4/3/04
------------------------------------
JANUS ASPEN SERIES
By: /s/ Xxxxxx X. Xxxx
------------------------------------
Xxxxxx X. Xxxx
As its: Vice President
------------------------------------
Date: 4/5/04
------------------------------------
JANUS DISTRIBUTORS LLC
By: /s/ Xxxxxx X. Xxxx
------------------------------------
Xxxxxx X. Xxxx
As its: Vice President
------------------------------------
Date: 4/5/04
------------------------------------
EXHIBIT A
NAME OF SEPARATE ACCOUNT AND DATE
ESTABLISHED BY BOARD OF DIRECTORS
---------------------------------
Separate Account ICMG Series II-C (December 12, 1997)
Separate Account ICMG Series III-B (February 8, 1996)
Separate Account ICMG Series VII (April 1, 1999)
ICMG Registered Variable Life Separate Account A (April 14, 1998)
Separate Account ICMG Series IV (April 17, 1995)
THIRD AMENDMENT TO THE FUND PARTICIPATION AGREEMENT
Between JANUS ASPEN SERIES, JANUS DISTRIBUTORS, INC. and HARTFORD LIFE
INSURANCE COMPANY
(SERVICE SHARES)
THIS AMENDMENT is made and entered into as of the 25th day of October, 2007
between HARTFORD LIFE INSURANCE COMPANY (the "Company") a life insurance
company organized under the laws of the State of Connecticut, on its own behalf
and on behalf of each segregated asset account of the Company set forth on
Schedule A as may be amended from time to time (the "Accounts"), JANUS ASPEN
SERIES, an open-end management investment company organized as a Delaware
business trust (the "Trust") and JANUS DISTRIBUTORS, INC., a Colorado
corporation and distributor of the Trust's shares ("Underwriter") in order to
modify that certain Fund Participation Agreement (the "Agreement") entered into
by the parties as of May 1, 2000.
WHEREAS, the parties desire to amend the Agreement to allow for the addition of
a certain Fund or Funds,
NOW, THEREFORE, the parties agree as follows:
1. Schedule A shall be replaced by the attached Schedule A.
2. This Amendment may be executed in counterparts, each of which shall be an
original and both of which shall constitute one instrument.
IN WITNESS HEREOF, the parties hereto have executed and delivered this Amendment
effective as of the date first written above.
HARTFORD LIFE INSURANCE COMPANY JANUS ASPEN SERIES
By: /s/ Xxxxxxx X. Xxxx By: /s/ Xxxxxx X. Xxxxxx
---------------------------- -----------------------------
Name: Xxxxxxx X. Xxxx Name: Xxxxxx X. Xxxxxx
---------------------------- -----------------------------
Title: AVP Title: President
---------------------------- -----------------------------
Date: 10/25/2007 Date: 11/6/2007
---------------------------- -----------------------------
JANUS DISTRIBUTORS, INC.
By: /s/ Xxxxxxx X. Xxxxxxxxxx
----------------------------
Name: Xxxxxxx X. Xxxxxxxxxx
----------------------------
Title: President
----------------------------
Date: 11/8/2007
----------------------------
1 of 2
SCHEDULE A
SEPARATE ACCOUNTS AND ASSOCIATE CONTRACTS
NAME OF SEPARATE ACCOUNT AND CONTRACTS FUNDED
DATE ESTABLISHED BY BOARD OF DIRECTORS BY SEPARATE ACCOUNT
-------------------------------------- -------------------
Separate Account ICMG Series III-B (Feb. 8, 1996) GVL-93P
Separate Account ICMG Series VII (April 1, 1999) IVL-99P
Separate Account ICMG Series VII (April 1, 1999) GVL-93P
ICMG Registered Variable Life Separate Account A GVL-95P
(April 14, 1998)
Hartford Life Insurance Company HL-15420
Separate Account Eleven
2 of 2
