EXHIBIT 8.12
FUND PARTICIPATION AGREEMENT
Strong Variable Insurance Funds, Inc.
TABLE OF CONTENTS
ARTICLE I. Sale of Fund Shares . . . . . . . . . . . . . . . .4
ARTICLE II. Representations and Warranties. . . . . . . . . . .8
ARTICLE III. Prospectuses and Proxy Statements; Voting . . . . 11
ARTICLE IV. Sales Material and Information. . . . . . . . . . 14
ARTICLE V. Fees and Expenses . . . . . . . . . . . . . . . . 16
ARTICLE VI. Diversification and Qualification . . . . . . . . 18
ARTICLE VII. Potential Conflicts and Compliance With
Mixed and Shared Funding Exemptive Order . . . . 21
ARTICLE VIII.Indemnification . . . . . . . . . . . . . . . . . 24
ARTICLE IX. Applicable Law. . . . . . . . . . . . . . . . . . 35
ARTICLE X. Termination . . . . . . . . . . . . . . . . . . . 36
ARTICLE XI. Notices . . . . . . . . . . . . . . . . . . . . . 40
ARTICLE XII. Miscellaneous . . . . . . . . . . . . . . . . . . 41
SCHEDULE A Contracts . . . . . . . . . . . . . . . . . . . . 44
SCHEDULE B Designated Portfolios . . . . . . . . . . . . . . 45
SCHEDULE C Administrative Services . . . . . . . . . . . . . 46
SCHEDULE D Reports per Section 6.6 . . . . . . . . . . . . . 47
SCHEDULE E Expenses. . . . . . . . . . . . . . . . . . . . . 51
PARTICIPATION AGREEMENT
Among
FIRST GREAT-WEST LIFE & ANNUITY INSURANCE COMPANY
STRONG VARIABLE INSURANCE FUNDS, INC.,
STRONG CAPITAL MANAGEMENT, INC.,
STRONG FUNDS DISTRIBUTORS
and
XXXXXXX XXXXXX & CO., INC.
THIS AGREEMENT, made and entered into as of this ____ day of
_______________, 1997 by and among FIRST GREAT-WEST LIFE & ANNUITY
INSURANCE COMPANY (hereinafter "FirstGWL&A"), a New York life
insurance
company, on its own behalf and on behalf of its Separate Account
Variable Annuity-1 Series
Account (the "Account"); STRONG VARIABLE INSURANCE FUNDS, INC., a
corporation organized under the laws of Wisconsin (hereinafter the
"Fund"); STRONG
CAPITAL MANAGEMENT, INC. (hereinafter the "Adviser"), a Wisconsin
corporation;
STRONG FUNDS DISTRIBUTORS, INC. (the "Distributor"), a Wisconsin
corporation; and
XXXXXXX XXXXXX & CO., INC., a California corporation (hereinafter
"Schwab").
WHEREAS, the Fund engages in business as an open-end
management investment
company and is available to act as the investment vehicle for
separate accounts established
for variable life insurance policies and/or variable annuity
contracts (collectively, the
"Variable Insurance Products") to be offered by insurance
companies, including
FirstGWL&A, which have entered into participation agreements
similar to this Agreement
(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
WHEREAS, the Fund has obtained an order from the Securities
and Exchange
Commission (hereinafter the "SEC"), dated July 1, 1992 (File No.
812-7863), granting
Participating Insurance Companies and variable annuity and variable
life insurance separate
accounts exemptions from the provisions of sections 9(a), 13(a),
15(a), and 15(b) of the
Investment Company Act of 1940, as amended, (hereinafter the "1940
Act") and Rules 6e-
2(b)(15) and 6e-3(T)(b)(15) thereunder, to the extent necessary to
permit shares of the Fund
to be sold to and held by variable annuity and variable life
insurance separate accounts of
life insurance companies that may or may not be affiliated with one
another and plans
established under Sections 401(a), 403(a) and (b), 408(a), (b) and
(k), 414(d) 457(b) or
501(c)(18) of the Internal Revenue Code ("Qualified Plans")
(hereinafter the "Mixed and
Shared Funding Exemptive Order"); and
WHEREAS, the Fund is registered as an open-end management
investment company
under the 1940 Act and shares of the Portfolio(s) are registered
under the Securities Act of
1933, as amended (hereinafter the "1933 Act"); and
WHEREAS, the Adviser is duly registered as an investment
adviser under the
Investment Advisers Act of 1940, as amended, and any applicable
state securities laws; and
WHEREAS, the Distributor is duly registered as a broker-dealer
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. (the "NASD");
and
WHEREAS, FirstGWL&A has registered or will register certain
variable annuity
contracts supported wholly or partially by the Account (the
"Contracts") under the 1933 Act
and said Contracts are listed in Schedule A attached hereto and
incorporated herein by
reference, as it may be amended from time to time by mutual written
agreement; and
WHEREAS, the Account is a duly organized, validly existing
segregated asset
account, established by resolution of the Board of Directors of
FirstGWL&A on January 15,
1997, to set aside and invest assets attributable to the Contracts;
and
WHEREAS, FirstGWL&A has registered or will register the
Account as a unit
investment trust under the 1940 Act and has registered or will
register the securities deemed
to be issued by the Account under the 1933 Act; and
WHEREAS, to the extent permitted by applicable insurance laws
and regulations,
FirstGWL&A intends to purchase shares in the Portfolio(s) listed in
Schedule B attached
hereto and incorporated herein by reference, as it may be amended
from time to time by
mutual written agreement (the "Designated Portfolio(s)"), on behalf
of the Account to fund
the Contracts, and the Fund is authorized to sell such shares to
unit investment trusts such
as the Account at net asset value; and
WHEREAS, to the extent permitted by applicable insurance laws
and regulations,
the Account also intends to purchase shares in other open-end
investment companies or
series thereof not affiliated with the Fund (the "Unaffiliated
Funds") on behalf of the
Account to fund the Contracts; and
WHEREAS, Schwab will perform certain services for the Fund in
connection with
the Contracts;
NOW, THEREFORE, in consideration of their mutual promises,
FirstGWL&A,
Schwab, the Fund, the Distributor and the Adviser agree as follows:
ARTICLE I. Sale of Fund Shares
1.1. The Fund agrees to sell to FirstGWL&A those shares of the
Designated
Portfolio(s) which the Account orders, executing such orders on
each Business Day at the
net asset value next computed after receipt by the Fund or its
designee of the order for the
shares of the Portfolios. For purposes of this Section 1.1,
FirstGWL&A shall be the
designee of the Fund for receipt of such orders and receipt by such
designee shall constitute
receipt by the Fund, provided that the Fund receives notice of any
such order by 9:00 a.m.
Eastern 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 Fund calculates
its net asset value pursuant to the rules of the SEC.
1.2. The Distributor and the Fund agrees to make shares of the
Designated Port-
folio(s) available for purchase at the applicable net asset value
per share by FirstGWL&A
and the Account on those days on which the Fund calculates its
Designated Portfolio(s)' net
asset value pursuant to rules of the SEC, and the Fund shall
calculate such net asset value
on each day which the New York Stock Exchange is open for trading.
Notwithstanding the
foregoing, the Board of Directors of the Fund (hereinafter the
"Board") 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 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.
1.3. The Fund will not sell shares of the Designated
Portfolio(s) to any other
Participating Insurance Company, separate account or any Qualified
Plan unless an
agreement containing provisions substantially the same as Sections
2.1, 3.5, 3.6, 3.7, and
Article VII of this Agreement is in effect to govern such sales.
1.4. The Fund agrees to redeem for cash, on FirstGWL&A's
request, any full or
fractional shares of the Fund held by FirstGWL&A, executing such
requests on each
Business Day at the net asset value next computed after receipt by
the Fund or its designee
of the request for redemption. Requests for redemption identified
by FirstGWL&A, or its
agent, as being in connection with surrenders, annuitizations, or
death benefits under the
Contracts, upon prior written notice, may be executed within seven
(7) calendar days after
receipt by the Fund or its designee of the requests for redemption.
This Section 1.4 may be
amended, in writing, by the parties consistent with the
requirements of the 1940 Act and
interpretations thereof. For purposes of this Section 1.4,
FirstGWL&A shall be the designee
of the Fund for receipt of requests for redemption and receipt by
such designee shall
constitute receipt by the Fund, provided that the Fund receives
notice of any such request
for redemption by 9:00 A.M. Eastern time on the next following
Business Day.
1.5. The Parties hereto acknowledge that the arrangement
contemplated by this
Agreement is not exclusive; the Fund's shares may be sold to other
Participating Insurance
Companies (subject to Section 1.3 and Article VI hereof) and the
cash value of the Con-
tracts may be invested in other investment companies.
1.6. FirstGWL&A shall pay for Fund shares by 3:00 p.m. Eastern
time on the next
Business Day after an order to purchase Fund shares is made in
accordance with the
provisions of Section 1.1 hereof. Payment shall be in federal
funds transmitted by wire
and/or by a credit for any shares redeemed the same day as the
purchase. FirstGWL&A
agrees that if it fails to wire the purchase price to Distributor
before such 3:00 p.m. deadline,
or (ii) provide the Distributor with a Federal Funds wire system
reference number
evidencing the wire transfer of the purchase price to the
Distributor prior to such deadline,
then, at the option of Distributor, (a) the transaction may be
canceled, or (b) the transaction
may be processed at the next-determined net asset value for the
applicable Designated
Portfolio after purchase order funds are received. In such event
FirstGWL&A shall
indemnify and hold harmless Distributor, Adviser and/or Fund from
any liabilities, costs and
damages either may suffer as a result of such failure. If,
however, a failure by FirstGWL&A
to wire the purchase price to Distributor before the 3:00 p.m.
deadline is a result, directly
or indirectly, of circumstances beyond the control and without the
fault or negligence of
FirstGWL&A, Distributor and FirstGWL&A will mutually agree upon the
appropriate
procedure for processing the transaction and FirstGWL&A shall not
be subject to the hold
harmless or indemnification provisions of this Section 1.6.
1.7. The Fund shall use its best efforts to pay and transmit
the proceeds of
redemptions of Fund shares by 12:00 p.m. (noon) Eastern Time on the
next Business Day
after a redemption order is received in accordance with Section 1.4
hereof. Payment shall
be in federal funds transmitted by wire and/or a credit for any
shares purchased the same
day as the redemption.
1.8. Issuance and transfer of the Fund's shares will be by
book entry only. Stock
certificates will not be issued to FirstGWL&A or the Account.
Shares ordered from the
Fund will be recorded in an appropriate title for the Account.
1.9. The Distributor and/or the Adviser shall furnish same day
notice (by wire,
direct or indirect system access or telephone, followed by written
confirmation) to
FirstGWL&A of any income, dividends or capital gain distributions
payable on the
Designated Portfolio(s)' shares. FirstGWL&A 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. FirstGWL&A reserves the right to revoke
this election and to
receive all such income dividends and capital gain distributions in
cash. The Distributor
and/or the Adviser shall notify FirstGWL&A by the end of the next
following Business Day
by direct or indirect system access of the number of shares so
issued as payment of such
dividends and distributions.
1.10.The Adviser shall make the net asset value ("NAV") per
share for each
Designated Portfolio available to FirstGWL&A on each Business Day
as soon as reasonably
practical after the NAV per share is calculated and shall use its
best efforts to make such
net asset value per share available by 6:00 p.m. Eastern time. In
the event of an error in
the computation of a Designated Portfolio's NAV on any day on which
Designated Portfolio
shares are purchased or redeemed or any dividend or capital gain
distribution (each, a
"pricing error"), the Adviser or the Fund shall immediately notify
FirstGWL&A as soon as
possible after discovery of the error. Such notification may be
verbal, but shall be confirmed
promptly in writing in accordance with Article XI of this
Agreement. A pricing error shall
be corrected as follows: the Designated Portfolio shall be
reimbursed by the Adviser (or,
without limiting the Adviser's responsibility hereunder, the entity
responsible for the error,
provided such entity is willing to provide timely reimbursement) if
the difference between
the NAV at which the shares were purchased or redeemed (the
"Incorrect Price") and the
correct NAV as subsequently determined (the "Correct Price") equals
or exceeds one-half
of one percent (0.5%) of the Correct Price (a "Reimbursable
Error"). In the event of a
Reimbursable Error, the Designated Portfolio shall be reimbursed
the total difference
between the Incorrect Price and the Correct Price (the
"Reimbursement Amount"). The
Reimbursement Amount shall be calculated separately for each
shareholder of record of the
Designated Portfolio who suffered a loss. If the Reimbursement
Amount is greater than
$10.00, said shareholder's account will be adjusted accordingly and
if $10.00 or less, it shall
be paid directly to the Designated Portfolio, all in accordance
with the Designated Portfolio's
policies on Reimbursable Errors. In no event shall Schwab or
FirstGWL&A be liable to
Contractowners for any such adjustments or underpayment amounts.
The foregoing represents the policies and procedures of the
Fund with respect to
NAV pricing errors and are not the policies and procedures of
FirstGWL&A or Schwab.
The Fund believes that these policies and procedures are fair and
reasonable and are
consistent with applicable guidelines of the Securities and
Exchange Commission ("SEC")
and its staff relative to NAV pricing errors. In the event new
guidelines for handling NAV
pricing errors are disseminated by the SEC or its Staff or pursuant
to judicial or other
interpretation, the parties shall amend the foregoing provisions of
this Agreement to
comport with the appropriate applicable guidelines, on terms
mutually satisfactory to all
parties.
ARTICLE II. Representations and Warranties
2.1. FirstGWL&A represents and warrants that the securities
deemed to be issued
by the Account under the Contracts are or will be registered under
the 1933 Act; that the
Contracts will be issued and sold in compliance in all material
respects with all applicable
federal and state laws and that the sale of the Contracts shall
comply in all material respects
with state insurance suitability requirements. FirstGWL&A 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 the Account prior
to any issuance or sale of
units thereof as a segregated asset account under Section 4240 of
the New York Insurance
Law and has registered the Account as a unit investment trust in
accordance with the
provisions of the 1940 Act to serve as a segregated investment
account for the Contracts.
2.2. The Fund represents and warrants that Designated
Portfolio(s) shares sold
pursuant to this Agreement shall be registered under the 1933 Act,
duly authorized for
issuance and sold in compliance with all applicable federal
securities laws including without
limitation the 1933 Act, the 1934 Act, and the 1940 Act 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.
2.3. The Fund reserves the right to adopt a plan pursuant to
Rule 12b-1 under the
1940 Act and to impose an asset-based or other charge to finance
distribution expenses as
permitted by applicable law and regulation. In any event, the Fund
and Adviser agree to
comply with applicable provisions and SEC staff interpretations of
the 1940 Act to assure
that the investment advisory or management fees paid to the Adviser
by the Fund are in
accordance with the requirements of the 1940 Act. To the extent
that the Fund decides to
finance distribution expenses pursuant to Rule 12b-1, the Fund
undertakes to have its Board,
a majority of whom are not interested persons of the Fund,
formulate and approve any plan
pursuant to Rule 12b-1 under the 1940 Act to finance distribution
expenses.
2.4. The Fund represents and warrants that it will make every
effort to ensure that
the investment policies, fees and expenses of the Designated
Portfolio(s) are and shall at all
times remain in compliance with the insurance and other applicable
laws of the State of New
York and any other applicable state to the extent required to
perform this Agreement and
to the extent notified by FirstGWL&A in writing of such laws. The
Fund further represents
and warrants that it will make every effort to ensure that
Designated Portfolio(s) shares will
be sold in compliance with the insurance laws of the State of New
York and all applicable
state insurance and securities laws. With regard to state
insurance laws, the Fund and
Adviser shall be deemed to be on notice only of those laws and
regulations disclosed to the
Fund or the Adviser in writing by FirstGWL&A. The Fund shall
register and qualify the
shares for sale in accordance with the laws of the various states
if and to the extent required
by applicable law. FirstGWL&A and the Fund will endeavor to
mutually cooperate with
respect to the implementation of any modifications necessitated by
any change in state
insurance laws, regulations or interpretations of the foregoing
that affect the Designated
Portfolio(s) (a "Law Change"), and to keep each other informed of
any Law Change that
becomes known to either party. In the event of a Law Change, the
Fund agrees that, except
in those circumstances where the Fund has advised FirstGWL&A that
its Board of Directors
has determined that implementation of a particular Law Change is
not in the best interest
of all of the Fund's shareholders with an explanation regarding why
such action is lawful, any
action required by a Law Change will be taken.
2.5. The Fund represents and warrants that it is lawfully
organized and validly
existing under the laws of the State of Wisconsin and that it does
and will comply in all
material respects with the 1940 Act.
2.6. The Adviser represents and warrants that it is and shall
remain duly registered
under all applicable federal and state securities laws and that it
shall perform its obligations
for the Fund in compliance in all material respects with the laws
of the State of Wisconsin
and any applicable state and federal securities laws.
2.7. The Distributor represents and warrants that it is and
shall remain duly
registered under all applicable federal and state securities laws
and that it shall perform its
obligations for the Fund in compliance in all material respects
with the laws of the State of
Wisconsin and any applicable state and federal securities laws.
2.8. The Fund, the Distributor and the Adviser represent and
warrant that all of
their respective officers, employees, investment advisers, and
other individuals or entities
dealing with the money and/or securities of the 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 minimal coverage required by Rule 17g-1
under the 1940 Act
or related provisions 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.
2.9. Schwab represents and warrants that it has completed,
obtained and
performed, in all material respects, all registrations, filings,
approvals, and authorizations,
consents and examinations required by any government or
governmental authority as may
be necessary to perform this Agreement. Schwab does and will
comply, in all material
respects, with all applicable laws, rules and regulations in the
performance of its obligations
under this Agreement.
2.10.The Designated Portfolio(s) will provide FirstGWL&A with
as much advance
notice as is reasonably practicable of any material change
affecting the Designated
Portfolio(s) (including, but not limited to, any material change in
the registration statement
or prospectus affecting the Designated Portfolio(s)) and any proxy
solicitation affecting the
Designated Portfolio(s) and consult with FirstGWL&A in order to
implement any such
change in an orderly manner, recognizing the expenses of changes
and attempting to
minimize such expenses by implementing them in conjunction with
regular annual updates
of the prospectus for the Contracts. The Fund agrees to share
equitably in expenses
incurred by FirstGWL&A as a result of actions taken by the Fund,
consistent with the
allocation of expenses contained in Schedule E attached hereto and
incorporated herein by
reference.
2.11.FirstGWL&A represents and warrants, for purposes other
than diversification
under Section 817 of the Internal Revenue Code of 1986 as amended
("the Code"), that the
Contracts are currently treated as annuity contracts under
applicable provisions of the Code,
and that it will make every effort to maintain such treatment and
that it will notify Schwab,
the Fund, the Distributor and the Adviser immediately upon having
a reasonable basis for
believing that the Contracts have ceased to be so treated or that
they might not be so
treated in the future. In addition, FirstGWL&A represents and
warrants that the Account
is a "segregated asset account" and that interests in the Account
are offered exclusively
through the purchase of or transfer into a "variable contract"
within the meaning of such
terms under Section 817 of the Code and the regulations thereunder.
FirstGWL&A will use
every effort to continue to meet such definitional requirements,
and it will notify Schwab,
the Fund, the Distributor, and the Adviser immediately upon having
a reasonable basis for
believing that such requirements have ceased to be met or that they
might not be met in the
future.
ARTICLE III. Prospectuses and Proxy Statements; Voting
3.1. At least annually, the Distributor shall provide
FirstGWL&A and Schwab with
as many copies of the Fund's current prospectus for the Designated
Portfolio(s) as
FirstGWL&A and Schwab may reasonably request for marketing purposes
(including
distribution to Contractowners with respect to new sales of a
Contract). If requested by
FirstGWL&A in lieu thereof, the Distributor or Fund shall provide
such documentation
(including a camera-ready copy and computer diskette of the current
prospectus for the
Designated Portfolio(s)) and other assistance as is reasonably
necessary in order for
FirstGWL&A once each year (or more frequently if the prospectuses
for the Designated
Portfolio(s) are amended) to have the prospectus for the Contracts
and the Fund's
prospectus for the Designated Portfolio(s) printed together in one
document. The Fund and
Adviser agree that the prospectuses (and semi-annual and annual
reports) for the
Designated Portfolio(s) will describe only the Designated
Portfolio(s) and will not name or
describe any other portfolios or series that may be in the Fund
unless required by law.
3.2. If applicable state or federal laws or regulations
require that the Statement of
Additional Information ("SAI") for the Fund be distributed to all
existing and prospective
Contractowners, then the Fund and/or the Distributor shall provide
FirstGWL&A with
copies of the Fund's SAI or documentation thereof for the
Designated Portfolio(s) in such
quantities, with expenses to be borne in accordance with Schedule
E hereof, as
FirstGWL&A may reasonably require to permit timely distribution
thereof to said
Contractowners. The Distributor and/or the Fund shall also provide
SAIs to any
Contractowner or prospective owner who requests such SAI from the
Fund (although it is
anticipated that such requests will be made to FirstGWL&A or
Schwab).
3.3. The Fund and/or the Distributor shall provide FirstGWL&A
and Schwab with
copies of the Designated Portfolio's proxy material, reports to
stockholders and other
communications to stockholders for the Designated Portfolio(s) in
such quantity, with
expenses to be borne in accordance with Schedule E hereof, as
FirstGWL&A may
reasonably require to permit timely distribution thereof to
Contractowners.
3.4. It is understood and agreed that, except with respect to
information regarding
FirstGWL&A or Schwab provided in writing by that party, neither
FirstGWL&A nor Schwab
are responsible for the content of the prospectus or SAI for the
Designated Portfolio(s).
It is also understood and agreed that, except with respect to
information regarding the Fund,
the Distributor, Adviser or the Designated Portfolio(s) provided in
writing by the Fund, the
Distributor or Adviser, neither the Fund, the Distributor nor
Adviser are responsible for the
content of the prospectus or SAI for the Contracts.
3.5. If and to the extent required by law FirstGWL&A shall:
(i) solicit voting instructions from Contractowners;
(ii) vote the Designated Portfolio(s) shares in
accordance with instructions
received from Contractowners: and
(iii)vote Designated Portfolio shares for which no
instructions have been
received in the same proportion as Designated
Portfolio(s) shares for
which instructions have been received from
Contractowners, so long as
and to the extent that the SEC continues to
interpret the 1940 Act to
require pass-through voting privileges for variable
contract owners.
FirstGWL&A reserves the right to vote Fund shares
held in any
segregated asset account in its own right, to the
extent permitted by
law.
3.6. FirstGWL&A shall be responsible for assuring that each of
its separate
accounts holding shares of a Designated Portfolio calculates voting
privileges as directed by
the Fund and as agreed to by FirstGWL&A and the Fund. The Fund
agrees to promptly
notify FirstGWL&A of any changes of interpretations or amendments
of the Mixed and
Shared Funding Exemptive Order.
3.7. The Fund will comply with all provisions of the 1940 Act
requiring voting by
shareholders, and in particular the Fund will either provide for
annual meetings (except
insofar as the SEC may interpret Section 16 of the 1940 Act not to
require such meetings)
or, as the Fund currently intends, 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 and 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 directors or trustees and with whatever rules the Commission may
promulgate with
respect thereto.
ARTICLE IV. Sales Material and Information
4.1. FirstGWL&A and Schwab shall furnish, or shall cause to be
furnished, to the
Distributor or its designee, a copy of each piece of sales
literature or other promotional
material that FirstGWL&A or Schwab, respectively, develops or
proposes to use and in
which the Fund (or a Portfolio thereof), its Adviser or one of its
sub-advisers or the
Distributor is named in connection with the Contracts, at least ten
(10) Business Days prior
to its use. No such material shall be used if the Fund objects to
such use within five (5)
Business Days after receipt of such material.
4.2. FirstGWL&A and Schwab shall not give any information or
make any
representations or statements on behalf of or concerning the Fund,
any Designated Portfolio,
the Distributor or the Adviser in connection with the sale of the
Contracts other than the
information or representations contained in the registration
statement or prospectus for the
Fund shares, as such registration statement and prospectus may be
amended or sup-
plemented 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 by
the Distributor, except
with the permission of the Fund or the Distributor.
4.3. The Fund or the Distributor shall furnish, or shall cause
to be furnished, to
FirstGWL&A and Schwab, a copy of each piece of sales literature or
other promotional
material in which FirstGWL&A and/or its separate account(s), or
Schwab is named at least
ten (10) Business Days prior to its use. No such material shall be
used if FirstGWL&A or
Schwab objects to such use within five (5) Business Days after
receipt of such material.
4.4. The Fund, the Distributor, and the Adviser shall not give
any information or
make any representations on behalf of FirstGWL&A or concerning
FirstGWL&A, the
Account, or the Contracts other than the information or
representations contained in a
registration statement or prospectus for the Contracts, as such
registration statement and
prospectus may be amended or supplemented from time to time, or in
reports for the
Account, or in sales literature or other promotional material
approved by FirstGWL&A or
its designee, except with the permission of FirstGWL&A.
4.5. FirstGWL&A, the Fund, the Distributor and the Adviser
shall not give any
information or make any representations on behalf of or concerning
Schwab, or use
Xxxxxx'x name except with the permission of Schwab.
4.6. The Fund will provide to FirstGWL&A and Schwab at least
one complete
copy of all registration statements, prospectuses, SAIs, reports,
proxy statements, applications
for exemptions, requests for no-action letters, and all amendments
to any of the above, that
relate to the Designated Portfolio(s), contemporaneously with the
filing of such document(s)
with the SEC or NASD or other regulatory authorities. The Fund
will also provide at least
one complete copy of all sales literature and other promotional
materials which includes
discussion of Schwab and/or the Contracts and/or FirstGWL&A.
4.7. FirstGWL&A or Schwab will provide to the Fund at least
one complete copy
of all registration statements, prospectuses, SAIs, reports,
solicitations for voting instructions,
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 Contracts or
the Account, contemporaneously with the filing of such document(s)
with the SEC, NASD,
or other regulatory authority.
4.8. For purposes of Articles IV and VIII, the phrase "sales
literature and other
promotional material" includes, but is not limited to,
advertisements (such as material
published, or designed for use in, a newspaper, magazine, or other
periodical, radio,
television, telephone or tape recording, videotape display, signs
or billboards, motion
pictures, or other public media; e.g., on-line networks such as the
Internet or other electronic
media), sales literature (i.e., any written communication
distributed or made generally
available to customers or the public, including brochures,
circulars, research reports, market
letters, form letters, seminar texts, reprints or excerpts of any
other advertisement, sales
literature, or published article), educational or training
materials or other communications
distributed or made generally available to some or all agents or
employees, and registration
statements, prospectuses, SAIs, shareholder reports, and proxy
materials and any other
material constituting sales literature or advertising under the
NASD rules, 1933 Act or the
0000 Xxx.
4.9. At the request of any party to this Agreement, each other
party will make
available to the other party's independent auditors and/or
representative of the appropriate
regulatory agencies, all records, data and access to operating
procedures that may be
reasonably requested in connection with compliance and regulatory
requirements related to
this Agreement or any party's obligations under this Agreement.
ARTICLE V. Fees and Expenses
5.1. The Fund, Distributor and Adviser shall pay no fee or
other compensation to
FirstGWL&A under this Agreement, and FirstGWL&A shall pay no fee or
other
compensation to the Fund, Distributor or Adviser under this
Agreement, although the
parties hereto will bear certain expenses in accordance with
Schedule E, Articles III, V, and
other provisions of this Agreement.
5.2. All expenses incident to performance by the Fund, the
Adviser and the
Distributor under this Agreement shall be paid by the appropriate
party, as further provided
in Schedule E. The Fund or Distributor shall see to it that all
shares of the Designated
Portfolio(s) are registered and authorized for issuance in
accordance with applicable federal
law and, if and to the extent required, in accordance with
applicable state laws prior to their
sale.
5.3. The parties shall bear the expenses of routine annual
distribution (mailing
costs) of the Fund's prospectus and distribution (mailing costs) of
the Fund's proxy materials
and reports to owners of Contracts offered by FirstGWL&A, in
accordance with Schedule
E.
5.4. The Fund, the Distributor and the Adviser acknowledge
that a principal fea-
ture of the Contracts is the Contractowner's ability to choose from
a number of unaffiliated
mutual funds (and portfolios or series thereof), including the
Designated Portfolio(s) and the
Unaffiliated Funds, and to transfer the Contract's cash value
between funds and portfolios.
The Fund, the Distributor and the Adviser agree to cooperate with
FirstGWL&A and
Schwab in facilitating the operation of the Account and the
Contracts as intended, including
but not limited to cooperation in facilitating transfers between
Unaffiliated Funds.
5.5. Schwab agrees to provide certain administrative services,
specified in Schedule
C attached hereto and incorporated herein by reference, in
connection with the
arrangements contemplated by this Agreement. The parties
acknowledge and agree that the
services referred to in this Section 5.5 are recordkeeping,
shareholder communication, and
other transaction facilitation and processing, and related
administrative services only and are
not the services of an underwriter or a principal underwriter of
the Fund and that Schwab
is not an underwriter for the shares of the Designated
Portfolio(s), within the meaning of
the 1933 Act or the 0000 Xxx.
5.6. As compensation for the services specified in Schedule C
hereto, the Adviser
agrees to pay Schwab a monthly Administrative Service Fee based on
the percentage per
annum on Schedule C hereto applied to the average daily value of
the shares of the
Designated Portfolio(s) held in the Account with respect to
Contracts sold by Schwab. This
monthly Administrative Service Fee is due and payable before the
15th (fifteenth) day
following the last day of the month to which it relates.
ARTICLE VI. Diversification and Qualification
6.1. The Fund, the Adviser and the Distributor represent and
warrant that the
Fund will at all times sell its shares and invest its assets in
such a manner as to ensure that
the Contracts will be treated as annuity contracts under the Code,
and the regulations issued
thereunder. Without limiting the scope of the foregoing, the Fund,
Distributor and Adviser
represent and warrant that the Fund and each Designated Portfolio
thereof will at all times
comply with Section 817(h) of the Code and Treasury Regulation
1.817-5, as amended from
time to time, and any Treasury interpretations thereof, relating to
the diversification
requirements for variable annuity, endowment, or life insurance
contracts and any
amendments or other modifications or successor provisions to such
Section or Regulations.
The Fund and the Distributor agree that shares of the Designated
Portfolio(s) will be sold
only to Participating Insurance Companies and their separate
accounts.
6.2. No shares of any Designated Portfolio of the Fund will be
sold to the general
public.
6.3. The Fund, the Distributor and the Adviser represent and
warrant that the
Fund and each Designated Portfolio is currently qualified as a
Regulated Investment
Company under Subchapter M of the Code, and that each Designated
Portfolio will maintain
such qualification (under Subchapter M or any successor or similar
provisions) as long as this
Agreement is in effect.
6.4. The Fund, the Distributor or the Adviser will notify
FirstGWL&A immediately
upon having a reasonable basis for believing that the Fund or any
Designated Portfolio has
ceased to comply with the aforesaid Section 817(h) diversification
or Subchapter M
qualification requirements or might not so comply in the future.
6.5. Without in any way limiting the effect of Sections 8.3,
8.4 and 8.5 hereof and
without in any way limiting or restricting any other remedies
available to FirstGWL&A or
Schwab, the Adviser or the Distributor will pay all costs
associated with or arising out of any
failure, or any anticipated or reasonably foreseeable failure, of
the Fund or any Designated
Portfolio to comply with Sections 6.1, 6.2, or 6.3 hereof,
including all costs associated with
reasonable and appropriate corrections or responses to any such
failure; such costs may
include, but are not limited to, the costs involved in creating,
organizing, and registering a
new investment company as a funding medium for the Contracts and/or
the costs of
obtaining whatever regulatory authorizations are required to
substitute shares of another
investment company for those of the failed Portfolio (including but
not limited to an order
pursuant to Section 26(b) of the 1940 Act); such costs are to
include, but are not limited to,
fees and expenses of legal counsel and other advisors to FirstGWL&A
and any federal
income taxes or tax penalties and interest thereon (or "toll
charges" or exactments or
amounts paid in settlement) incurred by FirstGWL&A with respect to
itself or owners of its
Contracts in connection with any such failure or anticipated or
reasonably foreseeable
failure.
6.6. The Fund at the Fund's expense shall provide FirstGWL&A
or its designee
with reports certifying compliance with the aforesaid Section
817(h) diversification and
Subchapter M qualification requirements, at the times provided for
and substantially in the
form attached hereto as Schedule D and incorporated herein by
reference; provided,
however, that providing such reports does not relieve the Fund of
its responsibility for such
compliance or of its liability for any non-compliance.
6.7. FirstGWL&A agrees that if the Internal Revenue Service
("IRS") asserts in
writing in connection with any governmental audit or review of
FirstGWL&A or, to
FirstGWL&A's knowledge, or any Contractowner that any Designated
Portfolio has failed
to comply with the diversification requirements of Section 817(h)
of the Code or
FirstGWL&A otherwise becomes aware of any facts that could give
rise to any claim against
the Fund, the Adviser or the Distributor as a result of such a
failure or alleged failure:
(a) FirstGWL&A shall promptly notify the Fund, the Adviser
and the Distributor of
such assertion or potential claim;
(b) FirstGWL&A shall consult with the Fund, the Adviser and
the Distributor as to
how to minimize any liability that may arise as a result of
such failure or alleged
failure;
(c) FirstGWL&A shall use its best efforts to minimize any
liability of the Fund, the
Adviser and the Distributor resulting from such failure,
including, without limitation,
demonstrating, pursuant to Treasury Regulations, Section
1.817-5(a)(2), to the
commissioner of the IRS that such failure was inadvertent;
(d) any written materials to be submitted by FirstGWL&A to the
IRS, any
Contractowner or any other claimant in connection with any of
the foregoing
proceedings or contests (including, without limitation, any
such materials to be
submitted to the IRS pursuant to Treasury Regulations, Section
1.817-5(a)(2)) shall
be provided by FirstGWL&A to the Fund, the Distributor and the
Adviser (together
with any supporting information or analysis) within at least
two (2) business days
prior to submission;
(e) FirstGWL&A shall provide the Fund, the Distributor and the
Adviser with such
cooperation as the Fund, the Distributor and the Adviser shall
reasonably request
(including, without limitation, by permitting the Fund, the
Distributor and the Adviser
to review the relevant books and records of FirstGWL&A) in
order to facilitate
review by the Fund, the Distributor and the Adviser of any
written submissions
provided to it or its assessment of the validity or amount of
any claim against it
arising from such failure or alleged failure;
(f) FirstGWL&A shall not with respect to any claim of the IRS
or any Contractowner
that would give rise to a claim against the Fund, the
Distributor and the Adviser (i)
compromise or settle any claim, (ii) accept any adjustment on
audit, or (iii) forego
any allowable administrative or judicial appeals, without the
express written consent
of the Fund, the Distributor and the Adviser, which shall not
be unreasonably
withheld; provided that, FirstGWL&A shall not be required to
appeal any adverse
judicial decision unless the Fund, the Distributor and the
Adviser shall have provided
an opinion of independent counsel to the effect that a
reasonable basis exists for
taking such appeal; and further provided that the Fund, the
Distributor and the
Adviser shall bear the costs and expenses, including
reasonable attorney's fees,
incurred by FirstGWL&A in complying with this clause (f).
ARTICLE VII. Potential Conflicts and Compliance With
Mixed and Shared Funding Exemptive Order
7.1. The Board will monitor the Fund for the existence of any
material
irreconcilable conflict between the interests of the contract
owners of all separate accounts
investing in the Fund. 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 by contract owners of different
Participating Insurance
Companies; or (f) a decision by a Participating Insurance Company
to disregard the voting
instructions of contract owners. The Board shall promptly inform
FirstGWL&A if it
determines that an irreconcilable material conflict exists and the
implications thereof.
7.2. FirstGWL&A will report any potential or existing
conflicts of which it is aware
to the Board. FirstGWL&A will assist the Board in carrying out its
responsibilities under
the Mixed and Shared Funding Exemptive Order, by providing the
Board with all
information reasonably necessary for the Board to consider any
issues raised. This includes,
but is not limited to, an obligation by FirstGWL&A to inform the
Board whenever contract
owner voting instructions are to be disregarded. Such
responsibilities shall be carried out
by FirstGWL&A with a view only to the interests of its
Contractowners.
7.3. If it is determined by a majority of the Board, or a
majority of its directors who
are not interested persons of the Fund, the Distributor, the
Adviser or any sub-adviser to
any of the Designated Portfolios (the "Independent Directors"),
that a material irreconcilable
conflict exists, FirstGWL&A and other Participating Insurance
Companies shall, at their
expense and to the extent reasonably practicable (as determined by
a majority of the
Independent Directors), take whatever steps are necessary to remedy
or eliminate the
irreconcilable material conflict, up to and including: (1)
withdrawing the assets allocable to
some or all of the separate accounts from the Fund or any
Designated Portfolio and
reinvesting such assets in a different investment medium, including
(but not limited to)
another portfolio of the Fund, or submitting the question whether
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 (2) establishing a new registered
management investment
company or managed separate account.
7.4. If a material irreconcilable conflict arises because of
a decision by
FirstGWL&A to disregard contract owner voting instructions and that
decision represents
a minority position or would preclude a majority vote, FirstGWL&A
may be required, at the
Fund's election, to withdraw the Account's investment in the Fund
and terminate this
Agreement; provided, however that such withdrawal and termination
shall be limited to the
extent required by the foregoing material irreconcilable conflict
as determined by a majority
of the Independent Directors. Any such withdrawal and termination
must take place within
six (6) months after the Fund gives written notice that this
provision is being implemented,
and until the end of that six month period the Distributor and the
Fund shall continue to
accept and implement orders by FirstGWL&A for the purchase (and
redemption) of shares
of the Fund.
7.5. If a material irreconcilable conflict arises because a
particular state insurance
regulator's decision applicable to FirstGWL&A conflicts with the
majority of other state
regulators, then FirstGWL&A will withdraw the Account's investment
in the Fund and
terminate this Agreement within six months after the Board informs
FirstGWL&A 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 members of the Board. Until the end of the foregoing
six month period, the
Fund, Distributor and Adviser shall continue to accept and
implement orders by
FirstGWL&A for the purchase (and redemption) of shares of the Fund.
7.6. For purposes of Sections 7.3 through 7.6 of this
Agreement, a majority of the
Independent Directors shall determine whether any proposed action
adequately remedies
any irreconcilable material conflict, but in no event will the Fund
be required to establish
a new funding medium for the Contracts. FirstGWL&A shall not be
required by Section
7.3 to establish a new funding medium for the Contracts if an offer
to do so has been
declined by vote of a majority of Contractowners affected by the
irreconcilable material
conflict. In the event that the Board determines that any proposed
action does not
adequately remedy any irreconcilable material conflict, then
FirstGWL&A will withdraw the
Account's investment in the Fund and terminate this Agreement
within six (6) months after
the Board informs FirstGWL&A in writing of the foregoing
determination; provided,
however, that such withdrawal and termination shall be limited to
the extent required by any
such material irreconcilable conflict as determined by a majority
of the Independent
Directors.
7.7. If and to the extent that Rule 6e-2 and Rule 6e-3(T) are
amended, or Rule
6e-3 is adopted, to provide exemptive relief from any provision of
the 1940 Act or the rules
promulgated thereunder with respect to mixed or shared funding (as
defined in the Mixed
and Shared Funding Exemptive Order) on terms and conditions
materially different from
those contained in the Mixed and Shared Funding Exemptive Order,
then (a) the Fund
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: and (b) Sections
3.5, 3.6, 3.7, 7.1, 7.2, 7.3,
7.4, and 7.5 of this Agreement shall continue in effect only to the
extent that terms and con-
ditions substantially identical to such Sections are contained in
such Rule(s) as so amended
or adopted.
ARTICLE VIII. Indemnification
8.1. Indemnification By FirstGWL&A
8.1(a). FirstGWL&A agrees to indemnify and hold
harmless the Fund,
the Distributor and the Adviser and each of their officers and
directors or trustees and each
person, if any, who controls the Fund, Distributor or Adviser
within the meaning of Section
15 of the 1933 Act (collectively, the "Indemnified Parties" for
purposes of this Section 8.1)
against any and all losses, claims, expenses, damages, liabilities
(including amounts paid in
settlement with the written consent of FirstGWL&A) or litigation
(including reasonable legal
and other expenses) to which the Indemnified Parties may become
subject under any statute
or regulation, at common law or otherwise, insofar as such losses,
claims, expenses, damages,
liabilities or expenses (or actions in respect thereof) or
settlements are related to the sale
or acquisition of the Fund's shares or the Contracts and:
(i) arise out of or are based upon any untrue statements or
alleged untrue
statements of any material fact contained in the
registration statement or pro-
spectus or SAI covering 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 nec-
xxxxxx 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 in writing to
FirstGWL&A or Schwab by or on behalf of the Adviser,
Distributor or Fund
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
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, pro-
spectus or sales literature of the Fund not supplied by
FirstGWL&A or
persons under its control) or wrongful conduct of
FirstGWL&A or persons
under its control, with respect to the sale or
distribution of the Contracts or
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 thereof or supplement thereto, or
the omission or
alleged omission to state therein a material fact
required to be stated therein
or necessary to make the statements therein not
misleading, if such a
statement or omission was made in reliance upon
information furnished in
writing to the Fund by or on behalf of FirstGWL&A; or
(iv) arise as a result of any failure by FirstGWL&A 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 FirstGWL&A in this Agreement or arise
out of or result
from any other material breach of this Agreement by
FirstGWL&A, including
without limitation Section 2.11 and Section 6.7 hereof,
as limited by and in accordance with the provisions of Sections
8.1(b) and 8.1(c) hereof.
8.1(b). FirstGWL&A shall not be liable under this
indemnification
provision with respect to any losses, claims, expenses, 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 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 any of the Indemnified Parties.
8.1(c) FirstGWL&A 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 FirstGWL&A 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 FirstGWL&A
of any such claim shall not relieve FirstGWL&A 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, except to the extent that FirstGWL&A has
been prejudiced by
such failure to give notice. In case any such action is brought
against the Indemnified
Parties, FirstGWL&A shall be entitled to participate, at its own
expense, in the defense of
such action. FirstGWL&A also shall be entitled to assume the
defense thereof, with counsel
satisfactory to the party named in the action. After notice from
FirstGWL&A to such party
of FirstGWL&A's election to assume the defense thereof, the
Indemnified Party shall bear
the fees and expenses of any additional counsel retained by it, and
FirstGWL&A will not
be liable to such party under this Agreement for any legal or other
expenses subsequently
incurred by such party independently in connection with the defense
thereof other than
reasonable costs of investigation.
8.1(d). The Indemnified Parties will promptly notify
FirstGWL&A of
the commencement of any litigation or proceedings against them in
connection with the
issuance or sale of the Fund Shares or the Contracts or the
operation of the Fund.
8.2. Indemnification by Schwab
8.2(a). Schwab agrees to indemnify and hold harmless
the Fund, the
Distributor and the Adviser and each of their officers and
directors or trustees and each
person, if any, who controls the Fund, Distributor or Adviser
within the meaning of Section
15 of the 1933 Act (collectively, the "Indemnified Parties" for
purposes of this Section 8.2)
against any and all losses, claims, expenses, damages and
liabilities (including amounts paid
in settlement with the written consent of Schwab) or litigation
(including reasonable legal
and other expenses), to which the Indemnified Parties may become
subject under any statute
or 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 acqu-
isition of the Fund's shares or the Contracts and:
(i) arise out of Xxxxxx'x dissemination of information
regarding the Fund, the
Adviser or the Distributor that is both (A) materially
incorrect and (B) that
was neither contained in the Fund's registration
statement or sales literature
nor other promotional material of the Fund prepared by
the Fund or
provided in writing to Schwab, or approved in writing, by
or on behalf of the
Fund, the Distributor or the Adviser; or
(ii) arise out of or are based upon any untrue statements or
alleged untrue
statements of any material fact contained in sales
literature or other
promotional material prepared by Schwab for the Contracts
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 in writing to
FirstGWL&A or Schwab
by or on behalf of the Adviser, the Distributor or Fund
for use in the registra-
tion statement or prospectus for the Contracts or in the
Contracts or sales
literature (or any amendment or supplement) or otherwise
for use in connec-
tion with the sale of the Contracts; or
(iii)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 Schwab or persons
under its control) or wrongful conduct of Schwab or
persons under its control,
with respect to the sale or distribution of the
Contracts; or
(iv) arise as a result of any failure by Schwab 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 Schwab in this Agreement or arise out of
or result from any
other material breach of this Agreement by Schwab;
as limited by and in accordance with the provisions of Sections
8.2(b) and 8.2(c) hereof.
8.2(b). Schwab 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 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 any of the Indemnified Parties.
8.2(c). Schwab 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 Schwab 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 Schwab of
any such claim shall not
relieve Schwab 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, except
to the extent that Schwab has been prejudiced by such failure to
give notice. In case any
such action is brought against the Indemnified Parties, Schwab
shall be entitled to
participate, at its own expense, in the defense of such action.
Schwab also shall be entitled
to assume the defense thereof, with counsel satisfactory to the
party named in the action.
After notice from Schwab to such party of Xxxxxx'x election to
assume the defense thereof,
the Indemnified Party shall bear the fees and expenses of any
additional counsel retained
by it, and Schwab will not be liable to such party under this
Agreement for any legal or
other expenses subsequently incurred by such party independently in
connection with the
defense thereof other than reasonable costs of investigation.
8.2(d). The Indemnified Parties will promptly notify
Schwab of the
commencement of any litigation or proceedings against them in
connection with the issuance
or sale of the Fund Shares or the Contracts or the operation of the
Fund.
8.3. Indemnification by the Adviser
8.3(a). The Adviser agrees to indemnify and hold
harmless
FirstGWL&A and Schwab and each of their directors and officers and
each person, if any,
who controls FirstGWL&A or Schwab within the meaning of Section 15
of the 1933 Act
(collectively, the "Indemnified Parties" for purposes of this
Section 8.3) against any and all
losses, claims, expenses, damages, liabilities (including amounts
paid in settlement with the
written consent of the Adviser) or litigation (including reasonable
legal and other expenses)
to which the Indemnified Parties may become subject under any
statute or regulation, at
common law or otherwise, insofar as such losses, claims, damages,
liabilities or expenses (or
actions in respect thereof) or settlements are related to the sale
or acquisition of the Fund's
shares or the Contracts and:
(i) arise out of or are based upon any untrue statement or
alleged untrue
statement of any material fact contained in the
registration statement or
prospectus or SAI or sales literature or other
promotional material of the
Fund prepared by the Fund, Adviser or the Distributor (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 fur-
nished in writing to the Adviser, the Distributor or the
Fund by or on behalf
of FirstGWL&A or Schwab 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
Contracts 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, SAI or sales literature or other promotional
material for the
Contracts not supplied by the Adviser or persons under
its control) or
wrongful conduct of the Fund, the Distributor or Adviser
or persons under
their control, with respect to the sale or distribution
of the Contracts or Fund
shares; or
(iii)arise out of any untrue statement or alleged untrue
statement of a material
fact contained in a registration statement, prospectus,
SAI, 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 in writing to FirstGWL&A or Schwab
by or on behalf
of the Adviser, the Distributor or the Fund; or
(iv) arise as a result of any failure by the Fund or the
Adviser to provide the
services and furnish the materials under the terms of
this Agreement (in-
cluding a failure, whether unintentional or in good faith
or otherwise, to com-
ply with the diversification and other qualification
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 Fund, the Adviser or the Distributor
in this Agreement
or arise out of or result from any other material breach
of this Agreement by
the Adviser, the Fund or the Distributor; or
(vi) arise out of or result from the incorrect or untimely
calculation or reporting
of the daily net asset value per share or dividend or
capital gain distribution
rate;
as limited by and in accordance with the provisions of Sections
8.3(b) and 8.3(c) hereof.
This indemnification is in addition to and apart from the
responsibilities and obligations of
the Adviser specified in Article VI hereof.
8.3(b). The Adviser shall not be liable under this
indemnification
provision with respect to any losses, claims, expenses, 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 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 any of the Indemnified Parties.
8.3(c). The Adviser 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 Adviser 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 Adviser
of any such claim shall not relieve the Adviser 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, except to the extent that the Adviser
has been prejudiced by such
failure to give notice. In case any such action is brought against
the Indemnified Parties, the
Adviser will be entitled to participate, at its own expense, in the
defense thereof. The
Adviser also shall be entitled to assume the defense thereof, with
counsel satisfactory to the
party named in the action. After notice from the Adviser to such
party of the Adviser'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 Adviser
will not be liable to such
party under this Agreement for any legal or other expenses
subsequently incurred by such
party independently in connection with the defense thereof other
than reasonable costs of
investigation.
8.3(d).FirstGWL&A and Schwab agree promptly to notify the
Adviser of the
commencement of any litigation or proceedings against it or any of
its officers or directors
in connection with the Agreement, the issuance or sale of the
Contracts or the operation of
the Account or the sale or acquisition of shares of the Designated
Portfolios.
8.4. Indemnification By the Fund
8.4(a).The Fund agrees to indemnify and hold harmless
FirstGWL&A and Schwab
and each of their directors and officers and each person, if any,
who controls FirstGWL&A
or Schwab within the meaning of Section 15 of the 1933 Act
(collectively, the "Indemnified
Parties" for purposes of this Section 8.4) against any and all
losses, claims, expenses,
damages, liabilities (including amounts paid in settlement with the
written consent of the
Fund) or litigation (including reasonable legal and other expenses)
to which the Indemnified
Parties may be required to pay or become subject under any statute
or regulation, at
common law or otherwise, insofar as such losses, claims, expenses,
damages, liabilities or
expenses (or actions in respect thereof) or settlements, 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 Agreement
(including a failure, whether
unintentional or in good faith or otherwise, to comply
with the diversification
and other qualification requirements specified in Article
VI of this Agree-
ment); 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
8.4(b) and 8.4(c) hereof.
8.4(b). The Fund shall not be liable under this
indemnification provision
with respect to any losses, claims, expenses, 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 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 any of the Indemnified Parties.
8.4(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 it 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, except to the
extent that the Fund has been prejudiced by such failure to give
notice. 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 shall also 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 of 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 under this Agreement
for any legal or other
expenses subsequently incurred by such party independently in
connection with the defense
thereof other than reasonable costs of investigation.
8.4(d). FirstGWL&A and Schwab each agree promptly to
notify the
Fund of the commencement of any litigation or proceeding against
itself or any of its
respective officers or directors in connection with the Agreement,
the issuance or sale of the
Contracts, the operation of the Account, or the sale or acquisition
of shares of the Fund.
8.5. Indemnification by the Distributor
8.5(a).The Distributor agrees to indemnify and hold harmless
FirstGWL&A and
Schwab and each of their directors and officers and each person, if
any, who controls
FirstGWL&A or Schwab within the meaning of Section 15 of the 1933
Act (collectively, the
"Indemnified Parties" for purposes of this Section 8.5) against any
and all losses, claims,
expenses, damages, liabilities (including amounts paid in
settlement with the written consent
of the Distributor) or litigation (including reasonable legal and
other expenses) to which the
Indemnified Parties may become subject under any statute or
regulation, at common law or
otherwise, insofar as such losses, claims, expenses, damages,
liabilities or expenses (or actions
in respect thereof) or settlements are related to the sale or
acquisition of the Fund's shares
or the contracts and:
(i) arise out of or are based upon any untrue statement or
alleged untrue
statement of any material fact contained in the
registration statement or
prospectus or SAI or sales literature or other
promotional material of the
Fund prepared by the Fund, Adviser or Distributor (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 fur-
nished in writing to the Adviser, the Distributor or Fund
by or on behalf of
FirstGWL&A or Schwab for use in the registration
statement or SAI or
prospectus for the Fund or in sales literature or other
promotional material
(or any amendment or supplement) or otherwise for use in
connection with
the sale of the Contracts or Fund shares; or
(ii) arise out of or as a result of statements or
representations (other than
statements or representations contained in the
registration statement,
prospectus, SAI, sales literature or other promotional
material for the
Contracts not supplied by the Distributor or persons
under its control) or
wrongful conduct of the Fund, the Distributor or Adviser
or persons under
their control, with respect to the sale or distribution
of the Contracts or Fund
shares; or
(iii)arise out of any untrue statement or alleged untrue
statement of a material
fact contained in a registration statement, prospectus,
SAI, sales literature or
other promotional material 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 in writing to
FirstGWL&A or Schwab
by or on behalf of the Distributor or Fund; or
(iv) arise as a result of any failure by the Fund or
Distributor to provide the
services and furnish the materials under the terms of
this Agreement
(including a failure, whether unintentional or in good
faith or otherwise, to
comply with the diversification and other qualification
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 Fund or Distributor in this
Agreement or arise out of
or result from any other material breach of this
Agreement by the Fund or
Distributor;
as limited by and in accordance with the provisions of Sections
8.5(b) and 8.5(c) hereof.
This indemnification is in addition to and apart from the
responsibilities and obligations of
the Distributor specified in Article VI hereof.
8.5(b).The Distributor shall not be liable under this
indemnification provision with
respect to any losses, claims, expenses, 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 negligence in the performance or such
Indemnified Party's duties
or by reason of such Indemnified Party's reckless disregard of
obligations or duties under this
Agreement or to any of the Indemnified Parties.
8.5(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 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, except to the extent that the Distributor has been
prejudiced by such failure to
give notice. In 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
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
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 subsequently
incurred by such party independently in connection with the defense
thereof other than
reasonable costs of investigation.
8.5(d)FirstGWL&A and Schwab agree to promptly 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 Contracts or the
operation of the Account.
ARTICLE IX. Applicable Law
9.1. This Agreement shall be construed and the provisions
hereof interpreted under
and in accordance with the laws of the State of New York, without
regard to the New York
Conflict of Laws provisions.
9.2. This Agreement shall be subject to the provisions of the
1933, 1934 and 1940
Acts, and the rules and regulations and rulings thereunder,
including such exemptions from
those statutes, rules and regulations as the Securities and
Exchange Commission may grant
(including, but not limited to, the Mixed and Shared Funding
Exemptive Order) and the
terms hereof shall be interpreted and construed in accordance
therewith.
ARTICLE X. Termination
10.1.This Agreement shall terminate:
(a) at the option of any party, with or without cause,
with respect to some or
all Portfolios, upon six (6) months advance written
notice delivered to the
other parties; provided, however, that such notice shall
not be given earlier
than six (6) months following the date of this Agreement;
or
(b) at the option of FirstGWL&A or Schwab by written
notice to the other
parties with respect to any Portfolio based upon
FirstGWL&A's or Xxxxxx'x
determination that shares of such Portfolio are not
reasonably available to
meet the requirements of the Contracts; or
(c) at the option of FirstGWL&A or Schwab by written
notice to the other
parties 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 Contracts issued or to be issued
by FirstGWL&A; or
(d) at the option of the Fund, Adviser or Distributor in
the event that formal
administrative proceedings are instituted against
FirstGWL&A or Schwab by
the NASD, the SEC, the Insurance Commissioner or like
official of any state
or any other regulatory body regarding FirstGWL&A's or
Xxxxxx'x duties
under this Agreement or related to the sale of the
Contracts, the operation
of any Account, or the purchase of the Fund shares, if,
in each case, the Fund
reasonably determines in its sole judgment exercised in
good faith, that any
such administrative proceedings will have a material
adverse effect upon the
ability of FirstGWL&A or Schwab to perform its
obligations under this
Agreement; or
(e) at the option of FirstGWL&A or Schwab in the event
that formal
administrative proceedings are instituted against the
Fund, the Distributor or
Adviser by the NASD, the SEC, or any state securities or
insurance
department or any other regulatory body, if Schwab or
FirstGWL&A
reasonably determines in its sole judgment exercised in
good faith, that any
such administrative proceedings will have a material
adverse effect upon the
ability of the Fund, the Distributor or Adviser to
perform their obligations
under this Agreement; or
(f) at the option of FirstGWL&A by written notice to the
Fund with respect
to any Portfolio if FirstGWL&A reasonably believes that
the Portfolio will fail
to meet the Section 817(h) diversification requirements
or Subchapter M
qualifications specified in Article VI hereof; or
(g) at the option of either the Fund, the Distributor or
the Adviser, if (i) the
Fund or Adviser, respectively, shall determine, in their
sole judgment
reasonably exercised in good faith, that either
FirstGWL&A or Schwab has
suffered a material adverse change in their business or
financial condition or
is the subject of material adverse publicity and that
material adverse change
or publicity will have a material adverse impact on
FirstGWL&A's or
Xxxxxx'x ability to perform its obligations under this
Agreement, (ii) the Fund,
the Distributor or Adviser notifies FirstGWL&A or Schwab,
as appropriate,
of that determination and its intent to terminate this
Agreement, and (iii) after
considering the actions taken by FirstGWL&A or Schwab and
any other
changes in circumstances since the giving of such a
notice, the determination
of the Fund, the Distributor or Adviser shall continue to
apply on the sixtieth
(60th) day following the giving of that notice, which
sixtieth day shall be the
effective date of termination; or
(h) at the option of either FirstGWL&A or Schwab, if (i)
FirstGWL&A or
Schwab, respectively, shall determine, in its sole
judgment reasonably exercised
in good faith, that either the Fund, the Distributor or
the Adviser has suffered
a material adverse change in its business or financial
condition or is the
subject of material adverse publicity and that material
adverse change or
publicity will have a material adverse impact on the
Fund's, the Distributor's
or Adviser's ability to perform its obligations under
this Agreement, (ii)
FirstGWL&A or Schwab notifies the Fund, the Distributor
or Adviser, as
appropriate, of that determination and its intent to
terminate this Agreement,
and (iii) after considering the actions taken by the
Fund, the Distributor or
Adviser and any other changes in circumstances since the
giving of such a
notice, the determination of FirstGWL&A or Schwab shall
continue to apply
on the sixtieth (60th) day following the giving of that
notice, which sixtieth day
shall be the effective date of termination; or
(i) at the option of FirstGWL&A in the event that formal
administrative
proceedings are instituted against Schwab by the NASD,
the Securities and
Exchange Commission, or any state securities or insurance
department or any
other regulatory body regarding Xxxxxx'x duties under
this Agreement or
related to the sale of the Fund's shares or the
Contracts, the operation of any
Account, or the purchase of the Fund shares, provided,
however, that
FirstGWL&A determines in its sole judgment exercised in
good faith, that any
such administrative proceedings will have a material
adverse effect upon the
ability of Schwab to perform its obligations related to
the Contracts; or
(j) at the option of Schwab in the event that formal
administrative
proceedings are instituted against FirstGWL&A by the
NASD, the Securities
and Exchange Commission, or any state securities or
insurance department or
any other regulatory body regarding FirstGWL&A's duties
under this
Agreement or related to the sale of the Fund's shares or
the Contracts, the
operation of any Account, or the purchase of the Fund
shares, provided,
however, that Schwab determines in its sole judgment
exercised in good faith,
that any such administrative proceedings will have a
material adverse effect
upon the ability of FirstGWL&A to perform its obligations
related to the
Contracts; or
(k) at the option of any non-defaulting party hereto in
the event of a material
breach of this Agreement by any party hereto (the
"defaulting party") other
than as described in 10.1(a)-(j); provided, that the
non-defaulting party gives
written notice thereof to the defaulting party, with
copies of such notice to all
other non-defaulting parties, and if such breach shall
not have been remedied
within thirty (30) days after such written notice is
given, then the non-
defaulting party giving such written notice may terminate
this Agreement by
giving thirty (30) days written notice of termination to
the defaulting party.
10.2.Notice Requirement. No termination of this Agreement
shall be effective
unless and until the party terminating this Agreement gives prior
written notice to all other
parties of its intent to terminate, which notice shall set forth
the basis for the termination.
Furthermore,
(a) in the event any termination is based upon the provisions
of Article VII, or the
provisions of Section 10.1(a), 10.1(g) or 10.1(h) of this
Agreement, the prior written
notice shall be given in advance of the effective date of
termination as required by
those provisions unless such notice period is shortened by
mutual written agreement
of the parties;
(b) in the event any termination is based upon the provisions
of Section 10.1(d),
10.1(e), 10.1 (i) or 10.1(j) of this Agreement, the prior
written notice shall be given
at least sixty (60) days before the effective date of
termination; and
(c) in the event any termination is based upon the provisions
of Section 10.1(b),
10.1(c) or 10.1(f), the prior written notice shall be given in
advance of the effective
date of termination, which date shall be determined by the
party sending the notice.
10.3.Effect of Termination. Notwithstanding any termination
of this Agreement,
other than as a result of a failure by either the Fund or
FirstGWL&A to meet Section
817(h) of the Code diversification requirements, the Fund, the
Adviser and the Distributor
shall, at the option of FirstGWL&A or Schwab, continue to make
available additional shares
of the Designated Portfolio(s) pursuant to the terms and conditions
of this Agreement, for
all Contracts in effect on the effective date of termination of
this Agreement (hereinafter
referred to as "Existing Contracts") unless such further sale of
the Fund's shares is
proscribed by the SEC, the NASD or other regulatory body.
Specifically, without limitation,
the owners of the Existing Contracts shall be permitted to
reallocate investments in the
Designated Portfolio(s), redeem investments in the Designated
Portfolio(s) and/or invest in
the Designated Portfolio(s) upon the making of additional purchase
payments under the
Existing Contracts. The parties agree that this Section 10.3 shall
not apply to any
terminations under Article VII and the effect of such Article VII
terminations shall be
governed by Article VII of this Agreement.
10.4.Surviving Provisions. Notwithstanding any termination of
this Agreement, each
party's obligations under Article VIII to indemnify other parties
shall survive and not be
affected by any termination of this Agreement. In addition, with
respect to Existing
Contracts, all provisions of this Agreement shall also survive and
not be affected by any
termination of this Agreement, with the exception of Section 3.1;
provided, however, that
the Distributor will continue to provide the requisite number of
prospectuses, SAIs, annual
and semi-annual reports for purposes of Existing Contracts.
10.5.Survival of Agreement. A termination by Schwab shall
terminate this
Agreement only as to Schwab, and this Agreement shall remain in
effect as to the other par-
ties; provided, however, that in the event of a termination by
Schwab the other parties shall
have the option to terminate this Agreement upon 60 (sixty) days
notice, rather than the six
(6) months specified in Section 10.1(a).
ARTICLE XI. 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 Fund:
Strong Variable Insurance Funds, Inc.
000 Xxxxxxxx Xxxxxxx
Xxxxxxxxx Xxxxx, XX 00000
Attention: General Counsel
If to FirstGWL&A:
First Great-West Life & Annuity Insurance Company
0000 Xxxx Xxxxxxx Xxxx
Xxxxxxxxx, XX 00000
Attention: Assistant Vice President, Savings Products
If to the Adviser:
Strong Capital Management, Inc.
000 Xxxxxxxx Xxxxxxx
Xxxxxxxxx Xxxxx, XX 00000
Attention: General Counsel
If to the Distributor:
Strong Funds Distributors, Inc.
000 Xxxxxxxx Xxxxxxx
Xxxxxxxxx Xxxxx, XX 00000
Attention: General Counsel
If to Schwab:
Xxxxxxx Xxxxxx & Co., Inc.
000 Xxxxxxxxxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000
Attention: General Counsel
ARTICLE XII. Miscellaneous
12.1.Subject to the requirements of legal process and
regulatory authority, each
party hereto shall treat as confidential the names and addresses of
the owners of the
Contracts and all information reasonably identified as confidential
in writing by any other
party hereto and, except as permitted by this Agreement, shall not
disclose, disseminate or
utilize such names and addresses and other confidential information
without the express
written consent of the affected party until such time as such
information may come into the
public domain. Without limiting the foregoing, no party hereto
shall disclose any
information that the parties mutually agree is proprietary.
12.2.The captions in this Agreement are included for
convenience of reference only
and in no way define or delineate any of the provisions hereof or
otherwise affect their
construction or effect.
12.3.This Agreement may be executed simultaneously in two or
more counterparts,
each of which taken together shall constitute one and the same
instrument.
12.4.If any provision of this Agreement shall be held or made
invalid by a court
decision, statute, rule or otherwise, the remainder of the
Agreement shall not be affected
thereby.
12.5.Each party hereto shall cooperate with each other party
and all appropriate
governmental authorities (including without limitation the SEC, the
NASD and state
insurance regulators) and shall permit such authorities reasonable
access to its books and
records in connection with any investigation or inquiry relating to
this Agreement or the
transactions contemplated hereby. Notwithstanding the generality
of the foregoing, each
party hereto further agrees to furnish the New York Insurance
Commissioner with any
information or reports in connection with services provided under
this Agreement which such
Commissioner may request in order to ascertain whether the variable
annuity operations of
FirstGWL&A are being conducted in a manner consistent with the New
York Variable
Annuity Regulations and any other applicable law or regulations.
12.6.Any controversy or claim arising out of or relating to
this Agreement, or
breach thereof, shall be settled by arbitration in a forum jointly
selected by the relevant
parties (but if applicable law requires some other forum, then such
other forum) in
accordance with the Commercial Arbitration Rules of the American
Arbitration Association,
and judgment upon the award rendered by the arbitrators may be
entered in any court
having jurisdiction thereof.
12.7.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.
12.8.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.
12.9.Schwab and FirstGWL&A agree that the obligations assumed
by the Fund and
the Adviser pursuant to this Agreement shall be limited in any case
to the Fund and Adviser
and their respective assets and neither Schwab nor FirstGWL&A shall
seek satisfaction of
any such obligation from the shareholders of the Fund or the
Adviser, the Directors, officers,
employees or agents of the Fund or Adviser, or any of them, except
to the extent permitted
under this Agreement.
12.10.The Fund, Adviser and Distributor agree that the
obligations assumed by
FirstGWL&A and Schwab pursuant to this Agreement shall be limited
in any case to
FirstGWL&A and Schwab and their respective assets and neither the
Fund, Distributor nor
Adviser shall seek satisfaction of any such obligation from the
shareholders of the
FirstGWL&A or Schwab, the directors, officers, employees or agents
of the FirstGWL&A
or Schwab, or any of them, except to the extent permitted under
this Agreement.
00.00.Xx provision of this Agreement may be deemed or
construed to modify or
supersede any contractual rights, duties, or indemnifications, as
between the Distributor and
the Fund, and as between the Adviser and the Fund.
IN WITNESS WHEREOF, each of the parties hereto has caused this
Agreement to
be executed in its name and on its behalf by its duly authorized
representative and its seal
to be hereunder affixed hereto as of the date specified below.
FIRST GREAT-WEST LIFE & ANNUITY INSURANCE COMPANY
By its authorized officer,
By:/s/ Xxxxxx X. Xxxx
Title:Vice President, Marketing & Product
Development
Date:April 1, 1997
STRONG VARIABLE INSURANCE FUNDS, INC.
By its authorized officer,
By:/s/ Xxxxxxx Xxxxxxxxxxx
Title:Vice President
Date:March 17, 1997
STRONG CAPITAL MANAGEMENT, INC.
By its authorized officer,
By:/s/ Xxxxxxxx Xxxx Xxxxxxx
Title:President, Strong Advisory Services
(a division of Strong Capital Management, Inc.
Date:March 17, 1997
STRONG FUNDS DISTRIBUTORS, INC.
By its authorized officer,
By:/s/ Xxxxxxx Xxxxxxxxxxx
Title:Vice President
Date:March 17, 1997
XXXXXXX XXXXXX & CO., INC.
By its authorized officer,
By:/s/ Xxxx Xxxxxx
Title: Vice President, Annuities & Life Insurance
Date:March 31, 1997
Schwab Variable
Annuity
SCHEDULE A
Contracts Form Numbers
First Great-West Life & Annuity Insurance Company
Group Variable/Fixed Annuity Contract J434NY
SCHEDULE B
Designated Portfolios
Strong Discovery Fund II
SCHEDULE C
Administrative Services
To be performed by Xxxxxxx Xxxxxx & Co., Inc.
X. Xxxxxx will provide the properly registered and licensed
personnel and
systems needed for all customer servicing and support - for both
fund and annuity
information and questions - including:
respond to Contractowner inquiries
delivery of prospectus - both fund and annuity;
entry of initial and subsequent orders;
transfer of cash to insurance company and/or funds;
explanations of fund objectives and characteristics;
entry of transfers between funds;
fund balance and allocation inquiries;
mail fund prospectus.
B. For the services, Schwab shall receive a fee of 0.25% per
annum applied to
the average daily value of the shares of the fund held by Xxxxxx'x
customers, payable by
the Adviser directly to Schwab, such payments being due and payable
within 15 (fifteen)
days after the last day of the month to which such payment relates.
Adviser shall
calculate and pay said fee.
C. The Fund will calculate and Schwab will verify with
FirstGWL&A the asset
balance for each day on which the fee is to be paid pursuant to
this Agreement with
respect to each Designated Portfolio.
X. Xxxxxx will communicate all purchase, withdrawal, and
exchange orders it
receives from its customers to FirstGWL&A who will retransmit them
to each fund.
X. Xxxxxx agrees to provide Adviser, by the 15th day of each
month, with a
report which indicates the number of Contractowners that hold
through the Account
beneficial interest in each Designated Portfolio, as of the last
day of the prior month.
SCHEDULE D
Reports per Section 6.6
With regard to the reports relating to the quarterly testing
of compliance with the
requirements of Section 817(h) and Subchapter M under the Internal
Revenue Code (the
"Code") and the regulations thereunder, the Fund shall provide
within twenty (20)
Business Days of the close of the calendar quarter a report to
FirstGWL&A in the Form
D1 attached hereto and incorporated herein by reference, regarding
the status under
such sections of the Code of the Designated Portfolio(s), and if
necessary, identification
of any remedial action to be taken to remedy non-compliance.
With regard to the reports relating to the year-end testing of
compliance with the
requirements of Subchapter M of the Code, referred to hereinafter
as "RIC status," the
Fund will provide the reports on the following basis: (i) the last
quarter's quarterly
reports can be supplied within the 20-day period, and (ii) a
year-end report will be
provided 45 days after the end of the calendar year. However, if
a problem with regard
to RIC status, as defined below, is identified in the third quarter
report, on a weekly
basis, starting the first week of December, additional interim
reports will be provided
specially addressing the problems identified in the third quarter
report. If any interim
report memorializes the cure of the problem, subsequent interim
reports will not be
required.
A problem with regard to RIC status is defined as any
violation of the following
standards, as referenced to the applicable sections of the Code:
(a) Less than ninety percent of gross income is derived from
sources of income
specified in Section 851(b)(2);
(b) Thirty percent or greater gross income is derived from
the sale or disposition
of assets specified in Section 851(b)(3);
(c) Less than fifty percent of the value of total assets
consists of assets specified in
Section 851(b)(4)(A); and
(d) No more than twenty-five percent of the value of total
assets is invested in the
securities of one issuer, as that requirement is set forth in
Section 851(b)(4)(B).
FORM D1
CERTIFICATE OF COMPLIANCE
I, , a duly authorized officer,
director or agent of
Fund hereby swear and affirm that Fund is in
compliance with all
requirements of Section 817(h) and Subchapter M of the Internal
Revenue Code (the
"Code") and the regulations thereunder as required in the Fund
Participation Agreement
among First Great-West Life & Annuity Insurance Company, Xxxxxxx
Xxxxxx & Co., Inc.
and other than the exceptions discussed below:
Exceptions Remedial Action
If no exception to report, please indicate "None."
Signed this day of
, .
(Signature)
By:
(Type or Print Name and
Title/Position)
SCHEDULE E
EXPENSES
The Fund and/or Distributor and/or Adviser, and FirstGWL&A will
coordinate
the functions and pay the costs of the completing these functions
based upon an
allocation of costs in the tables below. Costs shall be allocated
to reflect the
Fund's share of the total costs determined according to the number
of pages of
the Fund's respective portions of the documents.
Item
Function
Party Responsible for
Coordination
Party Responsible
for Expense
Mutual Fund
Prospectus
Printing of combined
prospectuses
FirstGWL&A
Fund or
Distributor, as
applicable
Distributor shall supply
FirstGWL&A with
such numbers of the
Designated Portfolio(s)
prospectus(es) as
FirstGWL&A shall
reasonably request
FirstGWL&A
Fund or
Distributor, as
applicable
Distribution to New
and Inforce Clients
FirstGWL&A
FirstGWL&A
Distribution to
Prospective Clients
Schwab
Schwab
Product Prospectus
Printing for Inforce
Clients
FirstGWL&A
FirstGWL&A
Printing for Prospective
Clients
FirstGWL&A
Schwab
Distribution to New
and Inforce Clients
FirstGWL&A
FirstGWL&A
Distribution to
Prospective Clients
Schwab
SchwabMutual Fund
Prospectus Update &
Distribution
If Required by Fund or
Distributor
Fund or Distributor
Fund or
Distributor
If Required by
FirstGWL&A
FirstGWL&A
FirstGWL&A
If Required by Schwab
Schwab
Schwab
Product Prospectus
Update & Distribution
If Required by Fund or
Distributor
FirstGWL&A
Fund or
Distributor
Item
Function
Party Responsible for
Coordination
Party Responsible
for Expense
If Required by
FirstGWL&A
FirstGWL&A
FirstGWL&A
If Required by Schwab
Schwab
Schwab
Mutual Fund SAI
Printing (one copy to
be provided by
Distributor)
Fund or Distributor
Fund or
Distributor
Distribution/Copying
FirstGWL&A
FirstGWL&A
Product SAI
Printing
FirstGWL&A
FirstGWL&A
Distribution
FirstGWL&A
FirstGWL&A
Item
Function
Party Responsible for
Coordination
Party Responsible
for Expense
Proxy Material for
Mutual Fund:
Printing if proxy
required by Law
Fund or Distributor
Fund orDistributor
Distribution (including
labor) if proxy required
by Law
FirstGWL&A
Fund or
Distributor
Printing & distribution
if required by
FirstGWL&A
FirstGWL&A
FirstGWL&A
Printing & distribution
if required by Schwab
FirstGWL&A
Schwab
Item
Function
Party Responsible for
Coordination
Party Responsible
for Expense
Mutual Fund Annual &
Semi-Annual Report
Printing of combined
reports (for in-force
clients)
FirstGWL&A
Fund or
Distributor
Distribution
FirstGWL&A
FirstGWL&A and
Schwab
Other communication
to New and Prospective
clients
If Required by the
Fund or Distributor
Schwab
Fund or
Distributor
If Required by
FirstGWL&A
Schwab
FirstGWL&A
Item
Function
Party Responsible for
Coordination
Party Responsible
for Expense
If Required by Schwab
Schwab
Schwab
Other communication
to inforce
Distribution (including
labor) if required by
the Fund or Distributor
FirstGWL&A
Fund or
Distributor
If Required by
FirstGWL&A
FirstGWL&A
FirstGWL&A
If Required by Schwab
FirstGWL&A
Schwab
Item
Function
Party Responsible for
Coordination
Party Responsible
for Expense
Errors in Share Price
calculation pursuant to
Section 1.10
Cost of error to
participants
FirstGWL&A
Fund or Adviser
Cost of administrative
work to correct error
FirstGWL&A
Fund or Adviser
Operations of the Fund
All operations and
related expenses,
including the cost of
registration and
qualification of shares,
taxes on the issuance or
transfer of shares, cost
of management of the
business affairs of the
Fund, and expenses
paid or assumed by the
fund pursuant to any
Rule 12b-1 plan
Fund or Distributor
Fund or Adviser
Operations of the
Account
Federal registration of
units of separate
account (24f-2 fees)
FirstGWL&A
FirstGWL&A
