EXHIBIT 8(z)
RETAIL FUND PARTICIPATION AGREEMENT
THIS AGREEMENT, made and entered into this ____ of March, 2005, by and
among XXXXXXX XXXXX LIFE INSURANCE COMPANY, a life insurance company organized
under the laws of Arkansas (hereinafter the "Company"), on its own behalf and on
behalf of each separate account of the Company set forth in Schedule A hereto,
as may be amended from time to time (each such account hereinafter referred to
as a "Separate Account") and PIONEER FUNDS DISTRIBUTOR, INC. ("PFD"), a
Massachusetts corporation and a member of the UniCredito Italiano banking group,
register of banking groups (hereinafter the "Underwriter").
WITNESSETH:
WHEREAS, the Underwriter is the principal underwriter of the , the Pioneer
Family of Funds (each a "Fund" and collectively, "the Funds"); and
WHEREAS, each Fund is registered as an open-end management investment
company under the Investment Company Act of 1940, as amended (hereinafter the
"1940 Act") and its shares are registered under the Securities Act of 1933, as
amended (hereinafter the "1933 Act"); and
WHEREAS, the Company issues certain variable annuity contracts (the
"Contracts") in connection with retirement plans intended to meet the
qualification requirements of Sections 408, 408A or 403(b) of the Internal
Revenue Code of 1986, as amended (the "Code") or such other retirement plans as
the Company may determine from time to time; and
WHEREAS, each Separate Account is a duly organized, validly existing
segregated asset account, established by resolution of the Board of Directors of
the Company under the insurance laws of the State of Arkansas to set aside and
invest assets attributable to the Contracts; and
WHEREAS, the Underwriter is registered as a broker-dealer with the
Securities and Exchange Commission (hereinafter the "SEC") under the Securities
Exchange Act of 1934, as amended (hereinafter the "1934 Act"), and is a member
in good standing of the National Association of Securities Dealers, Inc.
(hereinafter "NASD"); and
WHEREAS, to the extent permitted by applicable insurance laws and
regulations, the Company intends to purchase shares in the Funds set forth in
Schedule A on behalf of each corresponding Separate Account set forth on such
Schedule A to fund the Contracts and the Underwriter is authorized to sell such
shares to unit investment trusts such as the Separate Accounts at net asset
value; and
WHEREAS, each Fund issues shares to the general public and to separate
accounts of insurance companies to fund variable annuity contracts sold in
connection with certain qualified pension and retirement plans; and
WHEREAS, the Company intends to purchase shares of other open-end
management investment companies that offer shares to the general public to fund
the Contracts; and
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NOW, THEREFORE, in consideration of their mutual promises, the Company,
the Fund and the Underwriter agree as follows:
ARTICLE I. Purchase and Redemption of Fund Shares.
1.1 NSCC Provision. On any business day ("Business Day") that the New York
Stock Exchange and a Fund is open for business, the Company will accept request
orders for the purchase, transfer and redemption of shares of that Fund, when
such request orders are received in compliance ("good order") with the then
existing requirements of the Funds' prospectus. The Underwriter, or its
designated affiliate, hereby appoints the Company as an agent of the Funds for
the limited purpose of receiving such requests on behalf of the Separate
Accounts. Orders received by the Company prior to the close of trading on the
New York Stock Exchange (usually 4:00 p.m. Eastern Time) on any Business Day
("Business Day" or "Day 1") shall be transmitted by the Company, via the NSCC's
DCC&S Fund/SERV system to the Underwriter or its designated affiliate no later
than 9:00 a.m. Eastern Time on the next Business Day ("Day 2"). Such trades will
be effected as of the close of trading on Day 1 subject to the terms of such
Fund's prospectus.
1.2 Non-NSCC Provision. To the extent that such orders cannot be
transmitted to the Underwriter or its designated affiliate via the DCC&S
Fund/SERV system, such orders shall be transmitted via facsimile to the
Underwriter or its designated affiliate by 10:00 a.m. Eastern time on Day 2.
Such trades will be effected on Day 1 subject to the terms of such Fund's
prospectus.
1.3 With respect to request orders placed on each Business Day on which
both parties have access to NSCC and NSCC calculates a net purchase order, the
Company agrees to initiate payment for net purchases of shares attributable to
all orders executed through NSCC on a given Business Day by wire to the
Underwriter or its designated affiliate through NSCC by 1:00 p.m. on Day 2 for
each Fund involved. The Underwriter agrees that payment for net redemptions of
shares attributable to all orders executed through NSCC on a given Business Day
will be wired to the Company through NSCC on such Business Day for each Fund
involved. Such payments will be made by Federal Funds wire transfer and will be
initiated in accordance with the rules and regulations of the NSCC, as amended
from time to time.
With respect to request orders placed on each Business Day on which a
party is unable to access NSCC, the Company will wire payment for net purchase
orders to an account designated by the Underwriter. The Company agrees that by
1:00 P.M. Eastern Time on Day 2, the Company will initiate, the wire payment for
net purchases of shares attributable to all orders executed on a given Business
Day. The Underwriter agrees that payment for net redemptions of shares
attributable to all orders executed on a given Business Day will be wired by the
Underwriter, to an account designated by the Company, by 1:00 P.M. Eastern Time
on Day 2; provided, however, that if a Plan Account in any Fund is to be
redeemed in full such that it will have a zero balance following the redemption,
the Underwriter reserves the right to wire transfer the redemption proceeds
within the time set forth in the Fund's prospectus. Such payments will be made
by Federal Funds wire transfer.
1.4 The Company will place separate orders to purchase or redeem shares of
each Fund.
1.5 Issuance and transfer of the Fund's shares will be by book entry only.
Share certificates will not be issued to the Company or any Separate Account.
Purchase and redemption orders for Fund shares will be recorded in an
appropriate title for each Separate Account or the appropriate subaccount of
each Separate Account.
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1.6 The Underwriter shall furnish to the Company any income, dividends or
capital gain distributions payable on the Fund's shares as soon as reasonably
available. The Company hereby elects to receive all such dividends and
distributions as are payable on a Fund's shares in the form of additional shares
of that Fund. The Company reserves the right to revoke this election and to
receive in cash all such dividends and distributions declared after receipt of
notice of revocation by the Fund.
1.7 Pricing Information. The Underwriter or its designated affiliate will
make the following information available to the Company by 6:30 p.m. Eastern
Time on each Business Day: (i) net asset value ("NAV") information as of the
close of trading (normally 4:00 p.m. Eastern Time) on the New York Stock
Exchange or as of such other times at which the Fund's NAV is calculated as
specified in such Fund's prospectus; (ii) dividend and capital gains information
as such becomes available; and (iii) in the case of income Funds, the daily
accrual for the Funds' interest rate factor. In the event the Underwriter is
unable to make the 6:30 p.m. deadline stated herein, it shall provide additional
time for the Company to place orders for the purchase and redemption of shares.
Such additional time shall be equal to the additional time that the Underwriter
takes to make the closing net asset value available to the Company.
1.8 Price Errors. The Underwriter or its designated affiliate will follow
its internal policies to determine whether an adjustment is necessary to correct
any error in the computation of the NAV per share for any Fund.
1. Notification. If an adjustment is required to correct any error
in the computation of the NAV of Shares ("Price Error"), the
Underwriter shall notify the Company as soon as practicable after
discovering the Price Error. Notice may be made via facsimile or via
direct or indirect systems access and shall state the incorrect
price, the correct price and, to the extent communicated to the
Funds' other shareholders, the reason for the price change.
2. Underpayments. If a Price Error causes a Separate Account to
receive less than the amount to which it would otherwise have been
entitled prior to a price adjustment, the Underwriter shall adjust
its records to accurately reflect the number of shares held by the
Separate Account.
3. Overpayments. If a Price Error causes a Separate Account to
receive more than the amount to which it otherwise would have been
entitled, the Company, when requested by the Underwriter, will use
all commercially reasonable efforts to attempt to collect such
excess amount from the applicable Separate Account. Absent the
Company's failure to use all commercially reasonable efforts to
attempt to collect such amount, the Company will in no event be
liable to any of the parties for any such amounts if, prior to
notice from the Underwriter of a price adjustment, such amounts were
distributed to the Separate Account.
4. Expenses. If a Price Error causes the Company to adjust its
records for the Separate Account, the Underwriter will reimburse the
Company for all reasonable costs and expenses (including reasonable
hourly compensation for any personnel utilized by the Company in
making such adjustments) incurred by the Company in making such
adjustments.
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5. Liability. Except as otherwise expressly set forth in this
Agreement, the Company will have no responsibility or liability for
calculating the Funds' NAV or for a Price Error.
1.9 Notwithstanding anything to the contrary contained in the Agreement,
the Underwriter will make available for purchase by the Company, on its behalf
and on behalf of the Separate Accounts, a class of shares available at net asset
value that are not subject to a contingent deferred sales charge or redemption
fee.
ARTICLE II. Representations and Warranties
2.1. The Company represents and warrants that the Contracts are or will be
registered unless exempt and that it will make every effort to maintain such
registration under the 1933 Act to the extent required by the 1933 Act; that the
Contracts are intended to be issued and sold in compliance in all material
respects with all applicable federal and state laws. The Company further
represents and warrants that it is an insurance company duly organized and in
good standing under applicable law and that it has legally and validly
established each Separate Account prior to any issuance or sale of Contracts,
shares or other interests therein, as a segregated asset account under the
insurance laws of the State of Arkansas and has registered or, prior to any
issuance or sale of the Contracts, will register and will maintain the
registration of each Separate Account as a unit investment trust in accordance
with and to the extent required by the provisions of the 1940 Act, unless exempt
therefrom, to serve as a segregated investment account for the Contracts. Unless
exempt, the Company shall amend its registration statement for its Contracts
under the 1933 Act and the 1940 Act from time to time as required in order to
effect the continuous offering of its Contracts. The Company shall register and
qualify the Contracts for sale in accordance with securities laws of the various
states only if and to the extent deemed necessary by the Company.
2.2 The Underwriter represents and warrants that (i) Fund shares sold
pursuant to this Agreement shall be registered under the 1933 Act and duly
authorized for issuance in accordance with applicable law and that the Fund is
and shall remain registered under the 1940 Act for as long as the Fund shares
are sold; (ii) 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; and (iii) the Fund shall register
and qualify its shares for sales in accordance with the laws of the various
states only if and to the extent deemed advisable by the Fund or the
Underwriter.
2.3 The Underwriter, represents that each Fund (a) is currently qualified
as a Regulated Investment Company under Subchapter M of the Code; (b) will
maintain such qualification (under Subchapter M or any successor or similar
provision); and (c) will notify the Company immediately upon having a reasonable
basis for believing that such Fund has ceased to so qualify or might not so
qualify in the future.
2.4 To the extent that the Fund finances distribution expenses pursuant to
Rule 12b-1 under the 1940 Act, the Underwriter represents that the Fund's Board
of Trustees or Directors, as applicable, including a majority of its
Trustees/Directors who are not interested persons of the Fund, have formulated
and approved a plan under Rule 12b-1 to finance distribution expenses.
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2.5 The Underwriter makes no representation as to whether any aspect of
the Fund's operations (including, but not limited to, fees and expenses and
investment policies) complies with the insurance laws or insurance regulations
of the various states except that the Underwriter represents that the Fund's
investment policies, fees and expenses are and shall at all times remain in
compliance with the laws of the States of Arkansas. The Underwriter represents
that its and the Fund's respective operations are and shall at all times remain
in material compliance with the laws of the State of Arkansas to the extent
required to perform this Agreement. The Underwriter agrees to furnish
information not otherwise available to the Company that is required by state
insurance law to enable the Company to obtain the authority needed to issue the
Contracts in any applicable state, and to cooperate reasonably with the Company
in any filings of sales literature for the Contracts, to the extent notified
thereof in writing by the Company, provided such compliance is not inconsistent
with any other laws or regulations applicable to the Funds or the Underwriter.
2.6 The Underwriter represents and warrants that it is a member in good
standing of the NASD and is registered as a broker-dealer with the SEC. The
Underwriter further represents that it will sell and distribute the Fund shares
in accordance in all material respects with all applicable federal and state
securities laws, including without limitation the 1933 Act, the 1934 Act, and
the 0000 Xxx.
2.7 The Underwriter represents that each Fund is lawfully organized and
validly existing under the laws of the State of Delaware and that each Fund does
and will comply in all material respects with applicable provisions of the 0000
Xxx.
2.8 The Underwriter represents and warrants that all of the Fund's
Trustees/Directors, officers, employees, investment advisers, and other
individuals/entities having access to the funds and/or securities of the Fund
are and 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 as required by Rule 17g-1 under the 1940 Act or related
provisions as may be promulgated from time to time. The aforesaid Bond includes
coverage for larceny and embezzlement and is issued by a reputable bonding
company.
2.9 The foregoing representations and warranties shall be made, by the
party hereto that makes the representation or warranty as of the date first
written above and at the time of each purchase and each sale of the Fund's
shares pursuant to this Agreement.
ARTICLE III. Prospectuses; Reports and Proxy Statements; Voting
3.1 The Underwriter shall provide the Company at no charge with as many
printed copies of each Fund's current prospectus and statement of additional
information as the Company may reasonably request. If requested by the Company,
in lieu of providing printed copies of the Fund's current prospectus and
statement of additional information, the Fund shall provide camera-ready film,
computer diskettes, e-mail transmissions or PDF files containing the Fund's
prospectus and statement of additional information, and such other assistance as
is reasonably necessary in order for the Company once each year (or more
frequently if the prospectus and/or statement of additional information for the
Fund are amended during the year) to have the prospectus for the Contracts (if
applicable) and the Fund's prospectus printed together in one document or
separately. The Company may elect to print the Fund's prospectus and/or its
statement of additional information in combination with other fund companies'
prospectuses and statements of additional information.
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3.2(a) The Underwriter shall be responsible for providing the Company at
no charge with copies of the Fund's proxy statements, Fund reports to
shareholders, and other Fund communications to shareholders in such quantity as
the Company shall reasonably require for distributing to Contract owners.
3.2(b) The Underwriter shall be responsible for the cost of typesetting,
printing and distributing all Fund prospectuses, statements of additional
information, Fund reports to shareholders and other Fund communications to
Contract owners and prospective Contract owners. The Fund shall pay for all
costs for typesetting, printing and distributing proxy materials.
3.3. The Fund's statement of additional information shall be obtainable by
Contract owners from the Fund, the Underwriter, the Company or such other person
as the Fund may designate.
3.4 If and to the extent required by law the Company shall distribute all
proxy material furnished by the Fund to Contract owners to whom voting
privileges are required to be extended and shall:
A. solicit voting instructions from Contract owners;
B. vote the Fund shares held in the Separate Account in
accordance with instructions received from Contract owners;
and
C. so long as and to the extent that the SEC continues to
interpret the 1940 Act to require pass through voting
privileges for variable annuity contract owners, vote Fund
shares held in the Separate Account for which no timely
instructions have been received, in the same proportion as
Fund shares of such Fund for which instructions have been
received from the Company's Contract owners. The Company
reserves the right to vote Fund shares held in any segregated
asset account for its own account, to the extent permitted by
law. Notwithstanding the foregoing, with respect to the Fund
shares held by unregistered Separate Accounts that issue
Contracts issued in connection with employee benefit plans
subject to the provisions of the Employee Retirement Income
Security Act of 1974, as amended, the Company shall vote such
Fund shares allocated to such Contracts only in accordance
with the Company's agreements with such Contract owners.
3.5 The Underwriter represents and warrants that the Fund will comply with
all provisions of the 1940 Act requiring voting by shareholders. The Underwriter
represents and warrants that the Fund will not hold annual meetings but will
hold such special meetings as may be necessary from time to time.
ARTICLE IV. Sales Material and Information
4.1 The Company shall furnish, or shall cause to be furnished, to the
Fund, the Underwriter or their designee, each piece of sales literature or other
promotional material prepared by the Company or any person contracting with the
Company in which the Fund, the investment adviser to the funds ("the Adviser")
or the Underwriter is described, at least five calendar days prior to its use.
No such literature or material shall be used without prior approval from the
Fund, the Underwriter or their designee, however,
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the failure to object in writing within five calendar days will be deemed
approval. The Company shall use best efforts to use content from Fund materials
previously approved by the Underwriter. Such approval process shall not apply to
subsequent usage of materials that are substantially similar to prior approved
materials.
4.2 Neither the Company nor any person contracting with the Company shall
give any information or make any representations or statements on behalf of the
Fund or concerning the Fund in connection with the sale of the 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 supplemented from time to time, or in reports to shareholders
or proxy statements for the Fund, or in sales literature or other promotional
material approved by the Fund or its designee, except with the permission of the
Fund or its designee.
4.3 The Underwriter shall furnish, or shall cause to be furnished, to the
Company or its designee, each piece of sales literature or other promotional
material in which the Company or any Separate Account is named, at least five
calendar days prior to its use. No such literature or material shall be used
without prior approval from the Company or its designee, however, the failure to
object in writing within five calendar Days will be deemed approval. Such
approval process shall not apply to subsequent usage of materials that are
substantially similar to prior approved materials.
4.4 The Underwriter shall not give any information or make any
representations on behalf of the Company or concerning the Company, each
Separate Account, or the Contracts other than the information or representations
contained in the Contracts, a disclosure document, registration statement or
prospectus for the Contracts (if applicable), as such registration statement and
prospectus may be amended or supplemented from time to time, or in published
reports for each Separate Account which are in the public domain or approved by
the Company for distribution to Contract owners or participants, or in sales
literature or other promotional material approved by the Company, except with
the permission of the Company.
4.5 Upon request, the Underwriter will provide to the Company at least one
complete copy of all prospectuses, statements of additional information, reports
to shareholders, proxy statements, sales literature and other promotional
materials, applications for exemptions, requests for no-action letters, and all
amendments to any of the above, that relate to the Fund or its shares, promptly
after the filing of such document with the SEC or other regulatory authorities.
4.6. The Company will provide to the Fund at least one complete copy of
all prospectuses, statements of additional information, reports, solicitations
for voting instructions, and all amendments to any of the above, if applicable
to the investment in a Separate Account or Contract, promptly after the filing
of such document with the SEC or other regulatory authorities.
4.7 For purposes of this Article IV, the phrase "sales literature or other
promotional material" includes, but is not limited to, advertisements (such as
material published, or designed for use in, a newspaper, magazine, or other
periodical, radio, television, telephone or tape recording, videotape display,
signs or billboards, motion pictures, Internet, or other public 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, electronic mail, 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
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employees, registration statements, disclosure documents, prospectuses,
statements of additional information, shareholder reports, and proxy materials.
4.8 The Underwriter authorizes the Company to use the names or other
identifying marks of Pioneer, including Pioneer Investments(R), and the Funds in
connection with the services to be provided hereunder. The Underwriter or its
affiliates may withdraw this authorization as to any particular use of any such
name or identifying xxxx at any time: (a) upon a reasonable determination that
such use would have a material adverse effect on the reputation or marketing
efforts of the Underwriter or its affiliates or a Fund or (b) if any of the
Funds cease to be available through the Company. Except as set forth in this
Agreement, neither party will cause or permit, without prior written permission,
the use, description or reference to the other party's name, or to the
relationship contemplated in this Agreement, in any advertisement, or
promotional materials or activities, including without limitation, any
advertisement or promotional materials published, distributed, or made
available, or any activity conducted through, the Internet or any other
electronic medium.
4.9 The Underwriter agrees and acknowledges that it has no right, title or
interest in the names and marks of the Company, and that all use of any
designation comprised in whole or part or such names or marks under this
Agreement shall inure to the benefit of the Company. Except as provided in
Section 4.3, the Underwriter acknowledges that neither the Underwriter nor the
Fund shall use any such names or marks on its own behalf or on behalf of a Fund
in connection with marketing the Fund without prior written consent of the
Company. Upon termination of this Agreement for any reason, the Fund and
Underwriter shall cease all use of any such names or marks.
ARTICLE V. Fees and Expenses
5.1 The Fund shall pay the fees and expenses provided for in the
attached Schedule B.
5.2 Within 30 days after each quarter end, the Company will send the
Underwriter a written request for payment that sets forth the amount
to be paid in a mutually agreeable form.
5.3 All expenses incident to performance by the Funds under this
Agreement shall be paid by the Underwriter. The Company shall not
bear any expenses related to the cost of registration and
qualification of Fund shares, preparation and filing of Fund
prospectuses and registration statements, proxy materials and
reports, setting in type and printing the proxy materials and
reports to shareholders (including the costs of printing a
prospectus that constitutes an annual report), the preparation of
all statements and notices required by any federal or state law, and
all taxes on the issuance or transfer of that Fund's shares.
ARTICLE VI. Indemnification
6.1 Indemnification By The Company
(a) The Company agrees to indemnify and hold harmless the Fund, the
Underwriter and each of their respective trustees, directors, officers,
employees or agents and each person, if any, who controls the Fund or the
Underwriter within the meaning of section 15 of the 1933 Act (collectively, the
"Indemnified Parties" for purposes of this Section 6.1) against any and all
losses, claims, damages,
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liabilities (including amounts paid in settlement with the written consent of
the Company) or litigation (including reasonable legal and other expenses), to
which the Indemnified Parties may become subject under any statute, regulation,
at common law or otherwise, insofar as such losses, claims, damages, liabilities
or expenses (or actions in respect thereof) or settlements are related to the
sale or acquisition of the Fund's shares or the Contracts and:
(i) arise out of or are based upon any untrue statement or
alleged untrue statement of any material fact contained in the disclosure
statement, registration statement, prospectus or statement of additional
information for the Contracts or contained in the Contracts or sales literature
or other promotional material for the Contracts (or any amendment or supplement
to any of the foregoing), or arise out of or are based upon the omission or the
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading; provided that this
agreement to indemnify shall not apply as to an Indemnified Party if such
statement or omission or such alleged statement or omission was made in reliance
upon and in conformity with information furnished by such Indemnified Party or
the Fund to the Company on behalf of the Fund for use in the registration
statement, prospectus or statement of additional information 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 (a) statements or
representations by or on behalf of the Company (other than statements or
representations contained in the Fund registration statement, Fund prospectus or
sales literature or other promotional material of the Fund not supplied by the
Company, or persons under its control and other than statements or
representations authorized by the Fund, the Underwriter or the Adviser); or (b)
the willful misfeasance, bad faith, gross negligence or reckless disregard of
duty of the Company or persons under its control, with respect to the sale or
distribution of the Contracts or Fund shares; or
(iii) arise out of or as a result of any untrue statement or
alleged untrue statement of a material fact contained in the Fund registration
statement, Fund prospectus, statement of additional information or sales
literature or other promotional material 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 and in conformity with information furnished to the Fund or the Underwriter
by the Company or persons under its control; or
(iv) arise as a result of any material failure by the Company
to provide the services and furnish the materials under the terms of this
Agreement; or
(v) arise out of or result from any material breach of any
representation and/or warranty made by the Company in this Agreement or arise
out of or result from any other material breach by the Company of this
Agreement; except to the extent provided in Sections 6.1(b) and 6.3 hereof.
(b) No party shall be entitled to indemnification to the extent that
such loss, claim, damage, liability or litigation is due to the willful
misfeasance, bad faith, gross negligence or reckless disregard of duty by the
party seeking indemnification.
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(c) In accordance with Section 6.3 hereof, the Indemnified Parties
will promptly notify the Company of the commencement of any litigation or
proceedings against them in connection with the issuance or sale of the Fund
shares or the Contracts or the operation of the Fund.
6.2 Indemnification By the Underwriter
(a) The Underwriter agrees, with respect to each Fund that it
distributes, to indemnify and hold harmless the Company and each of its
directors, officers, employees or agents and each person, if any, who controls
the Company within the meaning of section 15 of the 1933 Act (collectively, the
"Indemnified Parties" for purposes of this Section 6.2) against any and all
losses, claims, damages, liabilities (including amounts paid in settlement with
the written consent of the Underwriter) or litigation (including reasonable
legal and other expenses) to which the Indemnified Parties may become subject
under any statute, regulation, at common law or otherwise, insofar as such
losses, claims, damages, liabilities or expenses (or actions in respect thereof)
or settlements are related to the sale or acquisition of the shares of the Funds
that it distributes 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, prospectus or statement of additional information for the Fund or
sales literature or other promotional material of the Fund (or any amendment or
supplement to any of the foregoing), or arise out of or are based upon the
omission or the alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading;
provided that this agreement to indemnify shall not apply as to any Indemnified
Party if such statement or omission or such alleged statement or omission was
made in reliance upon and in conformity with information furnished by such
Indemnified Party or the Company to the Fund or the Underwriter on behalf of the
Company for use in the registration statement, prospectus or statement of
additional information for the Fund or in sales literature of the Fund (or any
amendment or supplement thereto) 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 (a) statements or
representations (other than statements or representations contained in the
registration statement, prospectus or sales literature for the Contracts not
supplied by the Fund or the Underwriter or persons under their respective
control and other than statements or representations authorized by the Company);
or (b) the willful misfeasance, bad faith, gross negligence or reckless
disregard of duty of the Fund or the Underwriter or persons under the control of
the Fund or the Underwriter, respectively, with respect to the sale or
distribution of the Contracts or Fund shares; or
(iii) arise out of or as a result of any untrue statement or
alleged untrue statement of a material fact contained in a registration
statement, prospectus, statement of additional information or sales literature
or other promotional material with respect to the Contracts (or any amendment
thereof or supplement thereto), or the omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statement or statements therein not misleading, if such statement or omission
was made in reliance upon and in conformity with information furnished to the
Company by the Fund or the Underwriter or persons under the control of the Fund
or the Underwriter, respectively; or
(iv) arise as a result of any material failure by the Fund or
the Underwriter to provide the services and furnish the materials under the
terms of this Agreement (including a failure,
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whether unintentional or in good faith or otherwise, to comply with the
qualification requirements specified in Section 2.3 of this Agreement); or
(v) arise out of or result from any material breach of any
representation and/or warranty made by the Underwriter or the Fund in this
Agreement or arise out of or result from any other material breach of this
Agreement by the Underwriter or the Fund; except to the extent provided in
Sections 6.2(b) and 6.3 hereof.
(b) No party shall be entitled to indemnification to the extent that
such loss, claim, damage, liability or litigation is due to the willful
misfeasance, bad faith, gross negligence or reckless disregard of duty by the
party seeking indemnification.
(c) In accordance with Section 6.3 hereof, the Indemnified Parties
will promptly notify the Underwriter 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 Separate Accounts.
6.3. Indemnification Procedure
(a) Any person obligated to provide indemnification under this
Article VI ("Indemnifying Party" for the purpose of this Section 6.3) shall not
be liable under the indemnification provisions of this Article VI with respect
to any claim made against a party entitled to indemnification under this Article
VI ("Indemnified Party" for the purpose of this Section 6.3) unless such
Indemnified Party shall have notified the Indemnifying Party 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 party shall have received notice of such
service on any designated agent), but failure to notify the Indemnifying Party
of any such claim shall not relieve the Indemnifying Party from any liability
which it may have to the Indemnified Party against whom such action is brought
otherwise than on account of the indemnification provision of this Article VI.
In case any such action is brought against the Indemnified Party, the
Indemnifying Party will be entitled to participate, at its own expense, in the
defense thereof. The Indemnifying Party also shall be entitled to assume the
defense thereof, with counsel satisfactory to the party named in the action.
After notice from the Indemnifying Party to the Indemnified Party of the
Indemnifying Party's election to assume the defense thereof, the Indemnified
Party shall bear the fees and expenses of any additional counsel retained by the
Indemnified Party, and the Indemnifying Party 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, unless:
(i) the Indemnifying Party and the Indemnified Party shall have
mutually agreed to the retention of such counsel or
(ii) the named parties to any such proceeding (including any
impleaded parties) include both the Indemnifying Party and the Indemnified Party
and representation of both parties by the same counsel would be inappropriate
due to actual or potential differing interests between them.
A successor by law of the parties to this Agreement shall be entitled to the
benefits of the indemnification contained in this Article VI. The
indemnification provisions contained in this Article VI shall survive any
termination of this Agreement.
11
ARTICLE VII. Applicable Law
7.1 This Agreement shall be construed and the provisions hereof
interpreted under and in accordance with the laws of The State of New York.
7.2 This Agreement shall be subject to the provisions of the 1933, 1934
and 1940 Acts, and the rules and regulations and rulings thereunder, including
such exemptions from those statutes, rules and regulations as the SEC may grant
and the terms hereof shall be interpreted and construed in accordance therewith.
ARTICLE VIII. Termination
8.1 This Agreement shall terminate:
(a) at the option of any party upon six months' advance written
notice to the other parties unless otherwise agreed in a separate written
agreement among the parties; or
(b) at the option of the Fund or the Underwriter, upon institution
of formal proceedings against the Company by the NASD, NASD Regulation, Inc.
("NASDR"), the SEC, the insurance commission of any state or any other
regulatory body regarding the Company's duties under this Agreement or related
to the sale of the Contracts, the administration of the Contracts, the operation
of the Separate Accounts, or the purchase of the Fund shares, which in the
judgment of the Fund, the Underwriter or the Adviser are reasonably likely to
have a material adverse effect on the Company's ability to perform its
obligations under this Agreement; or
(c) at the option of the Company upon institution of formal
proceedings against the Fund, the Underwriter or the Adviser by the NASD, NASDR,
the SEC, or any state securities or insurance department or any other regulatory
body, related to the purchase or sale of the Fund shares or the operation of the
Fund which in the judgment of the Company are reasonably likely to have a
material adverse effect on the Underwriter's, the Fund's or the Adviser's
ability to perform its obligations under this Agreement; or
(d) at the option of the Company if a Fund delineated in Schedule A
ceases to qualify as a Regulated Investment Company under Subchapter M of the
Code (a "RIC"), or under any successor or similar provision, and the
disqualification is not cured within the period permitted for such cure, or if
the Company reasonably believes that any such Fund may fail to so qualify and be
unable to cure such disqualification within the period permitted for such cure;
or
(e) at the option of any party to this Agreement, upon another
party's material breach of any provision of this Agreement; provided that the
party not in breach shall give the party in breach notice of the breach and the
party in breach does not cure such breach within 30 days of receipt of such
notice of breach; or
(f) at the option of the Company, if the Company determines in its
sole judgment exercised in good faith, that either the Fund, the Underwriter or
the Adviser has suffered a material adverse change in its business, operations
or financial condition since the date of this Agreement or is the
12
subject of material adverse publicity which is likely to have a material adverse
impact upon the business and operations of the Company; or
(g) at the option of the Fund or the Underwriter if the Fund or the
Underwriter, respectively, shall determine in its sole judgment exercised in
good faith, that the Company has suffered a material adverse change in its
business, operations or financial condition since the date of this Agreement or
is the subject of material adverse publicity which is likely to have a material
adverse impact upon the business and operations of the Fund or Underwriter; or
(h) at the option of the Company, if the Company determines that
shares of the Funds are not reasonably available to meet the requirements of the
Contracts; or
(i) at the option of the Company, in the event any of the Funds'
shares are not registered, issued, or sold in accordance with applicable state
and/or federal law or such laws preclude the use of such shares as the
underlying investment media of the Contracts issued or to be issued by the
Company; or
(j) at the option of the Company upon any substitution of the shares
of another investment company or series thereof for Fund shares in accordance
with the terms of the Contracts.
8.2 Notice Requirement
(a) In the event that any termination of this Agreement is based
upon the provisions of Sections 8.1(b), 8.1(c), 8.1(d), 8.1(h) or 8.1(i), prompt
written notice of the election to terminate this Agreement for cause shall be
furnished by the party terminating the Agreement to the non-terminating parties,
with said termination to be effective upon receipt of such notice by the
non-terminating parties; provided that for any termination of this Agreement
based on the provisions of Section 8.1(d), said termination shall be effective
upon the Fund's failure to qualify as a RIC and to cure such disqualification
within the period permitted for such cure.
(b) In the event that any termination of this Agreement is based
upon the provisions of Sections 8.1(e), 8.1(f), 8.1(g) or 8.1(j) prior written
notice of the election to terminate this Agreement for cause shall be furnished
by the party terminating this Agreement to the non-terminating parties. Such
prior written notice shall be given by the party terminating this Agreement to
the non-terminating parties at least 60 days before the effective date of
termination.
8.3 It is understood and agreed that the right to terminate this Agreement
pursuant to Section 8.1(a) may be exercised for any reason or for no reason.
8.4 Effect of Termination
(a) Notwithstanding any termination of this Agreement the Company may require
the Fund and the Underwriter to continue to make available additional shares of
the Fund for so long after the termination of this Agreement as the Company
desires for all Contracts in effect on the effective date of termination of this
Agreement (hereinafter referred to as "Existing Contracts"), unless such further
sale and/or redemption of Fund shares is proscribed by law, regulation or an
applicable regulatory body. Specifically, without limitation, the owners of the
Existing Contracts shall be permitted to direct reallocation of investments in
the Funds, redeem investments in the Funds and/or invest in the Funds
13
upon the making of additional purchase payments under the Existing Contracts
unless such further sale and/or redemption of Fund shares is proscribed by law,
regulation or an applicable regulatory body.
(b) Fund and/or Underwriter shall remain obligated to pay Company the fee in
effect as of the date of termination for so long as shares are held by the
Accounts and Company continues to provide services to the Accounts. Such fee
shall apply to shares purchased both prior to and subsequent to the date of
termination. This Agreement, or any provision thereof, shall survive the
termination to the extent necessary for each party to perform its obligations
with respect to shares for which a fee continues to be due subsequent to such
termination.
ARTICLE IX. Notices
9.1 (a) Any notice shall be deemed duly given only if sent by hand or
overnight express delivery, evidenced by written receipt or by certified mail,
return receipt requested, 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. All notices shall be deemed given the date
received or rejected by the addressee.
If to the Company:
Xxxxxxx Xxxxx Life Insurance Company
Attention: Xxxxxx X. Xxxxxx, Xx.
0000 Xxxxxxx Xxxxx Xxxxx, 0xx Xxxxx
Xxxxxxxxxx, XX 00000
with a copy to:
If to the Underwriter:
Attention: President
Pioneer Funds Distributor, Inc.
00 Xxxxx Xxxxxx
Xxxxxx, XX 00000
With a copy to:
General Counsel
Pioneer Investment Management USA Inc.
00 Xxxxx Xxxxxx
Xxxxxx, XX 00000
ARTICLE X Miscellaneous
10.1 Subject to law and regulatory authority, each party hereto shall
treat as confidential the names and addresses of the owners of the Contracts and
all other information reasonably identified as such in writing by any other
party hereto, and, except as contemplated by this Agreement, shall not disclose,
disseminate or utilize such confidential information without the express prior
written consent of
14
the affected party until such time as it may come into the public domain. In
addition, the parties hereby represent that they will use and disclose Personal
Information (as defined below) only to carry out the purposes for which it was
disclosed to them and will not use or disclose Personal information if
prohibited by applicable law, including, without limitation, statutes and
regulations enacted pursuant to the Xxxxx-Xxxxx-Xxxxxx Act (Public Law 106-102).
"Personal Information" means financial and medical information that identifies
an individual personally and is not available to the public, including, but not
limited to, credit history, income, financial benefits, policy or claim
information and medical records. If either party outsources services to a third
party, such third party will agree in writing to maintain the security and
confidentiality of any information shared with them.
10.2 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.
10.3 This Agreement may be executed simultaneously in two or more
counterparts, each of which taken together shall constitute one and the same
instrument.
10.4 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.
10.5 This Agreement shall not be assigned by any party hereto without the
prior written consent of all the parties.
10.6 Each party hereto shall cooperate with each other party and all
appropriate governmental authorities (including without limitation the SEC, the
NASD, NASDR and state insurance regulators) and shall permit each other and such
authorities (and the parties hereto) 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 foregoing, each party
hereto further agrees to furnish the California Insurance Commissioner with any
information or reports in connection with services provided under this Agreement
which such Commissioner may reasonably request in order to ascertain whether the
insurance operations of the Company are being conducted in a manner consistent
with the California laws and regulations.
10.7 Each party represents that (a) the execution and delivery of this
Agreement and the consummation of the transactions contemplated herein have been
duly authorized by all necessary corporate or trust action, as applicable, by
such party and when so executed and delivered this Agreement will be the valid
and binding obligation of such party enforceable in accordance with its terms
subject to bankruptcy, insolvency, reorganization, moratorium and similar laws
of general applicability relating to or affecting creditors' rights and to
general equity principles; (b) the party has obtained, and during the term of
this Agreement will maintain, all authorizations, licenses, qualifications or
registrations required to be maintained in connection with the performance of
its duties under this Agreement; and (c) the party will comply in all material
respects with all applicable laws, rules and regulations.
10.8 The parties to this Agreement may amend by written agreement the
Schedules to this Agreement from time to time to reflect changes in or relating
to the Contracts, the Separate Accounts or the Funds of the Fund.
10.9 The Underwriter and the Company hereby acknowledge that: (i) each has
adopted an anti-money laundering program that complies with the requirements of
applicable anti-money laundering
15
laws, including the USA Patriot Act, the Bank Secrecy Act and applicable
regulations thereunder; (ii) each regularly searches its databases for
shareholder/customer names and countries appearing on U.S. governmental
agencies' lists of prohibited persons (e.g., lists maintained by the Office of
Foreign Assets Control); and (iii) each monitors its compliance with such
program. The Underwriter and the Company agree to notify the other of any: (i)
identified instances of non-compliance that involve an account related to the
Contracts, Contract owners, the Funds or the Underwriter, either through a
shareholder or transaction(s); and (ii) other anti-money laundering issues that
may arise with respect to the Contracts, Contract owners, the Funds or the
Underwriter. The Underwriter and the Company agree to notify the other with such
periodic certifications of compliance as may reasonably be requested.
10.10 The Company agrees to use its best efforts to assist the Underwriter
and the Funds to identify and address excessive or short-term trading in the
Funds. The Company further agrees to notify the Underwriter in the event that
the Company becomes aware of any excessive or short-term trading that is
inconsistent with the Company's policies and procedures with respect to content
value allocated to any of the Funds. The Company agrees that upon notice from
the Underwriter that any excessive or short-term activity is disruptive to the
Fund(s), to use reasonable efforts to identify and deter such activities by
Contract owner and/or Contract owner's agent..
IN WITNESS WHEREOF, each of the parties hereto has caused this Agreement
to be executed in its name and behalf by its duly authorized representative as
of the date first written above.
XXXXXXX XXXXX LIFE INSURANCE PIONEER FUNDS DISTRIBUTOR, INC.
COMPANY
By ________________________________ By: ______________________________
Name: _____________________________ Name: ____________________________
Title: ____________________________ Title: ___________________________
16
SCHEDULE A
SEPARATE ACCOUNTS
Each Separate Account established by resolution of the Board of Directors of the
Company under the insurance laws of the State of Arkansas to set aside and
invest assets attributable to the Contracts. Currently, those Separate Accounts
are as follows:
Xxxxxxx Xxxxx Life Variable Annuity Separate
Account D
FUNDS
CURRENTLY THE FUNDS ARE AS FOLLOWS:
Pioneer Fund
Pioneer High Yield Fund
Pioneer Small Cap Value Fund
March ____, 2005
17
SCHEDULE B
In consideration of the services provided by the Company, the Underwriter, or
one of its affiliates, agrees to pay the Company an amount equal to the
following basis points per annum on the average aggregate amount invested by the
Company's Separate Account(s) in each Fund under the Agreement, such amounts to
be paid within 30 days of the end of each calendar quarter.
SERVICE
FUND FEES 12B-1 FEE
--------------------------- --------- ----------
Pioneer Fund [redacted]% [redacted]%
Pioneer High Yield Fund [redacted]% [redacted]%
Pioneer SmallCap Value Fund [redacted]% [redacted]%
18
