PARTICIPATION AGREEMENT
THIS AGREEMENT, made and entered into as of the 16th day of November, 2011 by
and among HARTFORD LIFE INSURANCE COMPANY (hereinafter the "Company"), a life
insurance company organized under the laws of CONNECTICUT, on its own behalf and
on behalf of each separate account of the Company set forth on Schedule B hereto
as may be amended from time to time (each such account hereinafter referred to
as the "Account"), and ROYCE CAPITAL FUND (hereinafter the "Fund"), a Delaware
statutory trust, and ROYCE FUND SERVICES, INC., a New York corporation (the
"Distributor").
WHEREAS, the Fund engages in business as an open-end management investment
company and is available to act as (i) the investment vehicle for separate
accounts established by insurance companies for individual and group life
insurance policies and annuity contracts with variable accumulation and/or
pay-out provisions (hereinafter referred to individually and/or collectively as
"Variable Insurance Products") and (ii) the investment vehicle for certain
qualified pension and retirement plans (hereinafter "Qualified Plans"); and
WHEREAS, insurance companies desiring to utilize the Fund as an investment
vehicle under their Variable Insurance Products are required to enter into a
participation agreement with the Fund and the Distributor (the "Participating
Insurance Companies"); and
WHEREAS, shares of the Fund are divided into several series of shares, each
representing the interest in a particular managed portfolio of securities and
other assets, any one or more of which may be made available for Variable
Insurance Products of Participating Insurance Companies; and
WHEREAS, the Fund intends to offer shares of the series set forth on Schedule A
(each such series hereinafter referred to as a "Portfolio"), as may be amended
from time to time by mutual agreement of the parties hereto, under this
Agreement to the Accounts of the Company; and
WHEREAS, the Fund has obtained an order from the Securities and Exchange
Commission, dated July 24, 1996 (File No. 812-9988), granting Participating
Insurance Companies and Variable Insurance Product 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 Insurance Products
separate accounts of both affiliated and unaffiliated life insurance companies
and Qualified Plans (hereinafter the "Shared Funding Exemptive Order"); and
WHEREAS, the Fund is registered as an open-end management investment company
under the 1940 Act and its shares are registered under the Securities Act of
1933, as amended (hereinafter the "1933 Act"); and
WHEREAS, the Distributor is registered as a broker-dealer with 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. ("NASD"); and
WHEREAS, the Distributor is the principal underwriter of the Portfolios of the
Fund; and
WHEREAS, the Company has registered or will register certain Variable Insurance
Products under the 1933 Act or will not register certain Variable Insurance
Products in proper reliance upon an exclusion from registration under the 1933
Act; and
WHEREAS, each Account is a duly organized, validly existing segregated asset
account, established by resolution or under authority of the Board of Directors
of the Company, on the date shown for such Account on Schedule B hereto, to set
aside and invest assets attributable to the aforesaid Variable Insurance
Products; and
WHEREAS, the Company has registered or will register each Account as a unit
investment trust under the 1940 Act or will not register the Account in proper
reliance upon Section 3(c)1 or Section 3(c)(7) under the 1940 Act; and
WHEREAS, to the extent permitted by applicable insurance laws and regulations,
the Company intends to purchase shares in the Portfolios on behalf of each
Account to fund certain of the aforesaid Variable Insurance Products;
NOW, THEREFORE, in consideration of their mutual promises, the Company and the
Fund agree as follows:
ARTICLE I. Fund Shares
1.1. The Fund agrees to make available for purchase by the Company shares of
the Portfolios set forth on Schedule A and shall execute orders placed for each
Account on a daily basis at the net asset value next computed after receipt by
the Fund or its designee of such order. For purposes of this Section 1.1, the
Company shall be the designee of the Fund for receipt of such orders from each
Account and receipt by such designee of orders prior to the close of regular
trading on the New York Stock Exchange (generally 4:00 p.m. Eastern time) shall
constitute receipt by the Fund; provided that the Fund or its transfer agent
receives notice of such order via the National Securities Clearing Corporation
(the "NSCC') in accordance with the NSCC's Defined Contribution Clearance &
Settlement ("DCC&S") platform cycle file. The Fund will receive all orders to
purchase Fund shares using the NSCC's DCC&S platform. The Fund will also provide
the Company with account positions and activity data using the NSCC's Networking
platform. The Company shall pay for Fund shares by Federal Funds wire using the
NSCC's Fund/SERV System in accordance with the rules and regulations of the NSCC
as may be amended from time to time. Payment shall be in Federal Funds
transmitted by wire to the Fund's designated Settling Bank from the NSCC.
"Networking" shall mean the NSCC's product that allows Funds and Companies to
exchange
account level information electronically. "Settling Bank" shall mean the entity
appointed by the Fund to perform such settlement services on behalf of the Fund
and agrees to abide by the NSCC's Rules and Procedures insofar as they relate to
the same day funds settlement. "Business Day" shall mean any day on which the
New York Stock Exchange is open for trading and on which the Fund calculates the
net asset value pursuant to the rules of the SEC, as set forth in the Fund's
Prospectus and Statement of Additional Information. Notwithstanding the
foregoing, the Board of Trustees of the Fund (hereinafter the "Board") may
refuse to permit the Fund 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.
If the Company is somehow prohibited from submitting purchase and settlement
instructions to the Fund for Fund shares via the NSCC's DCC*S platform the
following shall apply to this Section:
The Company shall use its best efforts to promptly notify the Fund or its
transfer agent of its inability to use the NSCC's DCC&S platform via telephone
and/or facsimile transmission. The Fund and the Distributor agree to sell the
Company those shares of the Portfolios which the Company orders on behalf of any
Account, executing such orders on a daily basis at the net asset value next
computed after receipt and acceptance by the Fund or its designee of such order.
For purposes of this Section 1.1, the Company shall be the designee of the Fund
for receipt of such orders from each Account and receipt by such designee of
orders prior to the close of regular trading on the New York Stock Exchange
(generally 4:00 p.m. Eastern time) shall constitute receipt by the Fund;
provided that the Fund receives notice of such order by 10:15 a.m. Eastern time
on the next following Business Day. Notwithstanding the foregoing, the Company
shall use its best efforts to provide the Fund with notice of such orders 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 the net asset value pursuant to the rules of the SEC,
as set forth in the Fund's Prospectus and Statement of Additional Information.
Notwithstanding the foregoing, the Board of Trustees of the Fund (hereinafter
the "Board") may refuse to permit the Fund 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.
1.2. The Fund agrees that shares of the Fund will be sold only to Participating
Insurance Companies and their Variable Insurance Products. No shares of any
Portfolio will be sold to the general public.
1.3. The Fund will not make its shares available for purchase by any insurance
company or separate account unless an agreement containing provisions
substantially the same as Sections 2.4, 2.9, 3.4 and Article VII of this
Agreement is in effect to govern such sales.
1.4. The Fund agrees to redeem for cash, on the Company's request, any full or
fractional shares of the Fund held by the Company, executing such requests on a
daily basis at the net asset value next computed after receipt by the Fund or
its designee of the request for redemption. For purposes of this Section 1.4,
the Company shall be the designee of the Fund for receipt of requests for
redemption from each Account and receipt by such designee shall constitute
receipt by the Fund; provided that the Fund receives notice of such request for
redemption on the next following Business Day in accordance with the timing
rules described in Section 1.1 and the Fund or its transfer agent receives
notice of such request for redemption via the NSCC in accordance with the NSCC'
s DDCC&S platform cycle file. The Fund will receive all orders to redeem Fund
shares using the NSCC's DCC&S platform. The Fund will also provide the Company
with account positions and activity data using the NSCC's Networking platform.
Payment for Fund shares redeemed shall be made in accordance with this section
using the NSCC's Fund/SERV System.
If the Company is prohibited from submitting redemption and settlement
instructions to the Fund for Fund shares via the NSCC's DCC&S platform the
following shall apply to this Section 1.4:
The Distributor agrees to redeem in accordance with the Fund's prospectus, upon
the Company's request, any full or fractional shares of the Fund held by the
Company on behalf of the Account, executing such requests on a daily basis at
the net asset value next computed after receipt and acceptance by the Fund or
its designee of the request for redemption. For purposes of this Section, the
Company shall be the designee of the Fund for receipt of requests for redemption
from each Account and receipt by such designee shall constitute receipt by the
Fund; provided that the designee has received such orders prior to the Close of
Trading on a given Business Day ("Trade Date") and the Company shall use its
best efforts to provide the Fund or its transfer agent notice of such request
for redemption by 8:30 a.m. Eastern Time, but in no event later than 9:00 a.m.
Eastern Time on the first Business Day following the Trade Date by facsimile or
such other means mutually agreed upon by the parties. Payment shall be in
Federal Funds transmitted by wire to the Account as designated by the Company by
1:00 p.m. Eastern Time, on the first Business Day following the Trade Date.
1.5. The Company agrees that purchases and redemptions of Portfolio shares
offered by the then current prospectus of the Fund shall be made in accordance
with the provisions of such prospectus. The Accounts of the Company, under which
amounts may be invested in the Fund, are listed on Schedule B attached hereto
and incorporated herein by reference, as such Schedule B may be amended from
time to time by mutual written agreement of all of the parties hereto.
1.6. The Company will place separate orders to purchase or redeem shares of
each Portfolio. Each order shall describe the net amount of shares and dollar
amount of each Portfolio to be purchased or redeemed. In the event of net
purchases, the Company shall pay for Portfolio shares on the next Business Day
after an order to purchase Portfolio shares is made in accordance with the
provisions of Section 1.1 hereof. Payment shall be in Federal Funds transmitted
by the NSCC to the Account's Settling Bank in accordance with the rules and
regulations of the NSCC as may be amended from time to time. Notwithstanding the
foregoing, if the payment of redemption proceeds on the next Business Day would
require the Portfolio to dispose of securities or otherwise incur
substantial additional costs, and if the Portfolio has determined to settle
redemption transactions for all shareholders on a delayed basis, it reserves the
right to suspend the right of redemption or postpone the date of payment or
satisfaction upon redemption consistent with Section 22(e) of the 1940 Act and
the Portfolio shall notify in writing the person designated by the Company as
the recipient for such notice of such delay promptly.
If the Company or Distributor is prohibited from transmitting Federal Funds via
the NSCC's DCC&S platform the following shall apply to this Section 1.6:
Payment shall be in federal funds transmitted by wire. In the event of net
redemptions, the Portfolio shall use its best efforts to pay the redemption
proceeds in federal funds transmitted by wire on the next Business Day, in any
event redemption proceeds shall be wired to the Company within three Business
Days or such longer period permitted by the 1940 Act, after an order to redeem a
Portfolio's shares is made in accordance with the provision of Section 1.4
hereof. Notwithstanding the foregoing, if the payment of redemption proceeds on
the next Business Day would require the Portfolio to dispose of securities or
otherwise incur substantial additional costs, and if the Portfolio has
determined to settle redemption transactions for all shareholders on a delayed
basis, it reserves the right to suspend the right of redemption or postpone the
date of payment or satisfaction upon redemption consistent with Section 22(e) of
the 1940 Act and the Portfolio shall notify in writing the person designated by
the Company as the recipient for such notice of such delay promptly.
1.7. Issuance and transfer of the Fund's shares will be by book entry only.
Stock certificates will not be issued to the Company or any Account. Shares
ordered from the Fund will be recorded in an appropriate title for each Account
or the appropriate subaccount of each Account.
1.8. The Fund shall make the dividends or capital gain distributions per share
payable on the Fund's shares available to the Company as soon as reasonably
practical after the dividends or capital gains are declared (normally by 5:30
p.m. Eastern time) and shall use its best efforts to furnish same day notice by
6:00 p.m. Eastern time to the Company of any dividends or capital gain
distributions per share payable on the Fund's shares via the NSCC. The Fund
shall notify the Company of anticipated distributions no later than the ex-date
of such distribution, including the reinvestment date, by e-mail to
Xxxxxxxx.Xxxxxx@xxxxxxxxxxxx.xxx. . The Company hereby elects to receive all
such dividends and capital gain distributions as are payable on the Portfolio
shares in additional shares of that Portfolio. The Company reserves the right to
revoke this election and to receive all such dividends and capital gain
distributions in cash. The Fund shall notify the Company of the number of shares
so issued as payment of such dividends and distributions.
1.9. The Fund shall make the net asset value per share for each Portfolio
available to the Company (via e-mail to Xxxxxxxx.Xxxxxx@xxxxxxxxxxxx.xxx) on a
daily basis as soon as reasonably practical after the net asset value per share
is calculated (normally by 5:30 p.m. Eastern time) 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 that the Fund is unable to meet the 6:00 p.m. time stated
immediately above, then the Fund shall provide the Company with additional time
to notify the Fund of purchase or redemption orders pursuant to Sections 1.1 and
1.4, respectively, above. Such additional time shall be equal to
the additional time that the Fund takes to make the net asset values available
to the Company; provided, however, that notification must be made by 10:15 a.m.
Eastern time on the Business Day such order is to be executed regardless of when
the net asset value is made available. If the Fund provides the Company with
materially incorrect share net asset value information, the Account(s) shall be
entitled to any adjustment to the number of shares purchased or redeemed
necessary to make the Account(s) whole. Any material error in the calculation of
the net asset value per share, dividend or capital gain information shall be
reported promptly upon discovery to the Company. If such material error results
in an overpayment to the Account(s), the Company will use its best efforts to
collect such overpayment. If, after such efforts, the Company is not able to
recover all such overpayment, the Company will cooperate with the attempts of
the Fund and/or Distributor to recover the overpayment. Furthermore, the
Distributor shall be liable for the reasonable administrative costs incurred by
the Company in relation to the correction of any material error, provided such
error is attributable to the Fund or the Distributor. Administrative costs shall
include reasonable allocation of staff time, costs of outside service providers,
printing and postage. Non-material errors will be corrected in the next Business
Day's net asset value per share.
ARTICLE II. Representations and Warranties
2.1. The Company represents and warrants that the interests of the Accounts
(the "Contracts") are or will be registered and will maintain the registration
under the 1933 Act and the regulations thereunder to the extent required by the
1933 Act or that the Contracts are not registered because they are properly
exempt from registration under the 1933 Act or will be offered exclusively in
transactions that are properly exempt from registration under the 1933 Act; that
the Contracts will be issued in compliance in all material respects with all
applicable federal and state laws and regulations. The Company further
represents and warrants that it is an insurance company duly organized and in
good standing under applicable law and that it has legally and validly
established each Account prior to any issuance or sale thereof as a segregated
asset account under the Connecticut Insurance Law and the regulations thereunder
and has registered or, prior to any issuance or sale of the Contracts, will
register and will maintain the registration of each Account as a unit investment
trust in accordance with and to the extent required by the provisions of the
1940 Act and the regulations thereunder to serve as a segregated investment
account for the Contracts or that it has not registered the Account in proper
reliance upon Section 3(c)(1) or Section 3(c)(7) under the 0000 Xxx. 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.
2.2. The Fund represents and warrants that Fund shares sold pursuant to this
Agreement shall be registered under the 1933 Act and the regulations thereunder
to the extent required by the 1933 Act, duly authorized for issuance in
accordance with the laws of the State of Delaware and sold in compliance with
all applicable federal and state securities laws and regulations and that the
Fund is and shall remain registered under the 1940 Act and the regulations
thereunder to the extent required by the 0000 Xxx. The Fund shall amend the
registration statement for its shares under the 1933 Act and the 1940 Act from
time to time as required in order to effect the continuous offering of its
shares. The Fund shall register and qualify the shares for sale in accordance
with the laws of the various states only if and to the extent deemed advisable
by the Fund.
2.3 The Fund and the Distributor represent that the Fund is currently qualified
as a Regulated Investment Company under Subchapter M of the Internal Revenue
Code of 1986, as amended (the "Code"), and that the Fund will make every effort
to maintain such qualification (under Subchapter M or any successor or similar
provision) and that the Fund or its designee will notify the Company immediately
upon having a reasonable basis for believing that a Portfolio has ceased to so
qualify or that a Portfolio might not so qualify in the future.
2.4. The Company represents that each Account is and will continue to be a
"segregated account" under applicable provisions of the Code and that each
Contract is and will be treated as a "variable contract" under applicable
provisions of the Code and that it will make every effort to maintain such
treatments and that it will notify the Fund immediately upon having a reasonable
basis for believing that the Account or Contract has ceased to be so treated or
that they might not be so treated in the future.
2.5. The Fund represents that to the extent it decides to finance distribution
expenses pursuant to Rule 12b-1 under the 1940 Act, the Fund undertakes to have
a board of trustees, a majority of whom are not interested persons of the Fund,
formulate and approve any plan under Rule 12b-1 to finance distribution expenses
in accordance with the 1940 Act.
2.6. The Fund makes no representation as to whether any aspect of its
operations (including, but not limited to, fees and expenses and investment
policies) complies with the insurance laws or regulations of the various states,
except that the Fund represents that it will use its best efforts to ensure that
its investment policies, fees and expenses are and shall at all times remain in
compliance with the 1940 Act.
2.7. The Fund and the Distributor represent that the Fund is lawfully organized
and validly existing under the laws of Delaware and that the Fund does and will
comply in all material respects with the 1940 Act.
2.8. The Distributor represents and warrants that it is and shall remain duly
registered in all material respects under all applicable federal securities laws
and that it will perform its obligations for the Fund and the Company in
compliance in all material respects with the laws and regulations of its state
of domicile and any applicable state and federal securities laws and
regulations.
2.9. The Company represents and warrants that all of its trustees, officers,
employees, investment adviser, and other individuals/entities dealing with the
money and/or securities of the Fund are covered by a blanket fidelity bond or
similar coverage, in an amount equal to the greater of $5 million or any amount
required by applicable federal or state law or regulation. The aforesaid
includes coverage for larceny and embezzlement is issued by a reputable bonding
company. The Company agrees to make all reasonable efforts to see that this bond
or another bond containing these
provisions is always in effect, and agrees to notify the Fund in the event that
such coverage no longer applies.
2.10. The Company represents and warrants that it will adhere to the Fund's
policy intended to discourage shareholders from trading that could be
detrimental to long-term shareholders of the Fund (the "Policy"), as set forth
in the Fund's current prospectus ("Fund Prospectus"). The aforesaid includes
among other things, the monitoring of shareholder/participant trading activity
and the restriction of shareholder/participant trading privileges at the
sub-account level if warranted by the Policy.
2.11. The Company represents and warrants that it will adhere to all applicable
anti-money laundering rules and regulations in fulfilling its obligations under
this Agreement.
2.12. The Company, Fund and Distributor agree that all non-public records,
information, and data relating to the business of the other (including customer
names and information and portfolio holdings information) that are exchanged or
negotiated pursuant to this Agreement or in carrying out this Agreement shall
remain confidential, and shall not be voluntarily disclosed by either party
without the prior written consent of the other party, except as may be required
by law or by such party to carry out this Agreement or an order of an court,
governmental agency or regulatory body.
2.13. The Fund and the Distributor represent and warrant that to the best of
their knowledge, no shares of the Fund are currently held by Qualified Plans. In
the event the Fund and the Distributor are aware that a Qualified Plan does hold
shares of the Fund, the Fund and the Distributor agree to require such Qualified
Plan to make periodic certifications to the Fund and the Distributor of the
Qualified Plan's tax status.
ARTICLE III. Prospectuses, Reports to Shareholders and Proxy Statements; Voting
3.1(a) The Fund or its designee shall provide the Company with as many printed
copies of the Fund Prospectus as the Company may reasonably request. If
requested by the Company, in addition to providing printed copies of the Fund
Prospectus, the Fund shall provide camera-ready film or computer diskettes
containing the Fund Prospectus, or shall provide the same electronically in .pdf
format, and such other assistance as is reasonably necessary in order for the
Company once each year (or more frequently if the Fund Prospectus is amended
during the year) to have the prospectus for the Contracts (the "Contract
Prospectus") and the Fund Prospectus printed together in one document or
separately. The Company may elect to print the Fund Prospectus in combination
with other fund companies' prospectuses. For purposes hereof, any combined
prospectus including the Fund Prospectus along with the Contract Prospectus or
prospectus of other fund companies shall be referred to as a "Combined
Prospectus." For purposes hereof, the term "Fund Portion of the Combined
Prospectus" shall refer to the percentage of the number of Fund Prospectus pages
in the Combined Prospectus in relation to the total number of pages of the
Combined Prospectus.
3.1(b) The Fund shall provide the Company with as many printed copies of the
Fund's current statement of additional information (the "Fund SAI") as the
Company may reasonably request. If requested by the Company in addition to
providing printed copies of the Fund SAI, the Fund shall provide camera-ready
film or computer diskettes containing the Fund SAI, or shall provide the same
electronically in .pdf format, and such other assistance as is reasonably
necessary in order for the Company once each year (or more frequently if the
Fund SAI is amended during the year) to have the statement of additional
information for the Contracts (the "Contract SAI") and the Fund SAI printed
together or separately. The Company may also elect to print the Fund SAI in
combination with other fund companies' statements of additional information. For
purposes hereof, any combined statement of additional information including the
Fund SAI along with the Contract SAI or statement of additional information of
other fund companies shall be referred to as a "Combined SAI." For purposes
hereof, the term "Fund Portion of the Combined SAI" shall refer to the
percentage of the number of Fund SAI pages in the Combined SAI in relation to
the total number of pages of the Combined SAI.
3.1(c) The Fund shall provide the Company with as many printed copies of the
Fund's annual report and semi-annual report (collectively, the "Fund Reports")
as the Company may reasonably request. If requested by the Company in lieu of
providing printed copies of the Fund Reports, the Fund shall provide
camera-ready film or computer diskettes containing the Fund's Reports, or shall
provide the same electronically in .pdf format, and such other assistance as is
reasonably necessary in order for the Company once each year to have the annual
report and semi-annual report for the Contracts (collectively, the "Contract
Reports") and the Fund Reports printed together or separately. The Company may
also elect to print the Fund Reports in combination with other fund companies'
annual reports and semi-annual reports. For purposes hereof, any combined annual
reports and semi-annual reports including the Fund Reports along with the
Contract Reports or annual reports and semi-annual reports of other fund
companies shall be referred to as "Combined Reports." For purposes hereof, the
term "Fund Portion of the Combined Reports" shall refer to the percentage of the
number of Fund Reports pages in the Combined Reports in relation to the total
number or pages of the Combined Reports.
3.2 Expenses
3.2(a) Expenses Borne by Company. Except as otherwise provided in this Section
3.2., all expenses of preparing, setting in type and printing and distributing
(i) Contract Prospectuses, Fund Prospectuses, and Combined Prospectuses; (ii)
Fund SAIs, Contract SAIs, and Combined SAIs; (iii) Fund Reports, Contract
Reports, and Combined Reports, and (iv) Contract proxy material that the Company
may require in sufficient quantity to be sent to Contract owners, annuitants, or
participants under Contracts (collectively, the "Participants"), shall be the
expense of the Company.
3.2(b) Expenses Borne by Fund
Fund Prospectuses
With respect to existing Participants, the Fund shall pay the cost of setting in
type and printing Fund Prospectuses made available by the Company to such
existing Participants in order to update disclosure as required by the 1933 Act
and/or the 1940 Act. With respect to existing Participants, in the event the
Company elects to prepare a Combined Prospectus, the Fund shall pay the cost of
setting in type and printing the Fund Portion of the Combined Prospectus made
available by the Company to its existing Participants in order to update
disclosure as required by the 1933 Act and/or the 1940 Act. In such event, the
Fund shall bear the cost of typesetting to provide the Fund Prospectus to the
Company in the format in which the Fund is accustomed to formatting prospectus.
Notwithstanding the foregoing, in no event shall the Fund pay for any such costs
that exceed by more than five (5) percent what the Fund would have paid to print
such documents. The Fund shall not pay any costs of typesetting and printing the
Fund Prospectus (or Combined Prospectus, if applicable) to prospective
Participants.
Fund SAIs, Fund Reports and Proxy Material
With respect to existing Participants, the Fund shall pay the cost of setting in
type and printing Fund SAIs, Fund Reports and Fund proxy material made available
by the Company to its existing Participants. With respect to existing
Participants, in the event the Company elects to prepare a Combined SAI or
Combined Reports, the Fund shall pay the cost of setting in type and printing
the Fund Portion of the Combined SAI or Combined Reports, respectively, made
available by the Company to its existing Participants. In such event, the Fund
shall bear the cost of typesetting to provide the Fund SAI or Fund Reports to
the Company in the format in which the Fund is accustomed to formatting
statements of additional information and annual and semi-annual reports.
Notwithstanding the foregoing, in no event shall the Fund pay for any such costs
that exceed by more than five (5) percent what the Fund would have paid to print
such documents.
The Company agrees to provide the Fund or its designee with such information as
may be reasonably requested by the Fund to assure that the Fund's expenses do
not include the cost of typesetting, printing or distributing any of the
foregoing documents other than as described above.
3.3. The Fund SAI shall be obtainable from the Fund, the Company or such other
person as the Fund may designate.
3.4.(a) Notwithstanding any other provision in this Agreement to the contrary,
and only if and to the extent required by law the Company shall distribute all
proxy material furnished by the Fund to Participants to whom voting privileges
are required to be extended and shall:
(i) solicit voting instructions from Participants;
(ii) vote the Fund shares in accordance with instructions received
from Participants; and
(iii) vote Fund shares for which no instructions have been received in
the same proportion as Fund shares of such Portfolio for which
instructions have been received,
so long as and to the extent that the SEC continues to interpret the 1940 Act to
require pass-through voting privileges for variable contract owners. The Company
reserves the right to vote Fund shares held in any segregated asset account in
its own right, to the extent permitted by law. The Fund and the Company shall
follow the procedures, and shall have the corresponding responsibilities, for
the handling of proxy and voting instruction solicitations, as set forth in
Schedule C attached hereto and incorporated herein by reference. Participating
Insurance Companies shall be responsible for ensuring that each of their
separate accounts participating in the Fund calculates voting privileges in a
manner consistent with the standards set forth on Schedule C, which standards
will also be provided to the other Participating Insurance Companies.
3.4(b) Notwithstanding any other provision in this Agreement to the contrary,
with respect to Accounts that are exempt from registration as a unit investment
trust under the Section 3(c)(1) or Section 3(c)(7) under the 1940 Act, the
Company represents and warrants that:
(i) Hartford Equity Sales Company ("HESCO") is the principal
Distributor for each such Account and any subaccounts thereof and
is a registered broker- dealer with the SEC under the 1934 Act;
(ii) the Shares of the Funds are and will continue to be the only
investment securities held by the corresponding subaccounts; and
(iii) with regard to each Fund, the Company, on behalf of the
corresponding subaccount, shall:
a. vote such shares held by it in the same proportion as the vote
of all other holders of such shares; and
b. refrain from substituting shares of another security for such
shares unless the SEC has approved such substitution in the
manner provided in Section 26 of the 0000 Xxx.
3.5. 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 Securities and Exchange Commission may interpret
Section 16 not to require such meetings) or comply with Section 16(c) of the
1940 Act (although the Fund is not one of the trusts described in Section 16(c)
of that Act) as well as with Sections 16(a) and, if and when applicable, 16(b).
Further,
the Fund will act in accordance with the Securities and Exchange Commission's
interpretation of the requirements of Section 16(a) with respect to periodic
elections of directors and with whatever rules the Commission may promulgate
with respect thereto.
ARTICLE IV. Sales Material and Information
4.1. The Company shall furnish, or shall cause to be furnished, to the Fund or
its designee, each piece of sales literature or other promotional material
prepared by the Company or any person contracting with the Company in which the
Fund or the Distributor is named, at least ten Business Days prior to its use.
No such material shall be used if the Fund, the Distributor, or their designee
reasonably objects to such use within five Business Days after receipt of such
material.
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
the Fund Prospectus, as such registration statement or Fund Prospectus may be
amended or supplemented from time to time, or in reports or proxy statements for
the Fund, or in sales literature or other promotional material approved by the
Fund or its designee, except with the written permission of the Fund.
4.3. The Fund or its designee shall furnish, or shall cause to be furnished, to
the Company or its designee, each piece of sales literature or other promotional
material prepared by the Fund in which the Company or its Account(s) are named
at least ten Business Days prior to its use. No such material shall be used if
the Company or its designee reasonably objects to such use within five Business
Days after receipt of such material.
4.4. Neither the Fund nor the Distributor shall give any information or make
any representations on behalf of the Company or concerning the Company, each
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 published reports or solicitations for voting instructions for
each Account which are in the public domain or approved by the Company for
distribution to Participants, or in sales literature or other promotional
material approved by the Company or its designee, except with the written
permission of the Company.
4.5. The Fund will provide to the Company at least one complete copy of all
registration statements, prospectuses, statements of additional information,
reports, proxy statements, sales literature and other promotional materials,
applications for exemptions, requests for no-action letters, and all amendments
to any of the above, that relate to the Fund or its shares, contemporaneously
with 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
registration statements, prospectuses, statements of additional information,
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 investment in an Account or Contract contemporaneously
with the filing of such document with the SEC or other regulatory authorities.
4.7. The Distributor, Fund, or their designee, shall make available to Company,
within 10 business days following the end of each month, an Excel report with
net performance returns that would include performance measured against the
stated or an appropriate benchmark, when applicable, based on the Fund's
inception date: one-month, three-month, quarterly, year-to-date, one-year,
three-year annualized, five-year annualized, annualized since inception,
cumulative since inception and net assets of the Fund for the prior month, each
based on the most recent net asset value calculated by the Fund. In addition, no
sooner than when such information becomes publicly available, Distributor, Fund
or their designee will provide certain quarterly reports in excel format. These
reports may include, but are not limited to, manager commentary, attribution
analysis, portfolio holdings, asset, sector and country allocations, number of
holdings, portfolio risk statistics, and key personnel turnover.
4.8. For purposes of this Article IV, the phrase "sales literature or other
promotional material" includes, but is not limited to, any of the following:
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),
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, and registration statements, prospectuses, statements of additional
information, shareholder reports, and proxy materials. By way of clarification,
sales literature and promotional material shall not include materials that are
not designed for general distribution or publication, or materials that are
provided to qualified purchasers and accredited investors in connection with a
private placement offering.
ARTICLE V. [Reserved]
ARTICLE VI. Diversification
6.1. The Fund represents, that it and each Portfolio will comply with Section
817(h) of the Code and Treasury Regulation 1.817-5, relating to the
diversification requirements for variable annuity, endowment, or life insurance
contracts and any amendments or other modifications to such Section or
Regulations. In the event a Portfolio ceases to so qualify, the Fund will take
all reasonable steps (a) to notify the Company of such breach and (b) to
adequately diversify the Portfolio so as to achieve compliance within the grace
period afforded by Regulation 817-5.
ARTICLE VII. Potential Conflicts
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 owners and variable life insurance contract owners;
or (f) a decision by a Participating Insurance Company to disregard the voting
instructions of Contract owners. The Board shall promptly inform the Company if
it determines that an irreconcilable material conflict exists and the
implications thereof.
7.2. The Company will report any potential or existing material irreconcilable
conflicts of which it is aware to the Board. The Company will assist the Board
in carrying out its responsibilities under the 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 the Company to inform the Board whenever contract owner voting
instructions are disregarded.
7.3. If it is determined by a majority of the Board, or a majority of its
disinterested members, that a material irreconcilable conflict exists, Hartford
will, at its expense and to the extent reasonably practicable, take whatever
steps it can which are necessary to remedy or eliminate the irreconcilable
material conflict, including, without limitation, withdrawal of the affected
Account's investment in the Fund or any Portfolio. No charge or penalty will be
imposed as a result of such withdrawal.
7.4. If a material irreconcilable conflict arises because of a decision by the
Company to disregard contract owner voting instructions and that decision
represents a minority position or would preclude a majority vote, the Company
may be required, at the Fund's election, to withdraw the affected Account's
investment in the Fund and terminate this Agreement with respect to such Account
(at the Company's expense); 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. No charge or penalty will be imposed as a result of such
withdrawal. The Company agrees that it bears the responsibility to take remedial
action in the event of a Board determination of an irreconcilable material
conflict and the cost of such remedial action, and these responsibilities will
be carried out with a view only to the interests of Contract owners.
7.5. For purposes of Sections 7.3 and 7.4 of this Agreement, a majority of the
disinterested members of the Board 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. The
Company shall not be required by Section 7.3 or 7.4 to establish a
new funding medium for the Contracts if an offer to do so has been declined by
vote of a majority of Contract owners materially adversely affected by the
irreconcilable material conflict.
7.6. 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 Shared Funding Exemptive Order) on terms and conditions
materially different from those contained in the Shared Funding Exemptive Order,
then 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.
7.7 The Company and the Distributor shall at least annually submit to the Board
of the Fund such reports, materials or data as the Board may reasonably request
so that the Board may fully carry out the obligations imposed upon them by the
provisions hereof, and said reports, materials and data shall be submitted more
frequently if deemed appropriate by the Board. All reports received by the Board
of potential or existing conflicts, and all Board action with regard to
determining the existence of a conflict, notifying Participating Insurance
Companies of a conflict, and determining whether any proposed action adequately
remedies a conflict, shall be properly recorded in the minutes of the Board or
other appropriate records, and such minutes or other records shall be made
available to the SEC upon request.
ARTICLE VIII. Indemnification
8.1. Indemnification By The Company
8.1(a) The Company agrees to indemnify and hold harmless the Fund and each
member of its Board and officers, and the Distributor and each director and
officer of the Distributor, and each person, if any, who controls the Fund or
the Distributor within the meaning of Section 15 of the 1933 Act (collectively,
the "Indemnified Parties" and individually, "Indemnified Party," for purposes of
this Section 8.1) against any and all losses, claims, damages, liabilities
(including amounts paid in settlement with the written consent of the Company)
or litigation (including 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 statements or alleged
untrue statements of any material fact contained in the registration
statement or prospectus for the Contracts or contained in the
Contracts or sales literature for the Contracts (or any amendment or
supplement to any of the foregoing), or arise out of or are based
upon the omission or the alleged omission to state therein a
material fact required to be stated therein or necessary to make the
statements therein not misleading, provided that this agreement to
indemnify shall not apply as to any Indemnified Party if such
statement or omission or such alleged statement or
omission was made in reliance upon and in conformity with
information furnished to the Company by or on behalf of the Fund
for use in the 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, 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 applicable registration statement,
prospectus, statement of additional information, private placement
memorandum 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 any statements or representations (other
than statements or representations contained in the registration
statement, prospectus or sales literature of the Fund not supplied by
the Company or persons under its control and other than statements or
representations authorized by the Fund or the Distributor) or unlawful
conduct 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 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 and in conformity with information
furnished to the Fund by or on behalf of the Company; or
(iv) arise as a result of any failure by the Company to provide the services
and furnish the materials under the terms of this Agreement; or
(v) arise out of or result from any material breach of any representation
and/or warranty made by the Company in this Agreement or arise out of
or result from any other material breach of this Agreement by the
Company.
8.1(b). Notwithstanding Section 8.1(a) above, the Company shall not be liable
under this indemnification provision with respect to any losses, claims,
damages, liabilities or litigation incurred or assessed against an Indemnified
Party as such may arise from such Indemnified Party's willful misfeasance, bad
faith, or gross negligence in the performance of such Indemnified Party's duties
or by reason of such Indemnified Party's reckless disregard of obligations or
duties under this Agreement.
8.1(c). Notwithstanding Section 8.1(a) above, the Company shall not be liable
under this indemnification provision with respect to any claim made against an
Indemnified Party unless such
Indemnified Party shall have notified the Company in writing within a reasonable
time after the summons or other first legal process giving information of the
nature of the claim 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 Company of any such claim shall not
relieve the Company from any liability which it may have to the Indemnified
Party against whom such action is brought unless the Company is materially
prejudiced by failure to notify. In case any such action is brought against the
Indemnified Parties, the Company shall be entitled to participate, at its own
expense, in the defense of such action. The Company also shall be entitled to
assume the defense thereof, with counsel satisfactory to the party named in the
action. After notice from the Company to such Party of the Company's election to
assume the defense thereof, the Indemnified Party shall bear the fees and
expenses 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 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.
8.2. Indemnification by the Distributor
8.2(a). The Distributor agrees, with respect to each Portfolio that it serves
as principal underwriter, to indemnify and hold harmless the Company and each of
its directors and officers and each person, if any, who controls the Company
within the meaning of Section 15 of the 1933 Act (collectively, the "Indemnified
Parties" and individually, "Indemnified Party," for purposes of this Section
8.2) against any and all losses, claims, damages, liabilities (including amounts
paid in settlement with the written consent of the Distributor) or litigation
(including legal and other expenses) to which the Indemnified Parties may become
subject under any statute, at common law or otherwise, insofar as such losses,
claims, damages, liabilities or expenses (or actions in respect thereof) or
settlements are related to the operation of the Distributor or the Fund and:
(i) arise out of or are based upon any untrue statement or alleged
untrue statement of any material fact contained in the registration
statement or prospectus or sales literature of the Fund (or any
amendment or supplement to any of the foregoing), or arise out of or
are based upon the omission or the alleged omission to state therein
a material fact required to be stated therein or necessary to make
the statements therein not misleading, provided that this agreement
to indemnify shall not apply as to any Indemnified Party if such
statement or omission or such alleged statement or omission was made
in reliance upon and in conformity with information furnished to the
Distributor or the Fund by or on behalf of the Company for use in
the registration statement or prospectus for the Fund or in sales
literature (or any amendment or supplement) or otherwise for use in
connection with the sale of the Contracts or Portfolio shares; or
(ii) arise out of or as a result of statements or representations
(other than statements or representations contained in the
registration statement, prospectus or sales literature for the
Contracts not supplied by the Distributor or persons under its
control and other than statements or representations authorized
by the Company) or unlawful conduct of the Distributor or persons
under its control, with respect to the sale or distribution of
the Contracts or Portfolio shares; or
(iii) arise out of or as a result of any untrue statement or alleged
untrue statement of a material fact contained in a registration
statement, prospectus, or sales literature covering the
Contracts, or any amendment thereof or supplement thereto, or the
omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statement
or statements therein not misleading, if such statement or
omission was made in reliance upon information furnished in
writing to the Company by or on behalf of the Distributor; or
(iv) arise as a result of any failure by the Distributor to provide
the services and furnish the materials under the terms of this
Agreement; or
(v) arise out of or result from any material breach of any
representation and/or warranty made by the Distributor in this
Agreement or arise out of or result from any other material
breach of this Agreement by the Fund or the Distributor;
including without limitation any failure by the Fund to comply
with the conditions of Article VI hereof.
8.2(b). The Distributor shall not be liable under this indemnification
provision with respect to any losses, claims, damages, liabilities or litigation
incurred or assessed against an Indemnified Party as may arise from such
Indemnified Party's willful misfeasance, bad faith, or gross negligence in the
performance of such Indemnified Party's duties or by reason of such Indemnified
Party's reckless disregard of obligations and duties under this Agreement.
8.2(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. 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.
8.2(d). The Company agrees promptly to notify the Distributor of the
commencement of any litigation or proceedings against it or any of its officers,
trustees or directors in connection with this Agreement, the issuance or sale of
the Contracts with respect to the operation of each Account, or the sale or
acquisition of shares of the Fund.
8.2(e). It is understood that these indemnities shall have no effect on any
other agreement or arrangement between the Fund and/or its series and the
Distributor.
8.3. Indemnification by the Fund
8.3(a). The Fund agrees to indemnify and hold harmless the Company, and each of
its directors and officers and each person, if any, who controls the Company
within the meaning of Section 15 of the 1933 Act (collectively, the "Indemnified
Parties" for purposes of this Section 8.3) against any and all losses, claims,
damages, liabilities (including amounts paid in settlement with the written
consent of the Fund) or litigation (including legal and other expenses) to which
the Indemnified Parties may become subject under any statute, at common law or
otherwise, insofar as such losses, claims, damages, liabilities or expenses (or
actions in respect thereof) or settlements result from the gross negligence, bad
faith or willful misconduct of the Board or any member thereof, are related to
the operations of the Fund and:
(i) arise as a result of any material failure by the Fund to provide the
services and furnish the materials under the terms of this Agreement
(including a failure to comply with the diversification requirements
specified in Article VI of this Agreement);or
(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;
8.3(b). The Fund shall not be liable under this indemnification provision with
respect to any losses, claims, damages, liabilities or litigation incurred or
assessed against an Indemnified Party as such may arise from such Indemnified
Party's willful misfeasance, bad faith, or gross negligence in the performance
of such Indemnified Party's duties or by reason of such Indemnified Party's
reckless disregard of obligations and duties under this Agreement or to the
Company or each Account, whichever is applicable.
8.3(c). The Fund shall not be liable under this indemnification provision with
respect to any claim made against an Indemnified Party unless such Indemnified
Party shall have notified the Fund in writing within a reasonable time after the
summons or other first legal process giving information of the nature of the
claim shall have been served upon such Indemnified Party (or after such
Indemnified Party shall have received notice of such service on any designated
agent), but failure to
notify the Fund of any such claim shall not relieve the Fund from any liability
which it may have to the Indemnified Party against whom such action is brought
otherwise than on account of this indemnification provision. In case any such
action is brought against the Indemnified Parties, the Fund will be entitled to
participate, at its own expense, in the defense thereof. The Fund also shall be
entitled to assume the defense thereof, with counsel satisfactory to the party
named in the action. After notice from the Fund to such party 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.
8.3(d). The Company agrees promptly to notify the Fund of the commencement of
any litigation or proceedings against it or any of its respective officers or
directors in connection with this Agreement, the issuance or sale of the
Contracts, with respect to the operation of either Account, or the sale or
acquisition of shares of the Fund.
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.
9.2. This Agreement shall be subject to the provisions of the 1933, 1934 and
1940 Acts, and the rules and regulations and rulings thereunder, including such
exemptions from those statutes, rules and regulations as the SEC may grant
(including, but not limited to, the Shared Funding Exemptive Order) and the
terms hereof shall be interpreted and construed in accordance therewith.
ARTICLE X. Termination
10.1. This Agreement shall continue in full force and effect until the first to
occur of:
(a) termination by any party for any reason upon six-months advance
written notice delivered to the other parties; or
(b) termination by the Company by written notice to the Fund and the
Distributor with respect to any Portfolio based upon the
Company's determination that shares of such Portfolio are not
reasonably available to meet the requirements of the Contracts.
Reasonable advance notice of election to terminate shall be
furnished by the Company, said termination to be effective ten
(10) days after receipt of notice unless the Fund makes available
a sufficient number of shares to reasonably meet the requirements
of the Account within said ten (10) day period; or
(c) termination by the Company by written notice to the Fund and the
Distributor 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 medium of the Contracts issued or to be
issued by the Company. The terminating party shall give prompt notice
to the other parties of its decision to terminate; or
(d) termination by the Company by written notice to the Fund and the
Distributor with respect to any Portfolio in the event that such
Portfolio ceases to qualify as a Regulated Investment Company under
Subchapter M of the Code or under any successor or similar provision,
or if the Company reasonably believes that the Fund may fail to so
qualify; or
(e) termination by the Company by written notice to the Fund and the
Distributor with respect to any Portfolio in the event that such
Portfolio fails to meet the diversification requirements specified
in Article VI hereof; or
(f) termination by either the Fund or the Distributor by written notice
to the Company if the Distributor or the Fund shall determine, in
its sole judgment exercised in good faith, that the Company and/or
its affiliated companies has suffered a material adverse change in
its business, operations, financial condition or prospects since the
date of this Agreement or is the subject of material adverse
publicity and as a result ability to perform obligations under this
Agreement is materially impaired, provided that the Fund or the
Distributor will give the Company sixty (60) days' advance written
notice of such determination of its intent to terminate this
Agreement, and provided further that after consideration of the
actions taken by the Company and any other changes in circumstances
since the giving of such notice, the determination of the Fund or
the Distributor shall continue to apply on the 60th day since giving
of such notice, then such 60th day shall be the effective date of
termination; or
(g) termination by the Company by written notice to the Fund and the
Distributor, if the Company shall determine, in its sole judgment
exercised in good faith, that either the Fund or the Distributor
(with respect to the appropriate Portfolio) has suffered a material
adverse change in its business, operations, financial condition or
prospects since the date of this Agreement or is the subject of
material adverse publicity; provided that the Fund or the
Distributor will give the Company sixty (60) days' advance written
notice of such determination of its intent to terminate this
Agreement, and provided further that after consideration of the
actions taken by the Company and any other changes in circumstances
since the giving of such notice, the determination of the Company
shall continue to apply on the 60th day since giving of such notice,
then such 60th day shall be the effective date of termination; or
(h) termination by the Company in the event that formal administrative
proceedings are instituted against the Fund or Distributor by the
NASD, the SEC, or any state securities or insurance department or any
other regulatory body in respect of
the sale of shares of the Fund to the Company, provided, however,
that the Company 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 or the
Distributor to perform its obligations under this Agreement; or
(i) termination by the Fund or the Distributor by written notice to the
Company, if the Company gives the Fund and the Distributor the written
notice specified in Section 1.6 hereof and at the time such notice was
given there was no notice of termination outstanding under any other
provision of this Agreement; provided, however any termination under
this Section 10.1(h) shall be effective sixty (60) days after the
notice specified in Section 1.6 was given; or
(j) termination by any party upon the other party's breach of any
representation in Section 2 or any material provision of this
Agreement, which breach has not been cured to the satisfaction of the
terminating party within ten (10) days after written notice of such
breach is delivered to the Fund or the Company, as the case may be; or
(k) termination by the Fund or the Distributor by written notice to the
Company in the event an Account or Contract is not registered or sold in
accordance with applicable federal or state law or regulation, or the
Company fails to provide any applicable pass-through voting privileges
as specified in Section 3.4; provided that the Fund or the Distributor
will give the Company sixty (60) days' advance written notice of such
intent.
10.2. Effect of Termination. Notwithstanding any termination of this Agreement,
the Fund shall at the option of the Company, continue to make available
additional shares of the Fund 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 Fund shares is proscribed by law, regulation or applicable
regulatory body, or unless the Fund determines that liquidation of the Fund
following termination of this Agreement is in the best interests of the Fund and
its shareholders. Specifically, without limitation, the owners of the Existing
Contracts shall be permitted to direct reallocation of investments in the Fund,
redemption of investments in the Fund and/or investment in the Fund upon the
making of additional purchase payments under the Existing Contracts. The parties
agree that this Section 10.2 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.
10.3. The Company shall not redeem Fund shares attributable to the Contracts
(as distinct from Fund shares attributable to the Company's assets held in the
Account) except (i) as necessary to implement Contract Owner initiated or
approved transactions, or (ii) as required by state and/or federal laws or
regulations or judicial or other legal precedent of general application
(hereinafter referred to as a "Legally Required Redemption") or (iii) as
permitted by an order of the SEC pursuant to Section 26(b) of the 1940 Act. Upon
request, the Company will promptly furnish to the Fund the
opinion of counsel for the Company (which counsel shall be reasonably
satisfactory to the Fund and the Distributor) to the effect that any redemption
pursuant to clause (ii) above is a Legally Required Redemption. Furthermore,
except in cases where permitted under the terms of the Contracts, the Company
shall not prevent Contract Owners from allocating payments to a Portfolio that
was otherwise available under the Contracts without first giving the Fund or the
appropriate Distributor 90 days prior written notice of its intention to do so.
10.4. Notwithstanding any termination of this Agreement pursuant to Article X
hereof, all rights and obligations arising under Article VIII of this Agreement
shall survive.
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:
Royce Capital Fund
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx X. Xxxxxxxxx
If to the Distributor:
Royce Fund Services, Inc.
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx X. Xxxxxxxxx
If to the Company:
Hartford Life Insurance Company
000 Xxxxxxxxx Xxxxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
Attention: Xxxx Xxxxx
Copy to: General Counsel
With a copy to:
Hartford Life
000 Xxxxxx Xxxxx, Xxxxx 000
Xxxxxxx Xxxx, Xxx Xxxxxx 00000
Attention: Xxxxxxx Xxxxxxxxx, Assistant Director
To the Distributor:
Hartford Equity Sales Company, Inc.
000 Xxxxxxxxx Xxxxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
Attention: Xxxxxx Xxxxxx, Controller
ARTICLE XII. Foreign Tax Credits
The Fund and the Distributor agree to consult with the Company concerning
whether any Portfolio of the Fund qualifies to provide a foreign tax credit
pursuant to Section 853 of the Code.
ARTICLE XIII. Information Sharing.
The Company, the Fund and the Distributor acknowledge and agree that the terms
of the Rule 22c-2 Information Sharing Agreement dated as of April 12, 2007 by
and between the Company and Distributor shall apply to this Agreement.
ARTICLE XIV. Miscellaneous
14.1. 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 until such time as it may come into
the public domain without the express written consent of the affected party.
14.2. 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.
14.3. This Agreement may be executed simultaneously in two or more
counterparts, each of which taken together shall constitute one and the same
instrument.
14.4. If any provision of this Agreement shall be held or made invalid by a
court decision, statute, rule or otherwise, the remainder of this Agreement
shall not be affected thereby.
14.5. 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.
14.6. 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.
14.7. 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;
provided, however, that the Distributor may assign this Agreement or any rights
or obligations hereunder to any affiliate of or company under common control
with the Distributor, if such assignee is duly licensed and registered to
perform the obligations of the Distributor under this Agreement.
14.8. The Company hereby acknowledges that the Fund has notified the Company
that it may be appropriate for its separate account prospectuses or offering
memoranda to contain disclosure regarding the potential risks of mixed and
shared funding.
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
hereto as of the date specified above.
By:
Name:
Title:
ROYCE FUND SERVICES, INC.
By: /s/ Xxxx X. Xxxxxxxxx
--------------------------------------
Name: Xxxx X. Xxxxxxxxx
Title: President
ROYCE CAPITAL FUND
By: /s/ Xxxx X. Xxxxxxxxx
--------------------------------------
Name: Xxxx X. Xxxxxxxxx
Title: Vice President
HARTFORD LIFE INSURANCE COMPANY on behalf of itself and each of its Accounts
named in Schedule B hereto, as amended from time to time.
By: /s/ Xxxxx X. Xxx Xxxxx
--------------------------------------
Name: Xxxxx X. Xxx Xxxxx
Title: Vice President
SCHEDULE A
PORTFOLIOS OF ROYCE CAPITAL FUND
FUNDS AVAILABLE FOR
PURCHASE BY HARTFORD LIFE INSURANCE COMPANY
Royce Capital Fund -- Micro-Cap Portfolio
Royce Capital Fund -- Small-Cap Portfolio
SCHEDULE B
SEPARATE ACCOUNTS AND CONTRACTS
NAME OF SEPARATE ACCOUNT AND
DATE ESTABLISHED BY BOARD OF DIRECTORS CONTRACTS FUNDED BY SEPARATE ACCOUNT
--------------------------------------------------------------------------------------------------
Separate Account ICMG Series I (Nov. 15, 1993) GVL-93(P), IVL-97(P)
Separate Account ICMG Series II (Nov. 15, 1993) GVL-93(P), IVL-97(P)
Separate Account ICMG Series II-A (Nov. 15, 1993) GVL-93(P), IVL-97(P)
Separate Account ICMG Series II-B (April 17, 1995) GVL-93(P), IVL-97(P)
Separate Account ICMG Series II-C (Dec. 12, 1997) GVL-93(P), IVL-97(P)
Separate Account ICMG Series II-D (June 7, 1999) GVL-93(P), IVL-97(P)
Separate Account ICMG Series III (Dec. 19, 1988) GVL-93(P), IVL-97(P)
Separate Account ICMG Series III-A (Dec. 19, 1988) GVL-93(P), IVL-97(P)
Separate Account ICMG Series III-B (Feb. 8, 1996) GVL-93(P), IVL-97(P)
Separate Account ICMG Series IV (April 17, 1995) GVL-93(P), IVL-97(P)
Separate Account ICMG Series VII (April 1, 1999) IVL-99(P)
Hartford Life Insurance Company PPVA Separate Account IVA-04(P)
(December 20, 2004)
Hartford Life Insurance Company PPVA I Separate Account IVA-04(P)
(January 31, 2005)
SCHEDULE C
PROXY VOTING PROCEDURES
(Not Applicable to Unregistered Accounts)
The following is a list of procedures and corresponding responsibilities for the
handling of proxies and voting instructions relating to the Fund. The defined
terms herein shall have the meanings assigned in the
Participation Agreement
except that the term "Company" shall also include the department or third party
assigned by the Company to perform the steps delineated below.
1. The proxy proposals are given to the Company by the Fund as early as
possible before the date set by the Fund for the shareholder meeting to
enable the Company to consider and prepare for the solicitation of voting
instructions from owners of the Contracts and to facilitate the
establishment of tabulation procedures. At this time the Fund will inform
the Company of the Record, Mailing and Meeting dates. This will be done
verbally approximately two months before meeting.
2. Promptly after the Record Date, the Company will perform a "tape run", or
other activity, which will generate the names, addresses and number of
units which are attributed to each contract owner/policyholder (the
"Customer") as of the Record Date. Allowance should be made for account
adjustments made after this date that could affect the status of the
Customers' accounts as of the Record Date.
Note: The number of proxy statements is determined by the activities
described in this Step #2. The Company will use its best efforts to call in
the number of Customers to the Fund, as soon as possible, but no later than
two weeks after the Record Date.
3. The text and format for the Voting Instruction Cards ("Cards" or "Card") is
provided to the Company by the Fund. The Company, at its expense, shall
produce and personalize the Voting Instruction Cards. The Fund or its
affiliate must approve the Card before it is printed. Allow approximately
2-4 business days for printing information on the Cards. Information
commonly found on the Cards includes:
a. name (legal name as found on account registration)
b. address
c. fund or account number
d. coding to state number of units
e. individual Card number for use in tracking and verification of votes
(already on Cards as printed by the Fund).
(This and related steps may occur later in the chronological process due to
possible uncertainties relating to the proposals.)
4. During this time, the Fund will develop, produce and pay for the Notice of
Proxy and the Proxy Statement (one document). Printed and folded notices
and statements will be sent to Company for insertion into envelopes
(envelopes and return envelopes are provided and paid for by the Company).
Contents of envelope sent to Customers by the Company will include:
a. Voting Instruction Card(s)
b. One proxy notice and statement (one document)
c. return envelope (postage pre-paid by Company) addressed to the
Company or its tabulation agent
d. "urge buckslip" - optional, but recommended. (This is a small, single
sheet of paper that requests Customers to vote as quickly as possible
and that their vote is important. One copy will be supplied by the
Fund.)
e. cover letter - optional, supplied by Company and reviewed and
approved in advance by the Fund.
5. The above contents should be received by the Company approximately 3-5
business days before mail date. Individual in charge at Company reviews and
approves the contents of the mailing package to ensure correctness and
completeness. Copy of this approval sent to the Fund.
6. Package mailed by the Company.
* The Fund must allow at least a 15-day solicitation time to the
Company as the shareowner. (A 5-week period is recommended.)
Solicitation time is calculated as calendar days from (but NOT
including,) the meeting, counting backwards.
7. Collection and tabulation of Cards begins. Tabulation usually takes place
in another department or another vendor depending on process used. An often
used procedure is to sort Cards on arrival by proposal into vote categories
of all yes, no, or mixed replies, and to begin data entry.
Note: Postmarks are not generally needed. A need for postmark information
would be due to an insurance company's internal procedure and has not been
required by the Fund in the past.
8. Signatures on Card checked against legal name on account registration which
was printed on the Card.
Note: For example, if the account registration is under "Xxxx X. Xxxxx,
Trustee," then that is the exact legal name to be printed on the Card and
is the signature needed on the Card.
9. If Cards are mutilated, or for any reason are illegible or are not signed
properly, they are sent back to Customer with an explanatory letter and a
new Card and return envelope. The
mutilated or illegible Card is disregarded and considered to be not
received for purposes of vote tabulation. Any Cards that have been "kicked
out" (e.g. mutilated, illegible) of the procedure are "hand verified,"
i.e., examined as to why they did not complete the system. Any questions on
those Cards are usually remedied individually.
10. There are various control procedures used to ensure proper tabulation of
votes and accuracy of that tabulation. The most prevalent is to sort the
Cards as they first arrive into categories depending upon their vote; an
estimate of how the vote is progressing may then be calculated. If the
initial estimates and the actual vote do not coincide, then an internal
audit of that vote should occur. This may entail a recount.
11. The actual tabulation of votes is done in units which is then converted to
shares. (It is very important that the Fund receives the tabulations stated
in terms of a percentage and the number of shares.) The Fund must review
and approve tabulation format.
12. Final tabulation in shares is verbally given by the Company to the Fund on
the morning of the meeting not later than 10:00 a.m. Eastern time. The Fund
may request an earlier deadline if reasonable and if required to calculate
the vote in time for the meeting.
13. A Certification of Mailing and Authorization to Vote Shares will be
required from the Company as well as an original copy of the final vote.
The Fund will provide a standard form for each Certification.
14. The Company will be required to box and archive the Cards received from the
Customers. In the event that any vote is challenged or if otherwise
necessary for legal, regulatory, or accounting purposes, the Fund will be
permitted reasonable access to such Cards.
15. All approvals and "signing-off may be done orally, but must always be
followed up in writing.
