Exhibit 6(b)
FORM OF
PARTICIPATION AGREEMENT
By and Among
SAGE LIFE INVESTMENT TRUST
And
SAGE LIFE ASSURANCE OF AMERICA, INC.
And
SAGE DISTRIBUTORS, INC.
THIS AGREEMENT, made and entered into this __th day of _______, 1998,
by and among Sage Life Assurance of America, Inc., a Delaware corporation (the
"Company"), on its own behalf and on behalf of each separate account of the
Company named in Exhibit A to this Agreement, as may be amended from time to
time (each separate account, a "Separate Account"), and Sage Life Investment
Trust, an open-end diversified management investment company organized under the
laws of the State of Delaware (the "Trust"), and Sage Distributors, Inc., a
Delaware Corporation (the "Underwriter").
WHEREAS, the Trust engages in business as an open-end diversified,
management investment company and was established for the purpose of serving as
the investment vehicle for separate accounts established for variable life
insurance contracts and variable annuity contracts to be offered by insurance
companies which have entered into participation agreements substantially
identical to this Agreement ("Participating Insurance Companies"); and
WHEREAS, beneficial interests in the Trust are divided into several
series of shares, each representing the interest in a particular managed
portfolio of securities and other assets (the "Fund"); and
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WHEREAS, the Trust has obtained an order from the U.S. Securities and
Exchange Commission (the "SEC" or "Commission"), dated June 2, 1998 (File No.
812-11062), granting Participating Insurance Companies and variable annuity
separate accounts and variable life insurance separate accounts relief from the
provisions of Sections 9(a), 13(a), 15(a) and 15(b) of the Investment Company
Act of 1940, as amended (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 Trust
to be sold to and held by variable annuity separate accounts and variable life
insurance separate accounts of both affiliated and unaffiliated Participating
Insurance Companies and qualified pension and retirement plans ("Mixed and
Shared Funding Order"), and
WHEREAS, the Trust 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 (the "1933 Act"); and
WHEREAS, the Company has registered or will register certain variable
annuity and variable life insurance contracts under the 1933 Act and named in
Exhibit A to this Agreement, as it may be amended from time to time (the
"Contracts"); and
WHEREAS, the Separate Accounts are duly organized, validly existing
segregated asset accounts, established by resolution of the Board of Directors
of the Company under the insurance laws of the State of Delaware, to set aside
and invest assets attributable to the Contracts; and
WHEREAS, the Company has registered the Separate Accounts as unit
investment trusts under the 1940 Act;
and
WHEREAS, the Underwriter 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. (hereinafter "NASD");
WHEREAS, to the extent permitted by applicable insurance laws and
regulations, the Company intends to purchase shares in the Funds named in
Exhibit B on behalf of the Separate Accounts 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;
NOW, THEREFORE, in consideration of their mutual promises, the Company,
the Trust, and the Underwriter agree as follows: ARTICLE 1 Sale of Trust Shares
1.1. The Underwriter agrees to sell to the Company those shares of the Trust
which the Company orders on
behalf of the Separate Accounts, executing such orders on a daily basis
at the net asset value next computed after receipt and acceptance by
the Trust or its designee of the order for the shares of the Trust. For
purposes of this Section 1.1, the Company shall be the designee of the
Trust for receipt of such orders from each Separate Account and receipt
by such designee shall constitute receipt by the Trust; provided that
the Trust receives notice of such order by 9:30 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
Trust calculates its net asset value pursuant to the rules of the SEC.
1.1.
1.2. The Trust agrees to make its shares available indefinitely
for purchase
at the applicable net asset
value per share by Participating Insurance Companies and their
separate
accounts on those days on which
the Trust calculates its net asset value pursuant to rules of the SEC;
provided, however, that the Board
of Trustees of the Trust (hereinafter the "Trustees") may refuse to
sell shares of any Fund to any
person, or suspend or terminate the offering of shares of any Fund, if
such action is required by law or
by regulatory authorities having jurisdiction, or is, in the sole
discretion of the Trustees, acting in
good faith and in light of their fiduciary duties under federal and
any applicable state laws, necessary
in the best interests of the shareholders of any Fund.
1.3. The Trust and the Underwriter agree that shares of the Trust will be sold
only to Participating Insurance Companies and their separate accounts, and to
qualified pension and retirement plans. No shares of the Trust will be sold to
the general public. 1.4. The Trust and the Underwriter will not sell Trust
shares to any insurance company or separate account unless an agreement
containing provisions substantially the same as Article VII and Sections 2.9,
3.5, 3.6 and 5.1 of this Agreement are in effect to govern such sales. 1.5. The
Trust will not accept a purchase order from qualified pension or retirement plan
if such purchase would make the plan shareholder an owner of 10 percent or more
of the assets of a Fund unless such plan executes an agreement with the Trust
governing participation in such Fund that includes the conditions set forth
herein to the extent applicable. A qualified pension or retirement plan will
execute an application containing an acknowledgment of this condition at the
time of its initial purchase of shares of any Fund. 1.1.
1.6. The Trust agrees to redeem for cash, upon the Company's request, any
full or fractional shares of the
Trust held by the Company, executing such requests on a daily basis at
the net asset value next computed
after receipt and acceptance by the Trust or its designee of the
request for redemption. For purposes
of this Section 1.6, the Company shall be the designee of the Trust
for receipt of requests for
redemption from each Separate Account and receipt by such designee
shall constitute receipt by the
Trust; provided the Trust receives notice of request for redemption
by 9:30 a.m. Eastern Time on the
next following Business Day. Payment shall be in federal funds
transmitted by wire to the Company's
account as designated by the Company in writing from time to time.
1.7. Each purchase, redemption, and exchange order placed by the Company shall
be placed separately for each Fund and shall not be netted with respect to any
Fund. However, with respect to payment of the purchase price by the Company and
of redemption proceeds by the Trust, the Company and the Trust shall net
purchase and redemption orders with respect to each Fund and shall transmit one
net payment for all Funds in accordance with Section 1.8. 1.8. In the event of
net purchase, the Company shall pay for shares by 2:00 p.m. Eastern Time on the
next Business Day after an order to purchase the Shares is deemed to be received
in accordance with the provisions of Section 1.1 hereof. In the event of net
redemptions, the Trust shall pay the redemption proceeds by 2:00 p.m. Eastern
Time on the next Business Day after an order to redeem the shares is deemed to
be received in accordance with the provision of Section 1.6 hereof. All such
payments shall be in federal funds transmitted by wire.
1.1.
1.9. Issuance and transfer of the Trust's shares will be by book entry only.
Stock certificates will not be issued to the Company or any Separate
Account. Purchase and redemption orders for Trust shares will be
recorded in an appropriate title for each Separate Account or the
appropriate subaccount of each Separate Account.
1.10. The Trust shall furnish notice as soon as reasonably practicable to the
Company of any income, dividends, or capital gain distributions payable on the
Trust's shares. The Company hereby elects to receive all such dividends and
distributions as are payable on the Fund shares in the form of additional shares
of that Fund. The Company reserves the right to revoke this election and to
receive all such dividends and distributions in cash. The Trust shall notify the
Company of the number of shares so issued as payment of such dividends and
distributions. 1.11. The Trust shall make the net asset value per share for each
Fund available to the Company on a daily basis as soon as reasonably practical
after the net asset value per share is calculated and shall use its best efforts
to make such net asset value per share available by 6:30 p.m. Eastern Time, each
business day. ARTICLE 2 Representations and Warranties ARTICLE 1
2.1. The Company represents and warrants that the Contracts are or will be
registered under the 1933 Act, unless exempt therefrom, and that the Contracts
will be issued and sold in compliance with all applicable federal and state
laws. The Company further represents and warrants that: (i) it is an insurance
company duly organized and in good standing under applicable law; (ii) it has
legally and validly established each Separate Account as a segregated asset
account under applicable state law and has registered each Separate Account as a
unit investment trust in accordance with the provisions of the 1940 Act, unless
exempt therefrom, to serve as segregated investment accounts for the Contracts;
and (iii) it will maintain such registration, if required, for so long as any
Contracts are outstanding. The Company shall amend any registration statement
under the 1933 Act for the Contracts and any registration statement under the
1940 Act for the Separate Accounts from time to time as required in order to
effect the continuous offering of the Contracts or as may otherwise be required
by applicable law. The Company shall register and qualify the Contracts for sale
in accordance with the securities laws of the various states only if, and to the
extent, deemed necessary by the Company.
2.2. Subject to Article VI hereof, the Company represents that it believes that
the Contracts are currently and at the time of issuance will be treated as life
insurance, endowment, or annuity contracts under applicable provisions of the
Internal Revenue Code and that it will make every effort to maintain such
treatment and that it will notify the Trust and the Underwriter immediately upon
having a reasonable basis for believing that the Contracts have ceased to be so
treated or that they might not be so treated in the future. 2.3. The Company
represents that any prospectus offering a Contract that is a life insurance
contract where it is reasonably probable that such Contract would be a "modified
endowment contract," as that term is defined in Section 7702A of the Internal
Revenue Code will identify such Contract as a modified endowment contract (or
policy). 1.1.
2.4. The Company represents and warrants that all of its directors, officers,
employees, investment advisers, and other individuals/entities dealing with the
money and/or securities of the Trust are covered by a blanket fidelity bond or
similar coverage in an amount not less than $5 million. The aforesaid includes
coverage for larceny and embezzlement and is issued by a reputable bonding
company. The Company agrees that any amounts received under such bond in
connection with claims that derive from arrangements described in this Agreement
will be held by the Company for the benefit of the Trust. 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 Trust and the
Underwriter in the event that such coverage no longer applies.
2.5. The Company represents and warrants that it has taken all necessary steps
to ensure that it has addressed all Year 2000 transition issues, and that
neither the Trust nor the Underwriter and their affiliates, nor the owners of
the Contracts will experience any material negative effect as a result of the
Company's Year 2000 transition. 2.6. The Trust represents and warrants that
Trust 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 Trust is and shall remain registered under the 1940 Act for as long as the
Trust shares are sold. The Trust shall amend the registration statement for its
shares under the 1933 and the 1940 Acts from time to time as required in order
to effect the continuous offering of its shares. The Trust 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 Trust or the Underwriter.
2.7. The Trust represents that it is currently qualified as a Regulated
Investment Company under Subchapter M of the Internal Revenue Code, and that it
will make every effort to maintain such qualification (under Subchapter M or any
successor or similar provision). 1.1.
2.8. The Trust makes no representations as to whether any aspect of its
operations, including but not limited to, investment policies, fees and
expenses, complies with the insurance and other applicable laws of the various
states, except that the Trust represents that it is and shall at all times
remain in compliance with the laws of the state of Delaware to the extent
required to perform this Agreement and shall comply with applicable insurance
laws of all states to the extent that the Company advises the Trust, in writing,
of such laws or any changes in such laws, including the furnishing of
information not otherwise available to the Company which is required by state
insurance law to enable the Company to obtain the authority needed to issue the
Contracts in any applicable state.
2.9. The Trust represents and warrants that to the extent that it decides to
finance distribution expenses pursuant to Rule 12b-1 under the 1940 Act, the
Trust undertakes to have its Board of Trustees, a majority of whom are not
interested persons of the Trust, formulate and approve any plan under Rule 12b-1
("Rule 12b-1 Plan") to finance distribution expenses. The Trust shall notify the
Company immediately upon determining to finance distribution expenses pursuant
to Rule 12b-1. 2.10. The Trust represents that it is lawfully organized and
validly existing under the laws of Delaware and that it does and will comply
with applicable provisions of the 1940 Act. 1.1.
2.11. The Trust represents and warrants that it and all of its trustees,
officers, employees and other individuals/entities having access to the
funds and/or securities of the Trust are and continue to be at all
times covered by a blanket fidelity bond or similar coverage for the
benefit of the Trust in an amount not less than the minimal coverage as
required currently by Rule 17g-1 of 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.
2.12. The Trust represents and warrants that it has taken all necessary steps to
ensure that it has addressed all Year 2000 transition issues, and that none of
the Company, the Underwriter and their affiliates, nor the owners of the
Contracts will experience any material negative effect as a result of the
Trust's Year 2000 transition. 2.13. 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 Trust's shares in accordance with all applicable federal and
state securities laws, including without limitation the 1933 Act, the 1934 Act,
and the 0000 Xxx. 2.14. The Underwriter represents and warrants that the Trust's
investment manager, Sage Advisors, Inc., is and shall remain duly registered as
an investment adviser under all applicable federal and state securities laws and
that the investment manager will perform its obligations to the Trust in
accordance with any applicable state and federal securities laws. 2.15. The
Underwriter represents and warrants that it has taken all necessary steps to
ensure that it has addressed all Year 2000 transition issues, and that none of
the Company and its affiliates, the Trust, nor the owners of the Contracts will
experience any material negative effect as a result of the Underwriter's Year
2000 transition. 1.1.
ARTICLE 3 Prospectuses and Proxy Statements; Voting 3.1. The Underwriter shall
provide the Company, at the Company's expense, with as many copies of the
Trust's current prospectus as the Company may reasonably request for use with
prospective contract owners and applicants. The Underwriter shall print and
distribute, at the Trust's or Underwriter's expense, as many copies of said
prospectus as necessary for distribution to existing Contract owners or
participants. If requested by the Company in lieu thereof, the Trust shall
provide such documentation including a final copy of a current prospectus set in
type at the Trust's expense and other assistance as is reasonably necessary in
order for the Company at least annually (or more frequently if the Trust's
prospectus is amended more frequently) to have the new prospectus for the
Contracts and the Trust's new prospectus printed together in one document; in
such case the Trust shall bear its share of expenses as described above. 3.2.
The Trust's prospectus shall state that the statement of additional information
for the Trust is available from the Underwriter or alternatively from the
Company (or, in the Trust's discretion, the Prospectus shall state that such
statement is available from the Trust), and the Underwriter (or the Trust) shall
provide such statement, at its expense, to the Company and to any owner of or
participant under a Contract who requests such statement or, at the Company's
expense, to any prospective Contract owner and applicant who requests such
statement. 1.1.
3.3. The Trust, at its expense, shall provide the Company with copies of its
proxy material, if any, reports to shareholders and other
communications to shareholders in such quantity as the Company shall
reasonably require and the Company shall bear the costs of distributing
them to existing Contract owners or participants.
3.4. The Trust hereby notifies the Company that it is appropriate to include in
the prospectuses pursuant to which the Contracts are offered disclosure
regarding the potential risks of mixed and shared funding.
3.5. To the extent required by law the Company shall:
(1) solicit voting instructions from Contract
owners or participants;
(2) vote the Trust shares held in each Separate
Account in accordance with instructions
received from Contract owners or
participants; and
(3) vote Trust shares held in each Separate
Account for which no timely instructions
have been received, in the same proportion
as Trust shares of such Fund for which
instructions have been received from the
Company's Contract owners or participants;
for so long as and to the extent that the 1940 Act requires
pass-through voting privileges for variable contract owners. The
Company reserves the right to vote Trust shares held in any segregated
asset account in its own right, to the extent permitted by law.
Participating Insurance Companies shall be responsible for assuring
that each of their separate accounts participating in the Trust
calculates voting privileges in a manner consistent with other
Participating Insurance Companies and as required by the Mixed and
Shared Funding Order. The Trust will notify the Company of any changes
of interpretation or amendment to the Mixed and Shared Funding Order.
3.6. The Trust will comply with all provisions of the 1940 Act requiring voting
by shareholders, and in particular, the Trust will either provide for annual
meetings (except to the extent that the Commission may interpret Section 16 of
the 1940 Act not to require such meetings) or comply with Section 16(c) of the
1940 Act (although the Trust 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)
of the 1940 Act. Further, the Trust will act in accordance with the Commission's
interpretation of the requirements of Section 16(a) with respect to periodic
elections of Trustees and with whatever rules the Commission may promulgate with
respect thereto. ARTICLE 4 Sales Material and Information 4.1. The Company shall
furnish, or shall cause to be furnished, to the Trust or the Underwriter, each
piece of sales literature or other promotional material in which the Trust or
the Trust's investment manager, sub-advisers or Underwriter is named, at least
fifteen business days prior to its use. No such material shall be used if the
Trust or the Underwriter reasonably objects in writing to such use within
fifteen business days after receipt of such material. 4.2. The Company
represents and agrees that sales literature for the Contracts prepared by the
Company or its affiliates will be consistent with every law, rule, and
regulation of any regulatory agency or self-regulatory agency that applies to
the Contracts or to the sale of the Contracts, including, but not limited to,
NASD Conduct Rule 2210 and IM-2210-2 thereunder. 1.1.
4.3. The Company shall not give any information or make any representations or
statements on behalf of the Trust or concerning the Trust in connection with the
sale of the Contracts other than the information or representations contained in
the registration statement or prospectus for the Trust shares as such
registration statement and prospectus may be amended or supplemented from time
to time, or in reports or proxy statements for the Trust, or in sales literature
or other promotional material approved by the Trust or by the Underwriter,
except with the permission of the Trust or the Underwriter. The Trust and the
Underwriter agree to respond to any request for approval on a prompt and timely
basis. The Company shall adopt and implement procedures reasonably designed to
ensure that information concerning the Trust, the Underwriter, or any of their
affiliates which is intended for use by brokers or agents selling the Contracts
(i.e., information that is not intended for distribution to Contract owners or
prospective Contract owners) is so used, and neither the Trust, the Underwriter,
nor any of their affiliates shall be liable for any losses, damages, or expenses
relating to the improper use of such broker only materials by agents of the
Company or its affiliates who are unaffiliated with the Company or the
Underwriter. The parties hereto agree that this Section 4.3 is not intended to
designate nor otherwise imply that the Company is an underwriter or distributor
of the Trust's shares.
4.4. The Trust or 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, its Separate Account, or the
Contracts are named, at least fifteen business days prior to its use. No such
material shall be used if the Company reasonably objects in writing to such use
within fifteen business days after receipt of such material. 1.1.
4.5. The Trust represents and agrees that sales literature for the Trust
prepared by the Trust or its affiliates will be consistent with every
law, rule, and Regulation of any regulatory agency or self regulatory
agency that applies to the Trust or to the sale of Trust shares,
including, but not limited to, NASD Conduct Rule 2210 and IM-2210-2
thereunder.
4.6. The Trust and 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 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 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. The Company agrees to
respond to any request for approval on a prompt and timely basis. The Trust and
the Underwriter shall xxxx information produced by or on behalf of the Trust
"FOR BROKER USE ONLY" which is intended for use by brokers or agents selling the
Contracts (i.e., information that is not intended for distribution to Contract
owners or prospective Contract owners) is so used, and neither the Company nor
any of its affiliates shall be liable for any losses, damages, or expenses
arising on account of the use by brokers of such information with third parties
in the event that is not so marked.
1.1.
4.7. The Trust 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 Trust or its shares, contemporaneously with the filing of such
document with the SEC or other regulatory authorities.
4.8. The Company will provide to the Trust 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 Contracts or
each Separate Account, contemporaneously with the filing of such document with
the SEC or other regulatory authorities. The Company shall promptly inform the
Trust of the results of any examination by the SEC (or other regulatory
authorities) that relates to the Contracts, and the Company shall provide the
Trust with a copy of relevant portions of any "deficiency letter" or other
correspondence or written report regarding any such examination. 1.1.
4.9. 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, 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 to
some or all agents or employees, registration statements, prospectuses,
statements of additional information, shareholder reports, and proxy materials
and any other material constituting sales literature or advertising under NASD
Conduct Rules, the 1940 Act or the 1933 Act.
ARTICLE 5 Fees and Expenses 5.1. The Trust and Underwriter shall pay no fee or
other compensation to the Company under this Agreement, except subject a Rule
12b-1 Plan to finance distribution expenses, then, subject to obtaining any
required exemptive orders or other regulatory approvals, the Underwriter may
make payments to the Company or to the underwriter for the Contracts if and in
amounts agreed to by the Underwriter in writing. Each party, however, shall, in
accordance with the allocation of expenses specified in this Agreement,
reimburse other parties for expenses initially paid by one party but allocated
to another party. In addition, nothing herein shall prevent the parties hereto
from otherwise agreeing to perform, and arranging for appropriate compensation
for, other services relating to the Trust and/or to the Separate Accounts. 1.1.
5.2. All expenses incident to performance by the Trust of this Agreement shall
be paid by the Trust to the extent permitted by law. All Trust shares will be
duly authorized for issuance and registered in accordance with applicable
federal law and to the extent deemed advisable by the Trust, in accordance with
applicable state law, prior to sale. The Trust shall bear the expenses for the
cost of registration and qualification of the Trust's shares, preparation and
filing of the Trust's prospectus and registration statement, Trust proxy
materials and reports, setting in type the Trust's prospectuses, and printing
the Trust prospectuses, proxy materials and reports for existing shareholders
and Contract owners, the preparation of all statements and notices required by
any federal or state law, all taxes on the issuance or transfer of the Trust's
shares, and any expenses permitted to be paid or assumed by the Trust pursuant
to any Rule 12b-1 Plan under the 1940 Act duly adopted by the Trust. 5.3. The
Company shall bear the expenses of printing and distributing the Trust
prospectuses for prospective shareholders and Contract owners, and distributing
the Trust prospectuses and of distributing the Trust's proxy statements and
shareholder reports to existing Contract owners. The Company shall bear all
expenses associated with the registration, qualification, and filing of the
Contracts under applicable federal securities and state insurance laws; the cost
of preparing, printing, and distributing the Contracts' prospectuses and
statements of additional information; and the cost of printing and distributing
annual individual account statements for Contract owners as required by state
insurance laws. ARTICLE 6 Diversification ARTICLE 1
6.1. The Trust will at all times invest money from the Contracts in such a
manner as to ensure that the Contracts will be treated as variable contracts
under the Internal Revenue Code and the regulations issued thereunder. Without
limiting the scope of the foregoing, the Trust will comply with Section 817(h)
of the Internal Revenue 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 or successors thereto. In the event of a breach of this Article VI
by the Trust, it will take all reasonable steps (a) to notify the Company of
such breach, and (b) to adequately diversify the Trust so as to achieve
compliance within the grace period afforded by Treasury Regulation 1. 817-5.
ARTICLE 7 Potential Conflicts 7.1. The Board of Trustees of the Trust (the
"Trust Board") will monitor the Trust for the existence of any material
irreconcilable conflict among the interests of the Contract owners of all
separate accounts investing in the Trust. A material irreconcilable 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 Fund are being managed; (e) a difference in voting instructions given by
variable annuity contract owners, variable life insurance contract owners, and
trustees of qualified pension or retirement plans; (f) a decision by a
Participating Insurance Company to disregard the voting instructions of Contract
owners; or (g) if applicable, a decision by a qualified pension or retirement
plan to disregard the voting instructions of plan participants. The Trust Board
shall promptly inform the Company if it determines that a material
irreconcilable conflict exists and the implications thereof. A majority of the
Trust Board shall consist of Trustees who are not "interested" persons of the
Trust. 1.1.
7.2. The Company has reviewed a copy of the Mixed and Shared Funding Order,
and in particular, has reviewed the conditions to the requested relief
set forth therein. The Company agrees to assist the Trust Board in
carrying out its responsibilities under the Mixed and Shared Funding
Order, by providing the Trust Board with all information reasonably
necessary for the Trust Board to consider any issues raised. This
includes, but is not limited to, an obligation by the Company to inform
the Trust Board whenever Contract owner voting instructions are
disregarded. The Trust Board shall record in its minutes or other
appropriate records, all reports received by it and all action with
regard to a conflict.
1.1.
7.3. If it is determined by a majority of the Trust Board, or a majority of its
disinterested Trustees, that a material irreconcilable conflict exists, the
Company shall, at its expense and to the extent reasonably practicable (as
determined by a majority of the disinterested Trustees), take whatever steps are
necessary to remedy or eliminate the material irreconcilable conflict, up to and
including: (a) withdrawing the assets allocable to some or all of the Separate
Accounts from the relevant Fund and reinvesting such assets in a different
investment medium, including another Fund, or in the case of insurance company
participants submitting the question as to whether such segregation should be
implemented by a vote of all affected Contract owners and, as appropriate,
segregating the assets of any appropriate group (i.e., annuity Contract owners
or life insurance Contract owners of one or more Participating Insurance
Companies) that votes in favor of such segregation, or offering to the affected
Contract owners the option of making such a change; and (b) establishing a new
registered management investment company or managed separate account.
7.4. If the Company's disregard of voting instructions could conflict with the
majority of Contract owner voting instructions, and the Company's judgment
represents a minority position or would preclude a majority vote, the Company
may be required, at the Trust's election, to withdraw the Separate Account's
investment in the Trust and terminate this Agreement with respect to such
Separate Account, and no charge or penalty will be imposed as a result of such
withdrawal. Any such withdrawal and termination shall take place within 30 days
after written notice is given that this provision is being implemented, subject
to applicable law but in any event consistent with the terms of the Mixed and
Shared Funding Order. Until such withdrawal and termination is implemented, the
Underwriter and the Trust shall continue to accept and implement orders by the
Company for the purchase and redemption of shares of the Trust. Such withdrawal
and termination shall be limited to the extent required by the foregoing
material irreconcilable conflict as determined by a majority of disinterested
Trustees.
1.1.
7.5. If a particular state insurance regulator's decision applicable to the
Company conflicts with the majority of other state insurance regulators, then
the Company will withdraw the Separate Account's investment in the Trust and
terminate this Agreement with respect to such Separate Account within 30 days
after the Trust informs the Company of a material irreconcilable conflict,
subject to applicable law but in any event consistent with the terms of the
Mixed and Shared Funding Order. Until such withdrawal and termination is
implemented, the Underwriter and the Trust shall continue to accept and
implement orders by this Company for the purchase and redemption of shares of
the Trust. Such withdrawal and termination shall be limited to the extent
required by the foregoing material irreconcilable conflict as determined by a
majority of disinterested Trustees.
7.6. For purposes of Sections 7.3 through 7.6 of this Agreement, a majority of
the disinterested members of the Trust Board shall determine whether any
proposed action adequately remedies any material irreconcilable conflict, but in
no event will the Trust or the Underwriter be required to establish a new
funding medium for the Contracts. The Company shall not be required by Section
7.3 to establish a new funding medium for the Contracts if an offer to do so has
been declined by vote of a majority of Contract owners materially adversely
affected by the material irreconcilable conflict. 7.7. The Trust Board's
determination of the existence of a material irreconcilable conflict and its
implication will be made known in writing to the Company. 7.8. The Company shall
at least annually submit to the Trust Board such reports, materials, or data as
the Trust Board may reasonably request so that the Trustees may fully carry out
the duties imposed upon the Trust Board by the Mixed and Shared Funding Order,
and said reports, materials and data shall be submitted more frequently if
deemed appropriate by the Trust Board. 1.1.
7.9. If and to the extent that Rule 6e-2 and Rule 6e-3(T) are amended, or
Rule 6e-3(T) is adopted, to provide exemptive relief from any provision
of the 1940 Act or the rules promulgated thereunder with respect to
mixed or shared funding (as defined in the Mixed and Shared Funding
Order) on terms and conditions materially different from those
contained in the Mixed and Shared Funding Order, the Trust and/or the
Company, as appropriate, shall take such steps as may be necessary to
comply with Rules 6e-2 and 6e-3(T), as amended, and Rule 6e-3, as
adopted, to the extent such rules are applicable.
ARTICLE 8 Indemnification
8.1. Indemnification By The Company
(a) The Company agrees to indemnify and hold harmless
the Trust, the Underwriter, and each of the Trust's or the
Underwriter's directors, officers, employees, or agents and each
person, if any, who controls the Trust or the Underwriter within the
meaning of such terms under the federal securities laws (collectively,
the "indemnified parties" 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 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 Trust's shares or the
Contracts and:
(1) arise out of or are based upon any untrue
statements or alleged untrue statements of
any material fact contained in the
registration statements, prospectuses or
statements 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 in light of the circumstances
in which they were made; 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 Trust for use
in the registration statement, prospectus or
statement of 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 Trust shares; or
(2) arise out of or as a result of statements or
representations by or on behalf of the
Company (other than statements or
representations contained in the Trust
registration statement, Trust prospectus or
sales literature or other promotional
material of the Trust not supplied by the
Company or persons under its control) or
wrongful conduct of the Company or persons
under its control, with respect to the sale
or distribution of the Contracts or Trust
shares; or
(3) arise out of any untrue statement or alleged
untrue statement of a material fact
contained in the Trust's registration
statement, prospectus, statement of
additional information, or sales literature
or other promotional material of the Trust
or any amendment thereof, or supplement
thereto or the omission or alleged omission
to state therein a material fact required to
be stated therein or necessary to make the
statements therein not misleading in light
of the circumstances in which they were
made, if such a statement or omission was
made in reliance upon and in conformity with
information furnished to the Trust by or on
behalf of the Company or persons under its
control; or
(4) arise as a result of any failure by the
Company to provide the services and furnish
the materials or to make any payments under
the terms of this Agreement; or
(5) arise out of 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 8.1(b) and 8.4 hereof. This
indemnification shall be in addition to any liability which the Company
may otherwise have.
(b) No party shall be entitled to indemnification by
the Company if 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) 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 Trust shares or the
Contracts or the operation of the Trust.
8.2. Indemnification By the Underwriter
(a) The Underwriter agrees 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 such terms under the federal securities laws (collectively,
the "indemnified parties" 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 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 Trust's shares or the
Contracts and:
(1) 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 Trust, or
sales literature or other promotional
material of the Trust (or any amendment or
supplement to any of the foregoing), or
arise out of or are based upon the omission
or the alleged omission to state therein a
material fact required to be stated therein
or necessary to make the statements therein
not misleading in light of the circumstances
in which they were made; 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
Underwriter by or on behalf of the Company
for use in the registration statement,
prospectus, or statement of additional
information for the Trust or in sales
literature of the Trust (or any amendment or
supplement thereto) or otherwise for use in
connection with the sale of the Contracts or
Trust shares; or
(2) arise out of or as a result of statements or
representations (other than statements or
representations contained in the Contracts
or in the Contract or Trust registration
statement, the Contract or Trust prospectus,
statement of additional information, or
sales literature or other promotional
material for the Contracts or of the Trust
not supplied by the Underwriter or persons
under the control of the Underwriter) or
wrongful conduct of the Underwriter or
persons under the control of the
Underwriter, with respect to the sale or
distribution of the Contracts or Trust
shares; or
(3) arise out 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 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 in light of the circumstances
in which they were made, if such statement
or omission was made in reliance upon and in
conformity with information furnished to the
Company by or on behalf of the Underwriter
or persons under the control of the
Underwriter; or
(4) arise as a result of any failure by the
Underwriter or the Trust to provide the
services and furnish the materials under the
terms of this Agreement (including a
failure, whether unintentional or in good
faith or otherwise, to comply with the
diversification requirements and procedures
related thereto specified in Article VI of
this Agreement); or
(5) arise out of or result from any material
breach of any representation and/or warranty
made by the Underwriter or the Trust in this
Agreement or arise out of or result from any
other material breach of this Agreement by
the Underwriter;
except to the extent provided in Sections 8.2(b) and 8.4 hereof. This
indemnification shall be in addition to any liability which the
Underwriter may otherwise have.
(b) No party shall be entitled to indemnification by
the Underwriter if 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) 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 Contracts
or the operation of each Separate Account.
8.3. Indemnification By the Trust
(a) The Trust agrees 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
such terms under the federal securities laws (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 Trust), 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 operations of the Trust and:
(1) 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 Trust, or
sales literature or other promotional
material of the Trust (or any amendment or
supplement to any of the foregoing), or
arise out of or are based upon the omission
or the alleged omission to state therein a
material fact required to be stated therein
or necessary to make the statements therein
not misleading in light of the circumstances
in which they were made; 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
Trust by or on behalf of the Company for use
in the registration statement, prospectus,
or statement of additional information for
the Trust or in sales literature of the
Trust (or any amendment or supplement
thereto) or otherwise for use in connection
with the sale of the Contracts or Trust
shares; or
(2) arise out of or as a result of statements or
representations (other than statements or
representations contained in the Contracts
or in the Contract or Trust registration
statement, the Contract or Trust prospectus,
statement of additional information, or
sales literature or other promotional
material for the Contracts or of the Trust
not supplied by the Trust or persons under
the control of the Trust) or wrongful
conduct of the Trust or persons under the
control of the Trust, with respect to the
sale or distribution of the Contracts or
Trust shares; or
(3) arise out 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 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 in light of the circumstances
in which they were made, if such statement
or omission was made in reliance upon and in
conformity with information furnished to the
Company by or on behalf of the Trust or
persons under the control of the Trust; or
(4) arise as a result of any failure by the
Trust to provide the services and furnish
the materials under the terms of this
Agreement (including a failure, whether
unintentional or in good faith or otherwise,
to comply with the diversification
requirements and procedures related thereto
specified in Article VI of this Agreement);
or
(5) arise out of or result from any material
breach of any representation and/or warranty
made by the Trust in this Agreement or arise
out of or result from any other material
breach of this Agreement by the Trust;
except to the extent provided in Sections 8.3(b) and 8.4 hereof. This
indemnification shall be in addition to any liability which the Trust
may otherwise have.
(b) No party shall be entitled to indemnification by
the Trust if 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) The indemnified parties will promptly notify the
Trust of the commencement of any litigation or proceedings against it
in connection with the issuance or sale of the Contracts or the
operation of each Separate Account.
8.4. Indemnification Procedure
1.1.
Any person obligated to provide indemnification under this Article VIII
("indemnifying party" for the purpose of this Section 8.4) shall not be
liable under the indemnification provisions of this Article VIII with
respect to any claim made against a party entitled to indemnification
under this Article VIII ("indemnified party" for the purpose of this
Section 8.4) 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 under the indemnification provision of this Article VIII,
except to the extent that the failure to notify results in the failure
of actual notice to the indemnifying party and such indemnifying party
is damaged solely as a result of failure to give such notice. 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 it, 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. The indemnifying party shall not be liable for any settlement of
any proceeding effected without its written consent but if settled with
such consent or if there be a final judgment for the plaintiff, the
indemnifying party agrees to indemnify the indemnified party from and
against any loss or liability by reason of such settlement or judgment.
A successor by law of the parties to this Agreement shall be
entitled to the benefits of the indemnification contained in this
Article VIII. The indemnification provisions contained in this Article
VIII shall survive any termination of this Agreement.
ARTICLE 9 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 Delaware without
giving effect to conflicts of laws provisions thereof.
9.2. This Agreement shall be subject to the provisions of the 1933, 1934,
and 1940 Acts, and the rules, regulations, and rulings thereunder,
including such exemptions from those statutes, rules and regulations as
the SEC may grant (including, but not limited to, the Mixed and Shared
Funding Order) and the terms hereof shall be interpreted and construed
in accordance therewith.
ARTICLE 10 Termination
10.1. This Agreement shall terminate:
(a) at the option of any party upon six months
advance written notice to the other
parties; or
(b) at the option of the Company if shares of the
Funds delineated in Exhibit B are not reasonably available to meet the
requirements of the Contracts as determined by the Company; or
(c) at the option of the Trust upon institution of
formal proceedings against the Company by the NASD, 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 each Separate Account, or the purchase of the Trust
shares, which would have a material adverse effect on the Company's
ability to perform its obligations under this Agreement; or
(d) at the option of the Company upon institution of
formal proceedings against the Trust or the Underwriter by the NASD,
the SEC, or any state securities or insurance department or any other
regulatory body, which would have a material adverse effect on the
Underwriter's or the Trust's ability to perform its obligations under
this Agreement; or
(e) at the option of the Company or the Trust upon
receipt of any necessary regulatory approvals or the vote of the
Contract owners having an interest in each Separate Account (or any
subaccount) to substitute the shares of another investment company for
the corresponding Fund shares of the Trust in accordance with the terms
of the Contracts for which those Fund shares had been selected to serve
as the underlying investment media. The Company will give 30 days prior
written notice to the Trust of the date of any proposed vote or other
action taken to replace the Trust's shares; or
(f) at the option of the Company or the Trust upon a
determination by a majority of the Trust Board, or a majority of the
disinterested Trustees, that a material irreconcilable conflict exists
among the interests of (i) all contract owners of variable insurance
products of all separate accounts, or (ii) the interests of the
Participating Insurance Companies investing in the Trust as delineated
in Article VII of this Agreement; or
(g) at the option of the Company if the Trust ceases
to qualify as a Regulated Investment Company under Subchapter M of the
Internal Revenue Code, or under any successor or similar provision, or
if the Company reasonably believes that the Trust may fail to so
qualify; or
(h) at the option of the Company if the Trust fails
to meet the diversification requirements specified in Article VI hereof
or if the Company reasonably believes that the Trust will fail to meet
such requirements; or
(i) at the option of any party to this
Agreement, upon another party's material
breach of any provision of this Agreement; or
(j) at the option of the Company, if the Company
determines in its sole judgment exercised in good faith, that either
the Trust or the Underwriter 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 Company or the Contracts (including the sale
thereof); or
(k) at the option of the Trust or Underwriter, if the
Trust or 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 Trust or Underwriter; or
(l) subject to the Trust's compliance with Article VI
hereof, at the option of the Trust in the event any of the Contracts
are not issued or sold in accordance with applicable requirements of
federal and/or state law. Termination shall be effective immediately
upon such occurrence without notice.
10.2. Notice Requirement
(a) In the event that any termination of this
Agreement is based upon the provisions of Article VII, such prior
written notice shall be given in advance of the effective date of
termination as required by such provisions.
(b) In the event that any termination of this
Agreement is based upon the provisions of Sections 10.l(b) - (d) or
10.1(g) - (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.
(c) In the event that any termination of this
Agreement is based upon the provisions of Sections 10.1(j) or 10. l(k),
prior written notice of the election to terminate this Agreement for
cause shall be furnished by the party terminating this Agreement to the
nonterminating parties. Such prior written notice shall be given by the
party terminating this Agreement to the non-terminating parties at
least 30 days before the effective date of termination.
10.3. It is understood and agreed that the right to terminate this Agreement
pursuant to Section 10.1(a) may be exercised for any reason or for no
reason.
1.1.
10.4. Effect of Termination
(a) Notwithstanding any termination of this Agreement
pursuant to Section 10.1 of this Agreement and subject to Section 1.3
of this Agreement, the Company may require the Trust and the
Underwriter to continue to make available additional shares of the
Trust for so long after the termination of this Agreement as the
Company desires pursuant to the terms and conditions of this Agreement
as provided in paragraph (b) below, for all Contracts in effect on the
effective date of termination of this Agreement (hereinafter referred
to as "Existing Contracts"). Specifically, without limitation, the
owners of the Existing Contracts shall be permitted to reallocate
investments in the Trust, redeem investments in the Trust and/or invest
in the Trust upon the making of additional purchase payments under the
Existing Contracts. The parties agree that this Section 10.4 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.
(b) If shares of the Trust continue to be made
available after termination of this Agreement pursuant to this Section
10.4, the provisions of this Agreement shall remain in effect except
for Section 10.l(a) and thereafter the Trust, the Underwriter, or the
Company may terminate the Agreement, as so continued pursuant to this
Section 10.4, upon written notice to the other party, such notice to be
for a period that is reasonable under the circumstances but need not be
for more than 90 days.
10.5 Except as necessary to implement Contract owner initiated or approved
transactions, or as required by state insurance laws or regulations,
the Company shall not redeem Trust shares attributable to the Contracts
(as opposed to Trust shares attributable to the Company's assets held
in each Separate Account), and the Company shall not prevent Contract
owners from allocating payments to a Fund that was otherwise available
under the Contracts, until 30 days after the Company shall have
notified the Trust or Underwriter of its intention to do so.
ARTICLE 11 Notices
Any notice shall be deemed duly given only if sent by hand, 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 three business days
after the date received or rejected by the addressee.
If to the Trust: Sage Life Investment Trust
c/o Sage Advisors, Inc.
000 Xxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxxx, Chairman
If to the Company: Sage Life Assurance of America, Inc.
000 Xxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxx, XX 00000
Attention: Xxxxx X. Xxxxxxx, President
If to the Underwriter: Sage Distributors, Inc.
000 Xxxxxxxx Xxxxxx
Xxxxxxxx, XX 00000
Attention: Xxxxx X. Xxxxxxxx,
President
ARTICLE XII Miscellaneous
11.1. All persons dealing with the Trust must look solely to the property of
the Trust for the enforcement of any claims against the Trust as
neither the Trustees, officers, agents or shareholders assume any
personal liability for obligations entered into on behalf of the Trust.
11.2. Subject to law and regulatory authority, each party hereto shall treat as
confidential all information reasonably identified as such in writing by any
other party hereto (including without limitation the names and addresses of the
owners of the Contracts) and, except as contemplated by this Agreement, shall
not disclose, disseminate, or utilize such confidential information until such
time as it may come into the public domain without the express prior written
consent of the affected party. 11.3. The captions in this Agreement are included
for convenience of reference only and in no way define or delineate any of the
provisions hereof or otherwise affect their construction or effect. 11.4. This
Agreement may be executed simultaneously in two or more counterparts, each of
which taken together shall constitute one and the same instrument. 11.5. If any
provision of this Agreement shall be held or made invalid by a court decision,
statute, rule or otherwise, the remainder of the Agreement shall not be affected
thereby. 11.6. This Agreement shall not be assigned by any party hereto without
the prior written consent of all the parties. 1.1.
11.7. 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 each
other and such authorities reasonable access to its books and records
in connection with any investigation or inquiry relating to this
Agreement or the transactions contemplated hereby.
11.8. Each party represents that 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. 11.9.
The parties to this Agreement may amend 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 Trust. 11.10. The Trust has filed a Certificate of
Trust with the Secretary of State of The State of Delaware. The Company
acknowledges that the obligations of or arising out of the Trust's Declaration
of Trust are not binding upon any of the Trust's Trustees, officers, employees,
agents or shareholders individually, but are binding solely upon the assets and
property of the Trust in accordance with its proportionate interest hereunder.
The Company further acknowledges that the assets and liabilities of each Fund
are separate and distinct and that the obligations of or arising out of this
instrument are binding solely upon the assets or property of the Fund on whose
behalf the Trust has executed this instrument. The Company also agrees that the
obligations of each Fund hereunder shall be several and not joint, in accordance
with its proportionate interest hereunder, and the Company agrees not to proceed
against any Fund for the obligations of another Fund. 1.1.
11.11. Except as otherwise expressly provided in this Agreement, neither the
Trust nor the underwriter nor any affiliate thereof shall use any trademark,
trade name, service xxxx or logo of the Company or any of its affiliates, or any
variation of any such trademark, trade name service xxxx or logo, without the
Company's prior consent, the granting of which shall be at the Company's sole
option. Except as otherwise expressly provided in this Agreement, neither the
Company nor any affiliate thereof shall use any trademark, trade name, service
xxxx or logo of the Trust or of the Underwriter , or any variation of any such
trademark, trade name, service xxxx or logo, without the prior consent of either
the Trust or of the Underwriter, as appropriate, the granting of which shall be
at the sole option of the Trust or of the Underwriter, as applicable. 1.1.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above written. Sage Life Assurance of America, Inc.
By:
Name: Xxxxx X. Xxxxxxx
Title: President
Sage Life Investment Trust
By:
Name: Xxxxxx X. Xxxxxx
Title: Chairman
Sage Distributors, Inc.
By:
Name: Xxxxx X. Xxxxxxxx
Title: President
-129-
EXHIBIT A
Separate Accounts and Contracts
Subject to the Participation Agreement
EXHIBIT B
Funds Subject to the Participation Agreement
EAFE Equity Index Fund
Xxxxxxx 2000 Equity Index Fund
S&P 500 Equity Index Fund
Money Market Fund
contract/ta/openend/sage/trans4.doc
DOCUMENT INFORMATION SHEET
FILENAME AND PATH: H:\CS\CL14252\M004\NLSPART.AG5
DESCRIPTION OF DOCUMENT:
REVISION HISTORY:
June 19, 1998 (11:02am) OPERATOR: jaf
June 15, 1998 (5:15pm) OPERATOR: jaf
June 9, 1998 (9:11am) OPERATOR: jaf
June 2, 1998 (7:17pm) OPERATOR: Xxxxxxxx Xxxxxxx (WP)
June 1, 1998 (8:07pm) OPERATOR: Tee L.
May 18, 1998 (1:42pm) OPERATOR: jaf
May 13, 1998 (5:23pm) OPERATOR: Xxxx
INSTRUCTIONS FOR DOCUMENT: Revise
TIME NEEDED: June 2, 1998 (8:00 a.m.)
ATTORNEY'S NAME: Xxxx Xxxxxxx
EXTENSION: Ext. 0165
