FUND PARTICIPATION AGREEMENT between FUND and ALIAC
Exhibit 24(b)(8.67) | |||
FUND PARTICIPATION AGREEMENT | |||
between | |||
FUND and ALIAC | |||
Aetna Life Insurance and Annuity Company (the "Company"), Xxxxxxx Xxxxx Trust (the | |||
"Fund") and Xxxxxxx, Sachs & Co. (the "Distributor") hereby agree to an arrangement whereby | |||
the Fund shall be made available to serve as underlying investment media for Variable Annuity | |||
Contracts ("Contracts") to be issued by the Company. | |||
1. | Establishment of Accounts; Availability of Fund. | ||
The Company represents that it has established Variable Annuity Accounts B, C, D and F | |||
and may establish such other accounts as may be set forth in Schedule A attached hereto | |||
and as may be amended from time to time with the mutual consent of the parties hereto (the | |||
"Accounts"), each of which is a separate account under Connecticut Insurance law, and has | |||
registered or will register each of the Accounts (except for such Accounts for which no | |||
such registration is required) as a unit investment trust under the Investment Company Act | |||
of 1940 (the "1940 Act"), to serve as an investment vehicle for the Contracts. Each | |||
Contract provides for the allocation of net amounts received by the Company to an Account | |||
for investment in the shares of one of more specified open-end management investment | |||
companies available through that Account as underlying investment media. Selection of a | |||
particular investment management company and changes therein from time to time are | |||
made by the participant or Contract owner, as applicable under a particular Contract. | |||
2. | Pricing Information; Orders; Settlement. | ||
(a) | The Fund will make available to be purchased by the Company Class A Shares of the | ||
portfolios set forth in Schedule B attached hereto and as may be amended from time | |||
to time with the mutual consent of the parties hereto (the “Portfolios”), and will | |||
accept redemption orders from the Company, on behalf of each Account at the net | |||
asset value applicable to each order on those days on which the Fund calculates its net | |||
asset value (a "Business Day"). Fund shares shall be purchased and redeemed in such | |||
quantity and at such time determined by the Company to be necessary to meet the | |||
requirements of those Contracts for which the Fund(s) serve as underlying investment | |||
media, provided, however, that the Board of Trustees of the Fund (hereinafter the | |||
"Trustees") may upon reasonable notice to the Company, refuse to sell shares of any | |||
Portfolio to any person, or suspend or terminate the offering of shares of any Portfolio | |||
if such action is required by law or by regulatory authorities having jurisdiction or is, | |||
in the sole discretion of the Trustees, acting in good faith and in the best interests of | |||
the shareholders of any Portfolio and is acting in compliance with their fiduciary | |||
obligations under federal and/or any applicable state laws. | |||
(b) | The Fund will use its best efforts to provide to the Company closing net asset value, | ||
dividend and capital gain information by 6:30 p.m. Eastern Standard time on each | |||
Business Day (or at such other time as the information becomes available) and in no | |||
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event later than 7:00 p.m. Eastern Standard Time on such Business Day absent | ||
extraordinary circumstances. The Company will send via facsimile or electronic | ||
transmission to the Fund or its specified agent orders to purchase and/or redeem Fund | ||
shares by 8:30 a.m. Eastern Standard Time the following Business Day. Payment for | ||
net purchases will be wired by the Company to an account designated by the Fund to | ||
coincide with the order for shares of the Fund. | ||
(c) | The Fund hereby appoints the Company as its agent for the limited purpose of | |
accepting purchase and redemption orders for Fund shares relating to the Contracts | ||
from Contract owners or participants. Orders from Contract owners or participants | ||
received from any distributor of the Contracts (including affiliates of the Company) | ||
by the Company, acting as agent for the Fund, prior to the time a Portfolio calculates | ||
its net asset value on a Business Day (“Close of Trading”) will be executed by the | ||
Fund at the net asset value determined as of the Close of Trading on such Business | ||
Day, provided that the Fund receives written (or facsimile) notice of such order by | ||
8:30 a.m. Eastern Standard Time on the next following Business Day. Any orders | ||
received by the Company acting as agent on such day but after the Close of Trading | ||
will be executed by the Fund at the net asset value determined as of the Close of | ||
Trading on the next Business Day following the day of receipt of such order, provided | ||
that the Fund receives written (or facsimile) notice of such order by 8:30 a.m. Eastern | ||
Standard Time within the next two Business Days following the day of receipt of such | ||
order. The Company agrees that all Orders received by the Company, which will be | ||
transmitted to Distributor for processing as of a particular Business Day, will have | ||
been received and time stamped prior to the Close of Trading on that Business Day. | ||
Upon the Distributor’s request, the Company shall provide copies of historical records | ||
relating to transactions between the Fund and the Accounts, written communications | ||
regarding the Fund to or from Contract owners and participants, and other materials, | ||
in each case, as may reasonably be requested to enable the Distributor or any other | ||
designated entity, including without limitation, auditors, investment advisers, or | ||
transfer agents of the Fund to monitor and review the services being provided under | ||
this Agreement, the internal controls designed to prevent orders received after the | ||
Close of Trading from being aggregated with orders received before the Close of | ||
Trading, or to comply with any request of a governmental body or self-regulatory | ||
organization or a shareholder. | ||
(d) | Payments for net redemptions of shares of the Fund will be wired by the Fund to an | |
account designated by the Company on the same Business Day the Company places | ||
an order to redeem Fund Shares. Payments for net purchases of the Fund will be | ||
wired by the Company to an account designated by the Fund on the same Business | ||
Day the Company places an order to purchase Fund shares. Payments shall be in | ||
federal funds transmitted by wire. | ||
(e) | In lieu of applicable provisions set forth in paragraphs 2(a) through 2(d) above, | |
the parties may agree to provide pricing information, execute orders and wire payments for | ||
purchases and redemptions through National Securities Clearing Corporation’s Fund/SERV | ||
system in which case such activities will be governed by the provisions set forth in Exhibit | ||
I to this Agreement. | ||
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(f) | Each party has the right to rely on information or confirmations provided by the other | ||
party (or by any affiliate of the other party), and shall not be liable in the event that an | |||
error is a result of any misinformation supplied by the other party | |||
(g) | The Company shall assume responsibility as herein described for any loss to | ||
Distributor or to the Fund caused by a cancellation or correction made to an Order by | |||
a Contract owner or participant subsequent to the date as of which such Order has | |||
been received by the Company and originally relayed to the Distributor, and the | |||
Company will immediately pay such loss to the Distributor or the Fund upon the | |||
Company’s receipt of written notification, with supporting data. | |||
(h) | The Distributor shall indemnify and hold the Company harmless, from the effective | ||
date of this Agreement, against any amount the Company is required to pay to | |||
Contract owners or participants due to: (i) an incorrect calculation of a Fund’s daily | |||
net asset value, dividend rate, or capital gains distribution rate or (ii) a materially | |||
incorrect or late reporting (after 7:00 p.m. Eastern Standard time on each Business | |||
Day the Fund is open for business) of the daily net asset value, dividend rate, or | |||
capital gain distribution rate of a Fund, upon written notification by the Company, | |||
with supporting data, to Distributor, in each case which requires reprocessing. In | |||
addition, the Fund or the Distributor shall be liable to the Company for systems and | |||
out of pocket costs incurred by the Company in making a Contract owner’s or a | |||
participant's account whole, if such costs or expenses are a result of the Fund's or the | |||
Distributor’s failure to provide timely or correct net asset values, dividend and capital | |||
gains or financial information and if such information is not corrected by 4:00 p.m. | |||
Eastern Standard time on the next Business Day after releasing such incorrect | |||
information provided the incorrect NAV as well as the correct NAV for each day that | |||
the error occurred is provided. If a mistake is caused in supplying such information or | |||
confirmations, which results in a reconciliation with incorrect information, the | |||
amount required to make a Contract owner’s or a participant's account whole shall be | |||
borne by the party providing the incorrect information, regardless of when the error is | |||
corrected. | |||
(h) | The Company agrees to purchase and redeem the shares of the Funds named in | ||
Schedule B offered by the then current prospectus and statement of additional | |||
information of the Fund in accordance with the provisions of such prospectus and | |||
statement of additional information. | |||
3. | Fees. | ||
In consideration of services provided by the Company under this Agreement, the Fund or | |||
Distributor shall pay fees to the Company as set forth in Schedule C. | |||
4. | Expenses. | ||
(a) | Except as otherwise provided in this Agreement, all expenses incident to the | ||
performance by the Fund under this Agreement shall be paid by the Fund, including | |||
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the cost of registration of Fund shares with the Securities and Exchange Commission | |||
(the "SEC") and in states where required. The Fund and Distributor shall pay no fee | |||
or other compensation to the Company under this Agreement, and the Company shall | |||
pay no fee or other compensation to the Fund or Distributor, except as provided | |||
herein and in Schedule C attached hereto and made a part of this Agreement as may | |||
be amended from time to time with the mutual consent of the parties hereto. All | |||
expenses incident to performance by each party of its respective duties under this | |||
Agreement shall be paid by that party, unless otherwise specified in this Agreement. | |||
(b) | The Fund or the Distributor shall provide to the Company, at the location designated | ||
by the Company, periodic fund reports to shareholders and other materials that are | |||
required by law to be sent to Contract owners or participants. In addition, the Fund or | |||
the Distributor shall provide the Company with a sufficient quantity of its | |||
prospectuses, statements of additional information and any supplements to any of | |||
these materials, to be used in connection with the offerings and transactions | |||
contemplated by this Agreement | |||
(c) | The Fund or Distributor shall provide the Company with a sufficient quantity of its | ||
proxy material that is required to be sent to Contract owners or participants. The cost | |||
associated with proxy preparation, group authorization letters, programming for | |||
tabulation and necessary materials (including postage) will be paid by the Fund or | |||
Distributor. | |||
5. | Representations. | ||
(a) | The Company agrees that it and its agents shall not, without the written consent of the | ||
Fund or the Distributor, make representations concerning the Fund, or its shares | |||
except those contained in the then current prospectuses and in current printed sales | |||
literature approved by or deemed approved by the Fund or the Distributor. | |||
(b) | The Company will not, without prior written consent of the Distributor in each | ||
instance, (i) use in advertising, publicity or otherwise the name of “Xxxxxxx Xxxxx,” | |||
including the name of any affiliate, partner or employee of Goldman or the Fund, nor | |||
any trade name, trademark, trade device, service xxxx, symbol or any abbreviation, | |||
contraction or simulation thereof owned by Goldman (unless such use is in | |||
accordance with procedures mutally agreed upon by the parties), or (ii) represent, | |||
directly or indirectly, that any product or any service provided by the Company has | |||
been approved or endorsed by the Distributor. This provision shall survive the | |||
termination of this Agreement. | |||
(c) | The Company represents and warrants that the Contracts will be issued and sold in | ||
compliance in all material respects with all applicable federal and state laws and the | |||
sale of the Contracts will comply in all material respects with state insurance law | |||
requirements. The Company further represents and warrants that it is an insurance | |||
company duly organized and in good standing under applicable law and that, to the | |||
degree legally required, it has registered or, prior to any issuance or sale of the | |||
Contracts, will register each Separate Account as a unit investment trust in accordance | |||
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with the provisions of the 1940 Act to serve as a segregated investment account for | ||
the Contracts. | ||
(d) | The Company agrees that it shall be fully responsible for the sale and marketing of the | |
Contracts. The Company shall provide Contracts, the Contracts’ and Fund’s | ||
Prospectuses, Contracts’ and Fund’s Statement of Additional Information, and all | ||
amendments or supplements to any of the foregoing to Contract owners and | ||
participants and prospective Contract owners and participants, all in accordance with | ||
and to the extent required by federal and state laws. The Company shall ensure that | ||
all persons offering the Contracts are duly licensed and registered under applicable | ||
insurance and securities laws. The Company shall ensure that each sale of a Contract | ||
satisfies applicable suitability requirements under insurance and securities laws and | ||
regulations, including without limitation the rules of the NASD. The Company shall | ||
adopt and implement procedures reasonably designed to ensure that information | ||
concerning the Fund and the Distributor that is intended for use by brokers or agents | ||
selling the Contracts (i.e., information that is not intended for distribution to Contract | ||
Owners or offerees) is so used. | ||
(e) | The Company agrees that it shall be fully responsible for the underwriting, issuance, | |
service and administration of the Contracts and for the administration of the | ||
Accounts, including, without limitation, the calculation of performance information | ||
for the Contracts, the timely payment of Contract owner and participant redemption | ||
requests and processing of Contract transactions, and the maintenance of a service | ||
center, such functions to be performed in all respects at a level commensurate with | ||
those standards prevailing in the variable annuity industry. The Company shall | ||
provide to Contract owners and participants all Fund reports, solicitations for voting | ||
instructions including any related Fund proxy solicitation materials, and updated Fund | ||
Prospectuses as required under the federal securities laws. | ||
(f) | The Company agrees that in connection with the matters contemplated by this | |
Agreement, it shall act in conformity with the 1940 Act, the Employee Retirement | ||
Income Security Act of 1974, as amended (“ERISA”) and all other applicable federal | ||
and state laws, regulations and rulings and the constitution, by-laws and rules of any | ||
applicable self-regulatory organization. The Company shall assume sole | ||
responsibility for its compliance with applicable federal and state laws and | ||
regulations, and shall rely exclusively upon its own determination, or that of its legal | ||
advisers, that the performance of its duties hereunder complies with such laws and | ||
regulations. Under no circumstances shall the Fund, the Distributor or any of their | ||
affiliates be held responsible or liable in any respect for any statements or | ||
representations made by them or their legal advisers to the Company concerning the | ||
applicability of any federal or state laws or regulations to the activities contemplated | ||
herein. Without limiting the generality of the foregoing, the Company acknowledges | ||
specifically that (i) the Fund does not conform its operations to the provision of | ||
Section 817(h) of the Internal Revenue Code; (ii) the Company is solely responsible | ||
for the operation of the Accounts and the issuance of Contracts in conformance with | ||
all applicable tax, securities, insurance and other laws; and (iii) the Company’s receipt | ||
of compensation pursuant to this Agreement is lawful. | ||
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(g) | The Distributor represents and warrants that the Funds (1) are duly organized under | ||
the laws of the various states, (2) are in good standing in such jurisdictions. (3) are in | |||
material compliance with all applicable federal, state and securities laws, and (4) are | |||
duly licensed and authorized to conduct business in every jurisdiction where such | |||
license or authorization is required. | |||
(h) | The Distributor represents and warrants that the shares of the Funds are registered | ||
under the 1933 Act, duly authorized for issuance and sold in compliance with the | |||
laws of the States and all applicable federal, state, and securities laws; that the Funds | |||
amend their registration statements under the 1933 Act and the 1940 Act from time to | |||
time as required or in order to effect the continuous offering of its shares; and that the | |||
Funds have registered and qualified its shares for sale in accordance with the laws of | |||
each jurisdiction where it is required to do so. | |||
(i) | Distributor represents and warrants that the Funds are currently qualified as regulated | ||
investment companies under Subchapter M of the Internal Revenue Code of 1986, as | |||
amended, and will make every effort to maintain such qualification, and that | |||
Distributor will notify the Company immediately upon having a reasonable basis for | |||
believing that any of the Funds have ceased to so qualify or that any might not qualify | |||
in the future. | |||
(j) | Distributor represents and warrants that it (1) is a member in good standing of the | ||
NASD, (2) is registered as a broker-dealer with the SEC, (3) will continue to remain | |||
in good standing and be so registered during the term of this Agreement, (4) is a | |||
partnership duly organized under the laws of the State of New York, (5) is in good | |||
standing in that jurisdiction, (6) is in material compliance with all applicable federal, | |||
state, and securities laws, (7) is duly registered and authorized in every jurisdiction | |||
where such license or registration is required, and will maintain such registration or | |||
authorization in effect at all times during the term of this Agreement, and (8) has full | |||
authority to enter into this Agreement and carry out its obligations pursuant to the | |||
terms of this Agreement. | |||
6. | Termination. | ||
This Agreement shall terminate as to the sale and issuance of new Contracts: | |||
(a) | at the option of either the Company, the Distributor or the Fund, upon sixty days | ||
advance written notice to the other parties; | |||
(b) | at the option of the Company, upon one week advance written notice to the | ||
Distributor and the Fund, if Fund shares are not available for any reason to meet the | |||
requirement of Contracts as determined by the Company. Reasonable advance notice | |||
of election to terminate shall be furnished by Company; | |||
(c) | at the option of either the Company, the Distributor or the Fund, immediately upon | ||
institution of formal proceedings against the broker-dealer or broker-dealers | |||
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marketing the Contracts, any Account, the Company, the Fund or the Distributor by | |||
the National Association of Securities Dealers, Inc. (the "NASD"), the SEC or any | |||
other regulatory body; | |||
(d) | at the option of the Distributor, if the Distributor shall reasonably determine in good | ||
faith that shares of the Fund are not being offered in conformity with the terms of this | |||
Agreement; | |||
(e) | at the option of the Distributor, if the Distributor has reason to believe that the | ||
performance of the services or receipt of fees by the Company or its affiliates under | |||
this Agreement may be unlawful; | |||
(f) | upon the determination of the Accounts to substitute for the Fund's shares the shares | ||
of another investment company in accordance with the terms of the applicable | |||
Contracts. The Company will give 60 days written notice to the Fund and the | |||
Distributor of any decision to replace the Fund's shares; | |||
(g) | upon assignment of this Agreement, unless made with the written consent of all other | ||
parties hereto; | |||
(h) | if Fund shares are not registered, issued or sold in conformance with Federal law or | ||
such law precludes the use of Fund shares as an underlying investment medium for | |||
Contracts issued or to be issued by the Company. Prompt notice shall be given by the | |||
appropriate party should such situation occur. | |||
7. | Continuation of Agreement. | ||
Termination as the result of any cause listed in Section 6 shall not affect the Fund's | |||
obligation to furnish its shares to Contracts then in force for which its shares serve or may | |||
serve as the underlying medium unless such further sale of Fund shares is prohibited by law | |||
or the SEC or other regulatory body. | |||
8. | Advertising Materials; Filed Documents. | ||
(a) | Advertising and sales literature with respect to the Fund prepared by the Company or | ||
its agents for use in marketing its Contracts will be submitted to the Distributor or its | |||
designee for review before such material is submitted to any regulatory body for | |||
review. In no event shall such materials be used without the prior written consent of | |||
the Distributor, unless such use is in accordance with procedures mutually agreed | |||
upon by the parties. The Distributor shall advise the submitting party in writing | |||
within ten (10) Business Days of receipt of such materials by the Distributor of its | |||
approval or disapproval of such materials. | |||
(b) | At the Company’s request, the Fund will provide additional copies of its financials to | ||
the Company and will automatically provide at least one complete copy of all | |||
prospectuses, annual and semi-annual reports, proxy statements and all amendments | |||
or supplements to any of the above that relate to the Fund promptly after the filing of | |||
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such document with the SEC or other regulatory authorities. At the Distributor’s | |||
request, the Company will provide to the Distributor additional copies of its financials | |||
and at least one complete copy of all registration statements, prospectuses, annual and | |||
semi-annual reports, proxy statements, and all amendments or supplements to any of | |||
the above that relate to the Accounts promptly after the filing of such document with | |||
the SEC or other regulatory authority. | |||
(c) | The Fund or the Distributor will provide via Excel spreadsheet diskette format or in | ||
electronic transmission to the Company at least quarterly portfolio information | |||
necessary to update Fund profiles with ten Business Days following the end of each | |||
quarter. | |||
9. | Proxy Voting. | ||
(a) | The Company shall provide pass-through voting privileges on Fund shares held by | ||
registered separate accounts to all Contract owners and participants to the extent the | |||
SEC continues to interpret the 1940 Act as requiring such privileges. The Company | |||
shall provide pass-through voting privileges on Fund shares held by unregistered | |||
separate accounts to all Contract owners. | |||
(b) | The Company will distribute to Contract owners and participants, as appropriate, all | ||
proxy material furnished by the Fund and will vote Fund shares in accordance with | |||
instructions received from such Contract owners and participants. If and to the extent | |||
required by law, the Company, with respect to each group Contract and with respect | |||
to each Account, shall vote Fund shares for which no instructions have been received | |||
in the same proportion as shares for which such instructions have been received. The | |||
Company and its agents shall not oppose or interfere with the solicitation of proxies | |||
for Fund shares held for such Contract owners and participants. | |||
10. Indemnification. | |||
(a) | The Company agrees to indemnify and hold harmless the Fund, the Distributor, and | ||
each of their directors, trustees, officers, employees, agents and each person, if any, | |||
who controls the Fund or the Distributor within the meaning of the Securities Act of | |||
1933 (the "1933 Act") against any losses, claims, damages or liabilities to which the | |||
Fund, the Distributor or any such director, trustee, officer, employee, agent, or | |||
controlling person may become subject, under the 1933 Act or otherwise, insofar as | |||
such losses, claims, damages, or liabilities (or actions in respect thereof) (i) arise out | |||
of, or are based upon, the provision of administrative services by the Company under | |||
this Agreement, (ii) result from a breach by the Company of a material provision of | |||
this Agreement or any representation, warranty or covenant, (iii) arise out of or are | |||
based upon any untrue statement of any material fact made by sales representatives of | |||
the Company or any third party dealer who solicits the purchase of Contracts for | |||
which the Fund is an investment option (“Third Party Dealer”) (unless such | |||
information is contained in the then current prospectus of the Fund, in current sales | |||
literature of the Fund approved by the Fund or in publicly available databases such as | |||
those databases created by Standard & Poor’s and Morningstar); (iv) arise out of or | |||
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are based upon any untrue statement of a material fact contained in sales literature | ||
prepared by the Company or any Third Party Dealer (unless such sales literature has | ||
been approved by the Distributor), or (v) arise out of, or are based upon any violation | ||
of applicable law including but not limited to the rules, regulations or policies of any | ||
self regulatory organization that the Company or any Third Party Dealer. Without | ||
limiting the generality of the foregoing, the Company agrees to indemnify the Fund, | ||
the Distributor or any such director, officer, employee, agent or controlling person | ||
from and against any losses, claims, damages or liabilities resulting from any errors | ||
contained in any purchase, exchange or redemption order transmitted on behalf of the | ||
Accounts or from the untimely receipt of any such order by the Fund or the | ||
Distributor. In addition, if payment for any purchase of Class A Shares is not | ||
received from the Company or its designee by the time specified herein, the purchase | ||
to which such payment relates may, in the Fund’s sole discretion, be rescinded and the | ||
Company will be liable for any dilution to the Fund resulting from the rescinded | ||
trade. The Company will reimburse any legal or other expenses reasonably incurred | ||
by the Fund, the Distributor or any such director, trustee, officer, employee, agent, or | ||
controlling person in connection with investigating or defending any such loss, claim, | ||
damage, liability or action; provided, however, that the Company will not be liable for | ||
indemnification hereunder to the extent that any such loss, claim, damage, liability or | ||
action arises out of or is based upon (i) an untrue statement or omission or alleged | ||
omission made in such Registration Statement or prospectus in conformity with | ||
written materials furnished to the Company by the Fund specifically for use therein or | ||
(ii) the willful misfeasance, bad faith, or gross negligence by the Fund or Distributor | ||
in the performance of its duties or the Fund's or Distributor's reckless disregard of | ||
obligations or duties under this Agreement or to the Company, whichever is | ||
applicable. This indemnity agreement will be in addition to any liability which | ||
Company may otherwise have. | ||
(b) | The Distributor agrees to indemnify and hold harmless the Company and its directors, | |
officers, employees, agents and each person, if any, who controls the Company within | ||
the meaning of the 1933 Act against any losses, claims, damages or liabilities to | ||
which the Company or any such director, officer, employee, agent or controlling | ||
person may become subject, under the 1933 Act or otherwise, insofar as such losses, | ||
claims, damages or liabilities (or actions in respect thereof) (i) arise out of or are | ||
based upon any untrue statement or alleged untrue statement of any material fact | ||
contained in the Registration Statement, prospectuses or sales literature of the Fund 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 material fact required to be stated therein | ||
or necessary to make the statements therein not misleading , provided such materials | ||
are distributed without change, are approved by the Distributor, or they are not used in | ||
a manner contrary to any instructions given by the Distributor or with applicable laws, | ||
regulations and rules or (ii) result from a breach by the Distributor of a material | ||
provision of this Agreement or any representation, warranty or covenant. The | ||
Distributor will reimburse any legal or other expenses reasonably incurred by the | ||
Company or any such director, officer, employee, agent, or controlling person in | ||
connection with investigating or defending any such loss, claim, damage, liability or | ||
action; provided, however, that the Distributor will not be liable for indemnification | ||
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hereunder to the extent that any such loss, claim, damage or liability arises out of or is | ||
based upon an untrue statement or omission or alleged omission made in such | ||
Registration Statement or prospectuses in conformity with written materials furnished | ||
to the Fund by the Company specifically for use therein or (ii) the willful misfeasance, | ||
bad faith, or gross negligence by the Company in the performance of its duties or the | ||
Company’s reckless disregard of obligations or duties under this Agreement or to the | ||
Fund or the Distributor, whichever is applicable. This indemnity agreement will be in | ||
addition to any liability which the Distributor may otherwise have. | ||
(c) | Promptly after receipt by an indemnified party hereunder of notice of the | |
commencement of action, such indemnified party will, if a claim in respect thereof is | ||
to be made against the indemnifying party hereunder, notify the indemnifying party of | ||
the commencement thereof, but the omission so to notify the indemnifying party will | ||
not relieve it from any liability which it may have to any indemnified party otherwise | ||
than under this Section 10. In case any such action is brought against any | ||
indemnified party, and it notifies the indemnifying party of the commencement | ||
thereof, the indemnifying party will be entitled to participate therein and, to the extent | ||
that it may wish to, assume the defense thereof, with counsel satisfactory to such | ||
indemnified party, and after notice from the indemnifying party to such indemnified | ||
party of its election to assume the defense thereof, the indemnifying party will not be | ||
liable to such indemnified party under this Section 10 for any legal or other expenses | ||
subsequently incurred by such indemnified party in connection with the defense | ||
thereof other than reasonable costs of investigation. | ||
(d) | The provisions of this Section 10 shall survive the termination of this Agreement. | |
11. Miscellaneous. | ||
(a) | Amendment and Waiver. Neither this Agreement, nor any provision hereof, may be | |
amended, waived, discharged or terminated orally, but only by an instrument in | ||
writing signed by all parties hereto. | ||
(b) | Notices. All notices and other communications hereunder shall be given or made in | |
writing and shall be delivered personally, or sent by telex, telecopier or registered or | ||
certified mail, postage prepaid, return receipt requested, or recognized overnight | ||
courier service to the party or parties to whom they are directed at the following | ||
addresses, or at such other addresses as may be designated by notice from such party | ||
to all other parties. | ||
To the Company: | ||
Aetna Life Insurance and Annuity Company | ||
000 Xxxxxxxxxx Xxxxxx | ||
Xxxxxxxx, Xxxxxxxxxxx 00000 | ||
Attention: Xxxxx X. Xxxxxxxx, Counsel | ||
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To the Fund: | ||
Xxxxxxx Sachs Trust | ||
00 Xxx Xxxx | ||
Xxx Xxxx, XX 00000 | ||
Attn: Xxxxxx X. Xxxxxxx | ||
To the Distributor: | ||
Xxxxxxx Sachs & Co. | ||
00 Xxx Xxxx | ||
Xxx Xxxx, XX 00000 | ||
Attn: Xxxx Grip | ||
Any notice, demand or other communication given in a manner prescribed in this | ||
subsection (b) shall be deemed to have been delivered on receipt. | ||
(c) | Successors and Assigns. This agreement shall be binding upon and inure to the | |
benefit of the parties hereto and their respective permitted successors and assigns. | ||
(d) | Counterparts. This Agreement may be executed in any number of counterparts, all of | |
which taken together shall constitute one agreement, and any party hereto may | ||
execute this Agreement by signing any such counterpart. | ||
(e) | Severability. In case any one or more of the provisions contained in this Agreement | |
should be invalid, illegal or unenforceable in any respect, the validity, legality and | ||
enforceability of the remaining provisions contained herein shall not in any way be | ||
affected or impaired thereby. | ||
(f) | Entire Agreement. This Agreement constitutes the entire agreement and | |
understanding between the parties hereto and supersedes all prior agreement and | ||
understandings relating to the subject matter hereof. | ||
(g) | Governing Law. This Agreement shall be governed and interpreted in accordance | |
with the laws of the State of Connecticut without giving effect to the principles of | ||
conflicts of laws. | ||
(h) | Non Exclusivity. It is understood by the parties that this Agreement is not an | |
exclusive arrangement in any respect. | ||
(i) | Confidentiality. The terms of this Agreement and the Schedules thereto will be held | |
confidential by each party except to the extent that either party or its counsel may | ||
deem it necessary to disclose such terms. | ||
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(j) No Association or Agency. Except as noted in Section 2(c), the Company shall be | |
deemed to be an independent contractor and not an agent of the Fund or the | |
Distributor for all purposes hereunder and shall have no authority to act for or | |
represent the Fund or the Distributor. In addition, no officer or employee of the | |
Company shall be deemed to be an employee or agent of the Fund or the Distributor | |
nor will be subject, in any respect, to the supervision of the Fund or the Distributor or | |
any affiliate thereof. | |
12. Limitation on Liability of Trustees, etc. | |
This agreement has been executed on behalf of the Fund by the undersigned officer of the | |
Fund in his or her capacity as an officer of the Fund. The obligations of the Fund under this | |
Agreement are not binding upon any of the Trustees, officers or shareholders of the Fund | |
individually but are binding only upon the Fund and its assets. No Class or Portfolio of the | |
Fund shall be liable for the obligations of any other Class or Portfolio hereunder. | |
IN WITNESS WHEREOF, the undersigned have executed this Agreement by their duly | |
authorized officers effective as of the first day of October, 2000. | |
AETNA LIFE INSURANCE AND ANNUITY COMPANY | |
By: /s/ Xxxxxx X. Xxxxxxxxxxx | |
Name Xxxxxx X. Xxxxxxxxxxx | |
Title:_ Vice President__________ | |
XXXXXXX XXXXX TRUST | |
By: /s/ Xxxxxxx X. Grip | |
Name: Xxxxxxx X. Grip | |
Title: Managing Director | |
XXXXXXX, SACHS & CO. | |
By: /s/ Xxxxxxx X. Grip | |
Name: Xxxxxxx X. Grip | |
Title: Managing Director | |
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Schedule A | |
(For any future separate accounts - See Section 1(a) | |
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Schedule B | |
(List of Portfolios available—See Section 2(a)) | |
Class A Shares – Xxxxxxx Xxxxx Capital Growth Fund | |
Class A Shares – Xxxxxxx Sachs International Equity Fund | |
| |
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Schedule C | ||
Fees to the Company | ||
1. | Servicing Fees. | |
Administrative services to Contract owners and participants shall be the responsibility of | ||
the Company and shall not be the responsibility of the Fund or the Distributor. The Distributor | ||
recognizes the Company as the sole shareholder of Fund shares issued under the Fund | ||
Participation Agreement, and that substantial savings will be derived in administrative expenses, | ||
such as significant reductions in postage expense and shareholder communications, by virtue of | ||
having a sole shareholder for each of the Accounts rather than multiple shareholders. In | ||
consideration of the administrative savings resulting from such arrangement, Distributor agrees | ||
to pay to the Company a servicing fee based on the annual rate of ___% of the average net assets | ||
invested in the Funds through the Contracts in each calendar quarter. Distributor will make such | ||
payments to the Company within thirty (30) days after the end of each calendar quarter. Each | ||
payment will be accompanied by a statement showing the calculation of the fee payable to the | ||
Company for the quarter and such other supporting data as may be reasonably requested by the | ||
Company. | ||
2. | 12b-1 Fees. | |
In accordance with the Fund’s plan pursuant to Rule 12b-1 under the Investment | ||
Company Act of 1940, the Distributor will make payments to the Company at an annual rate of | ||
___% of the average net assets invested in the Funds through the Contracts in each calendar | ||
quarter. Distributor will make such payments to the Company within thirty (30) days after the | ||
end of each calendar quarter. Each payment will be accompanied by a statement showing the | ||
calculation of the fee payable to the Company for the quarter and such other supporting data as | ||
may be reasonably requested by the Company. | ||
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EXHIBIT I | |
Procedures for NSCC Fund/Serv Order and Settlement | |
A. | The Funds or Xxxxxxx, Xxxxx & Co. ("GS") will furnish the Company or its |
affiliate for each Fund via MFPS through the Defined Contribution Interface of | |
NSCC/Fund Serv (1) the most current net asset value information between 6:00 | |
p.m. and 7:00 p.m. Eastern Time on each business day that the Fund is open for | |
business (each a "Business Day") or at such other time as that information becomes | |
available, (2) a schedule of anticipated dividend and distribution payment dates for | |
each Fund, which is subject to change without prior notice, and (3) in the case of | |
fixed income funds that declare daily dividends, the daily accrual or the interest rate | |
factor between 6:00 p.m. and 7:00 p.m. Eastern Time on each Business Day the | |
Fund is open for business or at such other time as such information becomes | |
available. | |
B. | Upon receipt of purchase, exchange and redemption instructions from Plans (or, |
with respect to Plans that are participant-directed plans, from a Plan’s participants) | |
for acceptance as of the time at which a Fund's net asset value is calculated as | |
specified in such Fund's prospectus ("Close of Trading") on each Business Day | |
("Instructions"), and upon its determination that the Plan holds good funds with | |
respect to Instructions involving the purchase of Shares, the Company or its affiliate | |
will calculate the net purchase or redemption order for each Fund. Orders for net | |
purchases or net redemptions derived from Instructions received by the Company or | |
its affiliate prior to the Close of Trading on any given Business Day will be sent to | |
the Defined Contribution Interface of NSCC/Fund Serv by 6:00 a.m. Eastern Time | |
on the next Business Day. Subject to the Company’s or its affiliate’s compliance | |
with the foregoing, the Company or its affiliate will be considered the agent of the | |
Distributor and the Funds, and the Business Day on which Instructions are received | |
by the Company or its affiliate in proper form prior to the Close of Trading will be | |
the date as of which Shares of the Funds are deemed purchased, exchanged or | |
redeemed pursuant to such Instructions. Instructions received in proper form by the | |
Company or its affiliate after the Close of Trading on any given Business Day will | |
be treated as if received on the next following Business Day. Dividends and capital | |
gains distributions will be automatically reinvested at net asset value in accordance | |
with the Fund's then current prospectuses. | |
C. | The Company or its affiliate will wire payment for net purchase orders by Fund, in |
immediately available funds, to a custodial account designated by NSCC and notify | |
NSCC of the Federal reference numbers for such wire transfers as soon as possible | |
but in any event no later than 5:00 p.m. Eastern time on the same Business Day such | |
purchase orders are communicated to NSCC. For purchases of Shares of daily | |
dividend accrual funds, those Shares will not begin to accrue dividends until the day | |
the payment for those Shares is received. | |
D. | NSCC will normally wire payment for net redemption orders by Fund, in |
immediately available funds, to one or more accounts designated by the Company | |
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or its affiliate, by 5:00 p.m. Eastern Time on the Business Day such redemption | |
orders are communicated to NSCC, except as provided in a Fund's prospectus and | |
statement of additional information. | |
E. | With respect to C. or D. above, if Distributor does not send a confirmation of the |
Company’s or its affiliate’s purchase or redemption order to NSCC by the | |
applicable deadline to be included in that Business Day’s payment cycle, payment | |
for such purchases or redemptions will be made the following Business Day. | |
F. | If on any day the Company or its affiliate or Distributor is unable to meet the |
NSCC deadline for the transmission of purchase or redemption orders, it may at | |
its option transmit such orders and make such payments for purchases and | |
redemptions directly to Distributor or to the Company or its affiliate, as | |
applicable, as is otherwise provided in this Agreement. | |
G. | These procedures are subject to any additional terms in each Fund's prospectus and |
the requirements of applicable law. The Funds reserve the right, at its discretion and | |
without notice, to suspend the sale of Shares or withdraw the sale of Shares of any | |
Fund. | |
H. | The Company or its affiliate and clearing agents (if applicable) are required to sign the |
appropriate NSCC membership agreements. | |
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