PARTICIPATION AGREEMENT Among EQUITRUST VARIABLE INSURANCE SERIES FUND, EQUITRUST MARKETING SERVICES, LLC, and FARM BUREAU LIFE INSURANCE COMPANY
Exhibit 1. A.9(a)
Among
EQUITRUST VARIABLE INSURANCE SERIES FUND,
EQUITRUST MARKETING SERVICES, LLC,
and
FARM BUREAU LIFE INSURANCE COMPANY
THIS AGREEMENT, amended and restated as of this 15th day of January, 2007 by and among Farm
Bureau Life Insurance Company (hereinafter, the “Company”), an Iowa insurance company, on its own
behalf and on behalf of each segregated asset account of the Company set forth on Schedule A hereto
as may be amended from time to time (each account hereinafter referred to as the “Account”), and
the undersigned fund, a business trust organized under the laws of the Commonwealth of
Massachusetts (hereinafter referred to as the “Fund”) and EquiTrust Marketing Services, LLC
(hereinafter the “Underwriter”), a Delaware limited liability company.
WHEREAS, the Fund engages in business as an open-end management investment company and is or
will be available to act as the investment vehicle for separate accounts established for variable
universal life insurance and variable annuity contracts (the “Variable Insurance Products”) to be
offered by insurance companies which have entered into participation agreements with the Fund and
Underwriter (hereinafter “Participating Insurance Companies”); and
WHEREAS, the beneficial interest in the Fund is divided into several series of shares, each
designated a “Portfolio” and representing the interest in a particular managed portfolio of
securities and other assets; and
WHEREAS, the Fund has obtained an order from the Securities and Exchange Commission (“SEC”)
granting Participating Insurance Companies and variable annuity and variable life insurance
separate accounts exemptions from the provisions of sections 9(a), 13(a), 15(a), and 15(b) of the
Investment Company Act of 1940, as amended, (hereinafter the “1940 Act”) and Rules 6e-2(b)(15) and
6e-3(T)(b)(15) thereunder, to the extent necessary to permit shares of the Fund to be sold to and
held by variable annuity and variable life insurance separate accounts of both affiliated and
unaffiliated insurers (hereinafter the “Shared Funding Exemptive Order”); and
WHEREAS, the Fund is registered as an open-end management investment company under the 1940
Act and shares of the Portfolios are registered under the Securities Act of 1933, as amended
(hereinafter the “1933 Act”); and
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WHEREAS, EquiTrust Investment Management Services, Inc. (hereinafter referred to as the
“Adviser”) is duly registered as an investment adviser under the Investment Advisers Act of 1940,
as amended, and any applicable state securities laws; and
WHEREAS, the Company has registered or will register certain variable life insurance or
variable annuity contracts supported wholly or partially by the Account (the “Contracts”) under the
1933 Act, and said Contracts are listed in Schedule A hereto, as it may be amended from time to
time by mutual written agreement; and
WHEREAS, the Account is duly established and maintained as a segregated asset account,
established by resolution of the Board of Directors of the Company, on the date shown for such
Account on Schedule A hereto, to set aside and invest assets attributable to the aforesaid
Contracts; and
WHEREAS, the Company has registered or will register the Account as a unit investment trust
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”); and
WHEREAS, to the extent permitted by applicable insurance laws and regulations, the Company
intends to purchase shares in the Portfolios listed in Schedule A hereto, as it may be amended from
time to time by mutual written agreement (the “Designated Portfolios”) on behalf of the Account to
fund the aforesaid Contracts, and the Underwriter is authorized to sell such shares to unit
investment trusts such as the Account at net asset value;
NOW, THEREFORE, in consideration of their mutual promises, the Company, the Fund and the
Underwriter agree as follows:
ARTICLE I. Sale of Fund Shares
1.1 The Underwriter agrees to sell to the Company those shares of the Designated Portfolios
which the Account orders, executing such orders on a daily basis at the net asset value next
computed after receipt by the Fund or its designee of the order for the shares of the Designated
Portfolios.
1.2 The Fund agrees to make shares of the Designated Portfolios available for purchase at the
applicable net asset value per share by the Company and the Account on those days on which the Fund
calculates its net asset value pursuant to rules of the SEC, and the Fund shall use its best
efforts to calculate such net asset value on each day which the New York Stock Exchange is open for
trading. Notwithstanding the foregoing, the Board of Trustees of the Fund (hereinafter the “Board”)
may refuse to sell shares of any Designated Portfolio to any person, or suspend or terminate the
offering of shares of any Designated Portfolio if such action is required by law or by regulatory
authorities having jurisdiction, or is, in the sole discretion of the Board acting in good faith
and in light of their fiduciary duties under federal and any applicable state
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laws, necessary in the best interests of the shareholders of such Designated Portfolio.
Notice of election to suspend or terminate shall be furnished by the Fund to the Company as soon as
reasonably practicable.
1.3 The Fund and the Underwriter agree that shares of the Fund will be sold only to
Participating Insurance Companies and their separate accounts. No shares of any Designated
Portfolios will be sold to the general public. The Fund and the Underwriter will not sell Fund
shares to any insurer or separate account unless an agreement containing provisions substantially
the same as Articles I, III and VII of this Agreement is in effect to govern such sales.
1.4 The Fund agrees to redeem, on the Company’s request, any full or fractional shares of the
Designated Portfolios held by the Company, executing such requests on a daily basis at the net
asset value next computed after receipt by the Fund or its designee of the request for redemption,
except that the Fund reserves the right to suspend the right of redemption or postpone the date of
payment or satisfaction upon redemption consistent with Section 22(e) of the 1940 Act and any sales
thereunder, and in accordance with the procedures and policies of the Fund as described in the then
current prospectus.
1.5 For purposes of Sections 1.1 and 1.4, the Company shall be the designee of the Fund for
receipt of purchase and redemption orders from the Account, and receipt by such designee shall
constitute receipt by the Fund; provided that the Company receives the order by 3:00 p.m. Central
Time on such Business Day and the Fund receives notice of such order by 9:30 a.m. Central Time on
the next following Business Day. “Business Day” shall mean any day on which the New York Stock
Exchange is open for trading and on which the Fund calculates its net asset value pursuant to the
rules of the SEC.
1.6 The Company agrees to purchase and redeem the shares of each Designated Portfolio offered
by the then current prospectus of the Fund and in accordance with the provisions of such
prospectus. Further, the Company represents that it has adopted internal controls, which are
reasonably designed to ensure compliance with Rule 22c-1, the forward-pricing rule, under the 0000
Xxx.
1.7 The Company shall pay for Fund shares one Business Day after receipt of an order to
purchase Fund shares is made in accordance with the provisions of Section 1.5 hereof. Payment shall
be in federal funds transmitted by wire by 3:00 p.m. Central Time. If payment in federal funds for
any purchase is not received or is received by the Fund after 3:00 p.m. Central Time on such
Business Day, the Company shall promptly, upon the Fund’s request, reimburse the Fund for any
charges, costs, fees, interest or other expenses incurred by the Fund in connection with any
advances to, or borrowings or overdrafts by, the Fund, or any similar expenses incurred by the
Fund, as a result of portfolio transactions effected by the Fund based upon such purchase request.
For purposes of Section 2.8 and 2.9 hereof, upon receipt by the Fund of the federal funds so wired,
such funds shall cease to be the responsibility of the Company and shall become the responsibility
of the Fund.
1.8 Issuance and transfer of the Fund’s shares will be by book entry only. Stock certificates
will not be issued to the Company or any Account. Shares ordered from the Fund
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will be recorded in an appropriate title for each Account or the appropriate subaccount of
each Account.
1.9 The Fund shall furnish same day notice (by wire or telephone, followed by written
confirmation) to the Company of any income, dividends or capital gain distributions payable on the
Designated Portfolios’ shares. The Company hereby elects to receive all such income, dividends and
capital gain distributions as are payable on Designated Portfolio shares in additional shares of
that Portfolio. The Company reserves the right to revoke this election and to receive all such
income dividends and capital gain distributions in cash. The Fund shall notify the Company of the
number of shares so issued as payment of such dividends and distributions.
1.10 The Fund shall make the net asset value per share for each Designated Portfolio available
to the Company on a daily basis as soon as reasonably practical after the net asset value per share
is calculated (normally by 5:30 p.m. Central Time) and shall use its best efforts to make such net
asset value per share available by 6:00 p.m. Central Time. If the net asset value is materially
incorrect through no fault of the Company, the Company on behalf of each Account, shall be entitled
to an adjustment to the number of shares purchased or redeemed to reflect the correct net asset
value, if applicable, in accordance with Fund procedures. Any material error in the net asset value
shall be reported to the Company promptly upon discovery. Any administrative or other costs or
losses incurred for correcting underlying Contract owner accounts shall be at the Company’s
expense.
1.11 The Parties hereto acknowledge that the arrangement contemplated by this Agreement is not
exclusive; the Fund’s shares may be sold to other insurance companies (subject to Section 1.3 and
Article VI hereof) and the cash value of the Contracts may be invested in other investment
companies.
ARTICLE II. Representations and Warranties
2.1 The Company represents and warrants that the Contracts are or will be registered under the
1933 Act, that the Contracts will be issued and sold in compliance in all material respects with
all applicable federal and state laws and that the sale of the Contracts shall comply in all
material respects with state insurance suitability requirements. The Company further represents and
warrants that it is an insurer duly organized and in good standing under applicable law and that it
has legally and validly established the Account prior to any issuance or sale thereof as a
segregated asset account under the Iowa insurance laws and has registered or, prior to any issuance
or sale of the Contracts, will register the Account as a unit investment trust in accordance with
the provisions of the 1940 Act to serve as a segregated investment account for the Contracts.
2.2 The Fund represents and warrants that Fund shares sold pursuant to this Agreement shall be
registered under the 1933 Act, duly authorized for issuance and sold in compliance with the laws of
the state of Iowa and all applicable federal and state securities laws and that the Fund is and
shall remain registered under the 0000 Xxx. The Fund shall amend the Registration Statement for its
shares under the 1933 Act and the 1940 Act from time to time as required in order to effect the
continuous offering of its shares. The Fund shall register and qualify the
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shares for sale in accordance with the laws of the various states only if and to the extent
deemed advisable by the Fund or the Underwriter.
2.3 The Fund currently does not intend to make any payments to finance distribution expenses
pursuant to Rule 12b-1 under the 1940 Act, although it may make such payments in the future. To the
extent that it decides to finance distribution expenses pursuant to Rule 12b-1, the Fund will
undertake to have the Board, a majority of whom are not interested persons of the Fund, formulate
and approve any plan pursuant to Rule 12b-1 under the 1940 Act to finance distribution expenses.
2.4 The Fund 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 Fund represents that the Fund’s investment
policies, fees and expenses are and shall at all times remain in compliance with the laws of the
state of Iowa to the extent required to perform this Agreement. The Fund also represents that it
will comply with any additional state insurance law restrictions that apply generally to similar
variable insurance funds in jurisdictions where the Fund is already offered, as provided in writing
to the Fund by the Company, 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.
2.5 The Fund represents that it is lawfully organized and validly existing under the laws of
the Commonwealth of Massachusetts and that it does and will comply in all material respects with
the 1940 Act.
2.6 The Underwriter represents and warrants that it is a member in good standing of the NASD
and is registered as a broker/dealer with the SEC. The Underwriter represents and warrants that it
is duly organized and in good standing under the laws of the State of Delaware.
2.7 The Underwriter represents that it will sell and distribute the Fund shares in accordance
with the laws of the State of Iowa and any applicable state and federal securities laws.
2.8 The Fund and the Underwriter represent and warrant that all of their directors, managers,
officers, employees, investment advisers, and other individuals or entities dealing with the money
and/or securities of the Fund are and shall continue to be at all times covered by a blanket
fidelity bond or similar coverage for the benefit of the Fund in an amount not less than the
minimum 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 shall include coverage for larceny and
embezzlement and shall be issued by a reputable bonding company. The Fund and the Underwriter
agree to make all reasonable efforts to see that this bond or another bond containing these
provisions is always in effect, and agree to notify the Company in the event that such coverage no
longer applies.
2.9 The Company represents and warrants that all of its directors, officers, employees, and
other individuals/entities employed or controlled by the Company dealing with the money
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and/or securities of the Fund are covered by a blanket fidelity bond or similar coverage in an
amount not less than $2.5 million. The aforesaid bond 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 arise from the arrangements described in
this Agreement will be held by the Company for the benefit of the Fund if, and when, applicable.
The Company agrees to make all reasonable efforts to see that this bond or another bond containing
these provisions is always in effect, and agrees to notify the Fund and the Underwriter in the
event that such coverage no longer applies. The Company agrees to exercise its best efforts to
ensure that other individuals/entities not employed or controlled by the Company and dealing with
the money and/or securities of the Fund maintain a similar bond or coverage in a reasonable amount.
2.10 Upon the effectiveness of Rule 22c-2(a)(2) under the 1940 Act, the Company represents and
warrants that it shall (a) provide, promptly upon request to the Fund, the taxpayer identification
number of all Contract owners who purchase, redeem, transfer or exchange shares of the Portfolios
held through the Account(s), and the amount and dates of such Contract owners’ purchases,
redemptions, transfers and exchanges, and (b) execute any instructions from the Fund to restrict or
prohibit further purchases of exchanges of Portfolio shares by a Contract owner who has been
identified by the Fund as having engaged in transactions of Portfolio shares (directly or
indirectly through the Account(s)) that violate policies established by the Fund for the purpose of
eliminating or reducing any dilution of the value of the outstanding shares issued by the
Portfolios.
ARTICLE III. Prospectuses, Statements of Additional Information and Proxy Statements:
Voting
3.1 The Underwriter shall provide the Company (at the Company’s expense) with as many copies
of the Fund’s current prospectus as the Company may reasonably request. If requested by the Company
in lieu thereof, the Fund shall provide such documentation (including a final copy of the new
prospectus as set in type or on a diskette, at the Fund’s expense) and other assistance as is
reasonably necessary in order for the Company (at the Company’s expense) once each year (or more
frequently if the prospectus for the Fund is amended) to have the prospectus for the Contracts and
the Fund’s prospectus printed together in one document (such printing to be at the Company’s
expense).
3.2 The Fund’s prospectus shall state that the current Statement of Additional Information
(“SAI”) for the Fund is available from the Company (or, in the Fund’s discretion, from the Fund),
and the Underwriter (or the Fund), at its expense, shall print, or otherwise reproduce, and provide
a copy of such SAI free of charge to the Company for itself and for any owner of a Contract who
requests such SAI.
3.3 The Fund, at its expense, shall provide the Company with copies of its proxy material,
reports to shareholders, and other communications to shareholders in such quantity as the Company
shall reasonably require for distributing to Contract owners in the Fund. The Underwriter (at the
Company’s expense) shall provide the Company with copies of the Fund’s annual and semi-annual
reports to shareholders in such quantity as the Company shall reasonably request for use in
connection with offering the Contracts issued by the Company. If requested by
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the Company in lieu thereof, the Underwriter shall provide such documentation (which may
include a final copy of the Fund’s annual and semi-annual reports as set in type or on diskette)
and other assistance as is reasonably necessary in order for the Company (at the Company’s expense)
to print such shareholder communications for distribution to Contract owners.
3.4. The Fund will provide the Company with as much notice as is reasonably practicable of any
proxy solicitation for any Designated Portfolio, and of any material change in the Fund’s
registration statement or prospectus, particularly any change resulting in a change to the
registration statement or prospectus for any Account. The Fund will work with the Company so as to
enable the Company to solicit proxies from Contract owners, or to make changes to the Company’s
registration statement or prospectus, in an orderly manner.
3.5 The Company shall:
(i) | solicit voting instructions from Contract owners; | ||
(ii) | vote the Fund shares in accordance with instructions received from Contract owners; and | ||
(iii) | vote Fund shares for which no instructions have been received in the same proportion as Fund shares of such Designated Portfolio for which instructions have been received, |
so long as and to the extent that the SEC continues to interpret the 1940 Act to require
passthrough voting privileges for variable contract owners or to the extent otherwise required by
law. The Company reserves the right to vote Fund shares held in any segregated asset account in its
own right, to the extent permitted by law.
3.6 Participating Insurance Companies shall be responsible for assuring that each of their
separate accounts participating in a Designated Portfolio calculates voting privileges as required
by the Shared Funding Exemptive Order and consistent with any reasonable standards that the Fund
may adopt.
3.7 The Fund will comply with all provisions of the 1940 Act requiring voting by shareholders,
and in particular the Fund will either provide for annual meetings or comply with Section 16(c) of
the 1940 Act (although the Fund is not one of the trusts described in Section 16(c) of that Act) as
well as with Sections 16(a) and, if and when applicable, 16(b). Further, the Fund will act in
accordance with the SEC’s interpretation of the requirements of Section 16(a) with respect to
periodic elections of directors or trustees and with whatever rules the SEC may promulgate with
respect thereto.
ARTICLE IV. Sales Material and Information
4.1 The Company shall furnish, or shall cause to be furnished, to the Fund or its designee,
each piece of sales literature or other promotional material that the Company develops or uses and
in which the Fund (or a Portfolio thereof) or the Adviser or the Underwriter is
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named, at least ten calendar days prior to its use. No such material shall be used if the Fund
or its designee reasonably object to such use within ten calendar days after receipt of such
material. The Fund or its designee reserves the right to reasonably object to the continued use of
such material, and no such material shall be used if the Fund or its designee so object.
4.2 The Company shall not give any information or make any representations or statements on
behalf of the Fund or concerning the Fund in connection with the sale of the Contracts other than
the information or representations contained in the registration statement and prospectus or SAI
for the Fund shares, as such registration statement and prospectus or SAI may be amended or
supplemented from time to time, or in reports or proxy statements for the Fund, or in sales
literature or other promotional material approved by the Fund or its designee or by the
Underwriter, except with the permission of the Fund or the Underwriter or the designee of either.
4.3 The Fund, Underwriter, or its designee shall furnish, or shall cause to be furnished, to
the Company, each piece of sales literature or other promotional material in which the Company,
and/or its Account, is named at least ten calendar days prior to its use. No such material shall be
used if the Company reasonably objects to such use within ten calendar days after receipt of such
material. The Company reserves the right to reasonably object to the continued use of such material
and no such material shall be used if the Company so objects.
4.4. The Fund and the Underwriter shall not give any information or make any representations
on behalf of the Company or concerning the Company, the Account, or the Contracts other than the
information or representations contained in a registration statement, prospectus, or SAI for the
Contracts, as such registration statement, prospectus or SAI may be amended or supplemented from
time to time, or in published reports for the Account which are in the public domain or approved by
the Company for distribution to Contract owners, or in sales literature or other promotional
material approved by the Company or its designee, except with the permission of the Company.
4.5 The Fund will provide to the Company at least one complete copy of all registration
statements, prospectuses, SAIs, reports, proxy statements, sales literature and other promotional
materials and all amendments to any of the above, that relate to the Fund or its shares, within a
reasonable time after the filing of such document(s) with the SEC or the NASD.
4.6 The Fund shall furnish to the Company at least ten (10) Business Days prior to its first
submission to the SEC or its staff, any request or filing for no-action assurance or exemptive
relief naming the Company, the Account or the Contracts. The Fund shall furnish to the Company
upon submission to the SEC or its staff, any request or filing for no-action assurance or exemptive
relief pertaining to or affecting the Company, the Account or the Contracts.
4.7 The Company will provide to the Fund at least one complete copy of all registration
statements, prospectuses, SAIs, reports, solicitations for voting instructions, sales literature
and other promotional materials, applications for exemptions, requests for no-action letters, and
all supplements and amendments to any of the above, that relate to the Contracts or the Account,
within a reasonable time after the filing of such document(s) with the SEC or the NASD.
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4.8 For purposes of this Article IV, the phrase “sales literature and other promotional
materials” includes, but is not limited to, any of the following that refer to the Fund or any
affiliate of the Fund: 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, telephone directories (other than routine listings),
electronic communications, or other public media), sales literature (i.e., any written
communication distributed or made generally available to customers or the public, including
brochures, circulars, reports, market letters, performance reports or summaries, form letters,
telemarketing scripts, seminar texts, reprints or excerpts of any other advertisement, sales
literature, or published article), educational or training materials or other communications
distributed or made generally available to some or all agents or employees, and registration
statements, prospectuses, SAIs, shareholder reports, proxy materials, and any other communications
distributed or made generally available with regard to the Funds.
4.9 The Company shall furnish to the Fund at least ten (10) Business Days prior to its first
submission to the SEC or its staff, any request or filing for no-action assurance or exemptive
relief naming the Fund. The Company shall furnish to the Fund upon submission to the SEC or its
staff, any request or filing for no-action assurance or exemptive relief pertaining to or affecting
the Fund.
ARTICLE V. Fees and Expenses
5.1 The Fund and the Underwriter shall pay no fee or other compensation to the Company under
this Agreement, except that if the Fund or any Portfolio adopts and implements a plan pursuant to
Rule 12b-1 to finance distribution expenses, then 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,
and such payments will be made out of existing fees otherwise payable to the Underwriter, past
profits of the Underwriter, or other resources available to the Underwriter. No such payments shall
be made directly by the Fund. Currently, no such payments are contemplated.
5.2 All expenses incident to performance by the Fund under this Agreement shall be paid by the
Fund, except as otherwise provided herein. The Fund shall see to it that all its shares are
registered and authorized for issuance in accordance with applicable federal law and, if and to the
extent deemed advisable by the Fund, in accordance with applicable state laws prior to their sale.
The Fund shall bear the expenses for the cost of registration and qualification of the Fund’s
shares, preparation and filing of the Fund’s prospectus and registration statement, proxy materials
and reports, setting the prospectus in type, setting in type and printing the proxy materials and
reports to shareholders, the preparation of all statements and notices required by any federal or
state law, and all taxes on the issuance of the Fund’s shares.
5.3 The Company shall bear the expenses of printing the Fund’s prospectus (in accordance with
3.1) and of distributing the Fund’s prospectus, proxy materials, and reports to Contract owners and
prospective Contract owners.
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ARTICLE VI. Diversification and Qualification
6.1 The Fund will invest the assets of each Designated Portfolio in such a manner as to ensure
that the Contracts will be treated as annuity, endowment, or life insurance contracts, whichever is
appropriate, under the Internal Revenue Code of 1986, as amended (the “Code”), and the regulations
issued thereunder (or any successor provisions). Without limiting the scope of the foregoing, each
Designated Portfolio of the Fund will comply with Section 817(h) of the Code and Treasury
Regulation § 1.817-5, and any Treasury interpretations thereof, relating to the diversification
requirements for variable annuity, endowment, or life insurance contracts, and any amendments or
other modifications or successor provisions to such Section or Regulations. The Fund represents
that, under the terms of its investment advisory agreements with the Adviser, the Adviser is and
will be responsible for managing each Designated Portfolio in compliance with that Designated
Portfolio’s investment objectives, policies and restrictions as set forth in the Fund’s prospectus.
In the event of a breach of this Article VI by the Fund, it will take all reasonable steps (a) to
notify the Company of such breach and (b) to adequately diversify the Designated Portfolio(s) so as
to achieve compliance within the grace period afforded by Regulation 817.5.
6.2 The Fund represents that each Designated Portfolio is or will be qualified as a Regulated
Investment Company under Subchapter M of the Code (“RIC”), and that it will make every effort to
maintain such qualification (under Subchapter M or any successor or similar provisions) and that it
will notify the Company immediately upon having a reasonable basis for believing that it has ceased
to so qualify or that it might not so qualify in the future. In the event of any noncompliance
regarding the status of any Designated Portfolio as a RIC in compliance with Subchapter M and/or
noncompliance under Section 817(h), the Fund will pursue those efforts necessary to enable that
Designated Portfolio to qualify once again for treatment as a RIC in compliance with Subchapter M
and/or to be in compliance with Section 817(h), including cooperation in good faith with the
Company. If the Fund does not so cure the noncompliance regarding that Designated Portfolio’s
status as a RIC under Subchapter M and/or the noncompliance under Section 817(h), the Fund will
cooperate in good faith with the Company’s efforts to obtain a ruling and closing agreement, as
provided in Revenue Procedure 92-25 issued by the Internal Revenue Service (or any applicable
ruling or procedure subsequently issued by the Internal Revenue Service), that the Designated
Portfolio satisfies the requirements of Subchapter M and/or compliance with Section 817(h), for the
period or periods of non-compliance.
6.3 Subject to the Fund’s compliance with applicable diversification requirements under
Section 817(h) of the Code, the Company represents that the Contracts are currently, and at the
time of issuance shall be, treated as life insurance contracts, life endowment contracts, or
annuity insurance contracts, under applicable provisions of the Code, and that it will make every
effort to maintain such treatment, and that it will notify the Fund and the Underwriter immediately
upon having a reasonable basis for believing the Contracts have ceased to be so treated or that
they might not be so treated in the future. The Company agrees that any prospectus offering a
contract that is a “modified endowment contract” as that term is defined in Section 7702A of the
Code (or any successor or similar provision), shall identify such contract as a modified endowment
contract.
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ARTICLE VII. Potential Conflicts.
7.1 The Board will monitor the Fund for the existence of any material irreconcilable conflict
between the interests of the Contract owners of all separate accounts investing in the Fund. An
irreconcilable material conflict may arise for a variety of reasons, including: (a) an action by
any state insurance regulatory authority; (b) a change in applicable federal or state insurance,
tax, or securities laws or regulations, or a public ruling, private letter ruling, no-action or
interpretative letter, or any similar action by insurance, tax, or securities regulatory
authorities; (c) an administrative or judicial decision in any relevant proceeding; (d) the manner
in which the investments of any Portfolio are being managed; (e) a difference in voting
instructions given by variable annuity and variable life insurance Contract owners; or (f) a
decision by an insurer to disregard the voting instructions of Contract owners. The Board shall
promptly inform the Company if it determines that an irreconcilable material conflict exists and
the implications thereof.
7.2. The Company will report any potential or existing conflicts of which it is aware to the
Board. The Company will assist the Board in carrying out its responsibilities under the Shared
Funding Exemptive Order, by providing the Board with all information reasonably necessary for the
Board to consider any issues raised. This includes, but is not limited to, an obligation by the
Company to inform the Board whenever Contract owner voting instructions are disregarded.
7.3 If it is determined by a majority of the Board, or a majority of its disinterested
members, that a material irreconcilable conflict exists, the Company and other Participating
Insurance Companies shall, at their expense and to the extent reasonably practicable (as determined
by a majority of the disinterested Board members), take whatever steps are necessary to remedy or
eliminate the irreconcilable material conflict, up to and including: (1) withdrawing the assets
allocable to some or all of the separate accounts from the Fund or any Portfolio and reinvesting
such assets in a different investment medium, including (but not limited to) another Portfolio of
the Fund, or submitting the question whether such segregation should be implemented to a vote of
all affected Contract owners and, as appropriate, segregating the assets of any appropriate group
(i.e., annuity Contract owners, life insurance Contract owners, or variable Contract owners of one
or more Participating Insurance Companies) that votes in favor of such segregation, or offering to
the affected Contract owners the option of making such a change; and (2), establishing a new
registered management investment company or managed separate account.
7.4 If a material irreconcilable conflict arises because of a decision by the Company to
disregard Contract owner voting instructions and that decision represents a minority position or
would preclude a majority vote, the Company may be required, at the Fund’s election, to withdraw
the affected Account’s investment in the Fund and terminate this Agreement with respect to such
Account provided, however, that such withdrawal and termination shall be limited to the extent
required by the foregoing material irreconcilable conflict as determined by a majority of the
disinterested members of the Board. Any such withdrawal and termination must take place within six
(6) months after the Fund gives written notice that this provision is being
11
implemented, and until the end of that six month period the Fund shall continue to accept and
implement orders by the Company for the purchase (and redemption) of shares of the Fund.
7.5 If a material irreconcilable conflict arises because a particular state insurance
regulator’s decision applicable to the Company conflicts with the majority of other state
regulators, then the Company will withdraw the affected Account’s investment in the Fund and
terminate this Agreement with respect to such Account within six months after the Board informs the
Company in writing that it has determined that such decision has created an irreconcilable material
conflict; provided, however, that such withdrawal and termination shall be limited to the extent
required by the foregoing material irreconcilable conflict as determined by a majority of the
disinterested members of the Board. Until the end of the foregoing six month period, the Fund shall
continue to accept and implement orders by the Company for the purchase (and redemption) of shares
of the Fund.
7.6 For purposes of Section 7.3 through 7.6 of this Agreement, a majority of the disinterested
members of the Board shall determine whether any proposed action adequately remedies any
irreconcilable material conflict, but in no event will the Fund be required to establish a new
funding medium for the Contracts. The Company shall not be required by Section 7.3 to establish a
new funding medium for the Contract if an offer to do so has been declined by vote of a majority of
Contract owners materially adversely affected by the irreconcilable material conflict. In the event
that the Board determines that any proposed action does not adequately remedy any irreconcilable
material conflict, then the Company will withdraw the Account’s investment in the Fund and
terminate this Agreement within six (6) months after the Board informs the Company in writing of
the foregoing determination; provided, however, that such withdrawal and termination shall be
limited to the extent required by any such material irreconcilable conflict as determined by a
majority of the disinterested members of the Board.
7.7 If and to the extent Rule 6e-2 and Rule 6e-3(T) are amended, or Rule 6e-3 is adopted, to
provide exemptive relief from any provision of the 1940 Act or the rules promulgated thereunder
with respect to mixed or shared funding (as defined in the Shared Funding Exemptive Order) on terms
and conditions materially different from those contained in the Shared Funding Exemptive Order,
then (a) the Fund and/or the Participating Insurance Companies, as appropriate, shall take such
steps as may be necessary to comply with Rules 6e-2 and 6e-3(T), as amended, and Rule 6e-3, as
adopted, to the extent such rules are applicable; and (b) Sections 3.4, 3.5, 3.6, 7.1, 7.2, 7.3,
7.4, and 7.5 of this Agreement shall continue in effect only to the extent that terms and
conditions substantially identical to such Sections are contained in such Rule(s) as so amended or
adopted.
ARTICLE VIII. Indemnification
8.1 Indemnification by the Company
8.1(a). The Company agrees to indemnify and hold harmless the Fund, Underwriter, Adviser and
each of their respective officers, directors and managers and each person, if any, who controls the
Fund, Underwriter or Adviser within the meaning of Section 15
12
of the 1933 Act (excluding any Participating Insurance Company) (collectively, the
“Indemnified Parties” for purposes of this Section 8.1) against any and all losses, claims,
expenses, damages, liabilities (including amounts paid in settlement) or litigation expenses
(including the reasonable costs of investigating or defending any alleged loss, claim, damage,
finds, liability or expense and reasonable legal counsel fees incurred in connection therewith)
(collectively, “Losses”), to which the Indemnified Parties may become subject under any statute or
regulation, at common law or otherwise, insofar as such Losses are related to the sale or
acquisition of the Fund’s shares or the Contracts and:
(i) | arise out of or are based upon any untrue statements or alleged untrue statements of any material fact contained in the registration statement, prospectus, or SAI for the Contracts or contained in the Contracts or sales literature or other promotional material for the Contracts (or any amendment or supplement to any of the foregoing), or arise out of or are based upon the omission or the alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, provided that this agreement to indemnify shall not apply as to any Indemnified Party if such statement or omission or such alleged statement or omission was made in reliance upon and in conformity with information furnished to the Company by or on behalf of the Fund for use in the registration statement, prospectus or SAI for the Contracts or in the Contracts or sales literature or other promotional material (or any amendment or supplement) or otherwise for use in connection with the sale of the Contracts or Fund shares; or | ||
(ii) | arise out of or as a result of statements or representations (other than statements or representations contained in the registration statement, prospectus or sales literature or other promotional material of the Fund not supplied by the Company or persons under its control) or wrongful conduct of the Company or persons under its authorization or control, with respect to the sale or distribution of the Contracts or Fund shares; or | ||
(iii) | arise out of any untrue statement or alleged untrue statement of a material fact contained in a registration statement, prospectus, SAI, or sales literature or other promotional material of the Fund or any amendment thereof or supplement thereto or the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading if such a statement or omission was made in reliance upon information furnished to the Fund by or on behalf of the Company; or | ||
(iv) | arise as a result of any material failure by the Company to provide the services and furnish the materials under the terms of this Agreement (including a failure, whether unintentional or in good faith or otherwise, to comply with the qualification requirements specified in Article VI of this Agreement); or |
13
(v) | arise out of or result from any material breach of any representation and/or warranty made by the Company in this Agreement or arise out of or result from any other material breach of this Agreement by the Company, |
as limited by and in accordance with the provisions of Sections 8.1(b) and 8.1(c) hereof.
8.1(b). The Company shall not be liable under this indemnification provision with respect to
any Losses to which an Indemnified Party would otherwise be subject by reason of such Indemnified
Party’s willful misfeasance, bad faith, or gross negligence in the performance of such Indemnified
Party’s duties or by reason of such Indemnified Party’s reckless disregard of its obligations or
duties under this Agreement.
8.1(c). The Company shall not be liable under this indemnification provision with respect to
any claim made against an Indemnified Party unless such Indemnified Party shall have notified the
Company in writing within a reasonable time after the summons or other first legal process giving
information of the nature of the claim shall have been served upon such Indemnified Party (or after
such Indemnified Party shall have received notice of such service on any designated agent), but
failure to notify the Company of any such claim shall not relieve the Company from any liability
which it may have to the Indemnified Party against whom such action is brought otherwise than on
account of this indemnification provision. In case any such action is brought against an
Indemnified Party, the Company shall be entitled to participate, at its own expense, in the defense
of such action. The Company also shall be entitled to assume the defense thereof, with counsel
satisfactory to the party named in the action and to settle the claim at its own expense; provided,
however, that no such settlement shall, without the Indemnified Parties’ written consent, include
any factual stipulation referring to the Indemnified Parties or their conduct. After notice from
the Company to such party of the Company’s election to assume the defense thereof, the Indemnified
Party shall bear the fees and expenses of any additional counsel retained by it, and the Company
will not be liable to such party under this Agreement for any legal or other expenses subsequently
incurred by such party independently in connection with the defense thereof other than reasonable
costs of investigation.
8.1(d). The Indemnified Parties will promptly notify the Company of the commencement of any
litigation or proceedings against them in connection with the issuance or sale of the Fund shares
or the Contracts or the operation of the Fund.
8.2
Indemnification by the Underwriter
8.2(a). The Underwriter agrees to indemnify and hold harmless the Company and the underwriter
for the Contracts and each of their respective directors and officers and each person, if any, who
controls the Company within the meaning of Section 15 of the 1933 Act (collectively, the
“Indemnified Parties” for purposes of this Section 8.2) against any and all Losses to which the
Indemnified Parties may become subject under any statute or regulation, at common law or otherwise,
insofar as such Losses are related to the sale or acquisition of the Fund’s shares or the
Contracts; and
14
(i) | arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in the registration statement or prospectus or SAI or sales literature or other promotional material of the Fund (or any amendment or supplement to any of the foregoing), or arise out of or are based upon the omission or the alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, provided that this agreement to indemnify shall not apply as to any Indemnified Party if such statement or omission or such alleged statement or omission was made in reliance upon and in conformity with information furnished to the Underwriter or Fund by or on behalf of the Company for use in the registration statement or prospectus for the Fund or in sales literature or other promotional material (or any amendment or supplement) or otherwise for use in connection with the sale of the Contracts or Fund shares; or | ||
(ii) | arise out of or as a result of statements or representations (other than statements or representations contained in the registration statement, prospectus or sales literature or other promotional material for the Contracts not supplied by the Underwriter or persons under its control) or wrongful conduct of the Fund or Underwriter or persons under their control, with respect to the sale or distribution of the Contracts or Fund shares; or | ||
(iii) | arise out of any untrue statement or alleged untrue statement of a material fact contained in a registration statement, prospectus, SAI, or sales literature or other promotional material of the Contracts, or any amendment thereof or supplement thereto, or the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statement or statements therein not misleading, if such statement or omission was made in reliance upon information furnished to the Company by or on behalf of the Fund or Underwriter; or | ||
(iv) | arise as a result of any material failure by the Fund or Underwriter to provide the services and furnish the materials under the terms of this Agreement (including a failure, whether unintentional or in good faith or otherwise, to comply with the diversification and other qualification requirements specified in Article VI of this Agreement); or | ||
(v) | arise out of or result from any material breach of any representation and/or warranty made by the Fund or Underwriter in this Agreement or arise out of or result from any other material breach of this Agreement by the Underwriter; |
as limited by and in accordance with the provisions of Sections 8.2(b) and 8.2(c) hereof.
15
8.2(b). The Underwriter shall not be liable under this indemnification provision with respect
to any Losses to which an Indemnified Party would otherwise be subject by reason of such
Indemnified Party’s willful misfeasance, bad faith, or gross negligence in the performance of such
Indemnified Party’s duties or by reason of such Indemnified Party’s reckless disregard of
obligations and duties under this Agreement or to the Company or the Account, whichever is
applicable.
8.2(c). The Underwriter shall not be liable under this indemnification provision with respect
to any claim made against an Indemnified Party unless such Indemnified Party shall have notified
the Underwriter in writing within a reasonable time after the summons or other first legal process
giving information of the nature of the claim shall have been served upon such Indemnified Party
(or after such Indemnified Party shall have received notice of such service on any designated
agent), but failure to notify the Underwriter of any such claim shall not relieve the Underwriter
from any liability which it may have to the Indemnified Party against whom such action is brought
otherwise than on account of this indemnification provision. In case any such action is brought
against the Indemnified Party, the Underwriter will be entitled to participate, at its own expense,
in the defense thereof. The Underwriter also shall be entitled to assume the defense thereof, with
counsel satisfactory to the party named in the action and to settle the claim at its own expense;
provided, however, that no such settlement shall, without the Indemnified Parties’ written consent,
include any factual stipulation referring to the Indemnified Parties or their conduct. After notice
from the Underwriter to such party of the Underwriter’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 Underwriter will not be liable to such party under this Agreement for any legal or other
expenses subsequently incurred by such party independently in connection with the defense thereof
other than reasonable costs of investigation.
8.2(d). The Company agrees promptly to notify the Underwriter of the commencement of any
litigation or proceedings against it or any of its officers or directors in connection with the
issuance or sale of the Contracts or the operation of the Account.
8.3 Indemnification by the Fund
8.3(a). The Fund agrees to indemnify and hold harmless the Company and the underwriter for the
Contracts and each of their respective directors and officers and each person, if any, who controls
the Company within the meaning of Section 15 of the 1933 Act (collectively, the “Indemnified
Parties” for purposes of this Section 8.3) against any and all Losses to which the Indemnified
Parties may be required to pay or may become subject under any statute or regulation, at common law
or otherwise, insofar as such Losses are related to the operations of the Fund and:
(i) | arise as a result of any material failure by the Fund to provide the services and furnish the materials under the terms of this Agreement (including a failure, whether unintentional or in good faith or otherwise, to comply with the diversification and other |
16
qualification requirements specified in Article VI of this Agreement); or | |||
(ii) | arise out of or result from any material breach of any representation and/or warranty made by the Fund in this Agreement or arise out of or result from any other material breach of this Agreement by the Fund; |
as limited by and in accordance with the provisions of Sections 8.3(b) and 8.3(c) hereof.
8.3(b). The Fund shall not be liable under this indemnification provision with respect to any
Losses to which an Indemnified Party would otherwise be subject by reason of such Indemnified
Party’s willful misfeasance, bad faith, or gross negligence in the performance of such Indemnified
Party’s duties or by reason of such Indemnified Party’s reckless disregard of obligations and
duties under this Agreement or to the Company, the Fund, the Underwriter or the Account, whichever
is applicable.
8.3(c). The Fund shall not be liable under this indemnification provision with respect to any
claim made against an Indemnified Party unless such Indemnified Party shall have notified the Fund
in writing within a reasonable time after the summons or other first legal process giving
information of the nature of the claim shall have been served upon such Indemnified Party (or after
such indemnified Party shall have received notice of such service on any designated agent), but
failure to notify the Fund of any such claim shall not relieve the Fund from any liability which it
may have to the Indemnified Party against whom such action is brought otherwise than on account of
this indemnification provision. In case any such action is brought against the Indemnified Parties,
the Fund will be entitled to participate, at its own expense, in the defense thereof. The Fund also
shall be entitled to assume the expense thereof, with counsel satisfactory to the party named in
the action and to settle the claim at its own expense; provided, however, that no such settlement
shall, without the Indemnified Parties’ written consent, include any factual stipulation referring
to the Indemnified Parties or their conduct. After notice from the Fund to such party of the Fund’s
election to assume the defense thereof, the Indemnified Party shall bear the fees and expenses of
any additional counsel retained by it, and the Fund will not be liable to such party under this
Agreement for any legal or other expenses subsequently incurred by such party independently in
connection with the defense thereof other than reasonable costs of investigation.
8.3(d). The Company and the Underwriter agree promptly to notify the Fund of the commencement
of any litigation or proceeding against it or any of its respective officers or directors in
connection with the Agreement, the issuance or sale of the Contracts, the operation of the Account,
the sale or acquisition of shares of the Fund or the operation of the Fund.
ARTICLE IX. Applicable Law
9.1 This Agreement shall be construed and the provisions hereof interpreted under and in
accordance with the laws of the State of Iowa.
17
9.2 This Agreement shall be subject to the provisions of the 1933, 1934 and 1940 Acts, and the
rules and regulations and rulings thereunder, including such exemptions from those statutes, rules
and regulations as the SEC may grant (including, but not limited to, any Shared Funding Exemptive
Order) and the terms hereof shall be interpreted and construed in accordance therewith.
ARTICLE X. Termination
10.1 This Agreement shall continue in full force and effect until the first to occur of:
(a) | termination by any party, for any reason with respect to some or all Designated Portfolios, by six (6) months’ advance written notice delivered to the other parties; or | ||
(b) | termination by the Company by written notice to the Fund and the Underwriter with respect to any Designated Portfolio based upon the Company’s determination that shares of the Fund are not reasonably available to meet the requirements of the Contracts; provided that such termination shall apply only to the Designated Portfolio not reasonably available; or | ||
(c) | termination by the Company by written notice to the Fund and the Underwriter in the event any of the Designated Portfolio’s shares are not registered, issued or sold in accordance with applicable state and/or federal law or such law precludes the use of such shares as the underlying investment media of the Contracts issued or to be issued by the Company; or | ||
(d) | termination by the Fund or Underwriter in the event that formal administrative proceedings are instituted against the Company by the NASD, the SEC, the Insurance Commissioner or like official 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 operation of any Account, or the purchase of the Fund shares; provided, however, that the Fund or Underwriter determines in its sole judgment exercised in good faith, that any such administrative proceedings will have a material adverse effect upon the ability of the Company to perform its obligations under this Agreement; or | ||
(e) | termination by the Company in the event that formal administrative proceedings are instituted against the Fund or Underwriter by the NASD, the SEC, or any state securities or insurance department or any other regulatory body; provided, however, that the Company determines in its sole judgment exercised in good faith, that any such administrative proceedings will have a material adverse effect upon the ability of the Fund or Underwriter to perform its obligations under this Agreement; or |
18
(f) | termination by the Company by written notice to the Fund and the Underwriter with respect to any Designated Portfolio in the event that such Designated Portfolio ceases to qualify as a Regulated Investment Company under Subchapter M or fails to comply with the Section 817(h) diversification requirements specified in Article VI hereof, or if the Company reasonably believes that such Designated Portfolio may fail to so qualify or comply; or | ||
(g) | termination by the Fund or Underwriter by written notice to the Company in the event that the Contracts fail to meet the qualifications specified in Section 6.3 hereof; or if the Fund or Underwriter reasonably believes that such Contracts may fail to so qualify; or | ||
(h) | termination by either the Fund or the Underwriter by written notice to the Company, if either one or both of the Fund or the Underwriter respectively, shall determine, in their sole judgment exercised in good faith, that the Company has suffered a material adverse change in its business, operations, financial condition, or prospects since the date of this Agreement or is the subject of material adverse publicity; or | ||
(i) | termination by the Company by written notice to the Fund and the Underwriter, if the Company shall determine, in its sole judgment exercised in good faith, that the Fund or the Underwriter has suffered a material adverse change in its business, operations, financial condition or prospects since the date of this Agreement or is the subject of material adverse publicity; or | ||
(j) | termination by the Company, the Fund or the Underwriter by written notice to the other parties upon a material breach of the Agreement by the other party; provided that the non-breaching counter party determines in its sole judgment exercised in good faith, that such breach would not be cured within a reasonable period of time or that such breach would have a material adverse effect upon the ability of any party to perform their obligations under this Agreement. |
10.2 Effect of Termination. Notwithstanding any termination of this Agreement, the
Fund and the Underwriter shall, at the option of the Company, continue to make available additional
shares of the Fund pursuant to the terms and conditions of this Agreement, for all Contracts in
effect on the effective date of termination of this Agreement (hereinafter referred to as “Existing
Contracts”). Specifically, the owners of the Existing Contracts may be permitted to reallocate
investments in the Fund, redeem investments in the Fund and/or invest in the Fund upon the making
of additional purchase payments under the Existing Contracts. The parties agree that this Section
10.2 shall not apply to any termination under Article VII and the effect of such Article VII
termination shall be governed by Article VII of this Agreement. The parties further agree that this
Section 10.2 shall not apply to any termination under Section 10.1(g) of this Agreement.
19
10.3 The provisions of Articles I (Sale of Fund Shares), II (Representations and Warranties),
VI (Diversification and Qualifications), VIII (Indemnification), IX (Applicable Law) and XII
(Miscellaneous) shall survive termination of this Agreement. In addition, all other applicable
provisions of this Agreement shall survive termination as long as shares of the Fund are held on
behalf of Contract owners in accordance with Section 10.2, except that the Fund and Underwriter
shall have no further obligation to make Fund shares available in Contracts issued after
termination.
10.4 The Company shall not redeem Fund shares attributable to the Contracts (as opposed to
Fund shares attributable to the Company’s assets held in the Account) except (i) as necessary to
implement Contract owner initiated or approved transactions or other transactions described in the
prospectus for the Contracts, (ii) as required by state and/or federal laws or regulations or
judicial or other legal precedent of general application (hereinafter referred to as a “Legally
Required Redemption”), or (iii) pursuant to the terms of a substitution order issued by the SEC
pursuant to Section 26(b) of the 1940 Act. Upon request, the Company will promptly furnish to the
Fund and the Underwriter the opinion of counsel for the Company (which counsel shall be reasonably
satisfactory to the Fund and the Underwriter) to the effect that any redemption pursuant to clause
(ii) above is a Legally Required Redemption. Furthermore, except in cases where permitted under the
terms of the Contracts, the Company shall not prevent Contract owners from allocating payments to a
Portfolio that was otherwise available under the Contracts without first giving the Fund or the
Underwriter 30 days’ notice of its intention to do so.
10.5 In the event that the Agreement is terminated pursuant to Section 10.1(f), the
Underwriter shall reimburse the Company for expenses that the Company reasonably incurs in
connection with the substitution of shares of another investment company or companies for the
shares of the Designated Portfolio(s) as to which the Agreement has been terminated, including,
without limitation, all costs and expenses reasonably incurred in obtaining an order of the SEC
pursuant to Section 26(c) of the 1940 Act; provided, however, that the Underwriter’s obligation to
reimburse shall be subject to a limit of $5,000 for all such substitution expenses.
ARTICLE XI. Notices
Any notice shall be sufficiently given when sent by registered or certified mail or overnight
mail through a nationally-recognized delivery service to the other party at the address of such
party set forth below or at such other address as such party may from time to time specify in
writing to the other party.
If to the Fund:
EquiTrust Variable Insurance Series Fund
Attn: Xxxxxx X. Xxxxxx
0000 Xxxxxxxxxx Xxxxxx
Xxxx Xxx Xxxxxx, XX 00000
Attn: Xxxxxx X. Xxxxxx
0000 Xxxxxxxxxx Xxxxxx
Xxxx Xxx Xxxxxx, XX 00000
20
If to the Company:
Farm Bureau Life Insurance Company
Attn: XxXxx Xxxxxxxxx
0000 Xxxxxxxxxx Xxxxxx
Xxxx Xxx Xxxxxx, XX 00000
Attn: XxXxx Xxxxxxxxx
0000 Xxxxxxxxxx Xxxxxx
Xxxx Xxx Xxxxxx, XX 00000
If to Underwriter:
EquiTrust Marketing Services, LLC
Attn: Xxxxxx X. Xxxxxx
0000 Xxxxxxxxxx Xxxxxx
Xxxx Xxx Xxxxxx, XX 00000
Attn: Xxxxxx X. Xxxxxx
0000 Xxxxxxxxxx Xxxxxx
Xxxx Xxx Xxxxxx, XX 00000
ARTICLE XII. Miscellaneous
12.1 All persons dealing with a Fund must look solely to the property of such Fund, and in the
case of a series company, the respective Designated Portfolio listed on Schedule A hereto as though
such Designated Portfolio had separately contracted with the Company and the Underwriter for the
enforcement of any claims against the Fund. The parties agree that neither the Board, officers,
agents or shareholders assume any personal liability or responsibility for obligations entered into
by or on behalf of the Fund.
12.2 Subject to the requirements of legal process and regulatory authority, each party hereto
shall treat as confidential the names and addresses of the owners of the Contracts and all
information reasonably identified as confidential in writing by any other party hereto and, except
as permitted by this Agreement, shall not disclose, disseminate or utilize such names and addresses
and other confidential information without the express written consent of the affected party until
such time as such information may come into the public domain.
12.3 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.
12.4 This Agreement may be executed simultaneously in two or more counterparts, each of which
taken together shall constitute one and the same instrument.
12.5 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.
12.6 Each party hereto shall cooperate with each other party and all appropriate governmental
authorities (including without limitation the SEC, the NASD and state insurance regulators) and
shall permit such authorities reasonable access to its books and records in connection with any
investigation or inquiry relating to this Agreement or the transactions contemplated hereby to the
extent practicable and except where a party’s respective interests are adverse to or in conflict
with another party’s interests. Notwithstanding the generality of the
21
foregoing, each party hereto further agrees to furnish the Iowa Insurance Commissioner with
any information or reports in connection with services provided under this Agreement which such
Commissioner may request in order to ascertain whether the variable annuity operations of the
Company are being conducted in a manner consistent with Iowa variable annuity laws and regulations
and any other applicable law or regulations.
12.7 The rights, remedies and obligations contained in this Agreement are cumulative and are
in addition to any and all rights, remedies, and obligations, at law or in equity, which the
parties hereto are entitled to under state and federal laws.
12.8 This Agreement or any of the rights and obligations hereunder may not be assigned by any
party without the prior written consent of all parties hereto.
12.9 The Company shall furnish or cause to be furnished, to the Fund or its designee copies of
the following reports:
(a) | the Company’s annual statement (prepared under statutory accounting principles) and annual report (prepared under generally accepted accounting principles (“GAAP”), if any), as soon as practical and in any event within 90 days after the end of each fiscal year. | ||
(b) | the Company’s quarterly statements (statutory) (and GAAP, if any), as soon as practical and in any event within 45 days after the end of each quarterly period. |
22
IN WITNESS WHEREOF, each of the parties hereto has caused this Agreement to be executed in its
name and on its behalf by its duly authorized representative and its seal to be hereunder affixed
hereto as of the date specified below.
COMPANY:
Farm Bureau Life Insurance Company
By its authorized officer
By its authorized officer
By: /s/ XxXxx Xxxxxxxxx
XxXxx Xxxxxxxxx
Executive Vice President
XxXxx Xxxxxxxxx
Executive Vice President
Date: January 15, 2007
FUND:
EquiTrust Variable Insurance Series Fund
By its authorized officer
By its authorized officer
By: /s/ Xxxxxx Xxxxxx
Xxxxxx Xxxxxx
Chief Compliance Officer
Xxxxxx Xxxxxx
Chief Compliance Officer
Date: January 15, 2007
UNDERWRITER:
EquiTrust Marketing Services, LLC
By its authorized officer
By its authorized officer
By: /s/ Xxxxxx X. Xxxxxx
Xxxxxx X. Xxxxxx
Vice President — Investment Administration
Xxxxxx X. Xxxxxx
Vice President — Investment Administration
Date: January 15, 2007
23
SCHEDULE A
Name of Separate Account and Date Established by Board of Directors
Farm Bureau Life Annuity Account, July 26, 1993
Farm Bureau Life Variable Account, March 3, 1987
Farm Bureau Life Annuity Account II, January 6, 1998
Farm Bureau Life Variable Account II, January 6, 1998
Farm Bureau Life Variable Account, March 3, 1987
Farm Bureau Life Annuity Account II, January 6, 1998
Farm Bureau Life Variable Account II, January 6, 1998
Contracts Funded by Separate Account
Individual Flexible Premium Deferred Variable Annuity Contract
Flexible Premium Variable Life Insurance Policy
Nonparticipating Variable Annuity Contract
Nonparticipating Flexible Premium Variable Life Insurance Policy
Flexible Premium Last Survivor Variable Life Insurance Policy
Flexible Premium Variable Life Insurance Policy
Nonparticipating Variable Annuity Contract
Nonparticipating Flexible Premium Variable Life Insurance Policy
Flexible Premium Last Survivor Variable Life Insurance Policy
Designated Portfolios
Blue Chip Portfolio
High Grade Bond Portfolio
Managed Portfolio
Money Market Portfolio
Strategic Yield Portfolio
Value Growth Portfolio
High Grade Bond Portfolio
Managed Portfolio
Money Market Portfolio
Strategic Yield Portfolio
Value Growth Portfolio
24