EXHIBIT 99.(e)(2)
AMENDED AND RESTATED PARTICIPATION AGREEMENT
THIS AGREEMENT, made and entered into this the 31st day of May, 1997, and
as amended and restated the 31st day of July, 2003, by and among PARAGON LIFE
INSURANCE COMPANY (the "Company"), on its own behalf and on behalf of the
Separate Account B of Paragon Life Insurance Company (the "Account"), a separate
account of the Company, and XXXXXX XXXXXXX VARIABLE INVESTMENT SERIES (formerly,
Xxxx Xxxxxx Variable Investment Series), an unincorporated business trust
organized under the laws of the Commonwealth of Massachusetts (hereinafter the
"Trust") and XXXXXX XXXXXXX DISTRIBUTORS INC. (formerly, Xxxx Xxxxxx
Distributors Inc.) (the "Distributor").
WHEREAS, the Trust and the Distributor have previously entered into
Agreements to Purchase Shares with Northbrook Life Insurance Company and
Allstate Life Insurance Company of New York with regard to the purchase by those
companies of shares of the Trust on their own behalf and on behalf of certain
separate variable accounts of those companies, which Agreements shall continue
in effect with those companies following the entry by the Trust and the
Distributor into this Agreement with the Company; and
WHEREAS, by resolution of its Board of Directors on January 4, 1993, the
Company established the Account to set aside and invest assets attributable to
certain flexible premium variable life insurance contracts (the "Contracts")
issued by the Company; and
WHEREAS, the Company has registered the Account as a unit investment
trust under the Investment Company Act of 1940, as amended (the "1940 Act"); and
WHEREAS, the Trust is engaged in business as an open-end management
investment company and is registered as such under the 1940 Act and has filed
its registration statement with the U.S. Securities and Exchange Commission
("SEC") which declared such registration statement effective on October 5, 1983;
and
WHEREAS, the Distributor is registered as a broker-dealer with the SEC
under the Securities Exchange Act of 1934, as amended (the "1934 Act", and is a
member in good standing of the National Association of Securities Dealers, Inc.
(the "NASD"); and
WHEREAS, the Trust is available to act as the investment vehicle for
separate accounts established for variable annuity contracts and variable life
insurance contracts offered or to be offered by insurance companies which have
entered into agreements to purchase shares or participation agreements with the
Trust and the Distributor (hereinafter "Participating Insurance Companies"); and
WHEREAS, the Trust has obtained an order from the SEC, dated November 23,
1994 (File No. 812-9128), 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 1940 Act and
Rules 6e-2(b)(15) and 6e-3(T)(b)(15) thereunder, to the extent necessary to
permit shares of the Trust to be sold to and held by variable annuity and
variable life insurance separate accounts of both affiliated and unaffiliated
life insurance companies (hereinafter the "Shared Funding Exemptive Order"); and
WHEREAS, the Trust is presently comprised of thirteen Portfolios
designated as the Money Market Portfolio, the Quality Income Plus Portfolio, the
High Yield Portfolio, the Utilities Portfolio, the Income Builder Portfolio, the
Dividend Growth Portfolio, the Capital Growth Portfolio, the Global Dividend
Growth Portfolio, the European Growth Portfolio, the Pacific Growth Portfolio,
the Capital Appreciation Portfolio, the Equity Portfolio and the Strategist
Portfolio, and other Portfolios may be subsequently established by the Trust
(the "Portfolios"); and
WHEREAS, to the extent permitted by applicable insurance laws and
regulations, the Company intends
by purchasing shares of the Portfolios on behalf of the Account to fund the
Contracts and the Distributor is authorized to sell such shares to the Company
for the benefit of the Account at net asset value without the imposition of any
charges;
WHEREAS, this Agreement amends and restates, in its entirety, the
Participation Agreement in order to (i) delete the requirement that this
Agreement be approved annually by the Board of Trustees of the Trust, (ii)
shorten the notice period for termination by either party from 180 days to 60
days, and (iii) require that the Board of Trustees of the Fund approve only
material changes to this Agreement;
WHEREAS, the Board of Trustees of the Trust approved this Amended and
Restated Participation Agreement in compliance with and in the manner specified
in Section 21 of this Agreement;
NOW, THEREFORE, in consideration of their mutual promises, the Company,
the Trust and the Distributor agree as follows:
1. PURCHASE OF SHARES. In accordance with the Trust's and the
Distributor's Distribution Agreement dated May 31, 1997 (the "Distribution
Agreement"), the Company agrees to purchase and redeem the shares of each
Portfolio of the Trust offered by the then current prospectus of the Trust (the
"Prospectus") included in the Trust's registration statement (the "Registration
Statement") most recently filed from time to time with the SEC and effective
under the Securities Act of 1933, as amended (the "1933 Act") and the 1940 Act
or as the Prospectus may be amended or supplemented and filed with the SEC
pursuant to the 1933 Act.
2. SALE OF SHARES. The Distributor agrees to sell shares of the Trust to
the Company for allocation to the Account, executing such orders on a daily
basis at the next determined net asset value per share after receipt by the
Trust or its designee of the order for shares of the applicable Portfolio of the
Trust determined as set forth in the Prospectus. The Company and the Trust agree
that shares of the Trust will be sold only to insurance companies which have
entered into agreements to purchase shares or participation agreements
substantially identical to this Agreement and their affiliated insurance
companies, and their separate accounts. No shares of any Portfolio will be sold
to the general public. The Distributor shall provide the Company (at the
Company's expense) with as many copies of the Trust's current Prospectus as the
Company may reasonably request.
3 REDEMPTION OF SHARES. At the Company's request, the Trust agrees to
redeem for cash without charge, any full or fractional shares of the Trust held
by the Company, executing such requests on a daily basis at the net asset value
of the applicable Portfolio computed after receipt of the redemption request
provided, however, that the Trust reserves the right to suspend the right of
redemption or to postpone the date of payment upon redemption of the shares of
any Portfolio under the circumstances and for the period of time specified in
the Prospectus.
4. AVAILABILITY OF SHARES. Subject to Sections 3(c) and 4(b) of the
Distribution Agreement, the terms of which are incorporated herein by reference,
the Trust agrees to make its shares available indefinitely for purchase by the
Company at the applicable net asset value per share on those days on which the
Trust calculates its net asset value pursuant to rules of the SEC, and the Trust
shall use reasonable efforts to calculate such net asset value on each day on
which the New York Stock Exchange is open for trading.
5. PAYMENT OF SHARES. The Company shall pay for Trust shares within five
days after it places the order for Trust shares. The Trust reserves the right to
delay issuing or transferring Trust shares and/or to delay accruing or declaring
dividends in accordance with any policy set forth in the Prospectus with respect
to such shares until any payment check has cleared. If the Trust or the
Distributor does not receive payment within the five days period, the Trust may,
without notice, cancel the order and require the Company to reimburse the Trust
promptly for any loss the Trust suffered by reason of the Company failing to
timely pay for its shares.
6. FEE FOR SHARES. The Company shall purchase and redeem shares in the
Trust at net asset value and the Company shall not pay any commission, dealer's
fee or other fee to the Distributor or any other broker dealer.
7. TRUST'S REGISTRATION STATEMENT AND PROSPECTUS. The Trust shall amend
the Registration Statement for its shares under the 1933 Act and the 1940 Act
from time to time as required in order to effect the continuous offering of its
shares and, at its own expense, shall provide the Company with as many copies of
its current prospectus as the Company may reasonably request.
8. INVESTMENT OF ASSETS. The Trust agrees to invest its assets in
accordance with its investment policies as disclosed in the Prospectus and the
provisions of Section 817(h) of the Internal Revenue Code (the "Code") and
Treasury Regulation 1.817-5, as amended from time to time, and any Treasury
interpretations thereof, relating to the diversification requirements for
variable annuity and variable life insurance contracts and any amendments or
other modifications to such Section or Regulations.
9. ADMINISTRATION OF CONTRACTS. The Company shall be responsible for
administering the Contracts and keeping records on the Contracts.
10. SHAREHOLDER INFORMATION. The Trust shall furnish the Company copies
of its proxy material, reports to shareholders and other communication to
shareholders in such quantity as the Company shall reasonably require for
distributing to owners or participants under the Contracts. The Company will
distribute these materials to such owners or participants as required.
11. VOTING. (a) To the extent required by law, the Company shall vote
Trust shares in accordance with instructions received from Contract owners. If,
however, the 1940 Act or any regulation thereunder should be amended or if the
present interpretation thereof should change, and as a result the Company
determines that it is permitted to vote the Trust's shares in its own right, it
may elect to do so. The Company shall vote shares of a Portfolio for which no
instructions have been received in the same proportion as the voting
instructions which are received with respect to all Contracts participating in
that Portfolio. Neither the Company nor persons under its control shall
recommend action in connection with solicitation of proxies for Trust shares
allocated to the Account. The Company shall also vote shares it owns that are
not attributable to Contract owners in the same proportion. The Company may,
when required by state insurance regulatory authorities, disregard voting
instructions if the instructions require that the shares be voted so as to cause
a change in the sub-classification or investment objective of the Trust or one
or more of its Portfolios or to approve or disapprove an investment advisory
contract for a Portfolio of the Trust. Participating Insurance Companies shall
be responsible for assuring that each of their separate accounts participating
in the Trust calculates voting privileges in a manner consistent with other
Participating Insurance Companies.
(b) The Trust will comply with all provisions of the 1940 Act requiring
voting by shareholders, and in particular the Trust will either provide for
annual meetings or comply with Section 16(c) of the 1940 Act (although the Trust
is not one of the trusts described in Section 16(c) of that Act) as well as with
Section 16(a) and, if and when applicable, 16(b). Further, the Trust will act in
accordance with the SEC's interpretation of the requirements of Section 16(a)
with respect to periodic elections of trustees and with whatever rules the SEC
may promulgate with respect thereto.
12. TRUST'S WARRANTY. The Trust represents and warrants that Trust shares
sold pursuant to this Agreement shall be registered under the 1933 Act and duly
authorized for issuance in accordance with all applicable federal and state
laws.
13. COMPANY'S WARRANTY. The Company represents and warrants that it is an
insurance company duly organized and in good standing under Missouri law and
that it has legally and validly established the Account under Section 376.309,
RSMo, and has registered the Account as a unit investment
trust in accordance with the provisions of the 1940 Act to serve as a segregated
investment account for certain Contracts. The Company further represents and
warrants that the Contracts will be registered under the 1933 Act and the
Contracts will be issued and sold in compliance with all applicable Federal and
State laws.
14. DISTRIBUTOR'S WARRANTY. The Distributor represents and warrants that
it is a member in good standing of the NASD and is registered as a broker-dealer
with the SEC under the 1934 Act. The Distributor further represents that it will
sell and distribute the shares in accordance with the 1933, 1934 and 1940 Acts
and will not make any representations concerning the Account except those
contained in the then current registration statement or related prospectus and
any sales literature approved by the Trust. For purposes of this paragraph,
Section 6 of the Distribution Agreement is incorporated in this Agreement.
15. TERMINATION OF AGREEMENT. The parties may terminate this Agreement as
follows:
(a)(i) at the option of the Company or the Trust or the
Distributor upon 60 days' written notice to the other party;
(ii) at the option of the Company if, for any reason, except for
those specified in Sections 3(c) and 4(b) of the Distribution Agreement, Trust
shares are not available to meet the requirements of the Contracts as determined
by the Company; or
(iii) at the option of the Trust upon the NASD, the SEC, the
director of the Missouri Department of Insurance or any other regulatory body
instituting legal proceedings against the Company regarding its duties under
this Agreement.
(b) This Agreement shall automatically terminate in the event of its
assignment.
(c) Notwithstanding any termination of this Agreement, the Trust and
the Distributor shall, at the Company's option, continue to make available
additional shares of the Trust 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"), so long as the
Trust is in existence. Specifically, without limitation, the owners of the
Existing Contracts shall be permitted to reallocate investments in the Trust,
redeem investments in the Trust, or invest in the Trust upon the making of
additional purchase payments under the Existing Contracts. A termination under
paragraph 19 of this Agreement shall end rights of the owners of Existing
Contracts.
(d) The Company shall not redeem Trust shares attributable to the
Contracts (as opposed to Trust shares attributable to the Company's assets held
in the Account) except (i) as necessary to implement Contract owner initiated
transactions, or (ii) as required by state or federal laws or regulations or
judicial or other legal precedent of general application (hereinafter referred
to as a "Legally Required Redemption"). Upon request, the Company will promptly
furnish to the Trust and the Distributor the opinion of counsel for the Company
(which counsel shall be reasonably satisfactory to the Trust and the
Distributor) to the effect that any redemption pursuant to clause (ii) above is
a Legally Required Redemption. Furthermore, except in cases where permitted
under the terms of the Contracts, the Company shall not prevent Contract owners
from allocating payments to a Portfolio that was otherwise available under the
Contracts without first giving the Trust or the Distributor 90 days' notice of
its intention to do so.
16. COMPANY'S INDEMNIFICATION AGREEMENT. (a) The Company agrees to
indemnify and hold harmless the Trust or Distributor and each of their Directors
or Trustees who is not an "interested person" of the Trust, as defined in the
1940 Act (collectively the "Indemnified Parties" for purposes of this paragraph
16), against any losses, claims, damages, liabilities (including amounts paid in
settlement with the written consent of the Company) or expenses or actions to
which such Indemnified Parties may become subject, under the Federal securities
laws or otherwise, insofar as such losses, claims, damages, liabilities or
expenses (or actions in respect thereof) or settlements arise as a result of any
failure by the Company to provide the services and furnish the materials under
terms of this Agreement or which arise from erroneous instructions by the
Company to the Distributor concerning the particular Portfolio or
Portfolios whose shares are to be allocated to the Account. This indemnity
agreement is in addition to any liability which the Company may otherwise have.
However, in no case is the indemnity of the Company in favor of the Distributor
deemed to protect the Distributor against any liability to the Trust or its
shareholders to which the Distributor would otherwise be subject by reason of
its bad faith, wilful misfeasance or negligence in the performance of its duties
or by reason of reckless disregard of its obligations and duties under this
Agreement.
(b) The Company will reimburse the Indemnified Parties for any legal or
other expenses reasonably incurred by the Indemnified Parties in connection with
investigating or defending of any such loss, claim, damage, liability or action.
(c) Promptly after receipt by any of the Indemnified Parties of notice of
the commencement of any action, or the making of any claim for which indemnity
may apply under this paragraph, the Indemnified Parties will, if a claim thereof
is to be made against the Trust, notify the Company of the commencement thereof;
but the omission so to notify the Company will not relieve the Company from any
liability which it may have to the Indemnified Parties otherwise than under this
Agreement. In case any such action is brought against the Indemnified Parties,
and the Company is notified of the commencement thereof, the Company will be
entitled to participate therein and to assume the defense thereof, with counsel
satisfactory to the party named in the action, and after notice from the Company
to such party of the Company's election to assume the defense thereof, 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.
17. TRUST AND DISTRIBUTOR INDEMNIFICATION AGREEMENTS. (a) The Trust and
Distributor each agree to indemnify and hold harmless the Company and each of
its Directors who is not an "interested person" of the Company, as defined in
the 1940 Act (collectively the "Company's Indemnified Parties" for purposes of
this paragraph 17) against any losses, claims, damages, liabilities (including
amounts paid in settlement with the written consent of the Trust) or expenses or
actions to which such Indemnified Parties may become subject, under the Federal
securities laws or otherwise, insofar as such losses, claims, damages,
liabilities or expenses (or actions in respect thereof) or settlements:
(i) arise as a result of any failure by the Trust or Distributor to
provide the services and furnish the materials under the terms of this
Agreement; or
(ii) arise out of or are based upon any untrue statement or alleged
untrue statement of any material fact contained in registration statement or
Prospectus or sales literature of the Trust (or any amendment or supplement to
any of the foregoing), or arise out of or are based upon the omission or the
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading, provided that this
Agreement to indemnify shall not apply as to the Company's Indemnified Parties
if such statement or omission was made in reliance upon and in conformity with
information furnished to the Trust or Distributor by or on behalf of the Company
for use in the registration statement or Prospectus for the Trust or in sales
literature (or any amendment or supplement) or otherwise for use in connection
with the sale of the Contracts or Trust shares; or
(iii) arise out of or result from any material breach of any
representation and/or warranty made by the Trust or the Distributor in this
Agreement or arise out of or result from any other material breach of this
Agreement by the Trust or the Distributor, including a failure, whether
unintentional or in good faith or otherwise, to comply with the requirements
specified in paragraph 8 of this Agreement.
(b) The Trust represents and warrants that the Trust will at all times
invest its assets in such a manner as to ensure that the Contracts will be
treated as variable annuity or flexible premium life insurance contracts under
the Code and the regulations thereunder. Without limiting the scope of the
foregoing, the Trust will at all times comply with Section 817(h) of the Code
and Treasury Regulation 1.817-5, as amended from time to time, and any Treasury
interpretations thereof, relating to the diversification requirements for
variable annuity or variable life insurance contracts and any amendments or
other modifications to such section or Regulations.
(c) Trust shares will not be sold to any person or entity that would
result in the Contracts not being treated as annuity contracts or variable life
contracts.
(d) The Trust and the Distributor will reimburse the Company for any
legal or other expenses reasonably incurred by the Company's Indemnified Parties
in connection with investigating or defending of any such loss, claim, damage,
liability or action.
(e) Promptly after receipt by any of the Company's Indemnified Parties of
notice of the commencement of any action, or the making of any claim for which
indemnity may apply under this paragraph, the Company's Indemnified Parties
will, if a claim in respect thereof is to be made against the Company, notify
the Trust or the Distributor of commencement thereof; but the omission so to
notify the Trust or the Distributor will not relieve the Trust or the
Distributor from any liability which it may have to the Company's Indemnified
Parties otherwise than under this Agreement. In case any such action is brought
against the Company's Indemnified Parties, and the Trust or the Distributor is
notified of the commencement thereof, the Trust or the Distributor will be
entitled to participate therein and to assume the defense thereof, with counsel
satisfactory to the party named in the action, and after notice from the Trust
or the Distributor to such party of the Trust's or the Distributor's election to
assume the defense thereof, the Trust or the Distributor will not be liable to
such party under this Agreement for any legal or other expenses subsequently
incurred by such party independently in connection with the defense thereof
other than reasonable costs of investigation.
18. INDEMNIFICATION OF TRUST BY OR OF DISTRIBUTOR. For purposes of this
Agreement, the Trust and the Distributor shall indemnify each other according to
the terms of the Distribution Agreement, the terms of which are incorporated by
reference.
19. POTENTIAL CONFLICTS. (a) The Trustees of the Trust will monitor the
operations of the Trust for the existence of any material irreconcilable
conflict between the interests of the contract owners of all separate accounts
investing in the Trust. An irreconcilable material conflict may arise for a
variety of reasons, including: (i) an action by any state insurance regulatory
authority; (ii) 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; (iii) an administrative or judicial decision
in any relevant proceeding; (iv) the manner in which the investments of any
Portfolio are being managed; (v) a difference in voting instructions given by
variable annuity contract and variable life insurance contract owners; or (vi) a
decision by an insurer to disregard the voting instructions of contract owners.
The Trustees shall promptly inform the Company if they determine that an
irreconcilable material conflict exists and the implications thereof.
(b) The Company will report any potential or existing conflicts of which
it is aware to the Trustees of the Trust. The Company will assist the Trustees
in carrying out their responsibilities under the Shared Funding Exemptive Order,
sections (a) and (b) of this paragraph, by providing the Trustees with all
information reasonably necessary for the Trustees to consider any issues raised.
This includes, but is not limited to, an obligation by the Company to inform the
Trustees whenever contract owner voting instructions are disregarded.
(c) If it is determined by a majority of the Trustees, or a majority of
the Trustees who are not parties to this Agreement or interested persons of any
such party and who have no direct or indirect financial interest in this
Agreement or any agreement related thereto (the "Independent Trustees"), that a
material irreconcilable conflict exists, the Company shall, at its expense and
to the extent reasonably practicable (as determined by a majority of the
Independent Trustees), take whatever steps are necessary to remedy or eliminate
the irreconcilable material conflict, up to and including: (i) withdrawing the
assets allocable to the Account from the Trust or any Portfolio and reinvesting
such assets in a different investment medium, including (but not limited to)
another Portfolio of the Trust, 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 life insurance contract owners invested in the Account
from those of any other 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 contract owners the option of making such a change; and (ii)
establishing a new registered management investment company or managed separate
account.
(d) 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 Trust's election, to withdraw the Account's investment
in the Trust and terminate this Agreement; 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
Independent Trustees. Any such withdrawal and termination must take place within
six (6) months after the Trust gives written notice that this provision is being
implemented, and until the end of that six month period the Distributor and
Trust shall continue to accept and implement orders by the Company for the
purchase (and redemption) of shares of the Trust.
(e) 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
Account's investment in the Trust and terminate this Agreement within six months
after the Trustees inform the Company in writing that they have 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 Independent Trustees. Until the end of the foregoing six month
period, the Distributor and Trust shall continue to accept and implement orders
by the Company for the purchase (and redemption) of shares of the Trust.
(f) For purposes of sections (c) through (f) of this paragraph, a
majority Of the Independent Trustees shall determine whether any proposed action
adequately remedies any irreconcilable material conflict, but in no event will
the Trust be required to establish a new funding medium for the Contracts. The
Company shall not be required by section (c) to establish a new funding medium
for the Contracts if an offer to do so has been declined by vote of a majority
of contract owners materially adversely affected by the irreconcilable material
conflict. In the event that the Trustees determine that any proposed action does
not adequately remedy any irreconcilable material conflict, then the Company
will withdraw the Account's investment in the Trust and terminate this Agreement
within six (6) months after the Trustees inform 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 Independent Trustees.
(g) If and to the extent that Rule 6e-2 and Rule 6e-3(T) are amended, or
Rule 6e-3 is adopted, to provide exemptive relief from any provision of the 1940
Act or the rules promulgated thereunder with respect to mixed or shared funding
(as defined in the Shared Funding Exemptive Order) on terms and conditions
materially different from those contained in the Shared Funding Exemptive Order,
then (a) the Trust 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) paragraphs 11(a), 11(b), 19(a), 19(b), 19(c), 19(d), 19(e) and 19(f) of
this Agreement shall continue in effect only to the extent that terms and
conditions substantially identical to such paragraphs are contained in such
Rule(s) as so amended or adopted.
20. DURATION OF THIS AGREEMENT. This Agreement shall become effective as
of the date first above written and shall remain in force unless terminated in
accordance with paragraph 15 hereof.
The terms "vote of a majority of the outstanding voting securities",
"assignment" and "interested person", when used in this Agreement, shall have
the respective meanings specified in the 1940 Act.
21. AMENDMENTS OF THIS AGREEMENT. No material amendment of this Agreement
shall be
effective until approved by (i) the Trustees of the Fund, or by the vote of a
majority of outstanding voting securities of the Fund, and (ii) a majority of
those Trustees of the Fund who are not parties to this Agreement or interested
persons of any such party and who have no direct or indirect, financial interest
in this Agreement or in any agreement related thereto, cast in person at a
meeting called for the purpose of voting on such approval.
The terms "vote of a majority of the outstanding voting securities,"
"assignment" and "interested person," when used in this Agreement, shall have
the respective meanings specified in the 1940 Act.
22. GOVERNING LAW. This Agreement shall be construed in accordance with
the law of the State of New York and the applicable provisions of the 1933, 1934
and 1940 Acts and the rules and regulations and rulings thereunder including
such exemptions from those statutes, rules and regulations as the SEC may grant
and the terms hereof shall be interpreted and construed in accordance therewith.
To the extent the applicable law of the State of New York, or any of the
provisions herein, conflict with the applicable provisions of the 1940 Act, the
latter shall control. 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.
23. NOTICES. Any notice under this Agreement shall be in writing and if
to the Trust or the Distributor, delivered or mailed postage prepaid to it at:
Xxxxxx Xxxxxxx, 1221 Avenue of the Americas, Attn: General Counsel, Investment
Management, Xxx Xxxx, XX 00000; and if to the Company, delivered or mailed
postage prepaid to it at Paragon Life, Attn: General Counsel, 000 Xxxxxxxxxx
Xxxxx, Xx. Xxxxx, XX 00000. The parties shall have the right to designate any
other address hereafter by written notice to the other parties.
24. PERSONAL LIABILITY. The Declaration of Trust establishing Xxxx Xxxxxx
Variable Investment Series (renamed, "Xxxxxx Xxxxxxx Variable Investment
Series"), dated February 24, 1983, a copy of which, together with all amendments
thereto (the Declaration"), is on file in the office of the Secretary of the
Commonwealth of Massachusetts, provides that the name Xxxx Xxxxxx Variable
Investment Series refers to the Trustees under the Declaration collectively as
Trustees, but not as individuals or personally; and no Trustee, shareholder,
officer, employee or agent of Xxxx Xxxxxx Variable Investment Series shall be
held to any personal liability, nor shall resort be had to their private
property for the satisfaction of any obligation or claim or otherwise, in
connection with the affairs of said Xxxx Xxxxxx Variable Investment Series, but
the Trust Estate only shall be liable.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed as of the day and year first written above.
ATTEST: COMPANY: PARAGON LIFE INSURANCE COMPANY
By:/s/ Xxxxxxx X. Xxxxx Signature: /s/ Xxxxx X. Xxxxxxx
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Name and Title: Xxxxx Xxxxxxx, Executive Vice
President & Chief Actuary
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TRUST: XXXXXX XXXXXXX VARIABLE INVESTMENT
SERIES (FORMERLY, XXXX XXXXXX VARIABLE
INVESTMENT SERIES)
By:/s/ Xxxxxxxx Xxxxxx-Xxxxxxxx Signature:/s/ Xxxxx Xxxx
---------------------------- ------------------------
Name and Title: Xxxxx Xxxx, Vice President
-----------------------------
DISTRIBUTOR: XXXXXX XXXXXXX DISTRIBUTORS INC.
(FORMERLY, XXXX XXXXXX DISTRIBUTORS INC.)
By:/s/ XxxXxxx X. XxXxxxx Signature: /s/ Xxxx X. Xxxx III
---------------------- ------------------------
Name and Title: Xxxx X. Xxxx III
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