EXHIBIT 99.8(g)
TARGET FUNDS PARTICIPATION AGREEMENT
(FOR PRODUCTS SOLD THROUGH W&R DISTRIBUTION SYSTEM)
This Fund Participation Agreement ("Agreement"), dated as of the 12th day of
December, 2003 is made by and between Minnesota Life Insurance Company
("Company") on behalf of the Company separate accounts identified on Exhibit A
which is attached hereto and may be amended from time to time ("Variable
Accounts"), and XXXXXXX & XXXX, INC. ("W&R") which serves as the distributor to
the W&R TARGET FUNDS, INC. (the "Funds") listed on Exhibit B.
WHEREAS, Company and W&R mutually desire the inclusion of the Funds as
underlying investment media for variable life insurance policies and/or variable
annuity contracts sold through W&R and/or its affiliates (collectively, the
"Contracts") issued by Company; and
WHEREAS, the Contracts allow for the allocation of net amounts received by
Company to separate sub-accounts of the Variable Accounts for investment in
shares of the Funds; and
WHEREAS, selection of a particular sub-account (corresponding to a particular
Fund) is made by the Contract owner; and/or participants; and such Contract
owner and participants may reallocate their investment options among the
sub-accounts of the Variable Accounts in accordance with the terms of the
Variable Accounts and the Contracts.
NOW THEREFORE, Company and W&R, in consideration of the promises and
undertakings described herein, agree as follows:
1. The scope of this Agreement is limited to the inclusion of the Funds in
variable annuity and variable life contracts sold through W&R and/or
its affiliates.
2. (a) Company represents and warrants that the Variable Accounts have
been established and are in good standing under Minnesota Law; and
the Variable Accounts have been registered as unit investment
trusts under the Investment Company Act of 1940, as amended (the
"1940 Act") and will remain so registered, or are exempt from
registration pursuant to section 3(c)(11) of the 1940 Act;
(b) Company represents and warrants that it is an insurance company
duly organized and in good standing under the laws of its state of
incorporation and that it has legally and validly established each
Variable Account and Contract; (c) Company represents and warrants
that the Contracts will be registered under the Securities Act of
1933, as amended ("1933 Act") unless an exemption from
registration is available prior to any issuance or sale of the
Contracts and that the Contracts will be issued in compliance in
all material respects with applicable federal and state laws.
3. Subject to the terms and conditions of this Agreement, Company shall be
appointed to, and agrees, to act as a limited agent of W&R, for the
sole purpose of receiving instructions for the purchase and redemption
of Fund shares (from Contract owners or participants making
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investment allocation decisions under the Contracts) prior to the close
of regular trading each Business Day. "Business Day" shall mean any day
on which the New York Stock Exchange ("NYSE") is open for trading and
on which the Funds calculate their net asset value as set forth in the
Funds' most recent Prospectuses and Statements of Additional
Information. Except as particularly stated in this paragraph, Company
shall have no authority to act on behalf of W&R or to incur any cost or
liability on its behalf.
The Funds or their agent will use reasonable best efforts to provide
closing net asset value, change in net asset value, dividend or daily
accrual rate information and capital gain information by 6:00 p.m.
Central Time each Business Day to Company. Company shall use this data
to calculate unit values. Unit values shall be used to process that
same Business Day's Variable Account transactions. Orders for purchases
or redemptions shall be placed with W&R or its specified agent no later
than 8:30 a.m. Central Time of the following Business Day. The Company
may aggregate separately all purchase and/or redemption orders for
shares of the Funds that it received prior to the close of trading on
the NYSE (i.e., 3:00 Central time, unless the NYSE closes earlier in
which case such earlier time shall apply). The Company will not
aggregate pre-3:00 Central time trades with post-3:00 Central time
trades. Orders for shares of Funds shall be executed at the time they
are received by W&R and at the net asset value price determined as of
the close of trading on the previous Business Day, provided that the
Company represents it has received such orders prior to the close of
the NYSE on the previous Business Day. The Funds may refuse to sell
shares to any person or may suspend or terminate the offering of its
shares if such action is required by law or by regulatory authorities
having jurisdiction or is, in the sole discretion of the directors of
the Funds, necessary in the best interest of the shareholders of the
Funds. W&R will not accept any order made on a conditional basis or
subject to any delay or contingency. Company shall only place purchase
orders for shares of Funds on behalf of its customers whose addresses
recorded on Company's books are in a state or other jurisdiction in
which the Funds are registered or qualified for sale, or are exempt
from registration or qualification as confirmed in writing by W&R.
Payment for net purchases shall be wired to a custodial account
designated by W&R and payment for net redemptions will be wired to an
account designated by Company. Dividends and capital gain distributions
shall be reinvested in additional Fund shares at net asset value.
Notwithstanding the above, W&R shall not be held responsible for
providing Company with ex-date net asset value, change in net asset
value, dividend or capital gain information when the New York Stock
Exchange is closed, when an emergency exists making the valuation of
net assets not reasonably practicable, or during any period when the
Securities and Exchange Commission ("SEC") has by order permitted the
suspension of pricing shares for the protection of shareholders.
Issuance and transfer of Fund shares will be by book entry only. Share
certificates will not be issued to Company for any Variable Account.
Fund shares will be recorded in the appropriate title for each Variable
Account.
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Company agrees to provide W&R, upon request, written reports indicating
the number of shareholders or policyholders that hold interests in the
Funds and such other information (including books and records) that W&R
may reasonably request or as may be necessary or advisable to enable it
to comply with any law, regulation or order.
The Funds shall furnish, on or before the ex-dividend date, notice to
Company of any income dividends or capital gain distributions payable
on the shares of the Funds. Company hereby elects to receive all such
income dividends and capital gain distributions as are payable on a
Fund's shares in additional shares of the Fund. The Funds shall notify
Company of the number of shares so issued as payment of such dividends
and distributions.
In the event adjustments are required to correct any material error in
the computation of the net asset value of a Fund's shares, the Fund
shall notify the Company as soon as practicable after discovering the
need for those adjustments which result in a reimbursement to a
Variable Account in accordance with the Fund's then current policies on
reimbursement, which the Fund represents are consistent with applicable
SEC standards. If an adjustment is to be made in accordance with such
policies to correct an error which has caused a Variable Account to
receive an amount different than that to which it is entitled, the Fund
shall make all necessary adjustments to the number of shares owned in
the Variable Account and distribute to the Variable Account the amount
of such underpayment for credit to Company's Contract/Policy Owners.
4. All expenses incident to the performance by W&R and the Funds under
this Agreement shall be paid by W&R and the Funds. For variable
annuities, W & R shall pay fees or other compensation to the Company
under this Agreement as provided on Schedule C. W & R's obligation to
pay compensation or fees as provided in Schedule C shall survive
termination of this Agreement.
W&R shall promptly provide Company (or its designee), or cause Company
(or its designee) to be provided with, a reasonable quantity of the
Funds' Statements of Additional Information and any supplements, and a
camera-ready copy of the Funds' Prospectus and any Supplements or at
the option of the Company, a camera-ready copy of the portions of the
Funds' Prospectus, and any supplements, pertaining specifically to the
Funds used in the Company's Contracts, for use by Company in producing
a combined prospectus for each Contract incorporating both the Contract
Prospectus and the Funds' Prospectus.
If the Company elects to include any materials provided by W & R or the
Funds, specifically prospectuses, SAIs, shareholder reports and proxy
materials, on its web site or in any other computer or electronic
format, the Company assumes sole responsibility for maintaining such
materials in the form provided by W & R or the Funds and for promptly
replacing such materials with all updates provided by W & R or the
Funds. W & R or the Funds agree to provide all such materials requested
by the Company in a Portable Document Format (PDF, both camera ready
and low resolution enhanced) in a timely fashion at no additional cost,
together with such other formats as may be mutually agreed upon.
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Each Fund (at its expense) shall provide Company with copies of any
Fund-sponsored proxy materials in such quantity as Company shall
reasonably require for distribution to contract owners. The Fund shall
bear the costs of distributing Fund proxy materials (or similar
materials such as voting solicitation instructions). Company shall bear
the cost of distributing prospectuses and statements of additional
information to contract owners. Company assumes sole responsibility for
ensuring that such materials are delivered to contract owners in
accordance with applicable federal and state securities laws.
If and to the extent required by law, Company shall: (i) solicit voting
instructions from contract owners; (ii) vote the Fund(s) shares in
accordance with the instructions received from contract owners; and
(iii) vote Fund(s) shares for which no instructions have been received;
so long as and to the extent that the Commission continues to interpret
the 1940 Act to require pass-through voting privileges for variable
contract owners. The Company reserves the right to vote Fund shares
held in any segregated asset account in its own right, to the extent
permitted by law. Company and its agents will in no way recommend
action in connection with or oppose or interfere with the solicitation
of proxies for the Fund shares held for the benefit of such Contract
owners.
5. Company and its agents shall make no representations concerning the
Funds or Fund shares except those contained in the Funds' then current
Prospectuses, Statements of Additional Information or other documents
produced by W&R (or an entity on its behalf) which contain information
about the Funds. Company agrees to allow at least five (5) Business
Days for W&R to review any advertising and sales literature drafted by
Company (or agents on its behalf) with respect to the Funds prior to
submitting such material to any regulator.
6. W&R represents that the Funds are currently qualified as regulated
investment companies under Subchapter M of the Internal Revenue Code of
1986 (the "Code"), as amended, and that the Funds shall make every
effort to maintain such qualification. W&R shall promptly notify
Company upon having a reasonable basis for believing that the Funds
have ceased to so qualify, or that they may not qualify as such in the
future.
W&R represents that the Funds currently comply with the diversification
requirements pursuant to Section 817(h) of the Code and Section
1.817-5(b) of the Federal Tax Regulations and that the Funds will make
every effort to maintain the Funds' compliance with such
diversification requirements, unless the Funds are otherwise exempt
from section 817(h) and/or except as otherwise disclosed in the Funds'
prospectus. W&R will notify Company promptly upon having a reasonable
basis for believing that the Funds have ceased to so qualify, or that
the Funds might not so qualify in the future. Unless otherwise exempt,
W&R shall provide to Company a statement indicating compliance with
Section 817(h) and a schedule of investment holdings, to be received by
Company no later than twenty-five (25) days following the end of each
calendar quarter.
Company represents that the Contracts are currently, and at the time of
issuance will be, treated as annuity contracts or life insurance
policies, whichever is appropriate under applicable provisions of the
Code, and that it shall make every effort to maintain such
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treatment. Company will promptly notify W&R upon having a reasonable
basis for believing that the Contracts have ceased to be treated as
annuity contracts or life insurance polices, or that the Contracts may
not be so treated in the future.
Unless the Funds are exempt from the requirements of section 817(h),
Company represents that each Variable Account is a "segregated asset
account" and that interests in each Variable Account are offered
exclusively through the purchase of a "variable contract", within the
meaning of such terms pursuant to section 1.817-5(f)(2) of the Federal
Tax Regulations, that it shall make every effort to continue to meet
such definitional requirements, and that it shall notify W&R
immediately upon having a reasonable basis for believing that such
requirements have ceased to be met or that they may not be met in the
future.
The Funds represent and warrant that each is duly organized and validly
existing under the laws of Maryland and that each does and will comply
in all material respects with the 1940 Act and the rules and
regulations thereunder.
The Funds represent and warrant that the Fund shares offered and sold
pursuant to this Agreement will be registered under the 1933 Act and
each Fund shall be registered under the 1940 Act prior to and at the
time of any issuance or sale of such shares. Each Fund shall amend its
registration statement under the 1933 Act and the 1940 Act from time to
time as required in order to effect the continuous offering of its
shares. Each Fund shall register and qualify its shares for sale in
accordance with the laws of the various states only if and to the
extent deemed advisable by the Fund or W&R.
Each Fund represents and warrants that it, its directors, officers,
employees and other dealing with the money or securities, or both, of a
Fund shall at all times be covered by a blanket fidelity bond or
similar coverage for the benefit of the Fund in an amount not less than
the minimum coverage required by Rule 17g-1 or other regulations under
the 1940 Act. Such bond shall include coverage for larceny and
embezzlement and be issued by a reputable bonding company.
W&R represents and warrants that it is currently and will continue to
be a registered-broker dealer and member in good standing with the
National Association of Securities Dealers ("NASD").
7. Within five (5) Business Days after the end of each calendar month, the
Funds or their agent shall provide Company a monthly statement of
account, which shall confirm all transactions made during that
particular month in the Variable Accounts.
8. (a) The directors of the Funds will monitor the operations of the
Funds for the existence of any material irreconcilable conflict
among the interest of all Contract owners of all separate accounts
investing in the Funds. W&R shall notify Company of the potential
for, or the determination of, such irreconcilable material
conflict. An irreconcilable conflict may arise, among other
things, from (i) an action by any state insurance regulatory
authority; (ii) a change in applicable insurance laws or
regulations; (iii) a tax
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ruling or provision of the Code or the regulations thereunder;
(iv) any other development relating to the tax treatment of
insurers, contract holders or policy owners or beneficiaries of
variable annuity or variable life insurance products; (v) the
manner in which the investments of the Funds are managed; (vi) a
difference in voting instructions given by variable annuity
contract owners, on the one hand, and variable life insurance
policy owners on the other hand, or by the contract holders or
policy owners of different participating insurance companies; or
(vii) a decision by an insurer to override the voting instructions
of participating contract owners.
(b) Company is responsible for reporting any potential or existing
conflicts to W&R and the Funds. Company will be responsible for
assisting the directors in carrying out their responsibilities
under this provision by providing the directors with all
information reasonably necessary for them to consider the issues
raised. W&R shall report to the directors any such conflict that
comes to the attention of W&R.
(c) If a majority of the directors of the Funds or a majority of the
disinterested directors determine that a material irreconcilable
conflict exists involving Contract owners and the Funds, Company
shall, at its expense and to the extent reasonably practicable (as
determined by a majority of the disinterested directors), take
whatever steps are necessary to eliminate the irreconcilable
material conflict, including, but not limited to, withdrawing the
assets allocable to some or all of the Variable Accounts from the
Funds and reinvesting such assets in a different investment
medium, including another Fund, offering to the affected Contract
owners the option of making such a change or offering a new
funding medium, including a registered investment company.
For purposes of this provision, the directors or the disinterested
directors shall determine whether any proposed action adequately
remedies any irreconcilable material conflict. In the event of a
determination of an irreconcilable material conflict, the directors
shall cause the Funds to take such action, such as establishment of one
or more additional Funds, as they reasonably determine to be in the
interest of all shareholders and Contract owners in view of all the
applicable factors such as the cost, feasibility, tax, regulatory and
other considerations. In no event will the Funds be required by this
provision to establish a new funding medium for any Contract.
Company shall not be required by this provision to establish a new
funding medium for any Contract if an offer to do so has been declined
by a vote of a majority of the Contract owners materially adversely
affected by the material irreconcilable conflict. Company will decline
an offer to establish a new funding medium only if Company believes it
is in the best interest of its Contract owners.
9. This Agreement shall terminate as to the sale and issuance of Fund
shares in new Contracts (i.e., Contracts issued after the effective
date of termination):
(a) at the option of Company or W&R upon at least 60 days advance
written notice to the other;
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(b) at any time, upon W&R's election, if the Funds determine that
liquidation of the Funds is in the best interest of the Funds and
their beneficial owners. Reasonable advance notice of election to
liquidate shall be furnished by W&R to permit the substitution of
Fund shares with the shares of another investment company pursuant
to SEC regulation;
(c) if the Contracts are not treated as annuity contracts or life
insurance policies by the applicable regulators or under
applicable rules or regulations;
(d) if the Variable Accounts are not deemed "segregated asset
accounts" by the applicable regulators or under applicable rules
or regulations;
(e) at the option of Company, if Fund shares are not available for any
reason to meet the requirements of Contracts as determined by
Company.
(f) with respect only to the applicable Fund, upon a decision by
Company based on reasonable cause, in accordance with regulations
of the SEC, to substitute such Fund shares with the shares of
another investment company for Contracts for which the Fund shares
have been selected to serve as the underlying investment medium.
Company shall give at least 60 days written notice to the Funds
and W&R of any decision to substitute Fund shares;
(g) upon 60 days notice upon assignment of this Agreement unless such
assignment is made with the written consent of each other party;
and
(h) in the event Fund shares are not registered, issued or sold
pursuant to Federal law, or such law precludes the use of Fund
shares as an underlying investment medium of Contracts issued or
to be issued by Company. Prompt written notice shall be given by
either party to the other in the event the conditions of this
provision occur.
10. All notices sent under this Agreement shall be given in writing, and
shall be delivered personally, or sent by fax, or by a
nationally-recognized overnight courier, postage prepaid. All such
notices shall be deemed to have been duly given when so delivered
personally or sent by fax, with receipt confirmed, or one (1) business
day after the date of deposit with such nationally-recognized overnight
courier. All such notices to Company, W&R or the Funds shall be
delivered to:
Minnesota Life Insurance Company
000 Xxxxxx Xxxxxx Xxxxx
Xxxxx Xxxx, Xxxxxxxxx 00000
Attention: General Counsel
Minnesota Life Insurance Company
000 Xxxxxx Xxxxxx Xxxxx
Xxxxx Xxxx, Xxxxxxxxx 00000
Attention: Xxxxx Xxxxxxx, Executive Vice President
Xxxxxxx & Xxxx, Inc.
0000 Xxxxx Xxxxxx
Xxxxxxxx Xxxx, XX 00000
Attention: Legal Department
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W&R Target Funds, Inc.
0000 Xxxxx Xxxxxx
Xxxxxxxx Xxxx, XX 00000
Attention: Treasurer
All such notices to Company, W&R and the Funds shall be delivered to
their respective addresses as listed above, or such other address as
Company, W&R and/or the Funds may have furnished in writing to the
other parties in accordance herewith.
11.
(a) Company agrees to reimburse and/or indemnify and hold harmless
W&R, the Funds, and each of their directors, officers, employees,
agents and each person, if any, who controls or is controlled by
W&R within the meaning of the Securities Act of 1933 (the "1933
Act") (collectively, "Affiliated Party") against any losses,
claims, damages or liabilities ("Losses") to which W&R or any such
Affiliated Party may become subject, under the 1933 Act or
otherwise, insofar as such Losses arise out of or are based upon,
but not limited to:
(i) any untrue statement or alleged untrue statement of any
material fact contained in information furnished by Company;
(ii) the omission or the alleged omission to state in the
Registration Statements or Prospectuses of the Variable
Accounts, or Contract, or in any sales literature generated
by Company on behalf of the Variable Accounts or Contracts, a
material fact required to be stated therein or necessary to
make the statements therein not misleading;
(iii)statements or representations of Company or its agents, with
respect to the sale and distribution of Contracts for which
Fund shares are an underlying investment, or wrongful conduct
of Company or its agents with respect to sale of acquisition
of Variable Insurance Products or Fund shares;
(iv) the failure of Company to provide the services and furnish
the materials under the terms of this Agreement;
(v) a material breach of this Agreement or of any of the
representations or warranties contained herein; or
(vi) any failure to register the Contracts or the Variable
Accounts under federal or state securities laws, state
insurance laws or to otherwise comply with such laws, rules,
regulations or orders.
Provided however, that Company shall not be liable in any such
case to the extent any such losses arise out of or are based upon
an act, statement, omission or representation or alleged act,
alleged statement, alleged omission or alleged representation
which was made in reliance upon and in conformity with written
information furnished to Company by or on behalf of W&R
specifically for use therein.
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Company shall reimburse any legal or other expenses reasonably
incurred by W&R, the Funds, or any Affiliated Party in connection
with investigating or defending any such Losses, provided,
however, that Company shall have prior approval of the use of said
counsel or the expenditure of said fees.
This indemnity agreement shall be in addition to any liability
which Company may otherwise have.
(b) W&R and the Funds agree to indemnify and hold harmless Company and
each of its directors, officers, employees, agents and each
person, (collectively, "Company Affiliated Party"), who controls
Company within the meaning of the 1933 Act against any Losses to
which Company or any such Company Affiliated Party may become
subject, under the 1933 Act or otherwise, insofar as such Losses
arise out of or are based upon; but not limited to:
(i) any untrue statement or alleged untrue statement of any
material fact contained in any information furnished by W&R
or the Funds, including but not limited to, the Registration
Statements, Prospectuses or sales literature of the Funds;
(ii) the omission or the alleged omission to state in the
Registration Statements or Prospectuses of the Funds or in
any sales literature generated by the Funds or their
affiliates a material fact required to be stated therein or
necessary to make the statements therein not misleading;
(iii)W&R's failure to keep the Funds fully diversified and
qualified as regulated investment companies as required by
the applicable provisions of the Code, the 1940 Act, and the
applicable regulations promulgated thereunder;
(iv) the failure of W&R to provide the services and furnish the
materials under the terms of this Agreement;
(v) a material breach of this Agreement or of any of the
representations or warranties contained herein; or
(vi) any failure to register the Funds under federal or state
securities laws or to otherwise comply with such laws, rules,
regulations or orders.
Provided however, that W&R and the Funds shall not be liable in
any such case to the extent that any such losses arise out of or
are based upon an act, statement, omission or representation or
alleged act, alleged statement, alleged omission or alleged
representation which was made in reliance upon or in conformity
with written information furnished to W&R or the Funds by Company
specifically for use therein.
W&R and the Funds shall reimburse any reasonable legal or other
expenses reasonably incurred by Company or any Company Affiliated
Party in connection with investigating or defending any such
Losses, provided, however, that W&R and the Funds shall have prior
approval of the use of said counsel or the expenditure of said
fees.
This indemnity agreement will be in addition to any liability
which W&R and the Funds may otherwise have.
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(c) Each party shall promptly notify the other party(ies) in writing
of any situation which presents or appears to involve a claim
which may be the subject of indemnification under this Agreement
and the indemnifying party shall have the option to defend against
any such claim. In the event the indemnifying party so elects, it
shall notify the indemnified party and shall assume the defense of
such claim, and the indemnified party shall cooperate fully with
the indemnifying party, at the indemnifying party's expense, in
the defense of such claim. Notwithstanding the foregoing, the
indemnified party shall be entitled to participate in the defense
of such claim at its own expense through counsel of its own
choosing. Neither party shall admit to wrong-doing nor make any
compromise in any action or proceeding which may result in a
finding of wrongdoing by the other party without the other party's
prior written consent. Any notice given by the indemnifying party
to an indemnified party or participation in or control of the
litigation of any such claim by the indemnifying party shall in no
event be deemed to be an admission by the indemnifying party of
culpability, and the indemnifying party shall be free to contest
liability among the parties with respect to the claim.
12. Subject to Section 9(f) of this Agreement, W&R may request or Company
may initiate the filing of a substitution application pursuant to
Section 26(c) of the 1940 Act to substitute shares of a Fund held by a
Company Variable Account for another investment media ("Substitution
Application"). The costs associated with a Substitution Application
shall be allocated as follows:
(a) In the event W&R requests Company to submit a Substitution
Application, W&R shall reimburse Company for all reasonable costs
incurred by Company with respect to such Substitution Application.
W&R shall be obligated to reimburse Company under this provision
irrespective of whether the Substitution Application requested by
W&R is effectuated.
(b) In the event Company initiates a Substitution Application and the
Fund being substituted is offered by separate accounts of
companies other than Company, Company shall bear all costs
associated with the Substitution Application irrespective of
whether the Substitution Application is effectuated.
(c) In the event Company initiates a Substitution Application in
accordance with Section 9(f), Company shall bear the costs
incurred in the transfer.
13. The forbearance or neglect of any party to insist upon strict
compliance by another party with any of the provisions of this
Agreement, whether continuing or not, or to declare a forfeiture of
termination against the other parties, shall not be construed as a
waiver of any of the rights or privileges of any party hereunder. No
waiver of any right or privilege of any party arising from any default
or failure of performance by any party shall affect the rights or
privileges of the other parties in the event of a further default or
failure of performance.
14. This Agreement shall be construed and the provisions hereof interpreted
under and in accordance with the laws of Kansas, without respect to its
choice of law provisions and in accordance with the 1940 Act. In the
case of any conflict, the 1940 Act shall control.
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15. Each party hereby represents and warrants to the other that the persons
executing this Agreement on its behalf are duly authorized and
empowered to execute and deliver the Agreement and that the Agreement
constitutes its legal, valid and binding obligation, enforceable
against it in accordance with its terms. Except as particularly set
forth herein, neither party assumes any responsibility hereunder, and
will not be liable to the other for any damage, loss of data, delay or
any other loss whatsoever caused by events beyond its reasonable
control.
16. Company acknowledges that the identity of W&R's (and its affiliates'
and/or subsidiaries') customers and all information maintained about
those customers constitute the valuable property of W&R. Company agrees
that, should it come into contact or possession of any such information
(including, but not limited to, lists or compilations of the identity
of such customers), Company shall hold such information or property in
confidence and shall not use, disclose or distribute any such
information or property except with W&R's prior written consent or as
required by law or judicial process.
W&R acknowledges that the identity of Company's (and its affiliates'
and/or subsidiaries') customers and all information maintained about
those customers constitute the valuable property of Company. W&R agrees
that, should it come into contact or possession of any such information
(including, but not limited to, lists or compilations of the identity
of such customers), W&R shall hold such information or property in
confidence and shall not use, disclose or distribute any such
information or property except with Company's prior written consent or
as required by law or judicial process.
This section shall survive the expiration or termination of this
Agreement.
17. Nothing in this Agreement shall be deemed to create a partnership or
joint venture by and among the parties hereto.
18. Except to amend Exhibit A, or as otherwise provided in this Agreement,
this Agreement may not be amended or modified except by a written
amendment executed by each of the parties.
19. Each party shall cooperate with each other party and all appropriate
government authorities (including without limitation the Commission,
the National Association of Securities Dealers, Inc. and state
insurance regulator) 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.
20. The parties of this Agreement acknowledge and agree that this Agreement
shall not be exclusive in any respect.
21. This Agreement may be executed by facsimile signature and it may be
executed in one or more counterparts, each of which shall be deemed an
original, but all of which together shall constitute one and the same
instrument.
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MINNESOTA LIFE INSURANCE COMPANY
--------------------------------------------
By: Xxxxx X. Xxxxx
Title Second Vice President
XXXXXXX & XXXX, INC.
--------------------------------------------
By: Xxxxxx X. Xxxxx
Title: Executive Vice President
W&R Target Funds, Inc.
--------------------------------------------
By: Xxxxx X. Xxxxxxxx
Title: President
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EXHIBIT A
Variable Accounts of Minnesota Life Insurance Company
1. Variable Annuity Account
2. Minnesota Life Variable Life Account
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EXHIBIT B
W&R Target Funds, Inc.
Funds Available to Variable Accounts
Balanced
Growth
Core Equity
Value
Small Cap Growth
International
Small Cap Value
Micro Cap Growth
Asset Strategy
Science and Technology
International II
Mortgage Securities
Real Estate
Bond
High Income
Limited Term Bond
Money Market
Dividend Income
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EXHIBIT C
Fees or Other Compensation for Variable Annuities
(a) Compensation described in this Exhibit C shall apply to all assets
invested in the Funds in connection with variable annuities
(hereinafter the "Aggregated Assets").
(b) Each quarter, W&R shall calculate and pay to Company a fee that shall
be equal to twenty-five (25) basis points, on an annualized basis, of
the average daily account value of the Aggregated Assets (including any
seed money provided by Company or any of its affiliates). If any
portion of the fee is attributable to 12b-1 fees, W&R may, at its
option, pay such portion of the fee to the underwriter of the variable
annuity contracts.
(c) If there is a reduction in 12b-1 fees, either due to a change in the
law or due to a change in the amount of 12b-1 fees paid by the Fund(s),
such reduction in 12b-1 fees shall not reduce the amount of the fee
owed by W&R pursuant to paragraph (b) above.
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