RETAIL FUND PARTICIPATION AGREEMENT
THIS AGREEMENT, made and entered into this 25th of June, 2004, by and among
HARTFORD LIFE INSURANCE COMPANY, a stock life insurance company organized under
the laws of Connecticut (hereinafter the "Company"), on its own behalf and on
behalf of each separate account of the Company set forth in SCHEDULE A hereto,
as may be amended from time to time (each such account hereinafter referred to
as a "Separate Account"), and PIONEER FUNDS DISTRIBUTOR, INC. ("PFD"), a
Massachusetts corporation and a member of the UniCredito Italiano banking group,
register of banking groups (hereinafter the "Underwriter").
WITNESSETH:
WHEREAS, the Underwriter is the principal underwriter of the Pioneer family of
mutual funds (each a "Fund" and collectively, the "Funds"): and
WHEREAS, each Fund is registered as an open-end management investment company
under the Investment Company Act of 1940, as amended (hereinafter the "1940
Act") and its shares are registered under the Securities Act of 1933, as amended
(hereinafter the "1933 Act"); and
WHEREAS, the Company issues certain group variable annuity contracts and group
funding agreements (the "Contracts") in connection with retirement plans
intended to meet the qualification requirements of Sections 401, 403(b) or 457
of the Internal Revenue Code of 1986, as amended (the "Code"): and
WHEREAS, each Separate Account is a duly organized, validly existing segregated
asset account, established by resolution of the Board of Directors of the
Company under the insurance laws of the State of Connecticut to set aside and
invest assets attributable to the Contracts; and
WHEREAS, the Underwriter is registered as a broker-dealer with the Securities
and Exchange Commission (hereinafter 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 Funds set forth in SCHEDULE A on
behalf of each corresponding Separate Account set forth on such SCHEDULE A to
fund the Contracts and the Underwriter is authorized to sell such shares to unit
investment trusts such as the Separate Accounts at net asset value.
NOW, THEREFORE, in consideration of their mutual promises, the Company, the Fund
and the Underwriter agree as follows:
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ARTICLE I. Purchase and Redemption of Fund Shares.
1.1 NSCC Provision. On any business day ("Business Day") that the New York
Stock Exchange and a Fund is open for business, the Company will accept request
orders for the purchase, transfer and redemption of shares of that Fund, when
such request orders are received in compliance ("good order") with the then
existing requirements of the Funds' prospectus. Orders received by the Company
prior to the close of trading on the New York Stock Exchange (usually 4:00 p.m.
Eastern Time) on any Business Day ("Business Day" or "Day 1") shall be
transmitted by the Company, via the NSCC's DCC&S Fund/SERV system to the
Underwriter or its designated affiliate no later than 9:00 a.m. Eastern Time on
the next Business Day ("Day 2"). Such trades will be effected as of the close of
trading on Day 1 subject to the terms of such Fund's prospectus.
1.2 Non-NSCC Provision. To the extent that such orders cannot be transmitted to
the Underwriter or its designated affiliate via the DCC&S Fund/SERV system, such
orders shall be transmitted via facsimile to the Underwriter or its designated
affiliate by 10:00 a.m. Eastern time on Day 2. Such trades will be effected on
Day 1 subject to the terms of such Fund's prospectus.
1.3 With respect to request orders placed on each Business Day on which both
parties have access to NSCC and NSCC calculates a net purchase order, the
Company agrees to initiate payment for net purchases of shares attributable to
all orders executed through NSCC on a given Business Day by wire to the
Underwriter or its designated affiliate through NSCC by 1:00 p.m. on Day 2 for
each Fund involved. The Underwriter agrees that payment for net redemptions of
shares attributable to all orders executed through NSCC on a given Business Day
will be wired to the Company through NSCC on such Business Day for each Fund
involved. Such payments will be made by Federal Funds wire transfer and will be
initiated in accordance with the rules and regulations of the NSCC, as amended
from time to time.
With respect to request orders placed on each Business Day on which a party is
unable to access NSCC, the Company will wire payment for net purchase orders to
an account designated by the Underwriter. The Company agrees that by 1:00 P.M.
Eastern Time on Day 2, the Company will initiate, the wire payment for net
purchases of shares attributable to all orders executed on a given Business Day.
The Underwriter agrees that payment for net redemptions of shares attributable
to all orders executed on a given Business Day will be wired by the Underwriter,
to an account designated by the Company, by 1:00 P.M. Eastern Time on Day 2;
provided, however, that if a Plan Account in any Fund is to be redeemed in full
such that it will have a zero balance following the redemption, the Underwriter
reserves the right to wire transfer the redemption proceeds within the time set
forth in the Fund's prospectus. Such payments will be made by Federal Funds wire
transfer.
1.4 The Company will place separate orders to purchase or redeem shares of each
Fund.
1.5 Issuance and transfer of the Fund's shares will be by book entry only.
Share certificates will not be issued to the Company or any Separate Account.
Purchase and redemption orders for Fund shares will be recorded in an
appropriate title for each Separate Account or the appropriate subaccount of
each Separate Account.
1.6 The Underwriter shall furnish to the Company any income, dividends or
capital gain distributions payable on the Fund's shares as soon as reasonably
available. The Company hereby elects to receive all such dividends and
distributions as are payable on a Fund's shares in the form of additional
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shares of that Fund. The Company reserves the right to revoke this election and
to receive in cash all such dividends and distributions declared after receipt
of notice of revocation by the Fund.
1.7 Pricing Information. The Underwriter or its designated affiliate will make
the following information available to the Company by 6:30 p.m. Eastern Time on
each Business Day: (i) net asset value ("NAV") information as of the close of
trading (normally 4:00 p.m. Eastern Time) on the New York Stock Exchange or as
of such other times at which the Fund's NAV is calculated as specified in such
Fund's prospectus; (ii) dividend and capital gains information as such becomes
available; and (iii) in the case of income Funds, the daily accrual for the
Funds' interest rate factor.
1.8 Price Errors. The Underwriter or its designated affiliate will follow its
internal policies to determine whether an adjustment is necessary to correct any
error in the computation of the NAV per share for any Fund.
1. Notification. If an adjustment is required to correct any error in
the computation of the NAV of Shares ("Price Error"), the
Underwriter shall notify the Company as soon as practicable after
discovering the Price Error. Notice may be made via facsimile or via
direct or indirect systems access and shall state the incorrect
price, the correct price and, to the extent communicated to the
Funds' other shareholders, the reason for the price change.
2. Underpayments. If a Price Error causes a Separate Account to receive
less than the amount to which it would otherwise have been entitled
prior to a price adjustment, the Underwriter shall adjust its
records to accurately reflect the number of shares held by the
Separate Account.
3. Overpayments. If a Price Error causes a Separate Account to receive
more than the amount to which it otherwise would have been entitled,
the Company, when requested by the Underwriter, will use all
commercially reasonable efforts to attempt to collect such excess
amount from the applicable Separate Account. Absent the Company's
failure to use all commercially reasonable efforts to attempt to
collect such amount, the Company will in no event be liable to any
of the parties for any such amounts if, prior to notice from the
Underwriter of a price adjustment, such amounts were distributed to
the Separate Account.
4. Expenses. If a Price Error causes the Company to adjust its records
for the Separate Account, the Underwriter will reimburse the Company
for all reasonable costs and expenses (including reasonable hourly
compensation for any personnel utilized by the Company in making
such adjustments) incurred by the Company in making such
adjustments.
5. Liability. Except as otherwise expressly set forth in this
Agreement, the Company will have no responsibility or liability for
calculating the Funds' NAV or for a Price Error.
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ARTICLE II. Representations and Warranties
2.1. The Company represents and warrants that the Contracts are or will be
registered unless exempt and that it will make every effort to maintain such
registration under the 1933 Act to the extent required by the 1933 Act; that the
Contracts are intended to be issued and sold in compliance in all material
respects with all applicable federal and state laws. The Company further
represents and warrants that it is an insurance company duly organized and in
good standing under applicable law and that it has legally and validly
established each Separate Account prior to any issuance or sale of Contracts,
shares or other interests therein, as a segregated asset account under the
insurance laws of the State of Connecticut and has registered or, prior to any
issuance or sale of the Contracts, will register and will maintain the
registration of each Separate Account as a unit investment trust in accordance
with and to the extent required by the provisions of the 1940 Act, unless exempt
therefrom, to serve as a segregated investment account for the Contracts. Unless
exempt, the Company shall amend its registration statement for its Contracts
under the 1933 Act and the 1940 Act from time to time as required in order to
effect the continuous offering of its Contracts. The Company shall register and
qualify the Contracts for sale in accordance with securities laws of the various
states only if and to the extent deemed necessary by the Company.
2.2 The Underwriter represents and warrants that (i) Fund shares sold pursuant
to this Agreement shall be registered under the 1933 Act and duly authorized for
issuance in accordance with applicable law and that the Fund is and shall remain
registered under the 1940 Act for as long as the Fund shares are sold; (ii) 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; and (iii) the Fund shall register and qualify its shares
for sales 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 Underwriter, represents that each Fund (a) is currently qualified as a
Regulated Investment Company under Subchapter M of the Code; (b) will make every
effort to maintain such qualification (under Subchapter M or any successor or
similar provision); and (c) will notify the Company immediately upon having a
reasonable basis for believing that such Fund has ceased to so qualify or might
not so qualify in the future.
2.4 To the extent that the Fund finances distribution expenses pursuant to Rule
12b-1 under the 1940 Act, the Underwriter represents that the Fund's Board of
Trustees or Directors, as applicable, including a majority of its
Trustees/Directors who are not interested persons of the Fund, have formulated
and approved a plan under Rule 12b-1 to finance distribution expenses.
2.5 The Underwriter makes no representation as to whether any aspect of the
Fund's operations (including, but not limited to, fees and expenses and
investment policies) complies with the insurance laws or insurance regulations
of the various states except that the Underwriter represents that the Fund's
investment policies, fees and expenses are and shall at all times remain in
compliance with the laws of the States of Connecticut and California. The
Underwriter represents that its and the Fund's respective operations are and
shall at all times remain in material compliance with the laws of the State of
Connecticut to the extent required to perform this Agreement.
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 further represents that it will sell and distribute the Fund shares
in accordance in all material respects with all applicable federal and state
securities laws, including without limitation the 1933 Act, the 1934 Act, and
the 1940 Act.
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2.7 The Underwriter represents that each Fund is lawfully organized and validly
existing under the laws of the State of Delaware and that it does and will
comply in all material respects with applicable provisions of the 0000 Xxx.
2.8 The Underwriter represents and warrants that all of the Fund's
Trustees/Directors, officers, employees, investment advisers, and other
individuals/entities having access to the funds and/or securities of the Fund
are and 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
minimal coverage as required by Rule 17g-1 under the 1940 Act or related
provisions as may be promulgated from time to time. The aforesaid Bond includes
coverage for larceny and embezzlement and is issued by a reputable bonding
company.
2.9 The Company represents and warrants that all of its directors, officers,
employees, investment advisers, and other individuals/entities dealing with the
money and/or securities of the Fund are covered by a blanket fidelity bond or
similar coverage in an amount not less than $5 million. The aforesaid includes
coverage for larceny and embezzlement and is issued by a reputable bonding
company.
2.10 The foregoing representations and warranties shall be made, by the party
hereto that makes the representation or warranty as of the date first written
above and at the time of each purchase and each sale of the Fund's shares
pursuant to this Agreement.
ARTICLE III. Prospectuses; Reports and Proxy Statements; Voting
3.1 The Underwriter shall provide the Company at no charge with as many printed
copies of each Fund's current prospectus and statement of additional information
as the Company may reasonably request. If requested by the Company, in lieu of
providing printed copies of the Fund's current prospectus and statement of
additional information, the Fund shall provide camera-ready film, computer
diskettes, e-mail transmissions or PDF files containing the Fund's prospectus
and statement of additional information, and such other assistance as is
reasonably necessary in order for the Company once each year (or more frequently
if the prospectus and/or statement of additional information for the Fund are
amended during the year) to have the prospectus for the Contracts (if
applicable) and the Fund's prospectus printed together in one document or
separately. The Company may elect to print the Fund's prospectus and/or its
statement of additional information in combination with other fund companies'
prospectuses and statements of additional information.
3.2(a) The Underwriter shall be responsible for providing the Company at no
charge with copies of the Fund's proxy statements, Fund reports to shareholders,
and other Fund communications to shareholders in such quantity as the Company
shall reasonably require for distributing to Contract owners.
3.2(b) The Underwriter shall be responsible for the cost of typesetting,
printing and distributing all Fund prospectuses, statements of additional
information, Fund reports to shareholders and other Fund communications to
Contract owners and prospective Contract owners. The Fund shall pay for all
costs for typesetting, printing and distributing proxy materials.
3.3. The Fund's statement of additional information shall be obtainable by
Contract owners from the Fund, the Underwriter, the Company or such other person
as the Fund may designate.
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3.4 If and to the extent required by law the Company shall distribute all proxy
material furnished by the Fund to Contract owners to whom voting privileges are
required to be extended and shall:
A. solicit voting instructions from Contract owners;
B. vote the Fund shares held in the Separate Account in accordance with
instructions received from Contract owners; and
C. so long as and to the extent that the SEC continues to interpret the
1940 Act to require pass through voting privileges for variable
annuity contract owners, vote Fund shares held in the Separate
Account for which no timely instructions have been received, in the
same proportion as Fund shares of such Fund for which instructions
have been received from the Company's Contract owners. The Company
reserves the right to vote Fund shares held in any segregated asset
account for its own account, to the extent permitted by law.
Notwithstanding the foregoing, with respect to the Fund shares held
by unregistered Separate Accounts that issue Contracts issued in
connection with employee benefit plans subject to the provisions of
the Employee Retirement Income Security Act of 1974, as amended, the
Company shall vote such Fund shares allocated to such Contracts only
in accordance with the Company's agreements with such Contract
owners.
3.5 The Underwriter represents and warrants that the Fund will comply with all
provisions of the 1940 Act requiring voting by shareholders. The Underwriter
represents and warrants that the Fund will not hold annual meetings but will
hold such special meetings as may be necessary from time to time.
ARTICLE IV. Sales Material and Information
4.1 The Company shall furnish, or shall cause to be furnished, to the Fund, the
Underwriter or their designee, each piece of sales literature or other
promotional material prepared by the Company or any person contracting with the
Company in which the Fund, the Adviser or the Underwriter is described, at least
five calendar days prior to its use. No such literature or material shall be
used without prior approval from the Fund, the Underwriter or their designee,
however, the failure to object in writing within five calendar days will be
deemed approval. The Company shall use best efforts to use content from Fund
materials previously approved by the Underwriter. Such approval process shall
not apply to subsequent usage of materials that are substantially similar to
prior approved materials.
4.2 Neither the Company nor any person contracting with the Company shall 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 or
prospectus for the Fund shares, as such registration statement and prospectus
may be amended or supplemented from time to time, or in reports to shareholders
or proxy statements for the Fund, or in sales literature or other promotional
material approved by the Fund or its designee, except with the permission of the
Fund or its designee.
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4.3 The Underwriter shall furnish, or shall cause to be furnished, to the
Company or its designee, each piece of sales literature or other promotional
material in which the Company or any Separate Account is named, at least five
calendar days prior to its use. No such literature or material shall be used
without prior approval from the Company or its designee, however, the failure to
object in writing within five calendar Days will be deemed approval. Such
approval process shall not apply to subsequent usage of materials that are
substantially similar to prior approved materials.
4.4 The Underwriter shall not give any information or make any representations
on behalf of the Company or concerning the Company, each Separate Account, or
the Contracts other than the information or representations contained in the
Contracts, a disclosure document, registration statement or prospectus for the
Contracts (if applicable), as such registration statement and prospectus may be
amended or supplemented from time to time, or in published reports for each
Separate Account which are in the public domain or approved by the Company for
distribution to Contract owners or participants, or in sales literature or other
promotional material approved by the Company, except with the permission of the
Company.
4.5 The Underwriter will provide to the Company at least one complete copy of
all prospectuses, statements of additional information, reports to shareholders,
proxy statements, and all amendments to any of the above, that relate to the
Fund or its shares, promptly after the filing of such document with the SEC or
other regulatory authorities.
4.6. The Company will provide to the Fund at least one complete copy of all
prospectuses, statements of additional information, reports, solicitations for
voting instructions, and all amendments to any of the above, if applicable to
the investment in a Separate Account or Contract, promptly after the filing of
such document with the SEC or other regulatory authorities.
4.7 For purposes of this Article IV, the phrase "sales literature or other
promotional material" includes, but is not limited to, advertisements (such as
material published, or designed for use in, a newspaper, magazine, or other
periodical, radio, television, telephone or tape recording, videotape display,
signs or billboards, motion pictures, Internet, or other public media), sales
literature (i.e., any written communication distributed or made generally
available to customers or the public, including brochures, circulars, research
reports, market letters, form letters, electronic mail, seminar texts, reprints
or excerpts of any other advertisement, sales literature, or published article),
educational or training materials or other communications distributed or made
generally available to some or all agents or employees, registration statements,
disclosure documents, prospectuses, statements of additional information,
shareholder reports, and proxy materials.
4.8 The Underwriter authorizes the Company to use the names or other
identifying marks of Pioneer, including PIONEER INVESTMENTS[ILLEGIBLE], and the
Funds in connection with the services to be provided hereunder. The Underwriter
or its affiliates may withdraw this authorization as to any particular use of
any such name or identifying xxxx at any time: (a) upon a reasonable
determination that such use would have a material adverse effect on the
reputation or marketing efforts of the Underwriter or its affiliates or a Fund
or (b) if any of the Funds cease to be available through the Company. Except as
set forth in this Agreement, neither party will cause or permit, without prior
written permission, the use, description or reference to the other party's name,
or to the relationship contemplated in this Agreement, in any advertisement, or
promotional materials or activities, including without limitation, any
advertisement or promotional materials published, distributed, or made
available, or any activity conducted through, the Internet or any other
electronic medium.
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4.9 The Underwriter agrees and acknowledges that it has no right, title or
interest in the names and marks of the Company, and that all use of any
designation comprised in whole or part or such names or marks under this
Agreement shall inure to the benefit of the Company. Except as provided in
Section 4.3, the Underwriter acknowledges that neither the Underwriter nor the
Fund shall use any such names or marks on its own behalf or on behalf of a Fund
in connection with marketing the Fund without prior written consent of the
Company. Upon termination of this Agreement for any reason, the Fund and
Underwriter shall cease all use of any such names or marks.
ARTICLE V. Fees and Expenses
5.1 The Fund shall pay the fees and expenses provided for in the attached
SCHEDULE B.
5.2 Within 30 days after each quarter end, the Company will send the
Underwriter a written request for payment that sets forth the amount to be paid
in a mutually agreeable form.
ARTICLE VI. Indemnification
6.1 Indemnification By The Company
(a) The Company agrees to indemnify and hold harmless the Fund, the Underwriter
and each of their respective trustees, directors, officers, employees or agents
and each person, if any, who controls the Fund or the Underwriter within the
meaning of section 15 of the 1933 Act (collectively, the "Indemnified Parties"
for purposes of this Section 6.1) against any and all losses, claims, damages,
liabilities (including amounts paid in settlement with the written consent of
the Company) or litigation (including reasonable legal and other expenses), to
which the Indemnified Parties may become subject under any statute, regulation,
at common law or otherwise, insofar as such losses, claims, damages, liabilities
or expenses (or actions in respect thereof) or settlements are related to the
sale or acquisition of the Fund's shares or the Contracts and:
(i) arise out of or are based upon any untrue statement or alleged
untrue statement of any material fact contained in the disclosure
statement, registration statement, prospectus or statement of
information for the Contracts or contained in the Contracts or sales
literature or other promotional material for the Contracts (or any
amendment or supplement to any of the foregoing), or arise out of or
are based upon the omission or the alleged omission to state therein
a material fact required to be stated therein or necessary to make
the statements therein not misleading; provided that this agreement
to indemnify shall not apply as to an Indemnified Party if such
statement or omission or such alleged statement or omission was made
in reliance upon and in conformity with information furnished by
such Indemnified Party or the Fund to the Company on behalf of the
Fund for use in the registration statement, prospectus or statement
of additional information for the Contracts or in the Contracts or
sales literature (or any amendment or supplement) or otherwise for
use in connection with the sale of the Contracts or Fund shares; or
(ii) arise out of or as a result of (a) statements or representations by
or on behalf of the Company (other than statements or
representations contained in the Fund registration statement, Fund
prospectus or sales literature or other promotional material of the
Fund not supplied by
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the Company, or persons under its control and other than statements
or representations authorized by the Fund, the Underwriter or the
Adviser); or (b) the willful misfeasance, bad faith, gross
negligence or reckless disregard of duty of the Company or persons
under its control, with respect to the sale or distribution of the
Contracts or Fund shares; or
(iii) arise out of or as a result of any untrue statement or alleged
untrue statement of a material fact contained in the Fund
registration statement, Fund prospectus, statement of additional
information 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 and in conformity with information furnished to the
Fund or the Underwriter by the Company or persons under its
control; 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; or
(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 by the
Company of this Agreement; except to the extent provided in Sections
6.1(b) and 6.3 hereof.
(b) No party shall be entitled to indemnification to the extent that such loss,
claim, damage, liability or litigation is due to the willful misfeasance, bad
faith, gross negligence or reckless disregard of duty by the party seeking
indemnification.
(c) In accordance with Section 6.3 hereof, 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.
6.2 Indemnification By the Underwriter
(a) The Underwriter agrees, with respect to each Fund that it distributes, to
indemnify and hold harmless the Company and each of its directors, officers,
employees or agents and each person, if any, who controls the Company within the
meaning of section 15 of the 1933 Act (collectively, the "Indemnified Parties"
for purposes of this Section 6.2) against any and all losses, claims, damages,
liabilities (including amounts paid in settlement with the written consent of
the Underwriter) or litigation (including reasonable legal and other expenses)
to which the Indemnified Parties may become subject under any statute,
regulation, at common law or otherwise, insofar as such losses, claims, damages,
liabilities or expenses (or actions in respect thereof) or settlements are
related to the sale or acquisition of the shares of the Funds that it
distributes or the Contracts and:
(i) arise out of or are based upon any untrue statement or alleged
untrue statement of any material fact contained in the registration
statement, prospectus or statement of additional information for the
Fund 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
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reliance upon and in conformity with information furnished by such
Indemnified Party or the Company to the Fund or the Underwriter on
behalf of the Company for use in the registration statement,
prospectus or statement of additional information for the Fund or in
sales literature of the Fund (or any amendment or supplement
thereto) or otherwise for use in connection with the sale of the
Contracts or the Fund shares; or
(ii) arise out of or as a result of (a) statements or representations
(other than statements or representations contained in the
registration statement, prospectus or sales literature for the
Contracts not supplied by the Fund or the Underwriter or persons
under their respective control and other than statements or
representations authorized by the Company); or (b) the willful
misfeasance, bad faith, gross negligence or reckless disregard of
duty of the Fund or the Underwriter or persons under the control of
the Fund or the Underwriter, respectively, 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,
statement of additional information or sales literature or other
promotional material with respect to 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 and in conformity with information furnished to the
Company by the Fund or the Underwriter or persons under the control
of the Fund or the Underwriter, respectively; or
(iv) arise as a result of any material failure by the Fund or the
Underwriter to provide the services and furnish the materials under
the terms of this Agreement; or
(v) arise out of or result from any material breach of any
representation and/or warranty made by the Underwriter or the Fund
in this Agreement or arise out of or result from any other material
breach of this Agreement by the Underwriter or the Fund; except to
the extent provided in Sections 6.2(b) and 6.3 hereof.
(b) No party shall be entitled to indemnification to the extent that such loss,
claim, damage, liability or litigation is due to the willful misfeasance, bad
faith, gross negligence or reckless disregard of duty by the party seeking
indemnification.
(c) In accordance with Section 6.3 hereof, the Indemnified Parties will
promptly notify the Underwriter of the commencement of any litigation or
proceedings against them in connection with the issuance or sale of the Fund
shares or the Contracts or the operation of the Separate Accounts.
6.3. Indemnification Procedure
(a) Any person obligated to provide indemnification under this Article VI
("Indemnifying Party" for the purpose of this Section 6.3) shall not be liable
under the indemnification provisions of this Article VI with respect to any
claim made against a party entitled to indemnification under this Article VI
("Indemnified Party" for the purpose of this Section 6.3) unless such
Indemnified Party shall have notified the Indemnifying Party in writing within a
reasonable time after the summons or other first legal process giving
information of the nature of the claim shall have been served upon such
Indemnified Party (or after such party shall have received notice of such
service on any designated agent), but failure to notify the Indemnifying Party
of any such claim shall not relieve the Indemnifying Party
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from any liability which it may have to the Indemnified Party against whom such
action is brought otherwise than on account of the indemnification provision of
this Article VI. In case any such action is brought against the Indemnified
Party, the Indemnifying Party will be entitled to participate, at its own
expense, in the defense thereof. The Indemnifying Party also shall be entitled
to assume the defense thereof, with counsel satisfactory to the party named in
the action. After notice from the Indemnifying Party to the Indemnified Party of
the Indemnifying Party's election to assume the defense thereof, the Indemnified
Party shall bear the fees and expenses of any additional counsel retained by the
Indemnified Party, and the Indemnifying Party will not be liable to such party
under this Agreement for any legal or other expenses subsequently incurred by
such party independently in connection with the defense thereof other than
reasonable costs of investigation, unless:
(i) the Indemnifying Party and the Indemnified Party shall have mutually
agreed to the retention of such counsel or
(ii) the named parties to any such proceeding (including any impleaded
parties) include both the Indemnifying Party and the Indemnified
Party and representation of both parties by the same counsel would
be inappropriate due to actual or potential differing interests
between them.
A successor by law of the parties to this Agreement shall be entitled to the
benefits of the indemnification contained in this Article VI. The
indemnification provisions contained in this Article VI shall survive any
termination of this Agreement.
ARTICLE VII. Applicable Law
7.1 This Agreement shall be construed and the provisions hereof interpreted
under and in accordance with the laws of The Commonwealth of Massachusetts.
7.2 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 and
the terms hereof shall be interpreted and construed in accordance therewith.
ARTICLE VIII. Termination
8.1 This Agreement shall terminate:
(a) at the option of any party upon six months' advance written notice to the
other parties unless otherwise agreed in a separate written agreement among the
parties; or
(b) at the option of the Fund or the Underwriter, upon institution of formal
proceedings against the Company by the NASD, NASD Regulation, Inc. ("NASDR"),
the SEC, the insurance commission of any state or any other regulatory body
regarding the Company's duties under this Agreement or related to the sale of
the Contracts, the administration of the Contracts, the operation of the
Separate Accounts, or the purchase of the Fund shares, which in the judgment of
the Fund, the Underwriter or the Adviser are reasonably likely to have a
material adverse effect on the Company's ability to perform its obligations
under this Agreement: or
11
(c) at the option of the Company upon institution of formal proceedings against
the Fund, the Underwriter or the Adviser by the NASD, NASDR, the SEC, or any
state securities or insurance department or any other regulatory body, related
to the purchase or sale of the Fund shares or the operation of the Fund which in
the judgment of the Company are reasonably likely to have a material adverse
effect on the Underwriter's, the Fund's or the Adviser's ability to perform its
obligations under this Agreement; or
(d) at the option of the Company if a Fund delineated in SCHEDULE A ceases to
qualify as a Regulated Investment Company under Subchapter M of the Code (a
"RIC"). or under any successor or similar provision, and the disqualification is
not cured within the period permitted for such cure, or if the Company
reasonably believes that any such Fund may fail to so qualify and be unable to
cure such disqualification within the period permitted for such cure; or
(e) at the option of any party to this Agreement, upon another party's material
breach of any provision of this Agreement; provided that the party not in breach
shall give the party in breach notice of the breach and the party in breach does
not cure such breach within 30 days of receipt of such notice of breach; or
(f) at the option of the Company, if the Company determines in its sole
judgment exercised in good faith, that either the Fund, the Underwriter or the
Adviser has suffered a material adverse change in its business, operations or
financial condition since the date of this Agreement or is the subject of
material adverse publicity which is likely to have a material adverse impact
upon the business and operations of the Company; or
(g) at the option of the Fund or the Underwriter if the Fund or the
Underwriter, respectively, shall determine in its sole judgment exercised in
good faith, that the Company has suffered a material adverse change in its
business, operations or financial condition since the date of this Agreement or
is the subject of material adverse publicity which is likely to have a material
adverse impact upon the business and operations of the Fund or Underwriter.
8.2 Notice Requirement
(a) In the event that any termination of this Agreement is based upon the
provisions of Sections 8.1(b), 8.1(c) or 8.1(d), prompt written notice of the
election to terminate this Agreement for cause shall be furnished by the party
terminating the Agreement to the non-terminating parties, with said termination
to be effective upon receipt of such notice by the non-terminating parties;
provided that for any termination of this Agreement based on the provisions of
Section 8.1(d), said termination shall be effective upon the Fund's failure to
qualify as a RIC and to cure such disqualification within the period permitted
for such cure.
(b) In the event that any termination of this Agreement is based upon the
provisions of Sections 8.1(f) or 8.1(g), prior written notice of the election to
terminate this Agreement for cause shall be furnished by the party terminating
this Agreement to the non-terminating parties. Such prior written notice shall
be given by the party terminating this Agreement to the non-terminating parties
at least 60 days before the effective date of termination.
8.3 It is understood and agreed that the right to terminate this Agreement
pursuant to Section 8.1(a) may be exercised for any reason or for no reason.
12
8.4 Effect of Termination
(a) Notwithstanding any termination of this Agreement pursuant to Section
8.1(a) through 8.1(g) of this Agreement and subject to Section 1.2 of this
Agreement, the Company may require the Fund and the Underwriter to continue to
make available additional shares of the Fund for so long after the termination
of this Agreement as the Company desires pursuant to the terms and conditions of
this Agreement as provided in paragraph (b) below, for all Contracts in effect
on the effective date of termination of this Agreement (hereinafter referred to
as "Existing Contracts"), unless such further sale of Fund shares is proscribed
by law, regulation or an applicable regulatory body. Specifically, without
limitation, the owners of the Existing Contracts shall be permitted to direct
reallocation of 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 unless such further sale of Fund shares is proscribed by law,
regulation or an applicable regulatory body.
(b) Fund and/or Underwriter shall remain obligated to pay Company the fee in
effect as of the date of termination for so long as shares are held by the
Accounts and Company continues to provide services to the Accounts. Such fee
shall apply to shares purchased both prior to and subsequent to the date of
termination. This Agreement, or any provision thereof, shall survive the
termination to the extent necessary for each party to perform its obligations
with respect to shares for which a fee continues to be due subsequent to such
termination.
ARTICLE IX. Notices
9.1 (a) Any notice shall be deemed duly given only if sent by hand or
overnight express delivery, evidenced by written receipt or by certified mail,
return receipt requested, to the other party at the address of such party set
forth below or at such other address as such party may from time to time specify
in writing to the other party. All notices shall be deemed given the date
received or rejected by the addressee.
If to the Company:
Hartford Life Insurance Company
000 Xxxxxxxxx Xxxxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
Attention: Vice President, Investment
Products Division
with a copy to:
General Counsel
Hartford Life Insurance Company
000 Xxxxxxxxx Xxxxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
13
If to the Underwriter:
Attention: President
Pioneer Funds Distributor, Inc.
00 Xxxxx Xxxxxx
Xxxxxx, XX 00000
With a copy to:
General Counsel
Pioneer Investment Management USA Inc.
00 Xxxxx Xxxxxx
Xxxxxx, XX 00000
ARTICLE X Miscellaneous
10.1 Subject to law and regulatory authority, each party hereto shall treat as
confidential the names and addresses of the owners of the Contracts and all
other information reasonably identified as such in writing by any other party
hereto, and, except as contemplated by this Agreement, shall not disclose,
disseminate or utilize such confidential information without the express prior
written consent of the affected party until such time as it may come into the
public domain. In addition, the parties hereby represent that they will use and
disclose Personal Information (as defined below) only to carry out the purposes
for which it was disclosed to them and will not use or disclose Personal
information if prohibited by applicable law, including, without limitation,
statutes and regulations enacted pursuant to the Xxxxx-Xxxxx-Xxxxxx Act (Public
Law 106-102). "Personal Information" means financial and medical information
that identifies an individual personally and is not available to the public,
including, but not limited to, credit history, income, financial benefits,
policy or claim information and medical records. If either party outsources
services to a third party, such third party will agree in writing to maintain
the security and confidentiality of any information shared with them.
10.2 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.
10.3 This Agreement may be executed simultaneously in two or more counterparts,
each of which taken together shall constitute one and the same instrument.
10.4 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.
10.5 This Agreement shall not be assigned by any party hereto without the prior
written consent of all the parties.
10.6 Each party hereto shall cooperate with each other party and all
appropriate governmental authorities (including without limitation the SEC, the
NASD, NASDR and state insurance regulators) and shall permit each other and such
authorities (and the parties hereto) reasonable access to its books and
14
records in connection with any investigation or inquiry relating to this
Agreement or the transactions contemplated hereby. Notwithstanding the
foregoing, each party hereto further agrees to furnish the California Insurance
Commissioner with any information or reports in connection with services
provided under this Agreement which such Commissioner may reasonably request in
order to ascertain whether the insurance operations of the Company are being
conducted in a manner consistent with the California laws and regulations.
10.7 Each party represents that (a) the execution and delivery of this
Agreement and the consummation of the transactions contemplated herein have been
duly authorized by all necessary corporate or trust action, as applicable, by
such party and when so executed and delivered this Agreement will be the valid
and binding obligation of such party enforceable in accordance with its terms
subject to bankruptcy, insolvency, reorganization, moratorium and similar laws
of general applicability relating to or affecting creditors' rights and to
general equity principles; (b) the party has obtained, and during the term of
this Agreement will maintain, all authorizations, licenses, qualifications or
registrations required to be maintained in connection with the performance of
its duties under this Agreement; and (c) the party will comply in all material
respects with all applicable laws, rules and regulations.
10.8 The parties to this Agreement may amend by written agreement the Schedules
to this Agreement from time to time to reflect changes in or relating to the
Contracts, the Separate Accounts or the Funds of the Fund.
10.9 The Company hereby acknowledges that: (i) the Company has adopted an
anti-money laundering program that complies with the requirements of applicable
anti-money laundering laws, including the USA Patriot Act, the Bank Secrecy Act
and applicable regulations thereunder; (ii) the Company regularly searches its
databases for shareholder/customer names and countries appearing on U.S.
governmental agencies' lists of prohibited persons (e.g., lists maintained by
the Office of Foreign Assets Control); and (iii) the Company monitors its
compliance with such program. The Company agrees to notify the Underwriter and
the Funds of any: (i) identified instances of non-compliance that involve an
account related to the Funds or the Underwriter (a "Pioneer Related Account"),
either through a shareholder or transaction(s); and (ii) other anti-money
laundering issues that may arise with respect to a Pioneer Related Account. The
Company agrees to notify the Underwriter and the Funds with such periodic
certifications of compliance as the Underwriter may reasonably request.
10.10 The Company agrees to use its best efforts to assist the Underwriter and
the Funds to identify and address excessive or short-term trading in the Funds,
consistent with the policies of the Underwriter and each Fund as described in
the Fund's prospectus. The Company further agrees to notify the Underwriter in
the event that the Company becomes aware of any excessive or short-term trading
that is inconsistent with such policies with respect to any intermediary or
account, including any aggregate activity by accounts under common control. The
Company agrees that upon notice from the Underwriter that any excessive or
short-term activity is disruptive to the fund(s), to use reasonable efforts to
identify and deter such activities by an account holder and/or intermediary.
15
IN WITNESS WHEREOF, each of the parties hereto has caused this Agreement to be
executed in its name and behalf by its duly authorized representative as of the
date first written above.
HARTFORD LIFE INSURANCE COMPANY PIONEER FUNDS DISTRIBUTOR, INC.
By /s/ Xxxxx Xxxxx By: /s/ Xxxxxxx X. X'Xxxxx
-------------------------------- --------------------------------
Name: Xxxxx Xxxxx Name: Xxxxxxx X. X'Xxxxx
Title: Vice President Title: Executive Vice President
Distribution
16
SCHEDULE A
SEPARATE ACCOUNTS
Each Separate Account established by resolution of the Board of Directors of the
Company under the insurance laws of the State of Connecticut to set aside and
invest assets attributable to the Contracts. Currently, those Separate Accounts
are as follows:
401 MARKET
K, Kl, K2, K3, K4
TK, TKl, TK2, TK3, TK4
VK, VK1, VK2, VK3, VK4
UK, XX0, XX0, XX0, XX0
403 AND 457 MARKETS
DCI, DCII, DCIII, DCIV, DCV, DCVI, 457, 403, UFC, Eleven
17
SCHEDULE B
In consideration of the services provided by the Company, the Underwriter, or
one of its affiliates, agrees to pay the Company an amount equal to the
following basis points per annum on the average aggregate amount invested by the
Company's Separate Account(s) in each Fund under the Agreement, such amounts to
be paid within 30 days of the end of each calendar quarter.
SERVICE
FUND FEES
---------------------------------------------------
CLASS A SHARES
Pioneer Fund 0.55%
Pioneer High Yield Fund 0.55%
Pioneer Mid Cap Value Fund 0.55%
Pioneer Small Cap Value Fund 0.55%
Pioneer Strategic Income Fund 0.55%
CLASS R SHARES
Pioneer Fund 0.75%
Pioneer High Yield Fund 0.75%
Pioneer Mid Cap Value Fund 0.75%
Pioneer Small Cap Value Fund 0.75%
Pioneer Strategic Income Fund 0.75%
18
AMENDMENT TO RETAIL PARTICIPATION AGREEMENT
THIS AMENDMENT is made and entered into as of the 31st day of October 2007
between Hartford Life Insurance Company (the "Company"), and Pioneer Funds
Distributor, Inc. ("PFD"), a
Massachusetts corporation and a member of the
UniCredito Italiano banking group, register of banking groups (hereinafter the
"Underwriter").
WHEREAS, the parties desire to amend the Agreement to allow for the addition of
a certain Fund or Funds,
NOW, THEREFORE, the parties agree as follows:
1. Schedules A and B shall be replaced by the attached Schedules A and B.
2. This Amendment may be executed in counterparts, each of which shall be an
original and both of which shall constitute one instrument.
IN WITNESS HEREOF, the parties hereto have executed and delivered this Amendment
effective as of the date first written above.
HARTFORD LIFE INSURANCE COMPANY PIONEER FUNDS DISTRIBUTOR, INC.
By: /s/ Xxxxx Xxxxx By: /s/ Xxxxxx X. Xxxxxxxx
---------------------------- ------------------------------
Name: Xxxxx Xxxxx Name: Xxxxxx X. Xxxxxxxx
Title: Assistant Vice President Title: Executive Vice President
Date: 11/5/07 Date: October 31, 2007
1
SCHEDULE A
SEPARATE ACCOUNTS
Each Separate Account established by resolution of the Board of Directors of the
Company under the insurance laws of the State of Connecticut to set aside and
invest assets attributable to the Contracts. Currently, those Separate Accounts
are as follows:
401 MARKET
K, K1, K2, K3, K4
TK, TK1, TK2, TK3, TK4
VK, VK1, VK2, VK3, VK4
UK, XX0, XX0, XX0, XX0, 401
403 AND 457 MARKETS
DCI, DCII, DCIII, DCIV, DCV, DCVI, 457, 403, UFC,
Separate Account Two, Separate Account Eleven,
Separate Account Fourteen
PORTFOLIOS
* All Pioneer Class A, R and Y Shares
2
SCHEDULE B
In consideration of the services provided by the Company, PFD agrees to pay the
Company an amount equal to the following basis points per annum on the average
aggregate amount invested by the Company's Separate Account(s) in each Portfolio
under the Retail Participation Agreement, such amounts to be paid within 30 days
of the end of each calendar quarter.
SERVICE
PORTFOLIO FEES
--------------------------------------------------------------------------------
All Class A Shares 0.55
All Class R Shares 0.75
All Class Y Shares 0.15
3
AMENDMENT TO RETAIL PARTICIPATION AGREEMENT
THIS AMENDMENT, dated as of January 01, 2009 (the "Amendment"), between Hartford
Life Insurance Company (the "Company") and Pioneer Funds Distributor, Inc.
("PFD"), a
Massachusetts corporation and a member of the UniCredit Banking
Group, register of banking groups, amends the
Retail Fund Participation
Agreement dated as of June 25, 2004, as amended an in effect as of the date
hereof (the "Agreement") between the Company and PFD.
WHEREAS, the parties desire to amend the Agreement to correct an error in the
Amendment to the Agreement dated October 31, 2007;
NOW, THEREFORE, the parties agree as follows:
1. Schedule B to the Agreement shall be replaced in its entirety by the
attached Schedule B.
2. The following new section is added to Section 8.1 of the Agreement:
"(h) This Agreement will automatically renew for successive one
year periods beginning January 1, 2009, unless a party
terminates the Agreement pursuant to this Article VIII."
3. The following new section is added to Section 8.4 of the Agreement:
"(c) In the event of the insolvency or liquidation of Company,
fees shall continue to be payable directly to Company or its
liquidator, receiver, conservator or statutory successor,
without diminution and reasonable provision for verification
by Company or its liquidator, receiver, conservator or
statutory successor."
4. This Amendment may be executed in counterparts, each of which shall be an
original and both of which shall constitute one instrument. Except as amended in
this Amendment, the Agreement remains in full force and effect.
IN WITNESS HEREOF, the parties hereto have executed and delivered this Amendment
effective as of January 01, 2009.
HARTFORD LIFE INSURANCE COMPANY
By: /s/ Xxxxx Xxx
-----------------------------------
Name: Xxxxx Xxx
Title: Senior Vice President
PIONEER FUNDS DISTRIBUTOR, INC.
By: /s/ [ILLEGIBLE]
-----------------------------------
Name:
Title:
SCHEDULE B
In consideration of the services proved by the Company, PFD agrees to pay the
Company an amount equal to the following basis points per annum on the average
aggregate amount invested by the Company's Separate Accounts(s) in each
Portfolio under the Retail Participation Agreement, such amounts to be paid
within 30 days of the end of each calendar quarter.
PORTFOLIO SERVICE FEES
------------------------------------------------------------------------
All Class A Shares* 0.55
All Class R Shares 0.75
All Class Y Shares 0.15
------------
* With respect to Class A Shares of Pioneer Cash Reserves, the Service Fee
shall be 45 basis points.
AMENDMENT NO. 3
TO THE
RETAIL FUND PARTICIPATION AGREEMENT
BY AND BETWEEN
HARTFORD LIFE INSURANCE COMPANY,
AND
PIONEER FUNDS DISTRIBUTOR, INC.,
THIS AMENDMENT dated July 28, 2010 (the "AMENDMENT") to the
Retail Fund
Participation Agreement dated June 25, 2004 (together with all amendments,
supplements and exhibits thereto, the "AGREEMENT") is made and entered into by
and among Hartford Life Insurance Company ("HARTFORD") and Pioneer Funds
Distributor, Inc., ("PFD"). Together, Hartford and PFD are referred to as the
"PARTIES".
WHEREAS, THE Parties wish to amend the Agreement by deleting SCHEDULE B to the
Agreement and replacing it with SCHEDULE B attached to this Amendment.
NOW, THEREFORE, the Parties hereby amend the Agreement as follows:
1. NEW SCHEDULE B. SCHEDULE B to the Agreement is hereby deleted in its
entirety and replaced with a new SCHEDULE B attached hereto.
2. In all other respects, the terms of the Agreement remain in full force and
effect.
IN WITNESS WHEREOF, the undersigned have executed this Amendment by their duly
authorized officers as of the first date written above.
HARTFORD LIFE INSURANCE COMPANY
By: /s/ Xxxxxxx X. Xxxx
----------------------------
Name: Xxxxxxx X. Xxxx
Title: Assistant Vice President
PIONEER FUNDS DISTRIBUTOR, INC.
By: /s/ Xxxx X. Xxxxxx
----------------------------
Name: Xxxx X. Xxxxxx
Title: Senior Vice President
SCHEDULE B
In consideration of the services provided by the Company, PFD agrees to pay the
Company an amount equal to the following basis points per annum on the average
aggregate amount invested by the Company's Separate Account(s) in each Portfolio
under the Agreement, such amounts to be paid within 30 days of the end of each
calendar quarter.
COMPENSATION
Part I Compensation for Distribution Services: (1)
CLASS A
12b-1 Fee = .25
CLASS C
12b-1 Fee = 1.00
CLASS R
12b-1 fee = .50
CLASS Y
Part II Compensation for Administrative Services (2):
CLASS A
..30
CLASS C
..30
CLASS RETIREMENT
..30
CLASS Y
..20
------------
(1) "Distribution Services" means services provided by HLI or a Participating
Firm related to activities primarily intended to result in: (1) selection
by a Plan Representative of the Shares of one or more Funds for inclusion
as an investment option under a Plan, or (2) investment in the Shares of
one or more Funds by a Plan Representative on behalf of and/or at the
direction of a Plan Participant. Distribution Services do not include
Shareholder Services.
(2) "Shareholder Services" means services provided by HU or a Participating
Firm to its Plan Representative or Plan Participant customers encompassed
by the phrase "personal service and/or the maintenance of shareholder
accounts" as referenced in NASD Conduct Rule 2830(b)(9) and having the
meaning given to it in NASD Notice to Members 92-41.
