1.0 FUND PARTICIPATION AGREEMENT
1.1 This Agreement, effective January 1, 1989, by and
among Hartford Life Insurance Company, a Connecticut
stock life insurance corporation with principal
offices at 000 Xxxxxxxxx Xxxxxx, Xxxxxxxx,
Xxxxxxxxxxx 00000 ("Hartford"), Acacia Capital
Corporation, a registered investment company with
principal offices at 00 Xxxxxxxxx Xxxxxx, X.X.,
Xxxxxxxxxx, X.X. 00000, (the "Fund"), and Xxxxxxx
Asset Management Company, Inc., registered
investment advisor to the Fund, with principal
offices at 0000 Xxxxxxxxxx Xxxxxx, Xxxxxxxx,
Xxxxxxxx 00000 ("Xxxxxxx").
1.2 In consideration of the promises, representations,
warranties, covenants, agreements and conditions
contained herein, and in order to set forth the
terms and conditions of the transactions
contemplated hereby and the mode of carrying the
same into effect, and intending to be legally bound,
the parties hereto agree to the provisions set forth
below.
2.0 THE VARIABLE ANNUITY CONTRACT AND THE SEPARATE ACCOUNT
2.1 Hartford shall maintain a variable annuity contract
(the "Contract") designed to provide, under current
law, the benefits of a tax-deferred accumulation of
income for retirement and other purposes.
2.2 Purchase payments for the Contracts shall be
invested by Hartford in a separate account or
accounts. Such payments will constitute the assets
of the separate account and shall be invested, as
directed by purchasers, in certain open-end
diversified management companies registered under
the Investment Company Act of 1940 ("1940 Act").
2.3 One of the open-end diversified management companies
is the Fund, an open-end diversified management
investment company with eight separate series,
registered under the 1940 Act. Each series is a
separate investment portfolio with distinct
investment objectives.
2.4 Hartford will offer one or more of the series of
the Fund, including the Xxxxxxx Socially Responsible
Series (the "Series"), through the separate account
to its Contract Owners, except that Hartford agrees
not to offer any series of the Fund until the
exemptive order referenced in Section 3.2.3 of this
Agreement has been granted by the Securities and
Exchange Commission ("SEC"). Hartford will
determine in its discretion what separate account or
accounts will offer the Series.
2.5 Hartford will use the name "Hartford Socially
Responsive Fund" in its marketing and sales
literature when referring to the Series, and agrees
to indicate in such literature that "the investment
adviser of the Fund is Xxxxxxx Asset Management
Company, Inc."
2.5.1 Hartford will use its best efforts to market
and promote the Series for its Contracts, and
will market and promote the Series in all of
its markets, if the plan permits this type of
fund.
2.5.2 In marketing its Contracts, Hartford will
comply with all applicable State and Federal
laws. Hartford and its agents shall make no
representations or warranties concerning the
Fund or Series shares except those contained
in the then current prospectuses of the Fund
and in the Fund's current printed sales
literature. Copies of all advertising and
sales literature describing or concerning the
Fund which is prepared by Hartford or its
agents for use in marketing its Contracts
(except those for internal or broker/dealer
use only) will be sent to Xxxxxxx when such
material is released to the public, agents or
brokers or is submitted to the Securities and
Exchange Commission ("SEC"), National
Association of Securities Dealer, Inc.
("NASD"), or other regulatory body for review.
Hartford shall be responsible for compliance
with any state or federal filing or review
requirements concerning advertising and sales
literature.
2.5.3 Hartford and its agents will no oppose voting
recommendations from Xxxxxxx or the Fund's
Board of Directors or interfere with the
solicitation of proxies for the Fund shares
held for Hartford Contract Owners, unless
Hartford deems such recommendations
detrimental to it or to its Contract Owners.
Hartford agrees to provide pass-through voting
privileges to all Hartford Contract Owners and
to assure that each of its separate accounts
participating in the Fund calculates voting
privileges in a manner consistent with all
other separate accounts of any insurance
company investing in the Fund, as required by
the exemptive order referenced in Section
3.2.3 of this Agreement.
2.5.4 Hartford will be responsible for reporting to
the Fund's Board of Directors any potential or
existing conflicts among the interests of the
contract owners of all separate accounts
investing in the Fund, and to assist the Board
by providing it will all information
reasonably necessary for the Board to consider
any issues raised. The Fund's Board of
Directors is responsible for monitoring any
conflict of interest situation. Hartford and
the other relevant insurance companies will be
responsible for taking remedial action in the
event of a Board determination of an
irreconcilable material conflict and to bear
the cost of such remedial action and these
responsibilities will be carried out with a
view only to the interests of contract owners.
For purposes of this Section 2.5.4, a majority
of the disinterested members of the Fund's
Board shall determine whether or not any
proposed action adequately remedies any
irreconcilable material conflict, but in no
event will the Fund or Xxxxxxx be required to
establish a new fund medium for any
variable contract. Hartford shall not be
required by this section to establish a new
funding medium for any variable contract if an
offer to do so has been declined by vote of a
majority of contract owners materially
adversely affected by the irreconcilable
material conflict.
2.6 Hartford will bear the costs of, and have the
primary responsibility for:
2.6.1 Registering the Contracts and the
separate account with the SEC, including any
Application for Exemptive Relief necessary for
the separate account to buy Fund shares;
2.6.2 Developing all policy forms, application
forms, confirmations and other administrative
forms or documents and filing such of these as
are necessary to comply with the requirements
of all insurance laws and regulations in each
state in which the contracts are offered;
2.6.3 Administration of the Contracts and the
separate account, including all policyholder
service and communication activities;
2.6.4 Preparing and approving all marketing and
sales literature involving the sale of Fund
shares to the Hartford's separate account;
2.6.5 Printing and distributing to Hartford Contract
Owners copies of the current prospectuses,
statements of additional information (as
requested by Contract Owners) and periodic
reports for the separate account and the Fund;
2.6.6 Preparing and filing any reports or other
filings as may be required under state
insurance laws or regulations with respect to
the contracts or the separate account; and
2.6.7 Reimbursing the Fund up to $1500 for the cost
of obtaining a separate audit opinion for the
1988 fiscal year for the Series, distinct from
the other seven series; and further, Hartford
agrees that for every year thereafter, it will
engage in good faith negotiations with Xxxxxxx
and the Fund regarding such reimbursement by
Hartford.
3.0 THE SERIES
3.1 The Fund and Xxxxxxx shall make available shares of
the Series as the underlying investment media for
Hartford Contract Owners.
3.2 Xxxxxxx shall bear the costs of, and subject to
review by Hartford, shall have, or shall cause the
Fund and the Series to assume, the primary
responsibility for:
3.2.1 Registering the Fund with SEC including a
separate prospectus for the Series which does
not reference the other seven series of the
Fund. The costs of printing and distributing
such prospectus to Hartford Contract Owners
shall be borne by Hartford as provided in
Section 2.6.5 above.
3.2.2 Preparing, producing and maintaining the
effectiveness of such registration statements
for the Fund as are required under federal and
state securities laws, and clearing such
registration statements through the SEC and
pursuant to the securities laws and
regulations in each state in which the
contracts are offered;
3.2.3 Preparing and filing an Application for
Exemptive Relief requesting appropriate
exemptive relief from the relevant provisions
of the 1940 Act ("Application") and clearing
such Application through the SEC, thereby
permitting Hartford contracts to use the Fund
as an underlying investment alternative for
its variable annuity contracts.
3.2.4 Operating and maintaining the Fund in
accordance with applicable law, including the
diversification standards of the Internal
Revenue Code of 1986 applicable to variable
annuity contracts;
3.2.5 Preparing and filing any reports or other
filings as may be required with respect to the
Fund under federal or state securities laws;
3.2.6 Providing Hartford with the daily net asset
values of the Fund by 6:00 p.m. E.S.T. on each
day the New York Stock Exchange is open.
3.2.7 Providing Hartford with camera-ready copy
necessary for the printing of the periodic
shareholder reports for the Fund.
3.3 The Fund or Xxxxxxx shall maintain records in
accordance with the Investment Company Act of 1940
or other statutes, rules and regulations applicable
to the Fund's operation in connection with the
performance of its duties. Hartford shall have the
right to access such records, upon reasonable notice
and during business hours, in order to respond to
regulatory requirements, inquiries, complaints or
judicial proceedings. Records of all transactions
with respect to the Contracts shall be retained for
a period of not less than six (6) years from each
transaction.
3.4 The parties or their duly authorized independent
auditors have the right under this Agreement to
perform on-site audits of records pertaining to the
Contracts and the Fund, at such frequencies as each
shall determine, upon reasonable notice and during
normal business hours. At the request of the other,
each will make available to the other's auditors
and/or representatives of the appropriate regulatory
agencies, all requested records, data, and access to
operating procedures.
4.0 INDEMNIFICATION
4.1 Hartford shall indemnify and hold the Fund and
Xxxxxxx and each of their respective directors,
officers, employees and agents harmless from any
liability or expense (including reasonable
attorneys' fees) arising from any failure of
Hartford or the separate account to fulfill its
respective obligations under this Agreement.
4.2 The Fund and Xxxxxxx shall indemnify and hold
Hartford and its directors, officers, employees and
agents harmless from all liabilities or expenses
(including reasonable attorneys' fees) arising from
any failure of the Fund or Xxxxxxx to fulfill its
respective obligations under this Agreement and
Xxxxxxx shall indemnify and hold such parties
harmless from a failure of the Fund's investment
adviser to manage the Fund in compliance with the
diversification requirements of the Internal Revenue
Code of 1986, as amended, or any regulations
thereunder.
5.0 COST AND EXPENSES
5.1 Except for costs and expenses for which
indemnification is required pursuant to section 4.0
or as otherwise agreed by the parties in specific
instances or, as set forth herein, the parties shall
each pay their respective costs and expenses
incurred by them in connection with this Agreement.
6.0 TERM OF AGREEMENT
6.1 The term of this Agreement shall be indefinite
unless terminated pursuant to Section 7 of this
Agreement.
7.0 TERMINATION
7.1 This Agreement will terminate:
7.1.1 At the option of any party upon six months'
prior written notice to the other parties, but
no party may terminate this Agreement prior to
January 1, 1990. If a party notifies the
other parties that it intends to terminate
this Agreement, the affected parties shall
immediately file with the SEC such documents,
if any, as are necessary to permit the
offering of shares of the Series to Hartford
Contract Owners to be discontinued; or
7.1.2 Upon assignment of this Agreement unless the
assignment is made with the written consent of
the other party.
7.1.3 In the event of termination of this Agreement
pursuant to this Section 7.0, the provisions
of Sections 4.0, 5.0, and 8.0 shall survive
such termination.
8.0 GENERAL PROVISIONS
8.1 This Agreement is the complete and exclusive
statement of the agreement between the parties as to
the subject matter hereof which supersedes all
proposals or agreements, oral or written, and all
other communications between the parties related to
the subject matter of this Agreement.
8.2 This Agreement can only be modified by a written
agreement duly signed by the persons authorized to
sign agreements on behalf of the respective party.
8.3 If any provision or provisions of this Agreement
shall be held to be invalid, illegal or
unenforceable, the validity, legality and
enforceability of the remaining provisions shall not
in any way be affected or be impaired thereby.
8.4 This Agreement and the rights, duties and
obligations of the parties hereto shall not be
assignable by either party hereto without the prior
written consent of the other.
8.5 Any controversy relating to this Agreement shall be
determined by arbitration in Washington, D.C. in
accordance with the Commercial Arbitration rules of
the American Arbitration Association using
arbitrators who will follow substantive rules of
law. The dispute shall be determined by an
arbitrator acceptable to both parties who shall be
selected within seven (7) days of filing of notices
of intention to arbitrate. Otherwise, the dispute
shall be determined by a panel of three arbitrators
selected as follows: Within seven (7) days of
filing notice of intention to arbitrate, each party
will appoint one arbitrator. These two arbitrators
will then name a third arbitrator, who shall be an
attorney admitted before the bar of any state of the
United States, to preside over the panel. If either
party fails to appoint an arbitrator, or if the two
arbitrators do not name a third arbitrator within
seven (7) days, either party may request the
American Arbitration Association to appoint the
necessary arbitrator(s) pursuant to Rule 13 of the
Commercial Arbitration Rules. Each party will pay
its own cost and expenses. All testimony shall be
transcribed. The award of the panel shall be
accompanied by findings of fact and a statement of
reasons for the decision. All parties agree to be
bound by the results of this arbitration; judgment
upon the award so rendered may be entered and
enforced in any court of competent jurisdiction. To
the extent reasonably practicable, both parties
agree to continue performing their respective
obligations under this Agreement while the dispute
is being resolved. Nothing contained in this
subsection shall prohibit either party from seeking
equitable relief without resorting to arbitration
under such circumstances as said party reasonably
believes that its interests hereunder and in its
property may be compromised. All matters relating
to such arbitration shall be maintained in
confidence.
8.6 No waiver by either party of any default by the
other in the performance of any promise, term or
condition of this Agreement shall be construed to be
a waiver by such party of any other or subsequent
default in performance of the same or any other
covenant, promise, term or condition of this
Agreement. No prior transactions or dealings
between the parties shall be deemed to establish any
custom or usage waiving or modifying any provision
hereof.
8.7 No liability shall result to any party, nor shall
any party be deemed to be in default hereunder, as
the result of delay in its performance or from its
non-performance hereunder caused by circumstances
beyond its control, including but not limited to:
act of God, act of war, riot, epidemic; fire; flood
or other disaster; or act of government.
Nevertheless, the party shall be required to be
diligent in attempting to remove such cause or
causes.
8.8 Each of the parties will act as an independent
contractor under the terms of this Agreement and
neither is now, or in the future, an agent or a
legal representative of the other for any purpose.
Neither party has any right or authority to
supervise or control the activities of the other
party's employees in connection with the performance
of this Agreement or to assign or create any
application of any kind, express or implied, on
behalf of the other party or to bind it in any way,
to accept any service of process upon it or to
receive any notice of any nature whatsoever on its
behalf.
8.9 This Agreement shall be governed by and interpreted
in accordance with the laws of the State of
Connecticut.
8.10 Nothing herein shall prevent either party from
participating in any proceeding before any
regulatory authority having jurisdiction over any
matter relating to this Agreement, the Contracts,
the separate account or the Fund which may affect
the parties to it. The parties shall each give the
others prompt notice of any such proceeding.
8.11 In all matters relating to the preparation, review,
prior approval and filing of documents, the parties
shall cooperate in good faith. Neither party shall
unreasonably withhold its consent with respect to
the filing of any document with any federal or state
regulatory authority having jurisdiction over the
Contracts, the separate account or the Fund.
8.12 Captions contained in this Agreement are for
reference purposes only and do not constitute part
of this Agreement.
8.13 All notices which are required to be given or
submitted pursuant to this Agreement shall be in
writing and shall be sent be registered or certified
mail, return receipt requested, to the addresses set
forth below:
President Secretary
Hartford Life Acacia Capital Corporation
Insurance Company 0000 Xxxxxxxxxx Xxxxxx
000 Xxxxxxxxx Xxxxxx Xxxxx 0000 X
Xxxxxxxx, XX 00000 Xxxxxxxx, XX 00000
or to such other address as the parties may from
time to time designate. Any notice of one party
refused by the other shall be deemed received as of
the date of said refusal.
8.14 Each party hereto shall promptly notify the other in
writing of any claims, demands or actions having any
bearing on this Agreement.
8.15 Each party agrees to perform its obligations
hereunder in accordance with all applicable laws,
rules and regulations now or hereafter in effect.
8.16 In the event of a material breach by either party of
any of the provisions of this Agreement, the injured
party, in addition to any other remedies available
to it under law, shall be entitled to seek an
injunction restraining the other party from the
performance of acts which constitute a breach of
this Agreement, and such other party agrees not to
raise adequacy of legal remedies as a defense
thereof.
8.17 If this Agreement is terminated for other than
default, it is specifically agreed that neither
party shall be entitled to compensation of any kind
except as specifically set forth herein.
8.18 In any litigation or arbitration between the
parties, the prevailing party shall be entitled to
reasonable attorneys' fees and all costs of
proceedings incurred in enforcing this Agreement.
8.19 This Agreement shall be binding upon and inure to
the benefit of the parties hereto, their successors
and permitted assigns.
8.20 Each party represents that it has full power and
authority to enter into and perform this Agreement,
and the person signing this Agreement on behalf of
it has been properly authorized and empowered to
enter into this Agreement. Each party further
acknowledges that it has read this Agreement,
understands it, and agrees to be bound by it.
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement.
ACACIA CAPITAL CORPORATION HARTFORD LIFE INSURANCE
COMPANY
BY: /s/ Xxxxxxx X. Xxxxxxx, Xx. BY: /s/ Xxxxxxx X. Xxxxxxx
___________________________ _______________________
Xxxxxxx X. Xxxxxxx, Xx. Xxxxxxx X. Xxxxxxx
President Vice President
XXXXXXX ASSET MANAGEMENT
COMPANY, INC.
BY: /s/ Reno X. Xxxxxxx
_____________________
Reno X. Xxxxxxx
Vice President
