Ex-99.B(h)(5)(ii)
PARTICIPATION AGREEMENT
By and Among
XXXXX FARGO VARIABLE TRUST
And
HARTFORD LIFE AND ANNUITY INSURANCE COMPANY
And
XXXXXXXX INC.
THIS AGREEMENT, made and entered into this 13th day of July, 2000, by and
among Hartford Life and Annuity Insurance Company, a Connecticut corporation
(the "Company"), on its own behalf and on behalf of each separate account of the
Company named in Exhibit A to this Agreement, as may be amended from time to
time (each separate account, a "Separate Account"), and Xxxxx Fargo Variable
Trust, an open-end diversified management investment company organized under the
laws of the State of Delaware (the "Trust"), and Xxxxxxxx Inc., an Arkansas
corporation (the "Trust Underwriter").
WHEREAS, the Trust engages in business as an open-end diversified,
management investment company and was established for the purpose of serving as
the investment vehicle for separate accounts established for variable life
insurance contracts and variable annuity contracts to be offered by insurance
companies which have entered into participation agreements substantially similar
to this Agreement ("Participating Insurance Companies"); and
WHEREAS, beneficial interests in the Trust are divided into several
series of shares, each representing the interest in a particular managed
portfolio of securities and other assets (each, a "Fund"); and
WHEREAS, an order from the U.S. Securities and Exchange Commission (the
"SEC" or "Commission"), dated September 28, 1998 (File No. 812-11158), grants
Participating Insurance Companies and variable annuity separate accounts and
variable life insurance separate accounts relief from the provisions of Sections
9(a), 13(a), 15(a) and 15(b) of the Investment Company Act of 1940, as amended
(the "1940 Act") and Rules 6e-2(b)(15) and 6e-3(T)(b)(15) thereunder, to the
extent necessary to permit shares of the Trust to be sold to and held by
variable annuity separate accounts and variable life insurance separate accounts
of both affiliated and unaffiliated Participating Insurance Companies and
qualified pension and retirement plans ("Mixed and Shared Funding Order"), and
WHEREAS, the Trust is registered as an open-end management investment
company under the 1940 Act and its shares are registered under the Securities
Act of 1933, as amended (the "1933 Act"); and
WHEREAS, the Company has registered or will register certain variable
annuity and variable life insurance contracts named in Exhibit A to this
Agreement, as it may be amended from time to time, under the 1933 Act, unless
such contracts are exempt from registration thereunder (the "Contracts"); and
WHEREAS, the Separate Accounts are duly organized, validly existing
segregated asset accounts, established by resolution of the Board of Directors
of the Company under the insurance
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laws of the State of Connecticut, to set aside and invest assets attributable to
the Contracts; and
WHEREAS, the Company has registered or will register the Separate
Accounts as unit investment trusts under the 1940 Act, unless exempt from
registration thereunder; and
WHEREAS, the Trust Underwriter is registered as a broker-dealer with the
SEC under the Securities Exchange Act of 1934, as amended (hereinafter the "1934
Act"), and is a member in good standing of the National Association of
Securities Dealers, Inc. (hereinafter "NASD");
WHEREAS, to the extent permitted by applicable insurance laws and
regulations, the Company intends to purchase shares in the Funds named in
Exhibit B on behalf of the Separate Accounts to fund the Contracts, and the
Trust 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 Trust, and the Trust Underwriter agree as follows:
Sale of Trust Shares
The Trust Underwriter agrees to sell to the Company those shares of the Trust
which the Company orders on behalf of the Separate Accounts, executing
such orders on a daily basis at the net asset value next computed after
receipt and acceptance by the Trust or its designee of the order for the
shares of the Trust. For purposes of this Section 1.1, the Company shall
be the designee of the Trust for receipt of such orders from each
Separate Account and receipt by such designee shall constitute receipt by
the Trust; provided that the Trust receives notice of such order by 9:30
a.m. Eastern Time on the next following Business Day. "Business Day"
shall mean any day on which the New York Stock Exchange is open for
trading and on which the relevant Fund calculates its net asset value
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as set forth in the Trust's prospectus and pursuant to the rules of the
SEC.
The Trust agrees to make its shares available indefinitely for purchase at the
applicable net asset value per share by Participating Insurance Companies
and their separate accounts on those days on which the Trust calculates
its net asset value pursuant to rules of the SEC; provided, however, that
the Board of Trustees of the Trust (hereinafter the "Trustees") may
refuse to sell shares of any Fund to any person, or suspend or terminate
the offering of shares of any Fund, if such action is required by law or
by regulatory authorities having jurisdiction, or is, in the sole
discretion of the Trustees, acting in good faith and in light of their
fiduciary duties under federal and any applicable state laws, necessary
in the best interests of the shareholders of any Fund. The Trust shall
use reasonable efforts to calculate its Funds' net asset values on each
day that the New York Stock Exchange is open for trading.
The Trust and the Trust Underwriter agree that shares of the Trust will be sold
only to Participating Insurance Companies and their separate accounts,
and to qualified pension and retirement plans. No shares of the Trust
will be sold to the general public.
The Trust and the Trust Underwriter will not sell Trust shares to any insurance
company or separate account unless an agreement containing provisions
substantially the same as Articles I, III, V, VII, and Section 2.8 of
Article II of this Agreement are in effect to govern such sales.
The Trust will not accept a purchase order from qualified pension or retirement
plan if such purchase would make the plan shareholder an owner of 10
percent or more of the assets
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of a Fund unless such plan executes an agreement with the Trust governing
participation in such Fund that includes the conditions set forth herein
to the extent applicable. A qualified pension or retirement plan will
execute an application containing an acknowledgment of this condition at
the time of its initial purchase of shares of any Fund.
The Trust agrees to redeem for cash, upon the Company's request, any full or
fractional shares of the Trust held by the Company, executing such
requests on a daily basis at the net asset value next computed after
receipt and acceptance by the Trust or its designee of the request for
redemption. For purposes of this Section 1.6, the Company shall be the
designee of the Trust for receipt of requests for redemption from each
Separate Account and receipt by such designee shall constitute receipt by
the Trust; provided the Trust receives notice of request for redemption
by 9:30 a.m. Eastern Time on the next following Business Day. Payment
shall be in federal funds transmitted by wire to the Company's account as
designated by the Company in writing from time to time.
Each purchase, redemption, and exchange order placed by the Company shall be
placed separately for each Fund and shall not be netted with respect to
any Fund. However, with respect to payment of the purchase price by the
Company and of redemption proceeds by the Trust, the Company and the
Trust shall net purchase and redemption orders with respect to each Fund
and shall transmit one net payment for all Funds in accordance with
Section 1.8.
The Company agrees that purchases and redemptions of Fund shares offered by the
then current prospectus of the Fund shall be made in accordance with the
provisions of such
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prospectus. The Company agrees that all net amounts available under the
variable life insurancecontracts with the form number(s) which are listed
on Exhibit A attached hereto and incorporated herein by this reference,
as such Exhibit A may be amended from time to time hereafter by mutual
written agreement of all the parties hereto (the "Contracts") shall be
invested in the Funds, in such other Funds managed by Xxxxx Fargo Bank as
may be mutually agreed to in writing by the parties hereto, or in the
Company's general account, provided that such amounts may also be
invested in an investment company other than the Trust if (a) such other
investment company, or series thereof, has investment objectives or
policies that are substantially different from the investment objectives
and policies of all the Funds of the Trust which are actually used by the
Company to fund the Contracts; or (b) the Company gives the Fund and the
Trust Underwriter 45 days written notice of its intention to make such
other investment company available as a funding vehicle for the Contacts;
or (c) such other investment company was available as a funding vehicle
for the Contracts prior to the date of this Agreement and the Company so
informs the Fund and Trust Underwriter prior to their signing this
Agreement (a list of such funds appearing on Exhibit C to this
Agreement); or (d) the Fund or Trust Underwriter consents to the use of
such other investment company.
In the event of net purchase, the Company shall pay for shares by 2:00 p.m.
Eastern Time on the next Business Day after an order to purchase the
Shares is deemed to be received in accordance with the provisions of
Section 1.1 hereof. In the event of net redemptions, the
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Trust shall pay the redemption proceeds in accordance with the terms of
the then-current prospectus for the Trust. All such payments shall be in
federal funds transmitted by wire. For purposes of Section 2.4 and
Section 2.10, upon receipt by the Trust of the federal funds so wired,
such funds shall cease to be the responsibility of the Company and shall
become the responsibility of the Fund.
Issuance and transfer of the Trust's shares will be by book entry only. Stock
certificates will not be issued to the Company or any Separate Account.
Purchase and redemption orders for Trust shares will be recorded in an
appropriate title for each Separate Account or the appropriate subaccount
of each Separate Account.
The Trust shall furnish notice to the Company of any income, dividends, or
capital gain distributions payable on the Trust's shares on the same or
next following business day of payment (by wire or telephone, followed by
written confirmation). The Company hereby elects to receive all such
dividends and distributions as are payable on the Fund shares in the form
of additional shares of that Fund. The Company reserves the right to
revoke this election and to receive all such dividends and distributions
in cash. The Trust shall notify the Company of the number of shares so
issued as payment of such dividends and distributions.
The Trust shall make the net asset value per share for each Fund available to
the Company on a daily basis as soon as reasonably practical after the
net asset value per share is calculated and shall use its best efforts to
make such net asset value per share available by 5:30 p.m. Pacific Time,
each business day.
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Representations and Warranties
The Company represents and warrants that the Contracts are or will be registered
under the 1933 Act, unless exempt therefrom, and that the Contracts
will be issued in compliance with all applicable federal and state
laws. The Company further represents and warrants that the Company will
include a provision in its agreements with broker-dealers obligating
such broker-dealers to ensure that their registered representatives
shall not make recommendations to an applicant to purchase a Contract
in the absence of reasonable grounds to believe that the purchase is
suitable for such applicant, as outlined in the suitability
requirements of the 1934 Act and the NASD Conduct Rules. The Company
further represents and warrants that: (i) it is an insurance company
duly organized and in good standing under applicable law; (ii) it has
legally and validly established each Separate Account as a segregated
asset account under applicable state law and has registered each
Separate Account as a unit investment trust in accordance with the
provisions of the 1940 Act, unless exempt therefrom, to serve as
segregated investment accounts for the Contracts; and (iii) it will
maintain such registration, if required, for so long as any Contracts
are outstanding. The Company shall amend any registration statement
under the 1933 Act for the Contracts and any registration statement
under the 1940 Act for the Separate Accounts from time to time as
required in order to effect the continuous offering of the Contracts or
as may otherwise be required by applicable law. The Company shall
register and qualify the Contracts for sale in accordance with the
securities laws of the various states only if, and to the extent,
deemed necessary by the Company.
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Subject to Article VI hereof, the Company represents that the Contracts are
currently and at the time of issuance will be treated as life
insurance, endowment, or annuity contracts under applicable provisions
of the Internal Revenue Code and that it will maintain such treatment
and that it will notify the Trust and the Trust Underwriter
immediately upon having a reasonable basis for believing that the
Contracts have ceased to be so treated or that they might not be so
treated in the future.
The Company represents that any prospectus offering a Contract that is a life
insurance contract where it is reasonably probable that such Contract
would be a "modified endowment contract," as that term is defined in
Section 7702A of the Internal Revenue Code will identify such Contract
as a modified endowment contract (or policy).
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 Trust 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. The Company agrees that
any amounts received under such bond in connection with claims that
derive from arrangements described in this Agreement will be held by
the Company for the benefit of the Trust. The Company agrees to see
that this bond or another bond containing these provisions is always in
effect, and agrees to notify the Trust and the Trust Underwriter in the
event that such coverage no longer applies.
The Trust represents and warrants that Trust shares sold pursuant to this
Agreement shall be
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registered under the 1933 Act and duly authorized for issuance in
accordance with applicable law, and that the Trust is and shall remain
registered under the 1940 Act for as long as the Trust shares are
sold. The Trust shall amend the registration statement for its shares
under the 1933 and the 1940 Acts from time to time as required in
order to effect the continuous offering of its shares. The Trust shall
register and qualify the shares for sale in accordance with the laws
of the various states only if, and to the extent, deemed advisable by
the Trust or the Trust Underwriter.
The Trust represents that it is currently qualified as a Regulated Investment
Company under Subchapter M of the Internal Revenue Code, and that it
will make every effort to maintain such qualification (under
Subchapter M or any successor or similar provision). The Trust will
notify the Company immediately upon having a reasonable basis for
believing that the Trust no longer qualifies.
The Trust makes no representations as to whether any aspect of its operations,
including but not limited to, investment policies, fees and expenses,
complies with the insurance and other applicable laws of the various
states, except that the Trust represents that it is and shall at all
times remain in compliance with the laws of the state of Delaware to
the extent required to perform this Agreement.
The Trust represents and warrants that its Board of Trustees, a majority of whom
are not interested persons of the Trust if and to the extent required
by applicable law, will formulate and approve any plan under Rule 12b-1
("Rule 12b-1 Plan") to finance distribution expenses. The Trust shall
notify the Company immediately upon
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determining to finance distribution expenses pursuant to Rule 12b-1
The Trust represents that it is lawfully organized and validly existing under
the laws of Delaware and that it does and will comply with applicable
provisions of the 1940 Act.
The Trust represents and warrants that it and all of its trustees, officers,
employees and other individuals/entities having access to the funds
and/or securities of the Trust are and continue to be at all times
covered by a blanket fidelity bond or similar coverage for the benefit
of the Trust in an amount not less than the minimal coverage as
required currently by Rule 17g-1 of the 1940 Act or related provisions
as may be promulgated from time to time. The aforesaid bond includes
coverage for larceny and embezzlement and is issued by a reputable
bonding company.
The Trust 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 Trust Underwriter further represents that it will sell and
distribute the Trust's shares in accordance with all applicable federal
and state securities laws, including without limitation the 1933 Act,
the 1934 Act, and the 1940 Act.
The Trust Underwriter represents and warrants that the Trust's investment
manager, Xxxxx Fargo Bank, is exempt from registration as an investment
adviser under all applicable federal and state securities laws and that
the investment manager will perform its obligations to the Trust in
accordance with any applicable state and federal securities laws.
Prospectuses and Proxy Statements; Voting
The Trust Underwriter shall provide the Company, at the Trust's expense, with as
many copies of the Trust's current prospectus as the Company may
reasonably request. If requested by
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the Company in lieu thereof, the Trust shall provide such documentation
including a final copy of a current prospectus set in type at the
Trust's expense and other assistance as is reasonably necessary in
order for the Company at least annually (or more frequently if the
Trust's prospectus is amended more frequently) to have the new prospectus for
the Contracts and the Trust's new prospectus printed together in one
document; in such case at the Company's expense.
The Trust's prospectus shall state that the statement of additional information
for the Trust is available from the Trust Underwriter (or, in the
Trust's discretion, the Prospectus shall state that such statement is
available from the Trust).
The Trust, at its expense, shall provide the Company with copies of its proxy
material, if any, reports to shareholders and other communications to
shareholders in such quantity as the Company shall reasonably require
and the Trust shall bear the costs of printing and distributing them to
existing Contract owners or participants.
The Trust hereby notifies the Company that it is appropriate to include in the
prospectuses pursuant to which the Contracts are offered disclosure
regarding the potential risks of mixed and shared funding.
To the extent required by law the Company shall:
solicit voting instructions from Contract owners or
participants;
vote the Trust shares held in each Separate Account in
accordance with instructions received from Contract
owners or participants; and
vote Trust shares held in each Separate Account for which no
timely instructions have been received, in the same
proportion as Trust shares of such Fund for which
instructions have been received
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from the Company's Contract owners or participants;
for so long as and to the extent that the 1940 Act requires
pass-through voting privileges for variable contract owners. The
Company reserves the right to vote Trust shares held in any segregated
asset account in its own right, to the extent permitted by law.
Participating Insurance Companies shall be responsible for assuring
that each of their separate accounts participating in the Trust
calculates voting privileges in a manner consistent with other
Participating Insurance Companies and as required by the Mixed and
Shared Funding Order. The Trust will notify the Company of any changes
of interpretation or amendment to the Mixed and Shared Funding Order.
The Trust will comply with all provisions of the 1940 Act requiring voting by
shareholders, and in particular, the Trust will either provide for
annual meetings (except to the extent that the Commission may interpret
Section 16 of the 1940 Act not to require such meetings) or comply with
Section 16(c) of the 1940 Act (although the Trust is not one of the
trusts described in Section 16(c) of that Act) as well as with Sections
16(a) and, if and when applicable, 16(b) of the 1940 Act. Further, the
Trust will act in accordance with the Commission's interpretation of
the requirements of Section 16(a) with respect to periodic elections of
Trustees and with whatever rules the Commission may promulgate with
respect thereto.
Sales Material and Information
The Company shall furnish, or shall cause to be furnished, to the Trust or the
Trust Underwriter, each piece of sales literature or other promotional
material in which the Trust or the Trust's investment manager,
sub-advisers or Trust Underwriter is named, at least five
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business days prior to its use. No such material shall be used if the
Trust or the Trust Underwriter reasonably objects in writing to such
use within five business days after receipt of such material.
The Company represents and agrees that sales literature for the Contracts
prepared by the Company or its affiliates will be consistent in all
material respects with every law, rule, and regulation of any
regulatory agency or self-regulatory agency that applies to the
Contracts or to the sale of the Contracts, including, but not limited
to, NASD Conduct Rule 2210 and IM-2210-2 thereunder.
The Company shall not give any information or make any representations or
statements on behalf of the Trust or concerning the Trust in connection
with the sale of the Contracts other than the information or
representations contained in the registration statement or prospectus
for the Trust shares as such registration statement and prospectus may
be amended or supplemented from time to time, or in reports or proxy
statements for the Trust, or in sales literature or other promotional
material approved by the Trust or by the Trust Underwriter, except with
the permission of the Trust or the Trust Underwriter. The Trust and the
Trust Underwriter agree to respond to any request for approval on a
prompt and timely basis. The Company shall adopt and implement
procedures reasonably designed to ensure that information concerning
the Trust, the Trust Underwriter, or any of their affiliates which is
intended for use by brokers or agents selling the Contracts (i.e.,
information that is not intended for distribution to Contract owners or
prospective Contract owners) is so used, and neither the Trust, the
Trust Underwriter, nor any of their
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affiliates shall be liable for any losses, damages, or expenses
relating to the improper use of such broker only materials by agents
of the Company or its affiliates who are unaffiliated with the Trust
or the Trust Underwriter. The parties hereto agree that this Section
4.3 is not intended to designate nor otherwise imply that the Company
is an underwriter or distributor of the Trust's shares.
The Trust or the Trust 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, its
Separate Account, or the Contracts are named, at least five business
days prior to its use. No such material shall be used if the Company
reasonably objects in writing to such use within five business days
after receipt of such material.
The Trust represents and agrees that sales literature for the Trust prepared by
the Trust or its affiliates in connection with the sale of the
Contracts will be consistent in all material respects with every law,
rule, and Regulation of any regulatory agency or self regulatory
agency that applies to the Trust or to the sale of Trust shares,
including, but not limited to, NASD Conduct Rule 2210 and IM-2210-2
thereunder.
The Trust and the Trust 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 a registration statement or prospectus
for the Contracts, 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
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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. The Company agrees to respond to any request
for approval on a prompt and timely basis. The Trust and the Trust
Underwriter shall xxxx information produced by or on behalf of the
Trust "FOR BROKER USE ONLY" which is intended for use by brokers or
agents selling the Contracts (i.e., information that is not intended
for distribution to Contract owners or prospective Contract owners) is
so used, and neither the Company nor any of its affiliates shall be
liable for any losses, damages, or expenses arising on account of the
use by brokers of such information with third parties in the event that
is not so marked.
The Trust will provide to the Company at least one complete copy of all
registration statements, prospectuses, statements of additional
information, reports, proxy statements, sales literature and other
promotional materials, applications for exemptions, requests for
no-action letters, and all amendments to any of the above, that relate
to the Trust or its shares, contemporaneously with the filing of such
document with the SEC or other regulatory authorities.
The Company will provide to the Trust, upon request, at least one complete copy
of all registration statements that relate to the Contracts or each
Separate Account. The Company shall promptly inform the Trust of the
results of any examination by the SEC (or other regulatory authorities)
that relates to the Funds in the Contracts.
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
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use in, a newspaper, magazine, or other periodical, radio, television,
telephone or tape recording, videotape display, signs or billboards,
motion pictures, or other public media), sales literature (i.e., any
written communication distributed or made generally available to
customersor the public, including brochures, circulars, research
reports, market letters, form letters, 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, prospectuses, statements of
additional information, shareholder reports, and proxy materials and
any other material constituting sales literature or advertising under
NASD Conduct Rules, the 1940 Act or the 1933 Act.
Fees and Expenses
The Trust and Trust Underwriter shall pay no fee or other compensation to the
Company under this Agreement, except subject a Rule 12b-1 Plan to
finance distribution expenses, in which case, subject to obtaining any
required exemptive orders or other regulatory approvals, the Trust
Underwriter may make payments to the Company or to the underwriter for
the Contracts if and in amounts agreed to by the Trust Underwriter in
writing. Each party, however, shall, in accordance with the allocation
of expenses specified in this Agreement, reimburse other parties for
expenses initially paid by one party but allocated to another party.
In addition, nothing herein shall prevent the parties hereto from
otherwise agreeing to perform, and arranging for appropriate
compensation for, other services relating to the Trust and/or to the
Separate Accounts.
All expenses incident to performance by the Trust of this Agreement shall be
paid by the Trust to
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the extent permitted by law. All Trust shares will be duly authorized
for issuance and registered in accordance with applicable federal law
and to the extent deemed advisable by the Trust, in accordance with
applicable state law, prior to sale. The Trust shall bear the expenses
for the cost of registration and qualification of the Trust's shares,
preparation and filing of the Trust's prospectus and registration
statement, Trust proxy materials and reports, printing proxy materials
and annual reports for existing Contract owners, setting in type the
Trust's prospectuses, the preparation of all statements and notices
required by any federal or state law, all taxes on the issuance or
transfer of the Trust's shares, and any expenses permitted to be paid
or assumed by the Trust pursuant to any Rule 12b-1 Plan under the 1940
Act duly adopted by the Trust.
The Company shall bear all expenses associated with the registration,
qualification, and filing of the Contracts under applicable federal
securities and state insurance laws; the cost of preparing, printing,
and distributing the Contracts' prospectuses and statements of
additional information; and the cost of printing and distributing
annual individual account statements for Contract owners as required by
state insurance laws.
Diversification
The Trust represents and warrants that, at all times, the Funds will comply with
Section 817 of the Code and all regulations thereof, relating to the
diversification requirements for variable annuity, endowment, or life
insurance contracts and any amendments or other modifications to such
Section or Regulations. In the event a Fund ceases to so qualify, the
Trust will take all reasonable steps (a) to notify Hartford immediately
of such event and (b) to adequately diversify the Fund so as to achieve
compliance within the grace
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period afforded by Treasury Regulation 1.817-5.
Potential Conflicts
If and to the extent that the Trust engages in mixed and shared funding as
contemplated by exemptive relief provided by the SEC and applicable to
the Trust, this Article VII shall apply.
The Board of Trustees of the Trust (the "Trust Board") will monitor the Trust
for the existence of any material irreconcilable conflict among the
interests of the Contract owners of all separate accounts investing in
the Trust. A material irreconcilable conflict may arise for a variety
of reasons, including: (a) an action by any state insurance regulatory
authority; (b) a change in applicable federal or state insurance, tax,
or securities laws or regulations, or a public ruling, private letter
ruling, no-action or interpretative letter, or any similar action by
insurance, tax, or securities regulatory authorities; (c) an
administrative or judicial decision in any relevant proceeding; (d) the
manner in which the investments of any Fund are being managed; (e) a
difference in voting instructions given by variable annuity contract
owners, variable life insurance contract owners, and trustees of
qualified pension or retirement plans; (f) a decision by a
Participating Insurance Company to disregard the voting instructions of
Contract owners; or (g) if applicable, a decision by a qualified
pension or retirement plan to disregard the voting instructions of plan
participants. The Trust Board shall promptly inform the Company if it
determines that a material irreconcilable conflict exists and the
implications thereof. A majority of the Trust Board shall consist of
Trustees who are not "interested persons" of the Trust.
The Company has reviewed a copy of the Mixed and Shared Funding Order, and in
particular,
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has reviewed the conditions to the requested relief set forth therein.
The Company agrees to assist the Trust Board in carrying out its
responsibilities under the Mixed and Shared Funding Order, by providing
the Trust Board with all information reasonably necessary for the Trust
Board to consider any issues raised. This includes, but is not limited
to, an obligation by the Company to inform the Trust Board whenever
Contract owner voting instructions are disregarded. The Trust Board
shall record in its minutes or other appropriate records, all reports
received by it and all action with regard to a conflict.
If it is determined by a majority of the Trust Board, or a majority of its
disinterested Trustees, that a material irreconcilable conflict exists,
the Company shall, at its expense and to the extent reasonably
practicable (as determined by a majority of the disinterested
Trustees), take whatever steps are necessary to remedy or eliminate the
material irreconcilable conflict, up to and including: (a) withdrawing
the assets allocable to some or all of the Separate Accounts from the
relevant Fund and reinvesting such assets in a different investment
medium, including another Fund, or in the case of insurance company
participants submitting the question as to whether such segregation
should be implemented by a vote of all affected Contract owners and, as
appropriate, segregating the assets of any appropriate group (i.e.,
annuity Contract owners or life insurance Contract owners of one or
more Participating Insurance Companies) that votes in favor of such
segregation, or offering to the affected Contract owners the option of
making such a change; and (b) establishing a new registered management
investment company or managed separate account.
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If the Company's disregard of voting instructions could conflict with the
majority of Contract owner voting instructions, and the Company's
judgment represents a minority position or would preclude a majority
vote, the Company may be required, at the Trust's election, to withdraw
the Separate Account's investment in the Trust and terminate this
Agreement with respect to such Separate Account, and no charge or
penalty will be imposed as a result of such withdrawal. Any such
withdrawal and termination shall take place within 30 days after
written notice is given that this provision is being implemented,
subject to applicable law but in any event consistent with the terms of
the Mixed and Shared Funding Order. Until such withdrawal and
termination is implemented, the Trust Underwriter and the Trust shall
continue to accept and implement orders by the Company for the purchase
and redemption of shares of the Trust. Such withdrawal and termination
shall be limited to the extent required by the foregoing material
irreconcilable conflict as determined by a majority of disinterested
Trustees.
If a particular state insurance regulator's decision applicable to the Company
conflicts with the majority of other state insurance regulators, then
the Company will withdraw the Separate Account's investment in the
Trust and terminate this Agreement with respect to such Separate
Account within 30 days after the Trust informs the Company of a
material irreconcilable conflict, subject to applicable law but in any
event consistent with the terms of the Mixed and Shared Funding Order.
Until such withdrawal and termination is implemented, the Trust
Underwriter and the Trust shall continue to accept and implement orders
by the Company for the purchase and redemption of shares of the Trust.
Such
-21-
withdrawal and termination shall be limited to the extent required by the
foregoing material irreconcilable conflict as determined by a majority of
disinterested Trustees.
For purposes of Sections 7.4 through 7.7 of this Agreement, a majority of the
disinterested members of the Trust Board shall determine whether any
proposed action adequately remedies any material irreconcilable conflict,
but in no event will the Trust or the Trust Underwriter be required to
establish a new funding medium for the Contracts. The Company shall not
be required by Section 7.4 to establish a new funding medium for the
Contracts if an offer to do so has been declined by vote of a majority of
Contract owners materially adversely affected by the material
irreconcilable conflict.
The Trust Board's determination of the existence of a material irreconcilable
conflict and its implication will be made known in writing to the
Company.
The Company shall at least annually submit to the Trust Board such reports,
materials, or data as the Trust Board may reasonably request so that the
Trustees may fully carry out the duties imposed upon the Trust Board by
the Mixed and Shared Funding Order, and said reports, materials and data
shall be submitted more frequently if deemed appropriate by the Trust
Board.
If and to the extent that Rule 6e-2 and Rule 6e-3(T) are amended, or Rule
6e-3(T) is adopted, to provide exemptive relief from any provision of the
1940 Act or the rules promulgated thereunder with respect to mixed or
shared funding (as defined in the Mixed and Shared Funding Order) on
terms and conditions materially different from those contained in the
Mixed and Shared Funding Order, the Trust and/or the Company, as
appropriate, shall
-22-
take such steps as may be necessary to comply with Rules 6e-2 and
6e-3(T), as amended, and Rule 6e-3, as adopted, to the extent such rules
are applicable.
Indemnification
Indemnification By The Company
------------------------------
The Company agrees to indemnify and hold harmless the Trust,
the Trust Underwriter, and each of the Trust's or the Trust Underwriter's
directors, officers, employees, or agents and each person, if any, who
controls the Trust or the Trust Underwriter within the meaning of such
terms under the federal securities laws (collectively, the "indemnified
parties" for purposes of this Section 8.1) 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,
acquisition, or redemption of the Trust's shares or the Contracts and:
arise out of or are based upon any untrue statements or
alleged untrue statements of any material fact
contained in the registration statements, prospectuses
or statements of additional 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
in light of the circumstances in which they were made;
provided that this agreement to indemnify shall not
apply as to any indemnified party if such statement or
omission or such alleged statement or omission was made
in reliance upon and in conformity with information
furnished to the Company by or on behalf of the Trust
for use in the registration statement, prospectus or
statement of 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 Trust shares; or
arise out of or as a result of statements or representations
by or on behalf of the Company (other than statements
or representations contained in the Trust registration
statement, Trust prospectus or sales literature or
other promotional material of the Trust not supplied by
the Company or persons under its control) or wrongful
conduct of
-23-
the Company or persons under its control, with respect
to the sale or distribution of the Contracts or Trust
shares; or
arise out of or result from any untrue statement or alleged
untrue statement of a material fact contained in the
Trust's registration statement, prospectus, statement
of additional information, or sales literature or other
promotional material of the Trust 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 in light of the
circumstances in which they were made, if such a
statement or omission was made in reliance upon and in
conformity with information furnished to the Trust by
or on behalf of the Company or persons under its
control; or
arise as a result of any failure by the Company to provide
the services and furnish the materials or to make any
payments under the terms of this Agreement; or
arise out of 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 8.1(b) and 8.4 hereof. This
indemnification shall be in addition to any liability which the
Company may otherwise have.
No party shall be entitled to indemnification by the Company
if 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.
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 Trust shares or the
Contracts or the operation of the Trust.
Indemnification By the Trust Underwriter
----------------------------------------
The Trust Underwriter agrees 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 such terms under the federal securities laws (collectively, the
"indemnified parties" for purposes of this Section 8.2) against any
and all losses, claims, damages, liabilities (including amounts paid
in settlement with the written consent of the Trust Underwriter), or
litigation (including reasonable legal and
-24-
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, acquisition,
or redemption of the Trust's shares or the Contracts and:
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 Trust, or sales
literature or other promotional material of the Trust
(or any amendment or supplement to any of the
foregoing), or arise out of or are based upon the
omission or the alleged omission to state therein a
material fact required to be stated therein or
necessary to make the statements therein not misleading
in light of the circumstances in which they were made;
provided that this agreement to indemnify shall not
apply as to any indemnified party if such statement or
omission or such alleged statement or omission was made
in reliance upon and in conformity with information
furnished to the Trust Underwriter or the Trust by or
on behalf of the Company for use in the registration
statement, prospectus, or statement of additional
information for the Trust or in sales literature of the
Trust (or any amendment or supplement thereto) or
otherwise for use in connection with the sale of the
Contracts or Trust shares; or
arise out of or as a result of statements or representations
(other than statements or representations contained in
the Contracts or in the Contract or Trust registration
statement, the Contract or Trust prospectus, statement
of additional information, or sales literature or other
promotional material for the Contracts or of the Trust
not supplied by the Trust Underwriter or persons under
the control of the Trust Underwriter) or wrongful
conduct of the Trust Underwriter or persons under the
control of the Trust Underwriter, with respect to the
sale or distribution of the Contracts or Trust shares;
or
arise out of or result from 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 covering 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 in light of the circumstances in which
they were made,
-25-
if such statement or omission was made in reliance upon
and in conformity with information furnished to the
Company by or on behalf of the Trust Underwriter or
persons under the control of the Trust Underwriter; or
arise as a result of any failure by the Trust Underwriter to
provide the services and furnish the materials under
the terms of this Agreement (including a failure,
whether unintentional or in good faith or otherwise, to
comply with the diversification requirements and
procedures related thereto specified in Article VI of
this Agreement); or
arise out of or result from any material breach of any
representation and/or warranty made by the Trust
Underwriter in this Agreement or arise out of or result
from any other material breach of this Agreement by the
Trust Underwriter;
except to the extent provided in Sections 8.2(b) and 8.4 hereof. This
indemnification shall be in addition to any liability which the Trust
Underwriter may otherwise have.
No party shall be entitled to indemnification by the Trust
Underwriter if 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.
The indemnified parties will promptly notify the Trust
Underwriter of the commencement of any litigation or proceedings
against them in connection with the issuance or sale of the Contracts
or the operation of each Separate Account.
Indemnification By the Trust
----------------------------
The Trust agrees 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 such
terms under the federal securities laws (collectively, the "indemnified
parties" for purposes of this Section 8.3) against any and all losses,
claims, damages, liabilities (including amounts paid in settlement with
the written consent of the Trust), 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
operations of the Trust and:
arise as a result of any failure by the Trust to provide
the services and furnish the materials under the terms
of this Agreement (including
-26-
a failure, whether unintentional or in good faith or
otherwise, to comply with the diversification
requirements and procedures related thereto specified
in Article VI of this Agreement); or
arise out of or result from any material breach of any
representation and/or warranty made by the Trust in
this Agreement or arise out of or result from any other
material breach of this Agreement by the Trust;
except to the extent provided in Sections 8.3(b) and 8.4 hereof. This
indemnification shall be in addition to any liability which the Trust
may otherwise have.
No party shall be entitled to indemnification by the Trust
if 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.
The indemnified parties will promptly notify the Trust of
the commencement of any litigation or proceedings against it in
connection with the issuance or sale of the Contracts or the operation
of each Separate Account.
Indemnification Procedure
-------------------------
Any person obligated to provide indemnification under this Article VIII
("indemnifying party" for the purpose of this Section 8.4) shall not be
liable under the indemnification provisions of this Article VIII with
respect to any claim made against a party entitled to indemnification
under this Article VIII ("indemnified party" for the purpose of this
Section 8.4) 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 from any liability
which it may have to the indemnified party against
-27-
whom such action is brought under the indemnification provision of this
Article VIII, except to the extent that the failure to notify results
in the failure of actual notice to the indemnifying party and such
indemnifying party is damaged solely as a result of failure to give
such notice. In addition, any failure by the indemnified party to
notify the indemnifying party of any such claim shall not relieve the
indemnifying party from any liability which it may have to the
indemnified party against whom the action is brought otherwise than on
account of this indemnification provision. 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 it, 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. The indemnifying party shall not be liable for any settlement of
any proceeding
-28-
effected without its written consent but if settled with such consent
or if there be a final judgment for the plaintiff, the indemnifying
party agrees to indemnify the indemnified party from and against any
loss or liability by reason of such settlement or judgment. A successor
by law of the parties to this Agreement shall be entitled to the
benefits of the indemnification contained in this Article VIII. The
indemnification provisions contained in this Article VIII shall survive
any termination of this Agreement.
Applicable Law
This Agreement shall be construed and the provisions hereof interpreted under
and in accordance with the laws of the State of Delaware without giving
effect to conflicts of laws provisions thereof.
This Agreement shall be subject to the provisions of the 1933, 1934, and 1940
Acts, and the rules, regulations, and rulings thereunder, including
such exemptions from those statutes, rules and regulations as the SEC
may grant (including, but not limited to, the Mixed and Shared Funding
Order) and the terms hereof shall be interpreted and construed in
accordance therewith.
Termination
This Agreement shall terminate automatically in the event of its assignment,
unless made with written consent of each party; or:
at the option of any party upon six months advance written
notice to the other parties; or
at the option of the Company if shares of the Funds
delineated in Exhibit B are not reasonably available to meet the
requirements of the Contracts as determined by the Company; or
at the option of the Trust upon institution of formal
proceedings against the Company by the NASD, the SEC, the insurance
commission of any state or any other
-29-
regulatory body, which would have a material adverse effect on the
Company's ability to perform its obligations under this Agreement; or
at the option of the Company upon institution of formal
proceedings against the Trust or the Trust Underwriter by the NASD,
the SEC, or any state securities or insurance department or any other
regulatory body, which would have a material adverse effect on the
Trust Underwriter's or the Trust's ability to perform its obligations
under this Agreement; or
at the option of the Trust or the Trust Underwriter by
written notice to the Company, if the Company gives the Trust and the
Trust Underwriter the written notice specified in Section 1.8(b)
hereof and at the time such notice was given there was no notice of
termination outstanding under any other provision of this Agreement;
provided, however, any termination under this Section 10.1(e) shall be
effective sixty (60) days after the notice specified in Section 1.8(b)
was given; or
at the option of the Company or the Trust upon a
determination by a majority of the Trust Board, or a majority of the
disinterested Trustees, that a material irreconcilable conflict exists
among the interests of (i) all contract owners of variable insurance
products of all separate accounts, or (ii) the interests of the
Participating Insurance Companies investing in the Trust as delineated
in Article VII of this Agreement; or
at the option of the Company if the Trust ceases to qualify
as a Regulated Investment Company under Subchapter M of the Internal
Revenue Code, or under any successor or similar provision, or if the
Company reasonably believes that the Trust may fail to so qualify; or
at the option of the Company if the Trust fails to meet the
diversification requirements specified in Article VI hereof or if the
Company reasonably believes that the Trust will fail to meet such
requirements; or
at the option of any party to this Agreement, upon another
party's failure to cure a material breach of any provision of this
Agreement within thirty days; or
at the option of the Company, if the Company determines in
its sole judgment exercised in good faith, that either the Trust or
the Trust Underwriter 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 the Contracts (including the sale
thereof); or
at the option of the Trust or Trust Underwriter, if the
Trust or Trust Underwriter respectively, shall determine in its sole
judgment exercised in good faith,
-30-
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 Trust or Trust Underwriter; or
subject to the Trust's compliance with Article VI hereof, at
the option of the Trust in the event any of the Contracts are not
issued or sold in accordance with applicable requirements of federal
and/or state law. Termination shall be effective immediately upon such
occurrence without notice.
Notice Requirement
------------------
In the event that any termination of this Agreement is based
upon the provisions of Article VII, such prior written notice shall be
given in advance of the effective date of termination as required by
such provisions.
In the event that any termination of this Agreement is based
upon the provisions of Sections 10.l(b) - (d) or 10.1(g) - (i), 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.
In the event that any termination of this Agreement is based
upon the provisions of Sections 10.1(j) or 10. l(k), 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 30 days before the effective date of termination.
It is understood and agreed that the right to terminate this Agreement pursuant
to Section 10.1(a) may be exercised for any reason or for no reason.
Effect of Termination
---------------------
Notwithstanding any termination of this Agreement pursuant
to Section 10.1 of this Agreement and subject to Section 1.3 of this
Agreement, the Company may require the Trust and the Trust Underwriter
to continue to make available additional shares of the Trust 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"). Specifically, without limitation, the owners of the
Existing Contracts shall be permitted to reallocate
-31-
investments in the Trust, redeem investments in the Trust and/or
invest in the Trust upon the making of additional purchase payments
under the Existing Contracts. The parties agree that this Section 10.4
shall not apply to any terminations under Article VII and the effect
of such Article VII terminations shall be governed by Article VII of
this Agreement.
If shares of the Trust continue to be made available after
termination of this Agreement pursuant to this Section 10.4, the
provisions of this Agreement shall remain in effect except for Section
10.l(a).
The Company shall not redeem Fund shares attributable to the Contracts (as
opposed to Fund shares attributable to the Company's assets held in the
Account) except (i) as necessary to implement Contract Owner initiated
or approved transactions, or (ii) as required by state and/or federal
laws or regulations or judicial or other legal precedent of general
application or as permitted by an SEC exemptive order (hereinafter
referred to as a "Legally Required Redemption"). Upon request, the
Company will promptly furnish to the Trust and the Trust Underwriter
the opinion of counsel for the Company (which counsel shall be
reasonably satisfactory to the Trust and the Trust Underwriter) to the
effect that any redemption pursuant to clause (ii) above is a Legally
Required Redemption. Furthermore, except in cases where permitted under
the terms of the Contracts, the Company shall not prevent Contract
Owners from allocating payments to a Fund that was otherwise available
under the Contracts without first giving the Trust or the Trust
Underwriter 90 days notice of its intention to do so.
Notices
Any notice shall be deemed duly given only if sent by hand, 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
-32-
writing to the other party. All notices shall be deemed given three
business days after the date received or rejected by the addressee.
If to the Trust: C. Xxxxx Xxxxxxx, Esq.
Vice President & Senior Counsel
Xxxxx Fargo Bank
Legal Department
000 Xxxxxx Xxxxxx - 0xx Xxxxx
Xxx Xxxxxxxxx, XX 00000-0000
If to the Company: Hartford Life and Annuity Insurance Company
000 Xxxxxxxxx Xx.
Xxxxxxxx, XX 00000
Attention: Senior Vice President - IPD
cc: General Counsel
cc: International Corporate Marketing Group
000 Xxxxxx Xx. Xxxxx 000
Xxxxxxx Xxxx, XX 00000
Attention: President
If to the Trust Underwriter: Xxxxxxxx Inc.
000 Xxxxxx Xxxxxx
Xxxxxx Xxxx, XX 00000
Attention: Xxxxxxx X. Xxxxx,
Vice President
Miscellaneous
All persons dealing with the Trust must look solely to the property of the
Trust for the enforcement of any claims against the Trust as neither
the Trustees, officers, agents or shareholders assume any personal
liability for obligations entered into on behalf of the Trust.
Subject to law and regulatory authority, each party hereto shall treat as
confidential all information reasonably identified as such in writing
by any other party hereto (including without limitation the names and
addresses of the owners of the Contracts) and, except as
-33-
contemplated by this Agreement, shall not disclose, disseminate, or
utilize such confidential information until such time as it may come
into the public domain without the express prior written consent of the
affected party.
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.
This Agreement may be executed simultaneously in two or more counterparts, each
of which taken together shall constitute one and the same instrument.
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.
This Agreement shall not be assigned by any party hereto without the prior
written consent of all the parties.
Each party hereto shall cooperate with each other party and all appropriate
governmental authorities (including without limitation the SEC, the
NASD, and state insurance regulators) and shall permit each other and
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.
Each party represents that 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
-34-
accordance with its terms.
The parties to this Agreement may amend the exhibits to this Agreement from time
to time to reflect changes in or relating to the Contracts, the
Separate Accounts or the Funds of the Trust.
The Trust has filed a Certificate of Trust with the Secretary of State of
The State of Delaware. The Company acknowledges that the obligations of
or arising out of the Trust's Declaration of Trust are not binding upon
any of the Trust's Trustees, officers, employees, agents or
shareholders individually, but are binding solely upon the assets and
property of the Trust in accordance with its proportionate interest
hereunder. The Company further acknowledges that the assets and
liabilities of each Fund are separate and distinct and that the
obligations of or arising out of this instrument are binding solely
upon the assets or property of the Fund on whose behalf the Trust has
executed this instrument. The Company also agrees that the obligations
of each Fund hereunder shall be several and not joint, in accordance
with its proportionate interest hereunder, and the Company agrees not
to proceed against any Fund for the obligations of another Fund.
Except as otherwise expressly provided in this Agreement, neither the Trust nor
the Trust Underwriter nor any affiliate thereof shall use any
trademark, trade name, service xxxx or logo of the Company or any of
its affiliates, or any variation of any such trademark, trade name
service xxxx or logo, without the Company's prior written consent, the
granting of which shall be at the Company's sole option. Except as
otherwise expressly provided in this Agreement, neither the Company nor
any affiliate thereof shall use any trademark,
-35
trade name, service xxxx or logo of the Trust or of the Trust
Underwriter, or any variation of any such trademark, trade name,
service xxxx or logo, without the prior written consent of either the
Trust or of the Trust Underwriter, as appropriate, the granting of
which shall be at the sole option of the Trust or of the Trust
Underwriter, as applicable.
-36-
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
date first above written.
Xxxxx Fargo Variable Trust
By: /s/ C. Xxxxx Xxxxxxx
----------------------------- _______________________________
Name: C. Xxxxx Xxxxxxx
Title: Secretary
Hartford Life and Annuity Insurance Company
By: /s/ Xxxxx X. Xxx Xxxxx
----------------------------- _______________________________
Name: Xxxxx X. Xxx Xxxxx _______________________________
Title: Assistant Vice President _______________________________
Xxxxxxxx Inc.
By: /s/ Xxxxxxx X. Xxxxx, Xx.
----------------------------- _______________________________
Name: Xxxxxxx X. Xxxxx, Xx.
Title: Vice President
EXHIBIT A
Separate Accounts and Contracts
Subject to the Participation Agreement
--------------------------------------
Separate Account: ICMG Registered Variable Life Separate Account One
(established October 9, 1995)
Contracts: GVL-95(P) Group Flexible Premium Variable Life Insurance
Contract
A-1
EXHIBIT B
Funds Subject to the Participation Agreement
--------------------------------------------
Xxxxx Fargo Equity Income Fund
Xxxxx Fargo Asset Allocation Fund
Xxxxx Fargo Growth Fund
Xxxxx Fargo Equity Value Fund
Xxxxx Fargo Money Market Fund
Xxxxx Fargo Small Cap Growth Fund
Xxxxx Fargo Corporate Bond Fund
Xxxxx Fargo Large Company Growth Fund
B-1
EXHIBIT C
Funds Available under the Contracts Prior to this Agreement
-----------------------------------------------------------
AMENDMENT NO. 1
to the
PARTICIPATION AGREEMENT
By and Among
XXXXX FARGO VARIABLE TRUST,
HARTFORD LIFE AND ANNUITY INSURANCE COMPANY,
HARTFORD LIFE INSURANCE COMPANY
and
XXXXXXXX INC.
THIS AMENDMENT is effective as of the 31st day of October 2001, by and
among XXXXX FARGO VARIABLE TRUST (the "Trust"); HARTFORD LIFE AND ANNUITY
INSURANCE COMPANY ("HL&A") and HARTFORD LIFE INSURANCE COMPANY ("HLIC")
(together the "Company"); and XXXXXXXX INC. (the "Trust Underwriter").
WHEREAS, the Trust, HL&A and the Trust Underwriter are parties to that
certain Participation Agreement dated July, 2000 (the "Agreement"); and
WHEREAS, the Trust, HL&A and the Trust Underwriter wish to amend and
restate Exhibit A to the Agreement in order to expand the number of Separate
---------
Accounts which may purchase shares of the Funds under the Agreement and add
certain variable annuity contracts to the Contracts covered by the Agreement;
and
WHEREAS, the Trust, HL&A and the Trust Underwriter wish to amend and
restate Exhibit B to the Agreement in order to expand the number of Funds, the
shares of which shall be available for purchase by the Separate Accounts to fund
the Contracts; and
WHEREAS, the Trust, HL&A and the Trust Underwriter wish to add HLIC as
a party to the Agreement as an issuer of the Contracts; and
WHEREAS, the parties hereto wish to amend certain provisions of the
Agreement related to the (i) purchase and sale of Fund shares and certain
operational matters, (ii) allocation of expenses for prospectuses and statements
of additional information, and (iii) observance of certain privacy provisions of
the Xxxxx-Xxxxx-Xxxxxx Act.
NOW, THEREFORE, in consideration of the mutual promises contained
herein and other valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, HL&A, HLIC, the Trust and the Trust Underwriter hereby
agree as follows:
Hartford Life Insurance Company Added as a Party. Hartford Life Insurance
------------------------------------------------
Company is hereby added as a party to the Agreement and after the date of this
amendment, the term "Company" shall include both Hartford Life Insurance Company
and Hartford Life and Annuity Insurance Company.
1
Operations Matters. Section 1.7 of Article I of the Agreement is deleted in its
------------------
entirety and replaced with the following:
1.7. Each purchase, redemption and exchange order placed by the Company shall
be placed separately for each Fund and shall not be netted with respect
to any Fund. However, with respect to the payment of the purchase price
by the Company and of redemption proceeds by the Trust, the Company and
the Trust shall each net purchase and redemption orders, respectively,
and each transmit one net payment for all Funds in accordance with
Section 1.8.
The following are added as new Section 1. 13 of Article I:
1.13. NSCC Fund/Serv. The Company may purchase, redeem and settle purchases and
redemptions of shares of the Funds in accounts registered in the name of the
Company or the Separate Account via NSCC Fund/Serv and without a guaranteed
endorsement on the certificates representing such shares, or, if no certificates
for such shares have been issued, without a guaranteed endorsement, and the
Trust and Trust Underwriter agree to allow such purchases, redemptions and
settlement, subject to the following:
(a) The wire order purchase or redemption request is placed through
NSCC Fund/Serv.
(b) In the case of certificated shares, the appropriate certificate(s)
are received as settlement and the reverse of such certificate(s) is not
completed or signed in a manner deemed inconsistent by the Trust's
transfer agent ("Transfer Agent") in its sole judgment.
(c) The Company hereby warrants to the Trust Underwriter, the Transfer
Agent, and the Fund(s) that each purchase and redemption has been
authorized by the Contract owner prior to initiation and that the Company
has internal procedures in place to assure that the instructions
described herein are authorized only by appropriate persons.
(d) This arrangement will be governed by and subject to rules and
procedures established by the Trust Underwriter and the Transfer Agent
for effecting such transactions.
(e) The Trust Underwriter may terminate the Company's participation in
the transactions described in this paragraph at any time if the Trust
Underwriter reasonably believes or has reason to believe that the Company
has failed or may fail to comply with any of the conditions set forth
herein with 48 hours written notice followed by telephone confirmation.
Such termination shall not affect the Company's responsibilities under
this Article I with respect to such transactions.
Prospectuses and Statements of Additional Information. Section 3.1 of Article
-----------------------------------------------------
III of the Agreement is deleted in its entirety and replaced with the following:
2
3.1 (a) The Trust Underwriter, at the Company's expense, will print and
provide the Company with as many copies of the Trust's current
prospectus(es) and statement of additional information as the Company may
reasonably request for sales of Contracts and promotion of Trust series to
holders of Contracts who do not have Contract values allocated to such
Series. The Trust Underwriter, at its expense, will print and provide the
Company with as many copies of the Trust's current prospectus(es) and
statement of additional information as the Company may reasonably request
for use with existing Contract owners who have Contract values allocated to
any Series of the Trust. At the Company's request, the Trust will provide
(in lieu of printed prospectuses) camera-ready film, computer diskettes or
typeset electronic document files containing the Trust's prospectus(es) and
statement of additional information for printing by the Company at the
Trust's expense. The Company will deliver, at the Trust's expense, the
Trust's prospectus(es) and statement of additional information to existing
owners of the Contracts. The Company may elect to print the Trust's
prospectus(es) and/or its statement of additional information in
combination with other fund companies' prospectuses and statements of
additional information. In this case, the Trust's share of the total
expense for printing and delivery of the combined prospectus shall be
determined pro-rata based upon the page count of the Trust's prospectus as
compared to the total page count for the combined prospectus containing all
other funds offered under the Contracts, and the proportion of such
combined prospectus(es) and/or statements of additional information
provided to existing owners of Contracts (at the Trust's expense), and to
prospective Contract owners or for other promotional purposes.
(b) The Company, at its expense, will print the prospectus for the
Contracts for use with prospective owners of the Contracts. If the Company
chooses to receive camera-ready film, computer diskettes or typeset electronic
document files of the Trust's prospectus(es) and statement of additional
information (in lieu of receiving printed copies), the Trust shall bear the cost
of providing the camera-ready film, diskettes or type-set electronic document
files.
New Exhibit A. Exhibit A to the Agreement is hereby amended and restated in
------------------------
accordance with Exhibit A attached hereto.
New Exhibit B. Exhibit B to the Agreement is hereby amended and restated in
---------------------------
accordance with Exhibit B attached hereto.
Privacy Rights of Contract Owners. The following is added to the end of Section
--------------------------
12.2 at Article XII of the Agreement:
Each party agrees that it will diligently protect the privacy rights of
owners of the Contracts in accordance with applicable federal and state
laws and regulations, including Title V of the Xxxxx-Xxxxx-Xxxxxx Act of
1999.
Counterparts. This Amendment may be executed in counterparts, each of which
------------
shall be an original and all of which together shall constitute one instrument.
3
Unmodified Terms. In all other respects, the terms of the Agreement remain in
----------------
full force and effect.
IN WITNESS WHEREOF, the parties hereto have executed this Amendment as of
the first above-written date.
XXXXX FARGO VARIABLE TRUST XXXXXXXX INC.
By /s/ C. Xxxxx Xxxxxxx By /s/ Xxxxxxx X. Xxxxx, Xx.
------------------------ --------------------------
Its Secretary Its Senior Vice President
Duly Authorized Duly Authorized
HARTFORD LIFE AND ANNUITY INSURANCE COMPANY
HARTFORD LIFE INSURANCE COMPANY
By /s/ Xxxxx X. Xxxxxx
------------------------
Xxxxx X. Xxxxxx
Its Vice President
Duly Authorized
4
EXHIBIT A
Separate Accounts and Contracts
Subject to the Participation Agreement
--------------------------------------
Separate Account: ICMG Registered Variable Life Separate Account One
(established October 9, 1995)
Contracts: GVL-95(P) Group Flexible Premium Variable Life Insurance Contract
Separate Account: Hartford Life Insurance Company Separate Account Two
(established June 2, 1986)
Contracts: HL-VA-99 Series VII of The Director variable annuity; HL-VA-00 The
Director Outlook variable annuity
Separate Account: Hartford Life and Annuity Insurance Company Separate Account
One (established May 20, 1991)
Contracts: LA-VA-99 Series VII of The Director variable annuity; LA-VA-00 The
Director Outlook variable annuity
5
EXHIBIT B
Funds Subject to the Participation Agreement
--------------------------------------------
Xxxxx Fargo Asset Allocation Fund
Xxxxx Fargo Corporate Bond Fund
Xxxxx Fargo Equity Income Fund
Xxxxx Fargo Equity Value Fund
Xxxxx Fargo Growth Fund
Xxxxx Fargo International Equity Fund
Xxxxx Fargo Large Company Growth Fund
Xxxxx Fargo Money Market Fund
Xxxxx Fargo Small Cap Growth Fund
6
AMENDMENT NO. 2
to the
PARTICIPATION AGREEMENT
By and Among
XXXXX FARGO VARIABLE TRUST,
HARTFORD LIFE AND ANNUITY INSURANCE COMPANY,
HARTFORD LIFE INSURANCE COMPANY
and
XXXXXXXX INC.
Effective January 1, 2002, the Participation Agreement is amended as follows:
1. Paragraph 3.5 is amended as follows:
a. The first sentence is deleted in its entirety and replaced with the
following:
"a. For its registered Accounts, to the extent required by law, the
Company shall:"
b. The following is added as sub-paragraph 3.5(b):
"b. For its unregistered Accounts which are exempt from
registration under the 1940 Act in reliance upon Section
3(c)(1) or Section 3(c)(7) thereof, the Company represents and
agrees that:
(1) The principal underwriter for each such unregistered Account
and its subaccounts is registered as a broker-dealer under the
Securities and Exchange Act of 1934 (the "1934 Act");
(2) the shares of the Series of the Trust are and will continue to
be the only investment securities held by the corresponding
Account subaccounts; and
(3) with regard to each Series, the Company, on behalf of the
corresponding Account subaccount, will:
(i) vote such shares held by it in the same proportion as the
vote of all other holders of such shares; and
(ii) refrain from substituting shares of another security for
such shares unless the SEC has approved such substitution
in the manner provided in Section 26 of the 1940 Act."
2. The following Separate Account is added to Exhibit A:
Separate Account: ICMG Series III B
(established February 8, 1996)
7
Contracts: GVL-93(P) Group Flexible Premium Variable Life Insurance
Contract
Counterparts. This Amendment may be executed in counterparts, each of which
------------
shall be an original and all of which together shall constitute one instrument.
Unmodified Terms. In all other respects, the terms of the Agreement remain in
----------------
full force and effect.
IN WITNESS WHEREOF, the parties hereto have executed this Amendment as of
the first above-written date.
XXXXX FARGO VARIABLE TRUST XXXXXXXX INC.
By: /s/ C. Xxxxx Xxxxxxx By: /s/ Xxxxxxx X. Xxxxx, Xx.
-------------------------- -------------------------
C. Xxxxx Xxxxxxx Xxxxxxx X. Xxxxx, Xx.
Its: Secretary Its: SVP
HARTFORD LIFE AND ANNUITY INSURANCE COMPANY
HARTFORD LIFE INSURANCE COMPANY
By: /s/ Xxxxx X. Xxx Xxxxx
------------------------------
Xxxxx X. Xxx Xxxxx
Its: AVP
8