RETAIL FUND PARTICIPATION AGREEMENT
THIS AGREEMENT, made and entered into this 30th day of September, 2004 by and
among HARTFORD LIFE INSURANCE COMPANY, a stock life insurance company organized
under the laws of Connecticut (hereinafter the "COMPANY"), on its own behalf and
on behalf of each separate account of the Company set forth in SCHEDULE A
hereto, as may be amended from time to time (each such account hereinafter
referred to as a "SEPARATE ACCOUNT"), and THE XXXXXXXX FUNDS, INC., an open-end
management investment company organized under the laws of the State of Wisconsin
(hereinafter the "FUND"), and Grand Distribution Services, LLC, a Wisconsin
limited liability company (hereinafter the "DISTRIBUTOR").
WITNESSETH:
WHEREAS, beneficial interests in the Fund are divided into several series of
shares, each representing the interest in a particular managed portfolio of
securities and other assets (the "Portfolios");
WHEREAS, the Fund is registered as an open-end management investment company
under the Investment Company Act of 1940, as amended (hereinafter the "1940
ACT") and its shares are registered under the Securities Act of 1933, as amended
(hereinafter the "1933 ACT");
WHEREAS, the Company issues certain group variable annuity contracts and group
funding agreements (the "CONTRACTS") in connection with retirement plans
intended to meet the qualification requirements of Sections 401, 403(b) or 457
of the Internal Revenue Code of 1986, as amended (the "Code");
WHEREAS, each Separate Account is a duly organized, validly existing segregated
asset account, established by resolution of the Board of Directors of the
Company under the insurance laws of the State of Connecticut to set aside and
invest assets attributable to the Contracts;
WHEREAS, M&I Investment Management Corp. (the "ADVISER") is the investment
adviser of the Portfolios of the Fund and is duly registered as an investment
adviser under the Investment Advisers Act of 1940, as amended (the "ADVISERS
ACT"), and any applicable state securities laws;
WHEREAS, the Distributor is registered as a broker-dealer with the Securities
and Exchange Commission (hereinafter the "SEC") under the Securities Exchange
Act of 1934, as amended (hereinafter the "1934 ACT"), and is a member of the
National Association of Securities Dealers, Inc. (hereinafter the "NASD");
WHEREAS, to the extent permitted by applicable insurance laws and regulations,
the Company intends to purchase shares in the Portfolios set forth in SCHEDULE A
on behalf of each corresponding Separate Account set forth on such SCHEDULE A to
fund the Contracts and the Distributor is authorized to sell such shares to unit
investment trusts such as the Separate Accounts at net asset value.
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NOW, THEREFORE, in consideration of their mutual promises, the Company, the Fund
and the Distributor agree as follows:
ARTICLE I. Purchase and Redemption of Fund Shares.
1.1 The Fund agrees to sell to the Company those shares of the Portfolios for
which the Company places purchase orders in proper form, as set forth in the
then current prospectus of the applicable Portfolio, on behalf of any Separate
Account, executing such orders on a daily basis at the net asset value next
computed after receipt and acceptance by the Fund or its designee of such order.
For purposes of this Section, the Company shall be the designee of the Fund for
receipt of such orders from each Separate Account. Receipt by Company, as such
designee, shall constitute receipt by the Fund; provided that the Fund or its
designee receives notice of such order via the National Securities Clearing
Corporation (the "NSCC") by 8:30 a.m. Eastern Time on the next following
Business Day. The Fund will receive all orders to purchase Portfolio shares
using the NSCC's Defined Contribution Clearance & Settlement ("DCC&S") platform.
The Fund will also provide the Company with account positions and activity data
using the NSCC's Networking platform. The Company shall pay for Portfolio shares
by the scheduled close of federal funds transmissions on the same Business Day
it places an order to purchase Portfolio shares in accordance with this Section
using the NSCC's Fund/SERV System. Payment shall be in federal funds transmitted
by wire from the Fund's designated Settling Bank to the NSCC. "BUSINESS DAY"
shall mean any day on which the New York Stock Exchange is open for trading and
on which the Fund calculates it net asset value pursuant to the rules of the
SEC. "NETWORKING" shall mean the NSCC's product that allows funds and companies
to exchange account level information electronically. "SETTLING BANK" shall mean
the entity appointed by the Fund to perform such settlement services on behalf
of the Fund and agrees to abide by the NSCC's Rules and Procedures insofar as
they relate to the same day funds settlement.
If the Company is somehow prohibited from submitting purchase and settlement
instructions to the Fund for Portfolio shares via the NSCC's DCC&S platform, the
following shall apply to this Section:
The Fund agrees to sell the Company those shares of the Portfolios for which the
Company places purchase orders in proper form, as set forth in the then current
prospectus of the applicable Portfolio, on behalf of any Separate Account,
executing such orders on a daily basis at the net asset value next computed
after receipt and acceptance by the Fund or its designee of such order. For
purposes of this Section, the Company shall be the designee of the Fund for the
receipt of such orders from the Separate Account and receipt by Company, as such
designee, shall constitute receipt by the Fund; provided that the Fund or its
designee receives notice of such order by 8:30 a.m. Eastern Time on the next
following Business Day. The Company shall pay for Portfolio shares by the
scheduled close of federal funds transmissions on the same Business Day it
places an order to purchase Portfolio shares in accordance with this Section.
Payment shall be in federal funds transmitted by wire to the Fund's designated
custodian. "BUSINESS DAY" shall mean any day on which the New York Stock
Exchange is open for trading and on which the Fund calculates it net asset value
pursuant to the rules of the SEC.
1.2 The Fund agrees to make shares of the Portfolios available indefinitely for
purchase at the applicable net asset value per share by the Company on Business
Days; provided, however, that the Board of Directors, as applicable, of the Fund
(hereinafter the "DIRECTORS") may refuse to sell shares of any Portfolio to any
person, or suspend or terminate the offering of shares of any Portfolio if such
action is required by law or by regulatory authorities having jurisdiction or
is, in the sole discretion of the Directors, acting in good faith and in
compliance with their fiduciary duties under federal and any applicable state
laws, necessary in the best interests of the shareholders of any Portfolio.
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1.3 The Fund agrees to redeem for cash, upon the Company's request, any full or
fractional shares of the Fund held by the Company on behalf of a Separate
Account, executing such requests on a daily basis at the net asset value next
computed after receipt and acceptance by the Fund or its designee of the request
for redemption. For purposes of this Section, the Company shall be the designee
of the Fund for receipt of requests for redemption from each Separate Account
and receipt by such designee shall constitute receipt by the Fund; provided the
Fund receives notice of such request for redemption via the NSCC by 8:30 a.m.
Eastern Time on the next following Business Day. The Fund will receive all
orders to redeem Portfolio shares using the NSCC's DCC&S platform. The Fund will
also provide the Company with account positions and activity data using the
NSCC's Networking platform. Payment for Fund shares redeemed shall be made in
accordance with this Section using the NSCC's Fund/SERV System. Payment shall be
in federal funds transmitted by the NSCC to the Separate Account's Settling Bank
as designated by the Company, on the same Business Day the Fund receives notice
of the redemption order from the Company provided that the Fund receives notice
by 8:30 a.m. Eastern Time on such Business Day.
If the Company is somehow prohibited from submitting redemption and settlement
instructions to the Fund for Portfolio shares via the NSCC's DCC&S platform, the
following shall apply to this Section:
The Fund agrees to redeem for cash, upon the Company's request, any full or
fractional shares of the Fund held by the Company on behalf of a Separate
Account, executing such requests on a daily basis at the net asset value next
computed after receipt and acceptance by the Fund or its designee of the request
for redemption. For purposes of this Section, the Company shall be the designee
of the Fund for receipt of requests for redemption from each Separate Account
and receipt by such designee shall constitute receipt by the Fund; provided the
Fund receives notice of such request for redemption by 8:30 a.m. Eastern Time on
the next following Business Day. Payment shall be in federal funds transmitted
by wire to the Separate Account as designated by the Company, on the same
Business Day the Fund receives notice of the redemption order from the Company
provided that the Fund receives notice by 8:30 a.m. Eastern Time on such
Business Day.
1.4 The Company will place separate orders to purchase or redeem shares of each
Portfolio.
1.5 Issuance and transfer of the Fund's shares will be by book entry only.
Share certificates will not be issued to the Company or any Separate Account.
Purchase and redemption orders for Fund shares will be recorded in an
appropriate title by the Company for each Separate Account or the appropriate
subaccount of each Separate Account.
1.6 The Fund shall furnish prior day and same day notice to the Company of any
income, dividends or capital gain distributions payable on the Fund's shares.
The Company hereby elects to receive all such dividends and distributions as are
payable on a Portfolio's shares in the form of additional shares of that
Portfolio. The Fund, or its designee, shall notify the Company of the number of
shares so issued as payment of such dividends and distributions no later than
one Business Day after issuance. The Company reserves the right to revoke this
election and to receive in cash all such dividends and distributions declared
after receipt of written notice of revocation by the Fund.
1.7 The Fund shall make the net asset value per share of each Portfolio
available to the Company on a daily basis as soon as reasonably practical after
the close of trading each Business Day, but in no event later than 6:45 p.m.
Eastern time on such Business Day.
1.8 (a) If the Fund provides materially incorrect share net asset value
information through no fault of the Company, the Separate Accounts shall be
entitled to an adjustment with respect to the Series shares purchased or
redeemed to reflect the correct net asset value per share in accordance with
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the following sub-section 1.8(b).
(b) The determination of the materiality of any net asset value pricing
error and its correction shall be based on the SEC's recommended
guidelines regarding these errors and the Fund's then current policy.
Any material error in the calculation or reporting of net asset value
per share, dividend or capital gain information shall be reported
promptly to the Company upon discovery. The Fund shall indemnify and
hold harmless the Company against any amount the Company is legally
required to pay Contract Owners, participants or beneficiaries that
have selected a Portfolio as an investment option ("CONTRACT
OWNERS"), and which amount is due to the Fund's or its agents'
material miscalculation and/or incorrect reporting of the daily net
asset value, dividend rate or capital gains distribution rate. The
Company shall submit an invoice to the Fund or its agents for such
losses incurred as a result of the above which shall be payable
within sixty (60) days of receipt. Should a material miscalculation
by the Fund or its agents result in a gain to the Company, the
Company shall immediately reimburse the Fund, the applicable
Portfolios or its agents for any material losses incurred by the
Fund, the applicable Portfolios or its agents as a result of the
incorrect calculation. Should a material miscalculation by the Fund
or its agents result in a gain for Contract Owners, the Company will
consult with the Fund or its designee as to what reasonable efforts
shall be made to recover the money and repay the Fund, the applicable
Portfolio or its agents. The Company shall then make such reasonable
effort, at the expense of the Fund or its agents, to recover the
money and repay the Fund, the applicable Portfolios or its agents;
but the Company shall not be obligated to take legal action against
Contract Owners.
With respect to the material errors or omissions described above, this Section
shall control over other indemnification provisions in this Agreement.
ARTICLE II. Representations and Warranties
2.1 The Company represents and warrants that the Contracts are or will be
registered unless exempt and that it will make every effort to maintain such
registration under the 1933 Act to the extent required by the 1933 Act; that the
Contracts are intended to be issued and sold in compliance in all material
respects with all applicable federal and state laws. The Company further
represents and warrants that it is an insurance company duly organized and in
good standing under applicable law and that it has legally and validly
established each Separate Account prior to any issuance or sale of Contracts,
shares or other interests therein, as a segregated asset account under the
insurance laws of the State of Connecticut and has registered or, prior to any
issuance or sale of the Contracts, will register and will maintain the
registration of each Separate Account as a unit investment trust in accordance
with and to the extent required by the provisions of the 1940 Act, unless exempt
there from, to serve as a segregated investment account for the Contracts unless
exempt, the Company shall amend its registration statement for its Contracts
under the 1933 Act and the 1940 Act from time to time as required in order to
effect the continuous offering of its Contracts. The Contracts are intended to
be registered, qualified, issued, and sold in compliance in all material
respects with all applicable federal and state laws. The Contracts provide for
the allocation of net amounts received by the Company to the Separate Accounts,
for investment in the shares of specified investment companies selected among
those companies available through the Separate Accounts to act as underlying
investment media. The Company acknowledges that the Portfolios are publicly
offered and are not structured to be diversified pursuant to Section 817(h) of
the Code and the regulations thereunder; and that all Separate Account
disclosure materials are complete and accurate in all material respects and do
not contain any material omission or misstatement of a material fact necessary
to make the information not misleading or untrue.
2.2 The Fund represents and warrants that (i) Fund shares sold pursuant to this
Agreement shall be registered under the 1933 Act and duly authorized for
issuance in accordance with applicable law
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and that the Fund is and shall remain registered under the 1940 Act for as long
as the Fund shares are sold; (ii) the Fund shall amend the registration
statement for its shares under the 1933 Act and the 1940 Act from time to time
as required in order to effect the continuous offering of its shares; and (iii)
the Fund shall register and qualify its shares for sales in accordance with the
laws of the various states only if and to the extent deemed advisable by the
Fund.
2.3 The Fund represents that it will notify the Company immediately upon having
a reasonable basis for believing that a Portfolio has ceased to qualify or might
not-qualify under Subchapter M of the Code in the future.
2.4 To the extent that the Fund finances distribution expenses pursuant to Rule
12b-1 under the 1940 Act, the Fund represents that its Board of Directors,
including a majority of its Directors who are not interested persons of the
Fund, have formulated and approved a plan under Rule 12b-1 to finance
distribution expenses.
2.5 The Fund makes no representation as to whether any aspect of its operations
(including, but not limited to, fees and expenses and investment policies)
complies with the insurance laws or insurance regulations of the various states.
2.6 The Distributor represents and warrants that it is a member of the NASD and
is registered as a broker-dealer with the SEC. The Distributor further
represents that it will sell and distribute the Fund shares in accordance in all
material respects with all applicable federal and state securities laws,
including without limitation the 1933 Act, the 1934 Act, and the 0000 Xxx.
2.7 The Fund represents that it is lawfully organized and validly existing
under the laws of the State of Wisconsin and that it does and will comply in all
material respects with applicable provisions of the 0000 Xxx.
2.8 The Fund represents and warrants that all of its Directors, officers,
employees, investment advisers, and other individuals/entities having access to
the funds and/or securities of the Fund are and continue to be at all times
covered by a blanket fidelity bond ("Bond") or similar coverage for the benefit
of the Fund in an amount not less than the minimal coverage as required by Rule
17g-1 under the 1940 Act or related provisions as may be promulgated from time
to time. The aforesaid Bond includes coverage for larceny and embezzlement and
is issued by a reputable bonding company.
2.9 The Company represents and warrants that all of its directors, officers,
employees, investment advisers, and other individuals/entities dealing with the
money and/or securities of the Fund are covered by a Bond or similar coverage in
an amount not less than $5 million. The aforesaid Bond includes coverage for
larceny and embezzlement and is issued by a reputable bonding company.
2.10 The foregoing representations and warranties shall be made, by the party
hereto that makes the representation or warranty, as of the date first written
above and at the time of each purchase and each sale of the Fund's shares
pursuant to this Agreement.
ARTICLE III. Prospectuses; Reports and Proxy Statements; Voting
3.1 The Fund shall provide the Company at no charge with as many printed copies
of the Fund's current prospectus and statement of additional information as the
Company may reasonably request. If requested by the Company, in lieu of
providing printed copies of the Fund's current prospectus and statement of
additional information, the Fund shall provide computer diskettes, e-mail
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transmissions or PDF files containing the Fund's prospectus and statement of
additional information, and such other assistance as is reasonably necessary in
order for the Company once each year (or more frequently if the prospectus
and/or statement of additional information for the Fund are amended during the
year) to have the prospectus for the Contracts (if applicable) and the Fund's
prospectus printed together in one document or separately. The Company may elect
to print the Fund's prospectus and/or its statement of additional information in
combination with other fund companies' prospectuses and statements of additional
information.
3.2 (a) The Fund shall provide the Company at no charge with copies of the
Fund's proxy statements, Fund reports to shareholders, and other Fund
communications to shareholders in such quantity as the Company shall reasonably
require for distributing to Contract Owners. The Company shall then provide such
materials to Contract Holders as required by applicable law.
(b) The Fund shall pay for the cost of typesetting, printing and distributing
all Fund prospectuses, statements of additional information, Fund reports to
shareholders, proxy materials and other Fund communications to Contract Owners
and prospective Contract Owners, provided that the Fund would be responsible for
such costs regardless of whether or not this Agreement were executed. The
Company shall pay for all typesetting, printing and distribution costs, which
the Fund would be otherwise required to pay, for any material provided to the
Company or any Contract Owners and for all marketing and delivery costs incurred
by the Company.
3.3. The Fund's statement of additional information shall be obtainable by
Contract Owners from the Fund, the Distributor, the Company or such other person
as the Fund may designate.
3.4 The Company will distribute all proxy material furnished by the Fund to
Contract Owners, and vote shares of the Fund, as required by applicable law. In
the absence of any requirement under applicable law, the Company may vote shares
of the Fund in its discretion.
ARTICLE IV. Sales Material and Information
4.1 The Company shall furnish, or shall cause to be furnished, to the Fund, the
Distributor or their designee, each piece of sales literature or other
promotional material prepared by the Company or any person contracting with the
Company in which the Fund, the Adviser or the Distributor is described, at least
five calendar days prior to its use. No such literature or material shall be
used without prior approval from the Fund, the Distributor or their designee,
however the failure to object in writing within ten days will be deemed
approval. Such approval process shall not apply to subsequent usage of materials
that are similar in all material respects to prior approved materials.
4.2 Neither the Company nor any person contracting with the Company shall give
any information or make any representations or statements on behalf of the Fund
or concerning the Fund in connection with the sale of the Contracts other than
the information or representations contained in the registration statement or
prospectus for the Fund shares, as such registration statement and prospectus
may be amended or supplemented from time to time, or in reports to shareholders
or proxy statements for the Fund, or in sales literature or other promotional
material approved by the Fund or its designee, except with the permission of the
Fund or its designee.
4.3 The Fund shall furnish, or shall cause to be furnished, to the Company or
its designee, each piece of sales literature or other promotional material in
which the Company or any Separate Account is named, at least five calendar days
prior to its use. No such literature or material shall be used without prior
approval from the Company or its designee, however, the failure to object in
writing within
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two Business Days will be deemed approval. Such approval process shall not apply
to subsequent usage of materials that are similar in all material respects to
prior approved materials.
4.4 Neither the Fund nor the Distributor shall give any information or make any
representations on behalf of the Company or concerning the Company, each
Separate Account, or the Contracts other than the information or representations
contained in the Contracts, a disclosure document, registration statement or
prospectus for the Contracts (if applicable), as such registration statement and
prospectus may be amended or supplemented from time to time, or in published
reports for each Separate Account which are in the public domain or approved by
the Company for distribution to Contract Owners or participants, or in sales
literature or other promotional material approved by the Company, except with
the permission of the Company.
4.5 The Fund will provide to the Company at least one complete copy of all
prospectuses, statements of additional information, reports to shareholders,
proxy statements, and all amendments to any of the above, that relate to the
Fund or its shares, promptly after the filing of such document with the SEC or
other regulatory authorities.
4.6. The Company will provide to the Fund at least one complete copy of all
prospectuses, statements of additional information, reports, solicitations for
voting instructions, and all amendments to any of the above, if applicable to
the investment in a Separate Account or Contract, promptly after the filing of
such document with the SEC or other regulatory authorities.
4.7 For purposes of this Article IV, the phrase "sales literature or other
promotional material" includes, but is not limited to, advertisements (such as
material published, or designed for use in, a newspaper, magazine, or other
periodical, radio, television, telephone or tape recording, videotape display,
signs or billboards, motion pictures, Internet, or other public media), and
sales literature (i.e., any written communication distributed or made generally
available to customers or the public, including brochures, circulars, research
reports, market letters, form letters, electronic mail, seminar texts, reprints
or excerpts of any other advertisement, sales literature, or published article).
4.8 The Company agrees and acknowledges that the Company has no right, title or
interest in the names and marks of the Fund and that all use of any designation
comprised in whole or part or such names or marks under this Agreement shall
inure to the benefit of the Fund and/or the Distributor. Except as provided in
Section 4.1, the Company shall not use any such names or marks on its own behalf
or on behalf of a Separate Account in connection with marketing the Contracts
without prior written consent of the Fund or the Distributor. Upon termination
of this Agreement for any reason, the Company shall cease all use of any such
names or marks.
4.9 The Fund and Distributor agree and acknowledge that each has no right,
title or interest in the names and marks of the Company, and that all use of any
designation comprised in whole or part or such names or marks under this
Agreement shall inure to the benefit of the Company. Except as provided in
Section 4.3, the Fund and Distributor shall not use any such names or marks on
its own behalf or on behalf of a Fund in connection with marketing the Fund
without prior written consent of the Company. Upon termination of this Agreement
for any reason, the Fund and Distributor shall cease all use of any such names
or marks.
ARTICLE V. Fees and Expenses
5.1 The Fund shall pay the fees and expenses provided for in the attached
SCHEDULE B.
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ARTICLE VI. Indemnification
6.1 Indemnification by the Company
(a) The Company agrees to indemnify and hold harmless the Fund, the
Distributor and each of their respective trustees, directors,
members, officers, employees or agents and each person, if any, who
controls the Fund or the Distributor within the meaning of Section
15 of the 1933 Act (collectively, the "FUND INDEMNIFIED PARTIES" for
purposes of this Section 6.1) against any and all losses, claims,
damages, liabilities (including amounts paid in settlement with the
written consent of the Company) or litigation (including reasonable
legal and other expenses), to which the Fund Indemnified Parties may
become subject under any statute, regulation, at common law or
otherwise, insofar as such losses, claims, damages, liabilities or
expenses (or actions in respect thereof) or settlements are related
to the sale or acquisition of the Fund's shares or the Contracts
and:
(i) arise out of or are based upon any untrue statement or alleged
untrue statement of any material fact contained in the disclosure
statement, registration statement, prospectus or statement of
information for the Contracts or contained in the Contracts or
sales literature or other promotional material for the Contracts
(or any amendment or supplement to any of the foregoing), or arise
out of or are based upon the omission or the alleged omission to
state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading; provided
that this agreement to indemnify shall not apply as to an
Indemnified Party if such statement or omission or such alleged
statement or omission was made in reliance upon and in conformity
with information furnished by such Indemnified Party or the Fund
to the Company on behalf of the Fund for use in the registration
statement, prospectus or statement of additional information for
the Contracts or in the Contracts or sales literature (or any
amendment or supplement) or otherwise for use in connection with
the sale of the Contracts or Fund shares; or
(ii) arise out of or as a result of (a) statements or representations
by or on behalf of the Company (other than statements or
representations contained in the Fund registration statement, Fund
prospectus or sales literature or other promotional material of
the Fund not supplied by the Company, or persons under its control
and other than statements or representations authorized by the
Fund, the Distributor or the Adviser); or (b) the willful
misfeasance, bad faith, gross negligence or reckless disregard of
duty of the Company or persons under its control, with respect to
the sale or distribution of the Contracts or Fund shares; or
(iii) arise out of or as a result of any untrue statement or alleged
untrue statement of a material fact contained in the Fund
registration statement, Fund prospectus, statement of additional
information or sales literature or other promotional material of
the Fund (or any amendment thereof or supplement thereto) or the
omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements
therein not misleading, if such a statement or omission was made
in reliance upon and in conformity with information furnished to
the Fund or the Distributor by the Company or persons under its
control; or
(iv) arise from the provision of services by the Company hereunder, or
the alleged failure of the company to provide services hereunder;
or
(v) arise out of or result from any material breach of any
representation and/or warranty made by the Company in this
Agreement or arise out of or result from any other material breach
by the Company of this Agreement: except to the extent provided in
Sections 6.1(b) and 6.4 hereof.
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(b) No party shall be entitled to indemnification to the extent that such
loss, claim, damage, liability or litigation is due to the willful
misfeasance, bad faith, gross negligence or reckless disregard of
duty by the party seeking indemnification.
(c) In accordance with Section 6.4 hereof, the Fund Indemnified Parties
will promptly notify the Company of the commencement of any
litigation or proceedings against them in connection with the
issuance or sale of the Fund shares or the Contracts or the
operation of the Fund.
6.2 Indemnification By the Distributor
(a) The Distributor agrees, with respect to each Portfolio that it
distributes, to indemnify and hold harmless the Company and each of
its directors, officers, employees or agents and each person, if
any, who controls the Company within the meaning of Section 15 of
the 1933 Act (collectively, the "COMPANY INDEMNIFIED PARTIES" for
purposes of this Section 6.2) against any and all losses, claims,
damages, liabilities (including amounts paid in settlement with the
written consent of the Distributor) or litigation (including
reasonable legal and other expenses) to which the Company
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:
(i) arise out of or are based upon any untrue statement or alleged
untrue statement of any material fact as determined by a court of
competent jurisdiction contained in the registration statement,
prospectus or statement of additional information for the Fund or
sales literature or other promotional material of the Fund (or any
amendment or supplement to any of the foregoing), or arise out of
or are based upon the omission or the alleged omission to state
therein a material fact required to be stated therein or necessary
to make the statements therein not misleading; provided that this
agreement to indemnify shall not apply as to any Indemnified Party
if such statement or omission or such alleged statement or
omission was made in reliance upon and in conformity with
information furnished by such Company Indemnified Party or the
Company to the Distributor on behalf of the Company for use in the
registration statement, prospectus or statement of additional
information for the Fund or in sales literature of the Fund (or
any amendment or supplement thereto) or otherwise for use in
connection with the sale of the Contracts or the Portfolio shares;
or
(ii) arise out of or as a result of (a) statements or representations
by or on behalf of Fund or Distributor contained in the
registration statement, prospectus or sales literature for the
Contracts not supplied by the Fund or the Distributor; or (b) the
willful misfeasance, bad faith, gross negligence or reckless
disregard of duty of the Distributor or persons under the control
of the Distributor;
(iii) arise as a result of any material failure by the Distributor to
provide the services and furnish the materials under the terms of
this Agreement; or
(iv) arise out of or result from any material breach of any
representation and/or warranty made by the Distributor in this
Agreement or arise out of or result from any other material breach
of this Agreement by the Distributor; except to the extent
provided in Sections 6.2(b) and 6.4 hereof.
(b) No party shall be entitled to indemnification to the extent that such
loss, claim, damage, liability or litigation is due to the willful
misfeasance, bad faith, gross negligence or reckless disregard of
duty by the party seeking indemnification.
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(c) In accordance with Section 6.4 hereof, the Company Indemnified
Parties will promptly notify the Distributor of the commencement of
any litigation or proceedings against them in connection with the
issuance or sale of the Fund shares or the Contracts or the
operation of the Separate Accounts.
6.3 Indemnification by the Fund
(a) The Fund agrees to indemnify and hold harmless the Company
Indemnified Parties against any and all losses, claims, damages,
liabilities (including amounts paid in settlement with the written
consent of the Fund) or litigation (including reasonable legal and
other expenses) to which the Company Indemnified Parties may become
subject under any statute, regulation, at common law or otherwise,
insofar as such losses, claims, damages, liabilities or expenses (or
actions in respect thereof) or settlements are related to the sale
or acquisition of the shares of the Portfolios or the Contracts and:
(i) arise out of or are based upon any untrue statement or alleged
untrue statement of any material fact contained in the
registration statement, prospectus or statement of additional
information for the Fund or sales literature or other promotional
material of the Fund (or any amendment or supplement to any of the
foregoing), or arise out of or are based upon the omission or the
alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not
misleading; provided that this agreement to indemnify shall not
apply as to any Company Indemnified Party if such statement or
omission or such alleged statement or omission was made in
reliance upon and in conformity with information furnished by such
Company Indemnified Party or the Company to the Fund or the
Distributor on behalf of the Company for use in the registration
statement, prospectus or statement of additional information for
the Fund or in sales literature of the Fund (or any amendment or
supplement thereto) or otherwise for use in connection with the
sale of the Contracts or the Portfolio shares; or
(ii) the willful misfeasance, bad faith, gross negligence or reckless
disregard of duty of the Distributor or persons under the control
of the Distributor, respectively, with respect to the sale or
distribution of Portfolio shares; or
(iii) arise as a result of any material failure by the Fund to provide
the services and furnish the materials under the terms of this
Agreement; or
(iv) arise out of or result from any material breach of any
representation and/or warranty made by the Fund in this Agreement
or arise out of or result from any other material breach of this
Agreement by the Fund; except to the extent provided in Sections
6.3(b) and 6.4 hereof.
(b) No party shall be entitled to indemnification to the extent that such
loss, claim, damage, liability or litigation is due to the willful
misfeasance, bad faith, gross negligence or reckless disregard of
duty by the party seeking indemnification.
(c) In accordance with Section 6.4 hereof, the Company Indemnified
Parties will promptly notify the Fund of the commencement of any
litigation or proceedings against them in connection with the
issuance or sale of the Fund shares or the Contracts or the
operation of the Separate Accounts.
6.4. Indemnification Procedure
(a) Any person obligated to provide indemnification under this Article
VI ("INDEMNIFYING PARTY" for the purpose of this Section 6.4) shall
not be liable under the indemnification
10
provisions of this Article VI with respect to any claim made against a
party entitled to indemnification under this Article VI ("INDEMNIFIED
PARTY" for the purpose of this Section 6.4) 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 whom such action is brought otherwise than
on account of the indemnification provision of this Article VI. In
case any such action is brought against the Indemnified Party, the
Indemnifying Party will be entitled to participate, at its own
expense, in the defense thereof. The Indemnifying Party also shall be
entitled to assume the defense thereof, with counsel satisfactory to
the party named in the action. After notice from the Indemnifying
Party to the Indemnified Party of the Indemnifying Party's election to
assume the defense thereof, the Indemnified Party shall bear the fees
and expenses of any additional counsel retained by the Indemnified
Party, and the Indemnifying Party will not be liable to such party
under this Agreement for any legal or other expenses subsequently
incurred by such party independently in connection with the defense
thereof other than reasonable costs of investigation, unless:
(i) the Indemnifying Party and the Indemnified Party shall have
mutually agreed to the retention of such counsel or
(ii) the named parties to any such proceeding (including any impleaded
parties) include both the Indemnifying Party and the Indemnified
Party and representation of both parties by the same counsel would
be inappropriate due to actual or potential differing interests
between them.
A successor by law of the parties to this Agreement shall be entitled to the
benefits of the indemnification contained in this Article VI. The
indemnification provisions contained in this Article VI shall survive any
termination of this Agreement.
ARTICLE VII. Applicable Law
7.1 This Agreement shall be construed and the provisions hereof interpreted
under and in accordance with the laws of the State of New York.
7.2 This Agreement shall be subject to the provisions of the 1933, 1934 and
1940 Acts, and the rules and regulations and rulings thereunder, including such
exemptions from those statutes, rules and regulations as the SEC may grant and
the terms hereof shall be interpreted and construed in accordance therewith.
ARTICLE VIII. Termination
8.1 This Agreement shall terminate:
(a) automatically upon termination of the Distributor's contract between
the Funds and the Distributor; or
(b) at the option of any party upon one hundred and twenty days' advance
written notice to the other parties unless otherwise agreed in a
separate written agreement among the parties; or
11
(c) at the option of the Fund, the Distributor or the Adviser upon
institution of formal proceedings against the Company by the NASD,
NASD Regulation, Inc. ("NASDR"), the SEC, the insurance commission
of any state or any other regulatory body regarding the Company's
duties under this Agreement or related to the sale of the Contracts,
the administration of the Contracts, the operation of the Separate
Accounts, or the purchase of the Fund shares, which in the judgment
of the Fund, the Distributor or the Adviser are reasonably likely to
have a material adverse effect on the Company's ability to perform
its obligations under this Agreement; or
(d) at the option of the Company upon institution of formal proceedings
against the Fund, the Distributor or the Adviser by the NASD, NASDR,
the SEC, or any state securities or insurance department or any other
regulatory body, related to the purchase or sale of the Fund shares
or the operation of the Fund which in the judgment of the Company are
reasonably likely to have a material adverse effect on the
Distributor's, the Fund's or the Adviser's ability to perform its
obligations under this Agreement; or
(e) at the option of the Company if a Portfolio delineated in SCHEDULE A
ceases to qualify as a Regulated Investment Company under Subchapter
M of the Code (a "RIC"), or under any successor or similar
provision, and the disqualification is not cured within the period
permitted for such cure, or if the Company reasonably believes that
any such Portfolio may fail to so qualify and be unable to cure such
disqualification within the period permitted for such cure; or
(f) at the option of any party to this Agreement, upon another party's
material breach of any provision of this Agreement; provided that
the party not in breach shall give the party in breach notice of the
breach and the party in breach does not cure such breach within 30
days of receipt of such notice of breach
(g) at the option of the Company, if the Company determines in its sole
judgment exercised in good faith, that either the Fund, the
Distributor or the Adviser has suffered a material adverse change in
its business, operations or financial condition since the date of
this Agreement or is the subject of material adverse publicity which
is likely to have a material adverse impact upon the business and
operations of the Company; or
(h) at the option of the Fund, the Distributor or the Adviser if the
Fund, the Distributor or the Adviser, respectively, shall determine
in its sole judgment exercised in good faith, that the Company has
suffered a material adverse change in its business, operations or
financial condition since the date of this Agreement or is the
subject of material adverse publicity which is likely to have a
material adverse impact upon the business and operations of the Fund
or Distributor.
8.2 Notice Requirement
(a) In the event that any termination of this Agreement is based upon
the provisions of Sections 8.1(c), 8.1(d) or 8.1(e), prompt written
notice of the election to terminate this Agreement for cause shall
be furnished by the party terminating the Agreement to the
non-terminating parties, with said termination to be effective upon
receipt of such notice by the non-terminating parties; provided that
for any termination of this Agreement based on the provisions of
Section 8.1(d), said termination shall be effective upon the
Portfolio's failure to qualify as a RIC and to cure such
disqualification within the period permitted for such cure.
(b) In the event that any termination of this Agreement is based upon the
provisions of Sections 8.1(g) or 8.1(h), 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
12
notice shall be given by the party terminating this Agreement to the
non-terminating parties at least 60 days before the effective date of
termination.
8.3 It is understood and agreed that the right to terminate this Agreement
pursuant to Section 8.1(b) may be exercised for any reason or for no reason.
8.4 Effect of Termination
(a) Notwithstanding any termination of this Agreement pursuant to
Section 8.1(b) through 8.1(f) of this Agreement and subject to
Section 1.2 of this Agreement, the Company may require the Fund and
the Distributor to continue to make available additional shares of
the Fund for so long after the termination of this Agreement as the
Company desires pursuant to the terms and conditions of this
Agreement as provided in paragraph (b) below, for all Contracts in
effect on the effective date of termination of this Agreement
(hereinafter referred to as "Existing Contracts"), unless such
further sale of Fund shares is proscribed by law, regulation or an
applicable regulatory body. Specifically, without limitation, the
owners of the Existing Contracts shall be permitted to direct
reallocation of investments in the Fund, redeem investments in the
Fund and/or invest in the Fund upon the making of additional
purchase payments under the Existing Contracts unless such further
sale of Fund shares is proscribed by law, regulation or an
applicable regulatory body.
(b) Fund shall remain obligated to pay Company the fee in effect as of
the date of termination for so long as shares are held by the
Accounts and Company continues to provide services to the Accounts.
Such fee shall apply to shares purchased both prior to and subsequent
to the date of termination. This Agreement, or any provision thereof,
shall survive the termination to the extent necessary for each party
to perform its obligations with respect to shares for which a fee
continues to be due subsequent to such termination.
ARTICLE IX. Notices
9.1 (a) Any notice shall be deemed duly given only if sent by hand or
overnight express delivery, evidenced by written receipt or by certified mail,
return receipt requested, to the other party at the address of such party set
forth below or at such other address as such party may from time to time specify
in writing to the other party. All notices shall be deemed given the date
received or rejected by the addressee.
If to the Company:
Hartford Life Insurance Company
000 Xxxxxxxxx Xxxxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
Attention: Vice President, Investment Products Division
with a copy to:
General Counsel
Hartford Life Insurance Company
000 Xxxxxxxxx Xxxxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
13
If to the Fund:
Xxxxxxxx Funds, Inc.
0000 X. Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxxx 00000
Attention: President
If to the Distributor:
Grand Distribution Services, LLC
000 Xxxx Xxxxxxxx Xxxxxx, Xxxxx X
Xxxxxxxxx, Xxxxxxxxx 00000
Attention: General Counsel
ARTICLE X Miscellaneous
10.1 Subject to law and regulatory authority, each party hereto shall treat as
confidential the names and addresses of the owners of the Contracts and all
other information reasonably identified as such in writing by any other party
hereto, and, except as contemplated by this Agreement, shall not disclose,
disseminate or utilize such confidential information without the express prior
written consent of the affected party until such time as it may come into the
public domain. In addition, the parties hereby represent that they will use and
disclose Personal Information (as defined below) only to carry out the purposes
for which it was disclosed to them and will not use or disclose Personal
Information if prohibited by applicable law, including, without limitation,
statutes and regulations enacted pursuant to the Xxxxx-Xxxxx-Xxxxxx Act (Public
Law 106-102). "PERSONAL INFORMATION" means financial and medical information
that identifies an individual personally and is not available to the public,
including, but not limited to, credit history, income, financial benefits,
policy or claim information and medical records. If either party outsources
services to a third party, such third party will agree in writing to maintain
the security and confidentiality of any information shared with them.
10.2 The captions in this Agreement are included for convenience of reference
only and in no way define or delineate any of the provisions hereof or otherwise
affect their construction or effect.
10.3 This Agreement may be executed simultaneously in two or more counterparts,
each of which taken together shall constitute one and the same instrument.
10.4 If any provision of this Agreement shall be held or made invalid by a
court decision, statute, rule or otherwise, the remainder of the Agreement shall
not be affected thereby.
10.5 This Agreement shall not be assigned by any party hereto without the prior
written consent of all the parties.
10.6 Each party hereto shall cooperate with each other party and all
appropriate governmental authorities (including without limitation the SEC, the
NASD, NASDR and state insurance regulators) and shall permit each other and such
authorities (and the parties hereto) reasonable access to its books and records
in connection with any investigation or inquiry relating to this Agreement or
the transactions contemplated hereby.
14
10.7 Each party represents that (a) the execution and delivery of this
Agreement and the consummation of the transactions contemplated herein have been
duly authorized by all necessary corporate or trust action, as applicable, by
such party and when so executed and delivered this Agreement will be the valid
and binding obligation of such party enforceable in accordance with its terms
subject to bankruptcy, insolvency, reorganization, moratorium and similar laws
of general applicability relating to or affecting creditors' rights and to
general equity principles; (b) the party has obtained, and during the term of
this Agreement will maintain, all authorizations, licenses, qualifications or
registrations required to be maintained in connection with the performance of
its duties under this Agreement; and (c) the party will comply in all material
respects with all applicable laws, rules and regulations.
10.8 The parties to this Agreement may amend by written agreement the Schedules
to this Agreement from time to time to reflect changes in or relating to the
Contracts, the Separate Accounts or the Portfolios of the Fund.
IN WITNESS WHEREOF, each of the parties hereto has caused this Agreement to be
executed in its name and behalf by its duly authorized representative as of the
date first written above.
HARTFORD INSURANCE COMPANY THE XXXXXXXX FUNDS, INC.
By: /s/ J Davey By: /s/ Xxxx X. Xxxxxx
----------------------------- -----------------------------
Name: J Davey Name:
Title: Vice President Title: President
GRAND DISTRIBUTION SERVICES, LLC
By: /s/ Xxxxxxxxx Xxx Xxxxxxx
-----------------------------
Name: Xxxxxxxxx Xxx Xxxxxxx
Title: Secretary
15
SCHEDULE A
SEPARATE ACCOUNTS
Each Separate Account established by resolution of the Board of Directors of the
Company under the insurance laws of the State of Connecticut to set aside and
invest assets attributable to the Contracts. Currently, those Separate Accounts
are as follows:
401 MARKET
K, K1, K2, K3, K4
TK, TK1, TK2, TK3, TK4
VK, VK1, VK2, VK3, VK4
UK, XX0, XX0, XX0, XX0
403 AND 457 MARKETS
DCI, DCII, DCIII, DCIV, DCV, DCVI, 457, 403, UFC, Eleven
PORTFOLIOS
International Stock
Mid-Cap Value
*Class Y Shares
16
SCHEDULE B
In consideration of the services provided by the Company, the Fund agrees to pay
the Company an amount equal to the following basis points per annum on the
average aggregate amount invested by the Company's Separate Account(s) in each
Portfolio under the Fund Participation Agreement, such amounts to be paid within
30 days of the end of each calendar quarter.
SERVICES TO BE PERFORMED INCLUDE:
(a) assist in processing customer purchase and redemption requests;
(b) answer customer inquiries regarding account status and history;
(c) assist customers in designating and changing account designations
and addresses;
(d) provide periodic statements showing a customer's account balances;
(e) furnish statements and confirmations of all purchases and redemption
requests as may be required by applicable law;
(f) process customer purchase and redemption requests for Shares and
placing purchase and redemption instructions with the Funds'
transfer agent; and
(g) provide sub-accounting services and maintain accurate sub-accounting
records regarding Shares beneficially owned by Customers.
SERVICE
PORTFOLIO FEES
-----------------------------------------------
International Stock 0.25%
Mid-Cap Value 0.25%
17
AMENDMENT TO
RETAIL FUND PARTICIPATION AGREEMENT
Between
XXXXXXXX FUNDS, INC.
And
HARTFORD LIFE INSURANCE COMPANY
THIS AMENDMENT is made and entered into as of the 30th day of June, 2011, by and
among Hartford Life Insurance Company ("Hartford") and Xxxxxxxx Funds, Inc.
("Fund"), a Wisconsin corporation, and M&I Distributors, LLC, a Wisconsin
limited liability company ("Underwriter").
WHEREAS, the parties desire to amend that certain
Retail Fund Participation
Agreement dated September 30, 2004 (the "Agreement") to allow for the addition
of a certain Fund or Funds and certain other matters.
NOW THEREFORE, the parties agree as follows:
1. Schedules A and B shall be replaced by the attached Schedules A and B.
2. This Amendment may be executed in counterparts, each of which shall be an
original and each of which shall constitute one instrument.
3. From and after the date of this Amendment, the Underwriter shall be and
become the "Distributor" for all purposes in the Agreement in lieu of and
substitution for Grand Distribution Services, LLC ("Grand"). The Underwriter is
the current principal underwriter for the Fund. The Underwriter, by its
signature hereto, hereby makes all of the representations and warranties and
agrees to perform all of the obligations of the "Distributor" under the
Agreement, and, from the date of this Amendment, the Underwriter shall be deemed
the "Distributor" for all purposes of the Agreement. Hartford hereby consents to
the foregoing substitution, and agrees to release Grand from all obligations
under the Agreement.
4. Hartford hereby acknowledges that Xxxxxxxx & Ilsley Corporation, the parent
holding company of the Underwriter, has entered into a definitive agreement to
be acquired by the Bank of Montreal and its subsidiaries (the "Transaction").
Hartford understands that the Transaction is subject to various conditions to
closing. Hartford hereby consents to the assignment of the Agreement as of the
date of closing of the Transaction and agrees that the Agreement shall continue
in full force and effect upon the same terms and conditions set forth therein,
as amended hereby, following the closing of the Transaction.
1
5. The Fund's and the Distributor's addresses for purposes of notice as set
forth in Section 9.1(a) of the Agreement are amended as follows:
If to the Fund:
Xxxxxxxx Funds, Inc.
000 Xxxx Xxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxx, Xxxxxxxxx 00000
Attention: President
If to the Distributor:
M&I Distributors, LLC
000 Xxxx Xxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxx, Xxxxxxxxx 00000
Attention: Legal Department
6. The following is added to Section 8.4(b) of the Agreement:
"In the event of the insolvency or liquidation of Hartford, fees shall
continue to be payable directly to Hartford or its liquidator, receiver,
conservator or statutory successor, without diminution and reasonable
provision for verification by Hartford or its liquidator, receiver,
conservator or statutory successor."
IN WITNESS HEREOF, the parties hereto have executed and delivered this Amendment
effective as of the date first written above.
HARTFORD LIFE INSURANCE COMPANY
By: /s/ Xxxxxxx X. Xxxx
------------------------------
Name: Xxxxxxx X. Xxxx
Title: Assistant Vice President
Title: Assistant Vice President
XXXXXXXX FUNDS, INC.
By: /s/ Xxxx X. Xxxxxx
------------------------------
Name: Xxxx X. Xxxxxx
Title: President
Title:
M&I DISTRIBUTORS, LLC
By: /s/ Xxxxxxx X. Xxxxxx
------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Senior Vice President
Title: COO
2
SCHEDULE A
SEPARATE ACCOUNTS
Each Separate Account established by resolution of the Board of Directors of the
Company under the insurance laws of the State of Connecticut to set aside and
invest assets attributable to the Contracts.
PORTFOLIOS
All Class I Shares
All Class Y Shares
Large-Cap Value Fund
Large-Cap Focus Fund
Large-Cap Growth Fund
Mid-Cap Value Fund
Mid-Cap Growth Fund
Small-Cap Value Fund
Small-Cap Growth Fund
International Stock Fund
Emerging Markets Equity Fund
Ultra Short Tax-Free Fund
Short-Term Income Fund
Short-Intermediate Bond Fund
Intermediate Tax-Free Fund
Government Income Fund
Corporate Income Fund
Aggregate Bond Fund
Core Plus Bond Fund
3
SCHEDULE B
In consideration of the services provided by Hartford, the Distributor agrees to
pay Hartford an amount equal to the following basis points per annum on the
average aggregate amount invested by Hartford's Separate Account(s) in each Fund
under the
Retail Fund Participation Agreement, such amounts to be paid within 30
days of the end of each calendar quarter.
SERVICES TO BE PERFORMED INCLUDE:
(a) assist in processing customer purchase and redemption requests;
(b) answer customer inquiries regarding account status and history;
(c) assist customers in designating and changing account designations
and addresses;
(d) provide periodic statements showing a customer's account balances;
(e) furnish statements and confirmations of all purchases and redemption
requests as may be required by applicable law;
(f) process customer purchase and redemption requests for Shares and
placing purchase and redemption instructions with the Funds'
transfer agent; and
(g) provide sub-accounting services and maintain accurate sub-accounting
records regarding Shares beneficially owned by Customers.
CLASS I SHARES
SHAREHOLDER
FUND NAME SERVICING FEE
--------------------------------------------------------------------------------
Large-Cap Value Fund 0.15%
Large-Cap Focus Fund 0.15%
Large-Cap Growth Fund 0.15%
Mid-Cap Value Fund 0.15%
Mid-Cap Growth Fund 0.15%
Small-Cap Value Fund 0.15%
Small-Cap Growth Fund 0.15%
International Stock Fund 0.15%
Emerging Markets Equity Fund 0.15%
Ultra Short Tax-Free Fund None
Short-Term Income Fund None
Short-Intermediate Bond Fund None
Intermediate Tax-Free Fund None
Government Income Fund None
Corporate Income Fund None
Aggregate Bond Fund None
Core Plus Bond Fund None
4
CLASS Y SHARES
SHAREHOLDER
FUND NAME SERVICING FEE
--------------------------------------------------------------------------------
Large-Cap Value Fund 0.40%
Large-Cap Focus Fund 0.40%
Large-Cap Growth Fund 0.40%
Mid-Cap Value Fund 0.40%
Mid-Cap Growth Fund 0.40%
Small-Cap Value Fund 0.40%
Small-Cap Growth Fund 0.40%
International Stock Fund 0.40%
Emerging Markets Equity Fund 0.40%
Ultra Short Tax-Free Fund 0.25%
Short-Term Income Fund 0.25%
Short-Intermediate Bond Fund 0.25%
Intermediate Tax-Free Fund 0.25%
Government Income Fund 0.25%
Corporate Income Fund 0.25%
Aggregate Bond Fund 0.25%
Core Plus Bond Fund 0.25%
5
