SHAREHOLDER SERVICES AGREEMENT
Exhibit 8(rrr)
This Agreement (“Agreement”) is made as of December 28, 2007, by and between Delaware
Distributors, L.P. (the “Distributor”), a Delaware limited liability partnership, and Xxxxxxx Xxxxx
Life Insurance Company (the “Company”), an Arkansas life insurance company.
WHEREAS, the Company has entered into a participation agreement dated October 11, 2002 with
the Delaware Trend Fund, a series of Delaware Group Equity Funds III (the “Fund”), an open-end
investment company registered under the Investment Company Act of 1940 (the “1940 Act”) with
respect to the purchase of a class of shares designated “Class A Shares” of one or more series of
the Fund as set forth on Exhibit A hereto (each a “Portfolio”) by certain separate accounts of the
Company (“Accounts”); and
WHEREAS, the Distributor serves as the distributor to the Fund; and
WHEREAS, Xxxxxxx Xxxxx Life Insurance Company (“Xxxxxxx Xxxxx”) has entered into a
Shareholder Services Agreement with Distributor dated October 11, 2002;
WHEREAS, Xxxxxxx Xxxxx is being purchased by AEGON USA, Inc. (“AEGON”) and all of Xxxxxxx
Xxxxx’x rights and obligations under the said Shareholder Services Agreement dated October 11,
2002 will be assigned to AEGON; and
WHEREAS, pursuant to Section 5(b) of the Shareholder Services Agreement of October 11, 2002
said assignment constitutes a termination of said agreement; and
WHEREAS, Xxxxxxx Xxxxx and Distributor desire to continue their relationship as set forth in
the Shareholder Services Agreement dated October 11, 2002; and
WHEREAS, the Company desires to provide certain shareholder services to owners (“Contract
Owners”) of variable life insurance policies or variable annuity contracts (“Contracts”) in
connection with their allocation of contract values to the Portfolios and Distributor desires
Company to provide such services, subject to the conditions of this Agreement; and
WHEREAS, pursuant to Rule 12b-1 under the 1940 Act, the Class A Shares of each Portfolio have
adopted a Distribution and Shareholder Servicing Plan (the “12b-1 Plan”) which, among other
things, authorizes the Distributor to enter into this Agreement with organizations such as Company
and to compensate such organizations out of each Portfolio’s average daily net assets attributable
to the Class A Shares:
Now THEREFORE, in consideration of mutual covenants contained in this Agreement, the
Distributor and the Company agree as follows:
1. Services of Company
(a) The Company shall provide any combination of the following support services, as agreed
upon by the parties from time to time, to Contract Owners who allocate contract values to the
Class A Shares of the Portfolios: delivering
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prospectuses, statements of additional information, shareholder reports, proxy statements, and
marketing materials to prospective and existing Contract Owners; providing educational materials
regarding the Class A Shares; providing facilities to answer questions from prospective and
existing Contract Owners about the Portfolios; receiving and answering correspondence; complying
with federal and state securities laws pertaining to the sale of Class A Shares; assisting Contract
Owners in completing application forms and selecting account options; and providing Contract Owner
recordkeeping and similar administrative services.
(b) The Company will provide such office space and equipment, telephone facilities, and
personnel as may be reasonably necessary or beneficial in order to provide such services to
Contract Owners.
(c) The Company will furnish to the Distributor, the Fund, or their designees such
information as the Distributor may reasonably request, and will otherwise cooperate with the
Distributor in the preparation of reports to the Fund’s Board of Directors concerning this
Agreement, as well as any other reports or filings that may be required by law.
2. Maintenance of Records. The Company shall maintain and preserve all records as
required by law to be maintained and preserved in connection with providing the services herein.
Upon the reasonable request of Distributor or the Fund, Company shall provide Distributor, the
Fund, or the representative of either, copies of all such records.
3. Fees. In consideration of the Company’s performance of the services described in
this Agreement, Distributor shall pay to the Company a monthly fee (“Servicing Fee”) calculated as
follows: the average aggregate amount invested each calendar month by the Company in the Class A
Shares of each Portfolio that are attributable to the Contracts is multiplied by a pro rata fee
factor. The pro rata fee factor is calculated by: (a) dividing the per annum factor set forth on
Exhibit A for the Class A Shares of each Portfolio by the number of days in the applicable year,
and (b) multiplying the result by the actual number of days in the applicable month. The average
aggregate amount invested in the Fund over a one-month period shall be computed by totaling the
aggregate investment (Class A Share net asset value multiplied by total number of Class A Shares
of each Portfolio held by the Company) on each business day during the month and dividing by the
total number of business days during such month.
Distributor will calculate the fee at the end of each calendar month and will make such
payment to the Company, without demand or notice by the Company, within thirty (30) days
thereafter. Such payment will be accompanied by a statement showing the calculation of the amounts
being paid by Distributor and such other supporting data as may be reasonably requested by the
Company.
Payment of fees under this Agreement shall be made to Company in accordance with Company
procedures. Company may amend procedures and in the event of such amendment will provide
sufficient notice to the paying entity.
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4. Representations, Warranties and Agreements.
The Company represents, warrants, and covenants that if required by applicable law, the
Company will disclose to each Contract Owner the existence of the Servicing Fee received by the
Company pursuant to this Agreement in a form consistent with the requirements of applicable law.
The Distributor represents and warrants that it is a broker-dealer registered under the
Securities Exchange Act of 1934 and it is authorized by the Fund’s Board of directors to enter into
Agreements of this type.
5. Termination.
(a) Unless sooner terminated with respect to any Portfolio, this Agreement will continue with
respect to a Portfolio only if the continuance of a form of this Agreement or an agreement of this
type is specifically approved at least annually by the vote of a majority of the members of the
Board of Directors of the Fund who are not “interested persons” (as such term is defined in the
0000 Xxx) and who have no direct or indirect financial interest in the 12b-1 Plan relating to such
Portfolio or any agreement relating to such 12b-1 Plan, including this Agreement, cast in person
at a meeting called for the purpose of voting on such approval.
(b) This Agreement will automatically terminate with respect to a Portfolio in the event of
its assignment (as such term is defined in the 0000 Xxx) with respect to such Portfolio. This
Agreement may be terminated with respect to any Portfolio by the Distributor or by the Company,
without penalty, upon sixty (60) days’ prior written notice to the other party. This Agreement may
also be terminated with respect to any Portfolio at any time without penalty by the vote of a
majority of the members of the Board of Directors of the Fund who are not “interested persons” (as
such term is defined in the 0000 Xxx) and who have no direct or indirect financial interest in the
12b-1 Plan relating to such Portfolio or any agreement relating to such Plan, including this
Agreement, or by a vote of a majority of the Class A Shares of such Portfolio on 60 days’ written
notice.
(c) In addition, either party may terminate this Agreement immediately if at any time it is
determined by any federal or state regulatory authority that compensation to be paid under this
Agreement is in violation of or inconsistent with any federal or state law.
6. Miscellaneous.
(a) No modification of any provision of this Agreement will be binding unless in writing and
executed by the parties. No waiver of any provision of this Agreement will be binding unless in
writing and executed by the party granting such waiver.
(b) This Agreement shall be binding upon and shall inure to the benefit of the parties and
their respective successors and assigns; provided, however that neither this Agreement nor any
rights, privileges, duties, or obligations of the parties may be assigned by either party without
the written consent of the other party or as expressly contemplated by this Agreement.
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(c) This Agreement shall be governed by and interpreted in accordance with the laws of the
State of New York, exclusive of conflicts of laws.
(d) This Agreement may be executed in several counterparts, each of which shall be an original
but all of which together shall constitute one and the same instrument.
(e) This Agreement replaces, in its entirety, the Shareholder Services Agreement dated
October 11, 2002 by and between Delaware Distributors, LP. and Xxxxxxx Xxxxx Life Insurance
Company.
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IN WITNESS WHEREOF, the parties hereto have caused this instrument to be executed on their
behalf by their duly authorized representatives as of the date and the year first above written.
| DELAWARE DISTRIBUTORS, L.P. |
||||
| By: | /s/ Xxxx X. Xxxxxxx | |||
| Name: | Xxxx X. Xxxxxxx | |||
| Title: | Vice President/Assistant Secretary | |||
| XXXXXXX XXXXX LIFE INSURANCE COMPANY |
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| By: | /s/ Xxxxx X Xxxxxxxxxx | |||
| Name: | Xxxxx X Xxxxxxxxxx | |||
| Title: | President | |||
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Exhibit A to Shareholder Services Agreement
| Name of Portfolio | Fee Factor* | |||
Delaware Trend Fund,
a series of Delaware Group
Equity Funds III |
0.25 | % | ||
(Class A Shares) |
||||
| * | Shall not exceed 0.25% |
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