RETAIL FUND PARTICIPATION AGREEMENT
THIS AGREEMENT, made and entered into this 6th day of September, 2001, 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"), the retail mutual funds comprising the
Lord Xxxxxx Family of Funds, including each investment company and separate
investment portfolio thereof, whether existing as the date above or established
subsequent thereto (hereinafter, each a "FUND" and collectively, the "FUNDS"),
and Lord Xxxxxx Distributor LLC, a New York limited liability corporation
(hereinafter the "UNDERWRITER").
WITNESSETH:
WHEREAS, beneficial interests in each Fund are divided into several series of
shares, each representing the interest in a particular managed portfolio of
securities and other assets; and
WHEREAS, each Fund is registered as or is a separate investment series of an
open-end management investment company under the Investment Company Act of 1940,
as amended (hereinafter the "1940 ACT"), and its shares are registered under the
Securities Act of 1933, as amended (hereinafter the "1933 ACT"); and
WHEREAS, the Company issues certain group variable annuity contracts and group
funding agreements (the "CONTRACTS") in connection with retirement plans
intended to meet the qualification requirements of Sections 401, 403(b) or 457
of the Internal Revenue Code of 1986, as amended (the "CODE"); and
WHEREAS, each Separate Account is a duly organized, validly existing segregated
asset account, established by resolution of the Board of Directors of the
Company under the insurance laws of the State of Connecticut to set aside and
invest assets attributable to the Contracts; and
WHEREAS, the Underwriter is the principal underwriter for the Funds and is
registered as a broker-dealer with the Securities and Exchange Commission
(hereinafter the "SEC") under the Securities Exchange Act of 1934, as amended
(hereinafter the "1934 ACT"), and is a member in good standing of the National
Association of Securities Dealers, Inc. (hereinafter "NASD"); and
WHEREAS, to the extent permitted by applicable insurance laws and regulations,
the Company intends to purchase Class P Shares ("SHARES") in the Funds on behalf
of each corresponding Separate Account set forth on such SCHEDULE A to fund the
Contracts and the Underwriter is authorized to sell such Shares to unit
investment trusts such as the Separate Accounts at net asset value; and
WHEREAS, each respective Fund has adopted a distribution plan pursuant to Rule
12b-1 under the 1940 Act ("RULE 12B-1") relating to Shares of such Fund (the
"RULE 12B-1 PLAN") which is described in such Fund's Prospectus and Statement of
Additional Information; and
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WHEREAS, each respective Fund's Rule 12b-1 Plan authorizes both the Fund to pay
distribution and service fees to the Underwriter and the Underwriter to enter
agreements with certain authorized institutions which may provide for the
payment to such authorized institutions of distribution and service fees which
the Underwriter receives from the Fund to provide additional incentives to such
authorized institutions to sell Shares and to provide continuing information and
investment services to their accounts holding Shares and to otherwise encourage
their accounts to remain invested in the Shares;
NOW, THEREFORE, in consideration of their mutual promises, the Company, the
Funds and the Underwriter agree as follows:
ARTICLE I. Purchase and Redemption of Shares of the Funds.
1.1 The Funds and the Underwriter agree to sell to the Company those Shares of
the Funds which the Company orders 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 Funds or its designee of such order. For purposes of this
Section, the Company shall be the designee of the Funds for receipt of such
orders from each Separate Account. Receipt by such designee shall constitute
receipt by the Funds; provided that the Funds or the Underwriter receives notice
of such order via the National Securities Clearing Corporation (the "NSCC") by
7:00 a.m. Eastern Time (NSCC cycle 8) on the next following Business Day. The
Funds will receive all orders to purchase Shares using the NSCC's Defined
Contribution Clearance & Settlement ("DCC&S") platform. The Funds will also
provide the Company with account positions and activity data using the NSCC's
Networking platform. The Company shall pay for Shares of the Funds by the
scheduled close of federal funds transmissions on the same Business Day it
places an order to purchase Shares of the Funds in accordance with this section
using the NSCC's Fund/SERVE System. Payment shall be in federal funds
transmitted by wire from the Funds' 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 Funds calculate their 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 Funds to perform such
settlement services on behalf of the Funds 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 Funds for Shares via the NSCC's DCC&S platform the following
shall apply to this Section:
The Funds and the Underwriter agree to sell the Company those Shares of the
Funds which the Company orders 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 Funds or their designee of such order. For purposes of this
Section, the Company shall be the designee of the Funds for the receipt of such
orders from the Separate Account and receipt by such designee shall constitute
receipt by the Funds; provided that the Funds or the Underwriter receives notice
of such order via a mutually agreed upon procedure by 9:00 a.m. Eastern Time on
the next following Business Day. The Company shall pay for Shares of the Funds
by the scheduled close of federal funds transmissions on the same Business Day
it places an order to purchase Shares of the Funds in accordance with this
section. Payment shall be in federal funds transmitted by wire to the Funds'
designated custodian. "BUSINESS DAY" shall mean any day on which
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the New York Stock Exchange is open for trading and on which the Funds
calculates their net asset value pursuant to the rules of the SEC.
1.2 Subject to Section 8 below, the Funds and the Underwriter agree to make
Shares of the Funds available for purchase at the applicable net asset value per
share by the Company on Business Days; provided, however, that the Board of
Trustees or Directors, as applicable, of the Funds (hereinafter the
"TRUSTEES/DIRECTORS") 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/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 Fund.
1.3 The Funds and the Underwriter agree to redeem for cash, upon the Company's
request, any full or fractional Shares of the Funds 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 Funds or their
designee of the request for redemption. For purposes of this Section, the
Company shall be the designee of the Funds for receipt of requests for
redemption from each Separate Account and receipt by such designee shall
constitute receipt by the Funds; provided the Funds or the Underwriter receives
notice of such request for redemption via the NSCC 7:00 a.m. Eastern Time (NSCC
cycle 8) on the next following Business Day. The Funds will receive all orders
to redeem Shares of the Funds using the NSCC's DCC&S platform. The Funds will
also provide the Company with account positions and activity data using the
NSCC's Networking platform. Payment for Shares of the Funds redeemed shall be
made in accordance with this section using the NSCC's Fund/SERVE 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 Funds
or the Underwriter receives notice of the redemption order from the Company
provided that the Funds or the Underwriter receives notice by 10:00 a.m. Eastern
Time on such Business Day.
If the Company is somehow prohibited from submitting redemption and settlement
instructions to the Funds for Shares via the NSCC's DCC&S platform the following
shall apply to this Section:
The Funds and the Underwriter agree to redeem for cash, upon the Company's
request, any full or fractional Shares of the Funds 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 Funds or their
designee of the request for redemption. For purposes of this Section, the
Company shall be the designee of the Funds for receipt of requests for
redemption from each Separate Account and receipt by such designee shall
constitute receipt by the Funds; provided the Funds or the Underwriter receives
notice of such request for redemption by 9:00 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
Funds or the Underwriter receives notice of the redemption order from the
Company provided that the Funds or the Underwriter receives notice by 10:00 a.m.
Eastern Time on such Business Day.
1.4 The Company agrees to purchase and redeem the Shares of the Funds offered
by the then current prospectuses of the Funds in accordance with the provisions
of the applicable prospectus.
1.5 The Company will place separate orders to purchase or redeem Shares of each
Fund.
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1.6 Issuance and transfer of the Funds' 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 Shares of the Funds will be recorded in an
appropriate title for each Separate Account or the appropriate subaccount of
each Separate Account.
1.7 The Underwriter shall furnish same day notice to the Company of any income,
dividends or capital gain distributions payable on the Funds' Shares. The
Company hereby elects to receive all such dividends and distributions as are
payable on a Fund's Shares in the form of additional Shares of that Fund. The
Fund 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 notice of
revocation by the Funds.
1.8 The Underwriter 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 close of trading each Business Day, but shall use its best efforts to make
such net asset value available by no later than 6:30 p.m. Eastern Time on such
Business Day.
ARTICLE II. Representations and Warranties
2.1 The Company represents and warrants that the Contracts are or will be
registered unless exempt and that it will make every effort to maintain such
registration under the 1933 Act to the extent required by the 1933 Act; that the
Contracts are intended to be issued and sold in compliance in all material
respects with all applicable federal and state laws. The Company further
represents and warrants that it is an insurance company duly organized and in
good standing under applicable law and that it has legally and validly
established each Separate Account prior to any issuance or sale of Contracts,
shares or other interests therein, as a segregated asset account under the
insurance laws of the State of Connecticut and has registered or, prior to any
issuance or sale of the Contracts, will register and will maintain the
registration of each Separate Account as a unit investment trust in accordance
with and to the extent required by the provisions of the 1940 Act, unless exempt
therefrom, to serve as a segregated investment account for the Contracts. Unless
exempt, the Company shall amend its registration statement for its Contracts
under the 1933 Act and the 1940 Act from time to time as required in order to
effect the continuous offering of its Contracts. The Company shall register and
qualify the Contracts for sale in accordance with securities laws of the various
states only if and to the extent deemed necessary by the Company.
2.2 The Funds and the Underwriter represent and warrant that (i) Shares of the
Funds sold pursuant to this Agreement shall be registered under the 1933 Act and
duly authorized for issuance in accordance with applicable law and that the
Funds are and shall remain registered under the 1940 Act for as long as the
Shares of the Funds are sold; (ii) the Funds shall amend the registration
statements 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 Funds 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
Funds or the Underwriter.
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2.3 The Funds represents that each Fund (a) is currently qualified as a
Regulated Investment Company under Subchapter M of the Code; (b) will make every
effort to maintain such qualification (under Subchapter M or any successor or
similar provision); and (c) will notify the Company immediately upon having a
reasonable basis for believing that such Fund has ceased to so qualify or might
not so qualify in the future.
2.4 To the extent that the Funds finance distribution expenses pursuant to Rule
12b-1, the Funds represents that their Board of Trustees or Directors, as
applicable, including a majority of their Trustees/Directors who are not
interested persons of the Funds, have formulated and approved a plan under Rule
12b-1 to finance distribution expenses.
2.5 The Funds 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 Underwriter represents and warrants that it is a member in good
standing of the NASD and is registered as a broker-dealer with the SEC. The
Underwriter further represents that it will sell and distribute the Shares of
the Funds 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 Each Fund represents that it is lawfully organized and validly existing
under the laws of its state of organization and that it does and will comply in
all material respects with applicable provisions of the 0000 Xxx.
2.8 The Funds represents and warrants that all of their Trustees/Directors,
officers, employees, investment advisers, and other individuals/entities having
access to the funds and/or securities of the Funds are and continue to be at all
times covered by a blanket fidelity bond or similar coverage for the benefit of
the Funds 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 Funds are covered by a blanket fidelity 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 Shares of the Funds
pursuant to this Agreement.
ARTICLE III. Prospectuses; Reports and Proxy Statements; Voting
3.1 The Funds shall provide the Company at no charge with as many printed
copies of the Funds' current prospectuses and statements of additional
information as the Company may reasonably request. If requested by the Company,
in lieu of providing printed copies of the Funds' current
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prospectuses and statements of additional information, the Funds shall provide
such documentation in a mutually agreeable form and such other assistance as is
reasonably necessary in order for the Company once each year (or more frequently
if the prospectuses and/or statements of additional information for the Funds
are amended during the year) to have the prospectus for the Contracts (if
applicable) and the Funds' prospectuses printed together in one document or
separately. The Company may elect to print the Funds' prospectuses and/or its
statements of additional information in combination with other fund companies'
prospectuses and statements of additional information.
3.2(a). The Funds shall provide the Company at no charge with copies of the
Funds' proxy statements, Fund reports to shareholders, and other Fund
communications to shareholders in such quantity as the Company shall reasonably
require for distributing to Contractholders.
3.2(b). The Funds or the Underwriter shall pay for the cost of typesetting,
printing and distributing all Fund prospectuses, statements of additional
information, Fund reports to shareholders and other Fund communications to
existing Contractholders. The Funds or the Underwriter shall pay for all costs
for typesetting, printing and distributing proxy materials up to the maximum
amount provided for by applicable regulation, if any.
3.3. Each Fund's statement of additional information shall be obtainable by
Contractholders from the Funds, the Underwriter, the Company or such other
person as the Funds may designate.
3.4 If and to the extent required by law the Company shall distribute all proxy
material furnished by the Funds to Contractholders to whom voting privileges are
required to be extended and shall:
A. solicit voting instructions from Contractholders;
B. vote Shares of the Funds held in the Separate Account in accordance
with instructions received from Contractholders; and
C. so long as and to the extent that the SEC continues to interpret the
1940 Act to require pass through voting privileges for variable
annuity contract owners, vote Shares of the Funds held in the
Separate Account for which no timely instructions have been received,
in the same proportion as Shares of such Fund for which instructions
have been received from the Company's Contractholders. The Company
reserves the right to vote Shares of the Funds held in any segregated
asset account for its own account, to the extent permitted by law.
Notwithstanding the foregoing, with respect to the Shares of the
Funds held by unregistered Separate Accounts that issue Contracts
issued in connection with employee benefit plans subject to the
provisions of the Employee Retirement Income Security Act of 1974, as
amended, the Company shall vote such Shares allocated to such
Contracts only in accordance with the Company's agreements with such
Contractholders.
3.5 The Funds will comply with all provisions of the 1940 Act requiring voting
by shareholders. The Funds will not hold annual meetings but will hold such
special meetings as may be necessary from time to time. Further, the Funds will
act in accordance with the SEC interpretation of the
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requirements of Section 16(a) with respect to periodic elections of directors or
trustees and with whatever rules the SEC may promulgate with respect thereto.
ARTICLE IV. Sales Material and Information
4.1 The Company shall furnish, or shall cause to be furnished, to the Funds,
the Underwriter or their designee, each piece of sales literature or other
promotional material prepared by the Company or any person contracting with the
Company in which the Funds, the Underwriter or any of their affiliates is
described, at least 10 Business days prior to its use. No such literature or
material shall be used without prior approval from the Funds, the Underwriter or
their designee, however, the failure to object in writing within such 10
Business days will be deemed approval. Such approval process shall not apply to
subsequent usage of materials that are substantially similar to prior approved
materials.
4.2 Except with the permission of the Funds or their designee, neither the
Company nor any person contracting with the Company shall give any information
or make any representations or statements on behalf of the Funds or concerning
the Funds in connection with the sale of the Contracts other than the
information or representations contained in the registration statements or
prospectuses for the Funds' Shares, as such registration statements and
prospectuses may be amended or supplemented from time to time, or in reports to
shareholders or proxy statements for the Funds, or in sales literature or other
promotional material approved by the Funds or their designee, which is used in a
context that does not cause the information, representations or statements
contained in the registration statements or prospectuses for the Funds' Shares,
reports to shareholders or proxy statements for the Funds, or sales literature
or other promotional material approved by the Funds or its designee to be untrue
or omit information contained in such documentation otherwise required to be
stated or necessary to make the information, representations, or statements not
misleading.
4.3 The Funds 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 10 Business 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 such 10 Business days will be deemed approval. Such approval
process shall not apply to subsequent usage of materials that are substantially
similar to prior approved materials.
4.4 Except with the permission of the Company, neither the Funds nor the
Underwriter 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 Contractholders or participants, or in sales literature or other
promotional material approved by the Company, which is used in a context that
does not cause the information, representations or statements contained in the
Contracts, disclosure documents, registration statement or prospectus for the
Contracts (if applicable), published reports for each Separate Account which are
in the public domain or approved by the Company for distribution to
Contractholders to participants, or sales literature or other promotional
material approved by the Company to be untrue or omit information contained in
such
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documentation otherwise required to be stated or necessary to make the
information, representations, or statements not misleading.
4.5 The Funds 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
Funds or their Shares, promptly after the filing of such document with the SEC
or other regulatory authorities.
4.6 The Company will provide to the Funds at least one complete copy of all
prospectuses, statements of additional information, reports, solicitations for
voting instructions, and all amendments to any of the above, if applicable to
the investment in a Separate Account or Contract, promptly after the filing of
such document with the SEC or other regulatory authorities.
4.7 For purposes of this Article IV, the phrase "sales literature or other
promotional material" includes, but is not limited to, advertisements (such as
material published, or designed for use in, a newspaper, magazine, or other
periodical, radio, television, telephone or tape recording, videotape display,
signs or billboards, motion pictures, Internet, or other public media), sales
literature (i.e., any written communication distributed or made generally
available to customers or the public, including brochures, circulars, research
reports, market letters, form letters, electronic mail, seminar texts, reprints
or excerpts of any other advertisement, sales literature, or published article),
educational or training materials or other communications distributed or made
generally available to some or all agents or employees, registration statements,
disclosure documents, prospectuses, statements of additional information,
shareholder reports, and proxy materials.
4.8 The Company agrees and acknowledges that the Company has no right, title or
interest in the names and marks of the Funds 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 Funds and the Underwriter. 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 Funds and the Underwriter. Upon termination
of this Agreement for any reason, the Company shall cease all use of any such
names or marks.
4.9 The Funds and Underwriter 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 Funds and Underwriter shall not use any such names or marks on
its own behalf or on behalf of a Funds in connection with marketing the Funds
without prior written consent of the Company. Upon termination of this Agreement
for any reason, the Funds and Underwriter shall cease all use of any such names
or marks.
ARTICLE V. Shareholder and Distribution Services
5.1 Shareholder Services
(a) Company agrees to provide the following shareholder services to the Funds:
(i) responding to inquiries from owners of Contracts using one or more of the
Funds as an investment vehicle
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("Contractholders") regarding the services performed by Company that relate to
the Funds; (ii) providing information to the Funds and Contractholders with
respect to Shares of the Funds attributable to Contractholder accounts; and
(iii) providing such other similar services as the parties may mutually agree,
to the extent permitted under applicable federal and state requirements
(collectively, the "Shareholder Services").
(b) In connection with the rendering of the Shareholder Services described in
this Article II, the Company shall be deemed to be an independent contractor,
and shall have no authority to act as agent for the Underwriter or the Funds in
any matter.
(c) Subject to Section 5.3 below, the Underwriter shall pay Company a fee for
its rendering of the Shareholders Services described in this Article V (the
"Service Fee"). The Service Fee shall be calculated monthly and paid quarterly
at the annual rate set forth on Schedule B attached hereto and made a part of
this Agreement as may be amended from time to time with the mutual consent of
the parties hereto. The parties agree that the Service Fee paid to the Company
is for shareholder services only and does not constitute payment in any manner
for investment advisory services or for costs of distribution.
5.2 Distribution Services
(a) Company agrees to provide the following distribution services to the Funds:
(i) distributing any prospectuses and reports used for sales purposes of the
Funds' Shares; (ii) preparing and/or distributing any advertising, promotional
or sales literature and related expenses used for sales purposes of the Funds'
Shares; (iii) education of broker-dealers and their representatives for sales
purposes of the Funds' Shares; (iv) compensation of broker-dealers or sales
personnel in connection with sales of the Shares; (v) recording the issuance and
transfer (via net purchase orders) of Shares of the Funds; (vi) reconciling and
balancing the Separate Accounts at the Fund level on the Funds' transfer agent's
books to the Separate Account general ledger maintained by Company; (vii)
determination of amounts available for investment in the Funds; (viii) the
wiring of the monies to the Funds; and (ix) other similar distribution-related
services or expenses as the parties may mutually agree to the extent permitted
under applicable federal and state requirements (collectively, the "Distribution
Services").
(b) Subject to Section 5.3 below, the Underwriter shall pay Company a fee for
its rendering of the Distribution Services described in this Article V (the
"Distribution Fee"). The Distribution Fee shall be calculated monthly and paid
quarterly at the annual rate set forth on Schedule B attached hereto and made a
part of this Agreement as may be amended from time to time with the mutual
consent of the parties hereto. The parties agree that the Distribution Fee paid
to the Company is for activities which are intended to result in the sale of
such Fund's Shares as described in the Fund's Rule 12b-1 Plan and Rule 12b-1,
and does not constitute payment in any manner for investment advisory services,
administrative or shareholder services.
5.3 Fee Payment and Conditions
(a) The Underwriter will calculate the Service and Distribution Fees at the end
of each month and will make payment to Company within 30 days after the end of
each quarter. The fees will be accompanied by a statement showing the
calculation of the amounts payable by the Underwriter
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and such other supporting data as may be reasonably requested by Company.
Payment will be wired by the Underwriter to an account designated by Company.
(b) The parties hereto acknowledge that each Fund maintains the right at any
time and from time to time without notice to the Company to amend its current
Prospectus and its Rule 12b-1 Plan subject to the terms thereof and Rule 12b-1,
which may include amending the amounts of the Distribution or Service Fees to be
paid pursuant hereto. The Company understands that the Underwriter pays the
Distribution and Service Fees hereunder out of the distribution and service fee
payments it receives from the Funds and the Funds may increase or decrease the
annual rates in their sole discretion. The Company therefore agrees to accept as
compensation hereunder such increased or decreased amount as the Underwriter may
receive from the Funds.
(c) After the effective date of any change in or discontinuance of any schedule
of service fees, distribution fees or the termination of a 12b-1 Plan, any
Service or Distribution Fees will be allowable or payable to Company only in
accordance with such change, discontinuance or termination. If Underwriter
overpays any Service or Distribution Fee, Company will remit such overpayment.
(d) The Company will provide the Underwriter with such information as the
Underwriter may reasonably request and will cooperate with the Underwriter in
the preparation of reports, if any, to be furnished to the Funds' Boards of
Directors/Trustees concerning this Agreement and any fees or compensation paid
or payable pursuant hereto, in addition to any other reports or filings that may
be required by law.
ARTICLE VI. Indemnification
6.1 Indemnification By The Company
(a) Subject to Section 6.4 and 6.5 below, the Company agrees to indemnify and
hold harmless the Funds, the Underwriter and each of their respective trustees,
directors, officers, employees or agents and each person, if any, who controls
the Funds or the Underwriter within the meaning of section 15 of the 1933 Act
(collectively, the "INDEMNIFIED PARTIES" for purposes of this Section 6.1)
against any and all losses, claims, damages, liabilities (including amounts paid
in settlement with the written consent of the Company) or litigation (including
reasonable legal and other expenses), to which the Indemnified Parties may
become subject under any statute, regulation, at common law or otherwise,
insofar as such losses, claims, damages, liabilities or expenses (or actions in
respect thereof) or settlements are related to the sale or acquisition of the
Funds' 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 Funds to the Company on behalf of the
Funds for use in the registration
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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 Shares of the
Funds; 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 Funds'
registration statements, Fund prospectuses or sales
literature or other promotional material of the Funds not
supplied by the Company, or persons under its control and
other than statements or representations authorized by the
Funds or the Underwriter); 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 Shares of the Funds;
or
(iii) arise out of or as a result of any untrue statement or
alleged untrue statement of a material fact contained in the
Funds' registration statements, Fund prospectuses,
statements of additional information or sales literature or
other promotional material of the Funds (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 Funds or the Underwriter by the Company or persons
under its control; or
(iv) arise as a result of any material failure by the Company to
provide the services and furnish the materials under the
terms of this Agreement; or
(v) arise out of or result from any material breach of any
representation and/or warranty made by the Company in this
Agreement or arise out of or result from any other material
breach by the Company of this Agreement; except to the extent
provided in Sections 6.1(b) and 6.5 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 6.5 hereof, the Indemnified Parties will
promptly notify the Company of the commencement of any litigation or proceedings
against them in connection with the issuance or sale of the Shares of the Funds
or the Contracts or the operation of the Funds.
6.2 Indemnification By the Underwriter
(a) Subject to Section 6.4 and 6.5 below, the Underwriter agrees, with respect
to each Fund that it distributes, to indemnify and hold harmless the Company and
each of its directors, officers, employees or agents and each person, if any,
who controls the Company within the meaning of section 15 of the 1933 Act
(collectively, the "INDEMNIFIED PARTIES" for purposes of this Section 6.2)
against any and all losses, claims, damages, liabilities (including amounts paid
in settlement with the written consent of the Underwriter) or litigation
(including reasonable legal and other expenses) to which the Indemnified Parties
may become subject under any statute, regulation, at common law or otherwise,
insofar as such losses, claims, damages, liabilities or expenses (or actions in
respect thereof) or
11
settlements are related to the sale or acquisition of the Shares of the Funds it
distributes or the Contracts and:
(i) arise out of or are based upon any untrue statement or alleged
untrue statement of any material fact contained in the registration
statements, prospectuses or statements of additional information for
the Funds or sales literature or other promotional material of the
Funds (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 Indemnified Party or the Company
to the Funds or the Underwriter on behalf of the Company for use in
the registration statements, prospectuses or statements of
additional information for the Funds or in sales literature of the
Funds (or any amendment or supplement thereto) or otherwise for use
in connection with the sale of the Contracts or the Shares of the
Funds; or
(ii) arise out of or as a result of (a) statements or representations
(other than statements or representations contained in the
registration statement, prospectus or sales literature for the
Contracts not supplied by the Funds or the Underwriter or persons
under their respective control and other than statements or
representations authorized by the Company); or (b) the willful
misfeasance, bad faith, gross negligence or reckless disregard of
duty of the Funds or the Underwriter or persons under the control of
the Funds or the Underwriter, respectively, with respect to the sale
or distribution of the Contracts or Shares of the Funds; or
(iii) arise out any untrue statement or alleged untrue statement of a
material fact contained in a registration statement, prospectus,
statement of additional information or sales literature or other
promotional material with respect to the Contracts (or any
amendment thereof or supplement thereto), or the omission or
alleged omission to state therein a material fact required to be
stated therein or necessary to make the statement or statement or
statements therein not misleading, if such statement or omission
was made in reliance upon and in conformity with information
furnished to the Company by the Funds or the Underwriter or persons
under the control of the Funds or the Underwriter, respectively; or
(iv) arise as a result of any material failure by the Funds or the Under
writer to provide the services and furnish the materials under the
terms of this Agreement; or
(v) arise out of or results from any material breach of any
representation and/or warranty made by the Underwriter or the Funds
in this Agreement or arise out of result from any other material
breach of this Agreement by the Underwriter or the Funds; except to
the extent provided in Sections 6.2(b) and 6.5 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 Indemnified Parties will
promptly notify the Underwriter of the commencement of any litigation or
proceedings against them in connection
12
with the issuance or sale of the Shares of the Funds or the Contracts or the
operation of the Separate Accounts.
6.3 Indemnification by the Funds
(a) Subject to Section 6.4 and 6.5 below, the Funds 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
section 15 of the 1933 Act (collectively, the "INDEMNIFIED PARTIES" for purposes
of this Section 6.3) against any and all losses, claims, damages, liabilities
(including amounts paid in settlement with the written consent of the Funds) or
litigation (including reasonable legal and other expenses) to which the
Indemnified Parties may become subject under any statute, regulation, at common
law or otherwise, insofar as such losses, claims, damages, liabilities or
expenses (or actions in respect thereof) or settlements are related to the sale
or acquisition of the Shares of the Funds 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
statements, prospectuses or statements of additional information for
the Funds or sales literature or other promotional material of the
Funds (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 Indemnified Party or the Company
to the Funds or the Underwriter on behalf of the Company for use in
the registration statements, prospectuses or statements of
additional information for the Funds or in sales literature of the
Funds (or any amendment or supplement thereto) or otherwise for use
in connection with the sale of the Contracts or the Shares of the
Funds; or
(ii) arise out of or as a result of (a) statements or representations
(other than statements or representations contained in the
registration statement, prospectus or sales literature for the
Contracts not supplied by the Funds or the Underwriter or persons
under their respective control and other than statements or
representations authorized by the Company); or (b) the willful
misfeasance, bad faith, gross negligence or reckless disregard of
duty of the Funds or the Underwriter or persons under the control of
the Funds or the Underwriter, respectively, with respect to the sale
or distribution of the Contracts or Shares of the Funds; or
(iii) arise out of any untrue statement or alleged untrue statement of a
material fact contained in a registration statement, prospectus,
statement of additional information or sales literature or other
promotional material with respect to the Contracts (or any
amendment thereof or supplement thereto), or the omission or
alleged omission to state therein a material fact required to be
stated therein or necessary to make the statement or statements
therein not misleading, if such statement or omission was made in
reliance upon and in conformity with information furnished to the
Company by the Funds or the Underwriter or persons under the
control of the Funds or the Underwriter, respectively; or
(iv) arise as a result of any material failure by the Funds or the
Underwriter to provide the services and furnish the materials under
the terms of this Agreement; or
13
(v) arise out of or result from any material breach of any
representation and/or warranty made by the Underwriter or the Funds
in this Agreement or arise out of or result from any other material
breach of this Agreement by the Underwriter or the Funds; except to
the extent provided in Sections 6.3(b) and 6.5 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 6.5 hereof, the Indemnified Parties will
promptly notify the Underwriter of the commencement of any litigation or
proceedings against them in connection with the issuance or sale of the Shares
of the Funds or the Contracts or the operation of the Separate Accounts.
6.4. Indemnification for Errors
In the event of any error or delay with respect to information regarding the
purchase, redemption, transfer or registration of Shares of the Funds, the
parties agree that each is obligated to make the Separate Accounts and/or the
Funds, respectively, whole for any error or delay that it causes, subject in
each case to the related Fund's policies on materiality of pricing errors, if
applicable. In addition, the parties specifically agree that any indemnification
relating to the costs of reprocessing of transactions will be limited to the
reasonable costs of such reprocessing as may be necessary to adjust its
respective accounting and/or record-keeping systems as a result of an error or
delay; provided, however, that (1) there will be no costs payable with respect
to any error or delay identified within two Business Days following the
applicable trade date, and (2) the maximum amount as to which either party will
be responsible for indemnification for reprocessing costs with respect to any
error or delay is $2,000 per occurrence. Each party agrees to provide the other
with prompt notice of any errors or delays of the type referred to in this
Section and to use reasonable efforts to take such action as may be appropriate
to avoid or mitigate any such costs or losses.
6.5. 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 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
14
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. Approval and Termination
8.1 Approval
(a) This Agreement shall go into effect as of the date set forth above provided
that no Service or Distribution Fee payments shall be made under this Agreement
until the Agreement is approved by a vote of both (i) each Fund's Board of
Directors/Trustees and by a vote of those Directors/Trustees who are not
interested persons of the Fund (as defined in the 0000 Xxx) and have no direct
or indirect financial interest in the operation of the Distribution Plan or its
related agreements, such as this Agreement, related to the Distribution Plan
(the "Disinterested Directors/Trustees"), cast in person at a meeting called for
the purpose of voting on the Distribution Plan and related agreements to the
Distribution Plan as that term is used in the Rule.
(b) Subject to Section 8.1(a), Article V of this Agreement shall continue in
effect (unless terminated) for an initial period of 2 years from date of this
Agreement and thereafter if continuance is specifically approved at least
annually by each Fund's Board of Directors/Trustees and Disinterested
Directors/Trustees.
15
8.2 This Agreement shall terminate:
(a) at the option of any party upon ninety (90) days advance written notice to
the other parties unless otherwise agreed in a separate written agreement among
the parties; or
(b) at the option of the Funds, the Underwriter upon institution of formal
proceedings against the Company by the NASD, NASD Regulation, Inc. ("NASDR"),
the SEC, the insurance commission of any state or any other regulatory body
regarding the Company's duties under this Agreement or related to the sale of
the Contracts, the administration of the Contracts, the operation of the
Separate Accounts, or the purchase of Shares of the Funds, which in the judgment
of the Funds or the Underwriter are reasonably likely to have a material adverse
effect on the Company's ability to perform its obligations under this Agreement;
or
(c) at the option of the Company upon institution of formal proceedings against
the Funds, the Underwriter or the Adviser by the NASD, NASDR, the SEC, or any
state securities or insurance department or any other regulatory body, related
to the purchase or sale of Shares of the Funds or the operation of the Funds
which in the judgment of the Company are reasonably likely to have a material
adverse effect on the Underwriter's or the Funds' ability to perform its
obligations under this Agreement; or
(d) at the option of the Company if a Fund ceases to qualify as a Regulated
Investment Company under Subchapter M of the Code (a "RIC"), or under any
successor or similar provision, and the disqualification is not cured within the
period permitted for such cure, or if the Company reasonably believes that any
such Fund may fail to so qualify and be unable to cure such disqualification
within the period permitted for such cure; or
(e) at the option of any party to this Agreement, upon another party's material
breach of any provision of this Agreement; provided that the party not in breach
shall give the party in breach notice of the breach and the party in breach does
not cure such breach within 30 days of receipt of such notice of breach; or
(f) at the option of the Company, if the Company determines in its sole
judgment exercised in good faith, that the Funds or the 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
(g) at the option of the Funds or the Underwriter if the Funds or the
Underwriter respectively, shall determine in its sole judgment exercised in good
faith, that the Company has suffered a material adverse change in its business,
operations or financial condition since the date of this Agreement or is the
subject of material adverse publicity which is likely to have a material adverse
impact upon the business and operations of the Funds or Underwriter.
8.3 Article V of this Agreement shall terminate:
(a) automatically in the event of assignment (as that term is used in Rule
12b-1) of this Agreement or if the Rule 12b-1 Plan is terminated; or
16
(b) at any time, without the payment of any penalty, on sixty (60) days written
notice to the Company, by vote of a majority of the Disinterested
Directors/Trustees or by vote of a majority (as that term is used in Rule 12b-1)
of the outstanding voting securities of each Fund.
8.4 Notice Requirement
(a) In the event that any termination of this Agreement is based upon the
provisions of Sections 8.2(b), 8.2(c) or 8.2(d), prompt written notice of the
election to terminate this Agreement for cause shall be furnished by the party
terminating the Agreement to the non-terminating parties, with said termination
to be effective upon receipt of such notice by the non-terminating parties;
provided that for any termination of this Agreement based on the provisions of
Section 8.2(d), said termination shall be effective upon the Funds' 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 8.2(f) or 8.2(g), prior written notice of the election to
terminate this Agreement for cause shall be furnished by the party terminating
this Agreement to the non-terminating parties. Such prior written notice shall
be given by the party terminating this Agreement to the non-terminating parties
at least 60 days before the effective date of termination.
8.5 It is understood and agreed that the right to terminate this Agreement
pursuant to Section 8.2(a) may be exercised for any reason or for no reason.
8.6 Effect of Termination
(a) Notwithstanding any termination of this Agreement pursuant to Section
8.2(a) through 8.2(g) of this Agreement and subject to Section 1.2 of this
Agreement, the Company may require the Funds and the Underwriter to continue to
make available additional Shares of the Funds 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 Shares of the Funds 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 Funds, redeem investments in the Funds
and/or invest in the Funds upon the making of additional purchase payments under
the Existing Contracts unless such further sale of Shares of the Funds is
proscribed by law, regulation or an applicable regulatory body.
(b) Notwithstanding any termination of this Agreement pursuant to Section
8.2(a) through 8.2(g) of this Agreement and subject to Section 5.3 of this
Agreement, Funds and/or Underwriter shall remain obligated to pay Company the
Service Fee and/or Distribution Fee in effect as of the date of termination for
so long as Share are held by the Accounts and Company continues to provide the
respective services to the Accounts. Such fees shall apply to Shares purchased
both prior to and subsequent to the date of termination.
17
(c) The Provisions of this Agreement shall survive the termination with respect
to (i) Shares made available pursuant to Selection 8.6(a), and (ii) Shares for
which a fee continues to be due pursuant Selection 8.6(b).
ARTICLE IX. Notices
9.1 (a) Any notice shall be demand 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 notice 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
If to the Funds:
Lord Xxxxxx Family of Funds
00 Xxxxxx Xxxxxx
Xxxxxx Xxxx, XX 00000
Attention: General Counsel
with a copy to:
Lord, Xxxxxx & Co.
00 Xxxxxx Xxxxxx
Xxxxxx Xxxx, XX 00000
Attention: Xxxxx X. Xxxxxx
If to the Underwriter:
Lord Xxxxxx Distributors LLC
00 Xxxxxx Xxxxxx
Xxxxxx Xxxx, XX 00000
Attention: General Counsel
18
ARTICLE X Miscellaneous
10.1 Confidentiality
(a) Subject to 10.1(c) below and to law and regulatory authority, each party
hereto shall treat as "Confidential Information" 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. The term "Confidential
Information" shall also include other written information, clearly marked
"Confidential," furnished by the each party to the other. With respect to a
party, the term "Confidential Information" shall not include information which
(i) at the time of disclosure was already generally available to the public or
subsequent to the time of disclosure, and through no fault the party, becomes
generally available to the public, (ii) becomes available to the party on a
non-confidential basis from a third party who represents to the party that it is
not bound by a confidentiality agreement with the other party with respect
thereto, or (iii) was known to the party prior to the date of this Agreement
without any obligation to keep it confidential. In addition Fund holdings
released to Company are considered "Confidential Information" until sixty (60)
days from the time of such release unless otherwise approved for use by Company
in accordance with Section IV above.
(b) Subject to 10.1(c) below, 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, status and regulations enacted pursuant to the Xxxxx-Xxxxx-Xxxxxx
Act (Public Law 106-102). "PERSONAL INFORMATION" means financial and medical
information that identifies and 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.
(c) Either party may disclose Confidential Information and Personal Information
without the other party's prior consent to the extent required by applicable
law, regulation or legal or administrative authority.
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, statue, rule or otherwise, the remainder of the Agreement shall
not be affected thereby.
10.5 This Agreement has been executed on behalf of the Funds by the undersigned
officer of the Funds in his or her capacity as an officer of the Funds. The
obligations of this Agreement shall be binding upon the assets and property of
the Funds and each respective. Find thereof only and shall not be binding on any
Director, officer or shareholder of the Funds individually. In addition,
notwithstanding
19
any other provision of this Agreement, no Fund shall be liable for any loss,
expense, fee, charge or liability of any kind relating to or arising from the
actions or omissions of any other Fund or from the application of this Agreement
to any other Fund.
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. Notwithstanding the foregoing, each party
hereto further agrees to furnish the California Insurance Commissioner with any
information or reports in connection with services provided under this Agreement
which such Commissioner may request in order to ascertain whether the insurance
operations of the Company are being conducted in a manner consistent with the
California laws and regulations.
10.7 Each party represents that (a) the execution and delivery of this
Agreement and the consummation of the transactions contemplated herein have been
duly authorized by all necessary corporate or trust action, as applicable, by
such party and when so executed and delivered this Agreement will be the valid
and binding obligation of such party enforceable in accordance with its terms
subject to bankruptcy, insolvency, reorganization, moratorium and similar laws
of general applicability relating to or affecting creditors' rights and to
general equity principles; (b) the party has obtained, and during the term of
this Agreement will maintain, all authorizations, licenses, qualifications or
registrations required to be maintained in connection with the performance of
its duties under this agreement; and (c) the party will comply in all material
respects with all applicable laws, rules and regulations.
10.8 The parties to this Agreement may amend by written agreement the Schedules
to this Agreement from time to time to reflect changes in or relating to the
Contracts, the Separate Accounts or the Funds. The Company shall notify the
Funds and Underwriter of any additions it wishes to make to the list of Separate
Accounts on SCHEDULE A by furnishing a signed written notice to the Funds and
Underwriter in the form of an "Additional Separate Account Letter" which shall
state name of the new Separate Account and include a revised SCHEDULE A. The
Additional Separate Account Letter shall constitute an Amendment to this
Agreement upon the signed acknowledgement of such Additional Separate Account
Letter by both the Funds and Underwriter.
10.9 Subject to Section 8.3 above, this Agreement shall not be assigned without
the prior written consent of the parties.
20
IN WITNESS WHEREOF, each of the parties hereto has caused this Agreement to be
executed in its name and behalf by its duly authorized representative as of the
date first written above.
HARTFORD LIFE INSURANCE COMPANY LORD XXXXXX FAMILY OF FUNDS
By: /s/ Xxxx Xxxxxxxx By: /s/ Xxxx X. Xxxxxxx
------------------------------ ------------------------------
Name: Xxxx Xxxxxxxx Name: Xxxx X. Xxxxxxx
Title: Assistant Actuary Title: Vice President and Secretary
LORD XXXXXX DISTRIBUTOR LLC
By: Lord, Xxxxxx & Co., it's Managing
Member
By: /s/ Xxxxx X. Xxxxxx
------------------------------
Name: Xxxxx X. Xxxxxx
Title: Partner
21
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
22
SCHEDULE B
The Underwriter agrees to pay the Company Distribution and Service Fees at the
following annual rates based on the average daily net asset value of the
respective Shares held by the Company's Separate Account(s).
FEE RATE
--------------------------------------------------------------------------------
SERVICE FEE 0.20%
DISTRIBUTION FEE 0.25%
23
AMENDMENT TO
RETAIL FUND PARTICIPATION AGREEMENT
Dated September 6, 2001 (the "Agreement")
Between
LORD XXXXXX FAMILY OF FUNDS
LORD XXXXXX DISTRIBUTOR LLC
And
HARTFORD LIFE INSURANCE COMPANY
THIS AMENDMENT (the "Amendment") is made and entered into as of the 1st day of
April, 2007 between Hartford Life Insurance Company ("Hartford"), and the Lord
Xxxxxx Family of Funds, including each investment company and separate
investment portfolio thereof, whether existing as the date above or established
subsequent thereto (hereinafter, each a "Fund" and collectively, the "Funds"),
and Lord Xxxxxx Distributor LLC, a
New York limited liability corporation
(hereinafter the "Underwriter").
WHEREAS, the parties desire to amend the Agreement to allow for the addition of
a certain Fund or Funds,
NOW, THEREFORE, the parties agree as follows:
1. Schedules A and B shall be replaced by the attached Schedules A and B.
2. Section 5.1 shall be added as follows:
5.4 ADMINISTRATIVE SERVICES
(a) Company agrees to provide the following administrative services
to the Funds: (i) maintenance of books and records related to
Contractholders; (ii) wiring of monies to the Funds; (iii)
acting as proxy agent with regard to Contractholders in
connection with the holding of annual, if any, and special
meetings of the holders of Shares of the Funds; (iv) receiving
and tabulating votes cast by Contractholders by proxy and
voting shares in proportion to Contractholder votes as required
under the 1940 Act; and (v) providing confirmations of
transactions relating to Fund shares as required by applicable
law (collectively, the "Administrative Services").
(b) Subject to Section 5.3 (a), the Funds shall pay Company a fee
for its rendering of the Administrative Services described in
this Article V (the "Administration Fee"). The Administration
Fee shall be calculated monthly and paid quarterly at the
annual rates set forth on Schedule B attached hereto and made
part of this Agreement as may be amended from time to time with
the mutual consent of the parties hereto. The Administration
Fees shall not be paid pursuant to the Funds' 12b-1 Plan.
3. Section 5.3(a) shall be amended and restated as follows:
(a) The Underwriter will calculate the Service and Distribution
Fees at the end of each month and will make payment to the
Company within 30 days after the end of each quarter. The fees
will be accompanied by a
1
statement showing the calculation of the amounts payable by the
Underwriter and such other supporting data as may be reasonably
requested by Company. Payment will be wired by the Underwriter
to an account designated by Company. The Funds will calculate
the Administration Fees (as defined in Section 5.4) at the end
of each month and will make payment to the Company within 30
days after the end of each quarter. The fees will be
accompanied by a statement showing the calculation of the
amounts payable by the Funds and such other supporting data as
may be reasonably requested by Company. Payment will be wired
by the Funds to an account designated by Company.
4. Attached as SCHEDULE C to this Amendment is a certification relating to the
Company's internal procedures and policies regarding the timely handling of Fund
orders, which the Company shall execute and deliver to the Funds upon the
execution and delivery of this Amendment and adhere to throughout the term of
the Agreement.
5. This Amendment may be executed in counterparts, each of which shall be an
original and both of which shall constitute one instrument.
IN WITNESS HEREOF, the parties hereto have executed and delivered this Amendment
effective as of the date first written above.
HARTFORD LIFE INSURANCE COMPANY LORD XXXXXX FAMILY OF FUNDS
By: /s/ Xxxxx Xxxxx By: /s/ Xxxxxxxx X. Xxxxxx
-------------------------------- --------------------------------
Name: Xxxxx Xxxxx Name: Xxxxxxxx X. Xxxxxx
Title: Assistant Vice President Title: Vice President and Secretary
Date: 4/27/07 Date: 4/25/07
LORD XXXXXX DISTRIBUTOR LLC
By: Lord, Xxxxxx & Co. LLC, its
Managing Member
By: /s/ Xxxxxxxx X. Xxxxxx
--------------------------------
Name: Xxxxxxxx X. Xxxxxx
Title: Member and General Counsel
Date: 4/25/07
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. Currently, those Separate Accounts
are as follows:
401 MARKET
K, K1, K2, K3, K4
TK, TK1, TK2, TK3, TK4
VK, VK1, VK2, VK3, VK4
UK, XX0, XX0, XX0, XX0, 401
403 AND 457 MARKETS
DCI, DCII, DCIII, DCIV, DCV, DCVI, 457, 403, UFC, Separate Account Two, Separate
Account Eleven
PORTFOLIOS
ALL CLASS A SHARES
ALL CLASS P SHARES
3
SCHEDULE B
In consideration of the services provided by the Company, LORD XXXXXX FAMILY OF
FUNDS AND LORD XXXXXX DISTRIBUTOR LLC, as applicable, agrees to pay the Company
an amount equal to the following basis points per annum an 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. Administration Fees shall be paid by Lord Xxxxxx
Family of Funds and Service and Distribution Fees shall be paid by Lord Xxxxxx
Distributor LLC.
ADMINISTRATION SERVICE AND
PORTFOLIO FEES DISTRIBUTION FEES
--------------------------------------------------------------------------------
ALL CLASS A SHARES 0.25% 0.25%
ALL CLASS P SHARES 0.25% 0.45%
4
SCHEDULE C
CERTIFICATION REGARDING CONTROLS OVER TIMING OF MUTUAL FUND TRADING
The undersigned company ("we" or the "Company") is responsible for establishing
and maintaining effective internal policies and controls, including operational
and system controls, with respect to the processing of orders we receive prior
to and after the close of the
New York Stock Exchange -- normally 4:00 p.m.
Eastern Time (the "Close of Trading") for the purchase, redemption and exchange
of shares of mutual funds ("Fund Orders"), including the mutual funds comprising
the Lord Xxxxxx Family of Funds (each, a "Fund").
We have followed all applicable rules and regulations and our internal policies
regarding the timely handling of Fund Orders and have maintained effective
internal controls over our ability to distinguish and appropriately process Fund
Orders received prior to and after the Close of Trading, including operational
and systems controls. Specifically, we certify that:
- Our polices and procedures provide reasonable assurance that Fund
Orders we receive prior to the Close of Trading are segregated from
Fund Orders we receive after the Close of Trading and are properly
transmitted to the Funds (or their agents) for execution at the
current day's NAV.
- Our polices and procedures provide reasonable assurance that Fund
Orders we receive after the Close of Trading are properly transmitted
to the Funds (or their agents) for execution at the next day's NAV.
- Our policies and procedures provide reasonable assurance that
transactional information relating to Fund Orders is delivered to the
Funds (or their agents) in a timely manner.
- We have designed procedures to provide reasonable assurance that our
policies with regard to the receipt and processing of Fund Orders are
complied with. Such procedures either prevent or detect on a timely
basis instances of noncompliance with the policy over the receipt and
processing of Fund Orders.
- We have exercised reasonable due diligence to ensure that all
relevant third parties, if any, to which we have designated the
responsibility to distinguish Fund Orders received prior to and after
the Close of Trading have in fact adopted and implemented policies
and procedures designed to process Fund Orders in accordance with
applicable law, regulation and the relevant Fund's registration
statement.
- We will not submit any Fund Orders at net asset value except to the
extent that we reasonably believe that such Fund Orders are eligible
to be purchased at net asset value pursuant to the terms of each
Fund's Prospectus and Statement of Additional Information.
HARTFORD LIFE INSURANCE COMPANY
By: /s/ Xxxxx Xxxxx
--------------------------------
Name: Xxxxx Xxxxx
Title: Assistant Vice President
Date: 4/27/07
5
AMENDMENT TO AGREEMENT
This Amendment to Agreement (the "AMENDMENT") is entered into and effective as
of October 1, 2007, by and among Lord Xxxxxx Distributor LLC ("LAD"), each of
the investment companies comprising the Lord Xxxxxx Family of Funds, including
each separate investment portfolio, whether existing at the date of this
Agreement or established subsequent thereto (each a "FUND," and collectively,
"FUNDS") and Hartford Life Insurance Company ("SERVICE PROVIDER").
WHEREAS, the Funds, LAD and Service Provider have entered into an agreement
pursuant to which shares of the Funds may be offered to employee benefit plans
for which Service Provider provides recordkeeping and other administration
services (the "AGREEMENT"); and
WHEREAS, the parties now desire to amend the Agreement to provide for the
addition of a new Fund share class to the Agreement.
NOW, THEREFORE, in consideration of the premises and mutual covenants and
promises expressed herein, the parties agree to amend the Agreement as follows:
1. The Agreement shall be deemed to be amended to the extent necessary to
reflect the inclusion of Class R3 shares of the Funds ("SHARES").
2. The fee paid to the Service Provider for recordkeeping and other
administrative services relating to Shares shall be the same as the fee paid for
such services on Class P shares of the Funds under the Agreement.
3. No fee shall be paid under the Agreement for Plans that select Class P
Shares as a Plan option but have not done so prior to October 1, 2007, except to
the extent that: (i) the Plan selects Class P Shares as a plan option by March
31, 2008, and (ii) the selection is based on a proposal or recommendation that
can be shown to have been presented to the Plan before October 1, 2007.
4. In the event of any inconsistencies between the Agreement and this
Amendment, the terms of this Amendment shall govern. All other terms and
conditions of the Agreement shall remain in full force and effect.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be entered
into as of date first above written.
THE LORD XXXXXX FAMILY OF FUNDS HARTFORD LIFE INSURANCE COMPANY
/s/ Xxxxxxxx X. Xxxxxx By: /s/ Xxxxxx X. Xxxxxxx
------------------------------- ------------------------------
Xxxxxxxx X. Xxxxxx Name: Xxxxxx X. Xxxxxxx
Vice President and Secretary Title: Vice President
LORD XXXXXX DISTRIBUTOR LLC
By: Lord, Xxxxxx & Co. LLC,
its Managing Member
/s/ Xxxxxxxx X. Xxxxxx
-------------------------------
Xxxxxxxx X. Xxxxxx
Member
THIRD AMENDMENT TO THE
RETAIL FUND PARTICIPATION AGREEMENT
Pursuant to Section 10.8 of the
Retail Fund Participation Agreement dated
September 6, 2001 (the "Agreement") by and among Hartford Life Insurance
Company, the Lord Xxxxxx Family of Funds, and Lord Xxxxxx Distributor LLC, as
amended as of April 1, 2007 (the "First Amendment"), and October 1, 2007 (the
"Second Amendment"), the Agreement is hereby further amended as provided below,
effective as of October 31, 2009:
1. Hartford Securities Distribution Company, Inc., a broker-dealer registered
with the Securities and Exchange Commission ("SEC") under the Securities Act of
1934, as amended, a member of the Financial Industry Regulatory Authority
("FINRA"), and an affiliate of Hartford Life Insurance Company, is hereby added
as a party to this Agreement. Hartford Securities Distribution Company, Inc.
shall be defined as "HSD," Hartford Life Insurance Company shall be defined as
"Hartford Life" and HSD and Hartford Life shall be collectively defined as
"Company" under the Agreement, unless a different definition is supplied in the
Agreement for a particular section or context indicates that "Company" is more
appropriately defined as Hartford Life or HSD.
2. The sixth Whereas section of the Agreement shall be deleted and replaced in
its entirety with the following new sixth Whereas section:
WHEREAS, to the extent permitted by applicable insurance laws and
regulations, the Company intends to purchase Class A, Class P, Class R3 and
Class I shares ("Shares") in the Funds on behalf of each corresponding
Separate Account set forth on Schedule A to fund the Contracts and the
Underwriter is authorized to sell such Shares to unit investment trusts
such as the Separate Accounts at net asset value; and
3. The first sentence of Section 2.6 of the Agreement is replaced by the
following sentence:
The Underwriter and HSD each represent and warrant that it is and will at
all times during the term of this Agreement be a member in good standing of
FINRA and registered as a broker-dealer with the SEC. The Underwriter
further represents that it will sell and distribute Shares in accordance in
all material respects with all applicable federal and state securities
laws, including without limitation the 1933 Act, the 1934 Act and the 1940
Act.
4. Section 9.1(a) is hereby amended to add the following to the end of this
section:
If to Hartford Securities:
Hartford Securities Distribution Company, Inc.
000 Xxxxxxxxx Xxxxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
Attention: General Counsel
5. Section 10.3 is hereby deleted in its entity and restated to read as
follows:
10.3 This Agreement and any amendments hereto may be executed
simultaneously in two or more counterparts, each of which shall be an
original and each of which shall constitute one and the same instrument.
6. All references to "Company" in Section 5.4 of the Agreement shall be
replaced by "Hartford Life."
7. Section 5.1 of the Agreement shall be replaced in its entirety by the
following new Section 5.1:
5.1 Shareholder Services
(a) Hartford Life agrees to provide the following shareholder services
to the Underwriter: (i) responding to inquiries from owners of
Contracts using one or more of the Funds as an investment vehicle
("Contractholders") regarding the services performed by Hartford
Life that relate to the Funds; (ii) providing information to the
Underwriter and Contractholders with respect to Shares of the Funds
attributable to Contractholder accounts; and (iii) providing such
other similar services as the parties may mutually agree, to the
extent permitted under applicable federal and state requirements
(collectively, the "Shareholder Services").
(b) In connection with the rendering of the Shareholder Services
described in this Article V, Hartford Life shall be deemed to be an
independent contractor, and shall have no authority to act as agent
for the Underwriter or the Funds in any matter.
(c) Subject to Section 5.3 below, the Underwriter shall pay Hartford
Life a fee for its rendering of the Shareholder Services described
in this Article V (the "Shareholder Services Fee"). The Shareholder
Services Fee shall be calculated monthly and paid quarterly at the
annual rate set forth on Schedule B attached hereto and made a part
of this Agreement as may be amended from time to time with the
mutual consent of the parties hereto. The parties agree that the
Shareholder Services Fee paid to Hartford Life is for Shareholder
Services only and does not constitute payment in any manner for
investment advisory services or for costs of distribution.
2
8. Section 5.2 of the Agreement shall be replaced in its entirety by the
following new Section 5.2:
5.2 Distribution Services
(a) HSD agrees to provide the following distribution services to the
Underwriter: (i) distributing any prospectuses and reports with respect
to the Funds' Shares used for sales purposes; (ii) preparing and/or
distributing any advertising, promotional or sales literature used for
sales purposes with respect to the Funds' Shares and bearing any
related expenses; (iii) educating broker-dealers and their
representatives for sales purposes with respect to the Funds' Shares;
(iv) compensating broker-dealers or sales personnel in connection with
sales of the Funds' Shares; (v) recording the issuance and transfer
(via net purchase orders) of Shares of the Funds; (vi) reconciling and
balancing the Separate Accounts at the Fund level on the Funds'
transfer agent's books to the Separate Account general ledger
maintained by Hartford Securities or an affiliate; (vii) determining
amounts available for investment in the Funds; (viii) wiring monies to
the Funds; and (ix) other similar distribution-related services or
expenses as the parties may mutually agree to the extent permitted
under applicable federal and state requirements (collectively, the
"Distribution Services").
(b) Subject to Section 5.3 below, the Underwriter shall pay HSD a fee for
its rendering of the Distribution Services described in this Article V
(the "Distribution Fee"). The Distribution Fee shall be calculated
monthly and paid quarterly at the annual rate set forth on Schedule B
attached hereto and made a part of this Agreement as may be amended from
time to time with the mutual consent of the parties hereto. The parties
agree that the Distribution Fee paid to HSD is for activities which are
intended to result in the sale of such Fund's Shares as described in the
Fund's Rule 12b-1 Plan and Rule 12b-1, and does not constitute payment
in any manner for investment advisory services, administrative or
shareholder services.
9. Section 5.3 (a) of the Agreement shall be replaced in its entirety by the
following new Section 5.3 (a):
(a) The Underwriter will calculate Shareholder Services Fees (as defined
in Section 5.1(c)) and Distribution Fees (as defined in Section
5.2(b)) at the end of each month and will make payment to HSD and
Hartford Life, as applicable, within 30 days after the end of each
calendar quarter. The fees will be accompanied by a statement
showing the calculation of the amounts payable by the Underwriter
and such other supporting data as may be reasonably requested by
Company. Payment of such Shareholder Service Fees and Distribution
Fees will be wired by the Underwriter to an account designated by
the Company. The Funds will calculate the Administration Fees (as
3
defined in section 5.4) at the end of each month and will make payment
to the Company within 30 days after the end of each calendar quarter.
The fees will be accompanied by a statement showing the calculation of
the amounts payable by the Underwriter and such other supporting data
as may be reasonably requested by Company. Payment will be wired by
the Underwriter to an account designated by the Company.
10. Schedule B of the Agreement shall be replaced in its entirety by attached
new Schedule B.
11. In the event of any inconsistencies between the Agreement and this
Amendment, the terms of this Amendment shall govern. All other terms and
conditions of the Agreement shall remain in full force and effect.
IN WITNESS WHEREOF, the undersigned have executed this Amendment to the
Agreement.
HARTFORD LIFE INSURANCE COMPANY HARTFORD SECURITIES DISTRIBUTION
COMPANY, INC.
By: /s/ Xxxxxxx X. Xxxx By: /s/ Xxxxxxx X. Xxxx
------------------------------- ------------------------------
Xxxxxxx X. Xxxx Xxxxxxx X. Xxxx
---------------------------------------- ------------------------------
Print name and title Print name and title
May 25, 2010 May 25, 2010
---------------------------------------- ------------------------------
Date Date
LORD XXXXXX FAMILY OF FUNDS LORD XXXXXX DISTRIBUTOR LLC
BY: LORD, XXXXXX & CO. LLC, ITS
MANAGING MEMBER
By: /s/ Xxxxxxxx X. Xxxxxx By: /s/ Xxxxxxxx X. Xxxxxx
------------------------------- ------------------------------
Xxxxxxxx X. Xxxxxx Xxxxxxxx X. Xxxxxx
Vice President and Secretary Member
5/12/10 5/12/10
---------------------------------------- ------------------------------
Date Date
4
SCHEDULE B
In consideration of the Administrative Services provided by Hartford Life, the
Funds agree to pay Hartford Life Administration Fees at the below annual rate
based on the average daily net asset value of the respective Shares held by
Hartford Life's Separate Account(s).
In consideration of the Shareholder Services provided by Hartford Life, the
Underwriter agrees to pay Hartford Life Shareholder Services Fees at the below
annual rate based on the average daily net asset value of the respective Shares
held by Hartford Life's Separate Account(s).
In consideration of the Distribution Services provided by Hartford Securities,
the Underwriter agrees to pay Hartford Securities Distribution Fees at the below
annual rate based on the average daily net asset value of the respective Shares
held by Hartford Life's Separate Account(s).
Administration Fees, Shareholder Services Fees, and Distribution Fees shall be
paid by the Funds and Underwriter, as applicable, within thirty (30) days after
the end of each quarter.
ADMINISTRATION SHAREHOLDER SERVICE DISTRIBUTION FEES
FEES (PAYABLE BY FEES (PAYABLE BY (PAYABLE BY THE
PORTFOLIO THE FUNDS) THE UNDERWRITER) UNDERWRITER)
-----------------------------------------------------------------------------------------------
CLASS A SHARES 0.25% 0.25%* 0.00%
CLASS P SHARES** 0.25% 0.25% 0.20%
CLASS R3 SHARES 0.25% 0.25% 0.25%
CLASS I SHARES*** 0.10% 0.00% 0.00%
------------
* This fee may be reduced for certain Funds in accordance with the Prospectus
or other information made available by the Underwriter.
** Class P Shares are closed to new retirement plans.
*** Class I Shares of the Funds are available for purchase only with respect to
Plans for which the total amount of potential investable Plan assets exceeds
$10,000,000, or another amount set forth in the applicable current Fund
Prospectus.
5
