Exhibit 9(b)
PARTICIPATION AGREEMENT
PARTICIPATION AGREEMENT (the "Agreement") made by and between XXXXXXX
VARIABLE LIFE INVESTMENT FUND (the "Fund"), a Massachusetts business trust
created under a Declaration of Trust dated March 15, 1985, with a principal
place of business in Boston, Massachusetts and (INSURANCE COMPANY), a __________
corporation (the "Company"), with a principal place of business in
_________________, __________________.
WHEREAS, the Fund has been organized to act as the investment vehicle for
the separate accounts established for variable life insurance policies and
variable annuity contracts to be offered by insurance companies which have
entered into participation agreements substantially identical to this Agreement
("Participating Insurance Companies"); and
WHEREAS, the beneficial interest in the Fund is divided into several
series of shares, each designated a "Portfolio" and representing the interest in
a particular managed portfolio of securities; and
WHEREAS, it is in the best interest of Participating Insurance Companies
to insure that the average annual expenses of the Fund will not exceed a fixed
percentage of the Fund's average annual net assets; and
WHEREAS, the Parties desire to evidence their agreement as to certain
other matters,
NOW THEREFORE, in consideration of the foregoing and the mutual covenants
and agreements hereinafter contained, the parties hereto agree as follows:
1. Additional Definitions.
For the purposes of this Agreement, the following definitions shall apply:
(a) The "Fund's expenses" for any fiscal year shall mean the
expenses for such fiscal year as shown in the Statement of Operations (or
similar report) certified by the Fund's independent public accountants;
(b) A "Portfolio's average annual net assets" for each fiscal year
shall mean the sum of the net asset values determined throughout the year for
the purpose of determining net asset value per share, divided by the number of
such determinations during such year;
(c) The "Company's proportionate share of the excess expenses of a
Portfolio" for any fiscal year shall mean a Portfolio's total expenses for such
year minus 1/2 of 1% of the Portfolio's average annual net assets for such year
multiplied by a fraction the denominator of which is the average annual net
assets of the Portfolio and the numerator of which is the average annual net
asset value of the Shares of the Portfolio owned by the separate account or
accounts of the Company.
(d) The "average annual net asset value of the Shares of the
Portfolio" of the separate account or accounts of the Company shall mean the sum
of the aggregate net asset values of
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the Shares so owned determined during the fiscal year, as of each determination
of the net asset value per Share, divided by the number of such determinations
during such year.
(e) "Shares" means shares of beneficial interest, without par value,
of any Portfolio, now or hereafter created, of the Fund.
2. Expense Reimbursement.
The Company shall, within sixty days of the end of each fiscal year of the
Fund, reimburse the Fund for the Company's proportionate share of the excess
expenses of a Portfolio for such year.
3. Indemnification.
The Company agrees to indemnify and hold harmless the Fund and each of its
Trustees and officers and each person, if any, who controls the Fund within the
meaning of Section 15 of the Securities Act of 1933 (the "Act") against any and
all losses, claims, damages, liabilities or litigation (including legal and
other expenses), arising out of the acquisition of any Shares by any person, to
which the Fund or such Trustees, officers or controlling person may become
subject under the Act, under any other statute, at common law or otherwise,
which (i) may be based upon any wrongful act by the Company or any of its
employees or representatives or any affiliate of or any person acting on behalf
of the Company, or (ii) may be based upon any untrue statement or alleged untrue
statement of a material fact contained in a registration statement or prospectus
covering
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Shares 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 information furnished to the Fund by the
Company, or (iii) may be based on any untrue statement or alleged untrue
statement of a material fact contained in a registration statement or prospectus
covering insurance products sold by the Company, or any amendments 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, unless such statement or omission was made in reliance
upon information furnished to the Company by or on behalf of the Fund; provided,
however, that in no case (i) is the Company's indemnity in favor of a Trustee or
officer of any other person deemed to protect such Trustee or officer or other
person against any liability to which any such person would otherwise be subject
by reason of willful misfeasance, bad faith, or gross negligence in the
performance of his duties or by reason of his reckless disregard of obligations
and duties under this agreement or (ii) is the Company to be liable under its
indemnity agreement contained in this Paragraph 3 with respect to any claim made
against the Fund or any person indemnified unless the Fund or such person, as
the case may be, shall have notified the Company in writing pursuant to
Paragraph 6 within
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a reasonable time after the summons or other first legal process giving
information of the nature of the claims shall have been served upon the Fund or
upon such person (or after the Fund or such person shall have received notice of
such service on any designated agent), but failure to notify the Company of any
such claim shall not relieve the Company from any liability which it has to the
Fund or any person against whom such action is brought otherwise than on account
of its indemnity agreement contained in this Paragraph 3. The Company shall be
entitled to participate, at its own expense, in the defense, or, if it so
elects, to assume the defense of any suit brought to enforce any such liability,
but, if it elects to assume the defense, such defense shall be conducted by
counsel chosen by it and satisfactory to the Fund, to its officers and Trustees,
or to any controlling person or persons, defendant or defendants in the suit. In
the event that the Company elects to assume the defense of any such suit and
retain such counsel, the Fund, such officers and Trustees or controlling person
or persons, defendant or defendants in the suit, shall bear the fees and
expenses of any additional counsel retained by them, but, in case the Company
does not elect to assume the defense of any such suit, the Company will
reimburse the Fund, such officers and Trustees or controlling person or persons,
defendant or defendants in such suit, for the reasonable fees and expenses of
any counsel retained by them. The Company agrees promptly to notify the Fund
pursuant to Paragraph 6 of the commencement
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of any litigation or proceedings against it in connection with the issue and
sale of any Shares.
The Fund agrees to indemnify and hold harmless the Company and each of its
directors and officers and each person, if any, who controls the Company within
the meaning of Section 15 of the Act against any and all losses, claims,
damages, liabilities or litigation (including legal and other expenses) to which
it or such directors, officers or controlling person may become subject under
the Act, under any other statute, at common law or otherwise, arising out of the
acquisition of any Shares by any person which (i) may be based upon any wrongful
act by the Fund or any of its employees or representatives, or (ii) may be based
upon any untrue statement or alleged untrue statement of a material fact
contained in a registration statement or prospectus covering Shares 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 unless such statement or omission was made
in reliance upon information furnished to the Fund by the Company or (iii) may
be based on any untrue statement or alleged untrue statement of a material fact
contained in a registration statement or prospectus covering insurance products
sold by the Company, or any amendment 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
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misleading, if such statement or omission was made in reliance upon information
furnished to the Company by or on behalf of the Fund; provided, however, that in
no case (i) is the Fund's indemnity in favor of a director or officer or any
other person deemed to protect such director or officer or other person against
any liability to which any such person would otherwise be subject by reason of
willful misfeasance, bad faith, or gross negligence in the performance of his
duties or by reason of his reckless disregard of obligations and duties under
this Agreement or (ii) is the Fund to be liable under its indemnity agreement
contained in this Paragraph 3 with respect to any claims made against the
Company or any such director, officer or controlling person unless it or such
director, officer or controlling person, as the case may be, shall have notified
the Fund in writing pursuant to Paragraph 6 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 it or upon such director, officer or
controlling person. (or after the Company or such director, officer or
controlling person shall have received notice of such service on any designated
agent), but failure to notify the Fund of any claim shall not relieve it from
any liability which it may have to the person against whom such action is
brought otherwise than on account of its indemnity agreement contained in this
Paragraph 3. The Fund will be entitled to participate at its own expense in the
defense, or, if it so elects, to assume the defense of
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any suit brought to enforce any such liability, but if the Fund elects to assume
the defense, such defense shall be conducted by counsel chosen by it and
satisfactory to the Company, its directors, officers or controlling person or
persons, defendant or defendants, in the suit. In the event the Fund elects to
assume the defense of any such suit and retain such counsel, the Company, its
directors, officers or controlling person or persons, defendant or defendants in
the suit, shall bear the fees and expenses of any additional counsel retained by
them, but, in case the Fund does not elect to assume the defense of any such
suit, it will reimburse the Company or such directors, officers or controlling
person or persons, defendant or defendants in the suit, for the reasonable fees
and expenses of any counsel retained by them. The Fund agrees promptly to notify
the Company pursuant to Paragraph 6 of the commencement of any litigation or
proceedings against it or any of its officers or Trustees in connection with the
issuance or sale of any Shares.
4. Massachusetts Law to Apply.
This Agreement shall be construed and the provisions hereof interpreted
under and in accordance with the laws of The Commonwealth of Massachusetts.
5. Duration and Termination.
This Agreement shall remain in force for the period ending two (2) years
from the date of its execution (an anniversary of such date being hereinafter
called an "Anniversary Date"), and
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from year to year thereafter provided that neither the Company nor the Fund
shall have given written notice to the other within thirty (30) days of an
Anniversary Date that it desires to renegotiate the amount of reimbursement due
hereunder ("Renegotiation Notice"). If a Renegotiation Notice is properly given
as aforesaid and the Fund and the Company shall fail, within sixty (60) days
after the Anniversary Date, either to enter into an amendment to this Agreement
or a written acknowledgment that the Agreement shall continue in effect, this
Agreement shall terminate as of the sixtieth day following such Anniversary
Date. If this Agreement is so terminated, the Fund may, at any time thereafter,
automatically redeem the Shares of any Portfolio held by the Company, its
separate account(s) or the separate account(s) of any affiliated insurance
companies. This Agreement may be terminated at any time, at the option of either
of the Company or the Fund, when neither the Company, its separate account(s)
nor the separate account(s) of any affiliated insurance company own any Shares
of the Fund.
6. Notices.
Any notice shall be sufficiently given when sent by registered or
certified mail 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.
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If to the Fund:
Xxxxxxx Variable Life Investment Fund
000 Xxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
(000) 000-0000
Attn: __________________________
If to the Company:
________________________________
________________________________
________________________________
________________________________
________________________________
Attn: __________________________
7. Miscellaneous.
The name "Xxxxxxx Variable Life Investment Fund" is the designation of the
Trustees for the time being under a Declaration of Trust dated March 15, 1985
and all persons dealing with the Fund must look solely to the property of the
Fund for the enforcement of any claims against the Fund as neither the Trustees,
officers, agents or shareholders assume any personal liability for obligations
entered into on behalf of the Fund.
The captions in this Agreement are included for convenience of reference
only and in no way define or delineate any of the provisions hereof or otherwise
affect their construction or effect. This Agreement may be executed
simultaneously in two or more counterparts, each of which taken together shall
constitute one and the same instrument.
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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 and
its seal to be hereunder affixed hereto as of the ____ day of _________ , 1985.
SEAL XXXXXXX VARIABLE LIFE
INVESTMENT FUND
By___________________________
President
SEAL [PARTICIPATING INSURANCE
COMPANY]
By___________________________
Its__________________________
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