SHAREHOLDER SERVICES AGREEMENT
Exhibit 8(ppp)
[12b-1]
Retail
Retail
This Agreement is made as of December 28, 2007, by and between Xxxxx & Steers Securities, LLC
(the “Distributor”), a Delaware limited liability company, and Xxxxxxx Xxxxx Life Insurance
Company (the “Company”), an Arkansas life insurance company.
WHEREAS, the Company has entered into a participation agreement dated March 1, 2005 with Xxxxx
& Steers Realty Income Fund, Inc. (the “Fund”), an open-end investment company registered under the
Investment Company Act of 1940 (the “1940 Act”) with respect to the purchase of a class of shares
designated “A Shares” of one or more series of the Fund (each a “Portfolio”) by certain separate
accounts of the Company (“Accounts”); and
WHEREAS, the Distributor serves as the distributor to the Fund; and
WHEREAS, the Company desires to provide certain shareholder services to owners (“Contract
Owners”) of variable life insurance policies or variable annuity contracts (“Contracts”) in
connection with their allocation of contract values to the Portfolios and Distributor desires
Company to provide such services, subject to the conditions of this Agreement; and
WHEREAS, pursuant to Rule 12b-1 under the 1940 Act, the A Shares of each Portfolio have
adopted a plan (the “12b-1 Plan”) which, among other things, authorizes the Distributor to enter
into this Agreement with organizations such as Company and to compensate such organizations out of
each Portfolio’s average daily net assets attributable to the A Shares:
NOW THEREFORE, in consideration of mutual covenants contained in this Agreement, the
Distributor and the Company agree as follows:
1. Services of Company.
(a) The Company shall provide any combination of the following support services, as agreed
upon by the parties from time to time, to Contract Owners who allocate contract values to the A
Shares of the Portfolios: delivering prospectuses, statements of additional information,
shareholder reports, proxy statements, and marketing materials to prospective and existing
Contract Owners; providing educational materials regarding the A Shares; providing facilities to
answer questions from prospective and existing Contract Owners about the Portfolios; receiving and
answering correspondence; complying with federal and state securities laws pertaining to the sale
of A Shares; assisting Contract Owners in completing application forms and selecting investment
options; and providing Contract Owner recordkeeping and similar administrative services.
(b) The Company will provide such office space and equipment, telephone facilities, and
personnel as may be reasonably necessary or beneficial in order to provide such services to
Contract Owners.
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(c) The Company will furnish to the Distributor, the Fund, or their designees such information
as the Distributor may reasonably request, and will otherwise cooperate with the Distributor in the
preparation of reports to the Fund’s Board of Directors concerning this Agreement, as well as any
other reports or filings that may be required by law.
2. Maintenance of Records. The Company shall maintain and preserve all records as
required by law to be maintained and preserved in connection with providing the services herein.
Upon the reasonable request of Distributor or the Fund, Company shall provide Distributor, the
Fund, or the representative of either, copies of all such records.
3. Fees. In consideration of the Company’s performance of the services described in
this Agreement, Distributor shall pay to the Company a monthly fee (“Servicing Fee”) calculated as
follows: the average aggregate amount invested each calendar month by the Company in the A Shares
of each Portfolio that are attributable to the Contracts is multiplied by a pro rata fee factor.
The pro rata fee factor is calculated by: (a) dividing the per annum factor set forth on Exhibit A
for the A Shares of each Portfolio by the number of days in the applicable year, and (b)
multiplying the result by the actual number of days in the applicable month. The average aggregate
amount invested in the Fund over a one-month period shall be computed by totaling the aggregate
investment (A Share net asset value multiplied by total number of A Shares of each Portfolio held
by the Company) on each business day during the month and dividing by the total number of business
days during such month.
Distributor will calculate the fee at the end of each calendar month and will make such
payment to the Company, without demand or notice by the Company, within 30 days thereafter. The
check for such payment will be accompanied by a statement showing the calculation of the amount
being paid by Distributor and such other supporting data as may be reasonably requested by the
Company.
4. Representations, Warranties and Agreements.
The Company represents, warrants, and covenants that if required by applicable law, the
Company will disclose to each Contract Owner the existence of the Servicing Fee received by the
Company pursuant to this Agreement in a form consistent with the requirements of applicable law.
The Distributor represents and warrants that it is a broker-dealer registered under the
Securities Exchange Act of 1934 and it is authorized by the Fund’s Board of Directors to enter
into this Agreement. The Company represents and warrants that is a broker-dealer registered under
the Securities Exchange Act of 1934, or is not required to be so registered, and it is authorized
to enter into this Agreement.
5. Termination.
(a) Unless sooner terminated with respect to any Portfolio, this Agreement will continue with
respect to a Portfolio only if the continuance of a form of this Agreement is specifically
approved at least annually by the vote of a majority of the members of the Board of Directors of
the Fund who are not “interested persons” (as such term is defined in the 0000 Xxx) and who have
no direct or indirect financial interest in the 12b-1 Plan relating to such Portfolio or any
agreement relating to such 12b-1 Plan,
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including this Agreement, cast in person at a meeting called for the purpose of voting on such
approval.
(b) This Agreement will automatically terminate with respect to a Portfolio in the event of
its assignment (as such term is defined in the 0000 Xxx) with respect to such Portfolio. This
Agreement may be terminated with respect to any Portfolio by the Distributor or by the Company,
without penalty, upon 60 days’ prior written notice to the other party. This Agreement may also be
terminated with respect to any Portfolio at any time without penalty by the vote of a majority of
the members of the Board of Directors of the Fund who are not “interested persons” (as such term is
defined in the 0000 Xxx) and who have no direct or indirect financial interest in the 12b-1 Plan
relating to such Portfolio or any agreement relating to such Plan, including this Agreement, or by
a vote of a majority of the A Shares of such Portfolio on 60 days’ written notice.
(c) In addition, either party may terminate this Agreement immediately if at any time it is
determined by any federal or state regulatory authority that compensation to be paid under this
Agreement is in violation of or inconsistent with any federal or state law.
6. Miscellaneous.
(a) No modification of any provision of this Agreement will be binding unless in writing and
executed by the parties. No waiver of any provision of this Agreement will be binding unless in
writing and executed by the party granting such waiver.
(b) This Agreement shall be binding upon and shall inure to the benefit of the parties and
their respective successors and assigns; provided, however that neither this Agreement nor any
rights, privileges, duties, or obligations of the parties may be assigned by either party without
the written consent of the other party or as expressly contemplated by this Agreement.
(c) This Agreement shall be governed by and interpreted in accordance with the laws of the
State of New York, exclusive of conflicts of laws.
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(d) This Agreement may be executed in several counterparts, each of which shall be an original
but all of which together shall constitute one and the same instrument.
| XXXXX & STEERS SECURITIES, LLC. |
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| By: | /s/ Xxxx X. XxXxxxx | |||
| Name: | Xxxx X. XxXxxxx | |||
| Title: | E.V.P. Director Sales & Marketing | |||
| XXXXXXX XXXXX LIFE INSURANCE COMPANY |
||||
| By: | /s/ Xxxxx X Xxxxxxxxxx | |||
| Name: | Xxxxx X Xxxxxxxxxx | |||
| Title: | President | |||
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Exhibit A to Shareholder Services Agreement
| Name of Fund | Share Class | Fee Factor | ||||||
Xxxxx & Steers
Realty Income Fund, Inc. |
A | 0.25 | % | |||||
As of
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