EXHIBIT B(8)(a)
PARTICIPATION AGREEMENT
AMONG
XXXXXXX INSURANCE FUNDS,
XXXXXXX FUND DISTRIBUTORS, INC.
AND
THE NORTHWESTERN MUTUAL LIFE INSURANCE COMPANY
THIS AGREEMENT is made and entered into as of this ____ day of
______________,by and among THE NORTHWESTERN MUTUAL LIFE INSURANCE COMPANY a
Wisconsin life insurance company (hereinafter the "Company"), on its own
behalf and on behalf of each segregated asset account of the Company set
forth on Schedule A hereto as such schedule may be amended from time to time
(each such account hereinafter referred to as the "Account" and collectively
as the "Accounts"), and XXXXXXX INSURANCE FUNDS, a Massachusetts Business
Trust (hereinafter the "Investment Company"), and XXXXXXX FUND DISTRIBUTORS,
INC. a Washington corporation (hereinafter the "Underwriter").
WHEREAS, Investment Company engages in business as a diversified
open-end management investment company and is available to act as the
investment vehicle for separate accounts established for variable life
insurance policies and variable annuity contracts (collectively, the
"Variable Insurance Products"); and
WHEREAS, the beneficial interest in the Investment Company is divided
into several series of shares, referred to individually as "Funds" and
representing the interest in a particular managed portfolio of securities and
other assets; and
WHEREAS, Investment Company is registered as an open-end management
investment company under the 1940 Act, and its shares are registered under
the Securities Act of 1933, as amended (hereinafter the "1933 Act"); and
WHEREAS, Xxxxx Xxxxxxx Investment Management Company (the "Adviser") is
registered as an investment adviser under the federal Investment Advisers Act
of 1940 and any applicable state securities law; and
WHEREAS, the Company has registered or will register certain variable
life or annuity contracts or both under the 1933 Act, and offers or will
offer for sale certain variable life or annuity contracts or both which are
or will be exempt from registration; and
WHEREAS, each Account is a duly organized, validly existing, segregated
asset account, established by resolution of the Board of Trustees of the
Company, on the date shown for such Account on Schedule A hereto, to set
aside and invest assets attributable to one or more variable life or annuity
contracts; and
WHEREAS, the Company has registered or will register some of the
Accounts as unit investment trusts under the 1940 Act and other Accounts are
exempt from registration; and
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WHEREAS, Investment Company has received "mixed and shared funding"
exemptive relief from the Securities and Exchange Commission permitting it to
offer its shares to life insurers in connection with variable annuity
contracts and variable life insurance policies offered by such insurers which
may or may not be affiliated with each other (SEC Release IC-16160, Dec. 7,
1987); and
WHEREAS, the Underwriter is registered as a broker/dealer with 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 the "NASD"); and
WHEREAS, to the extent permitted by applicable insurance laws and
regulations, the Company intends to purchase shares in the Funds on behalf of
each Account to fund certain of the aforesaid variable life or annuity
contracts or both, and the Underwriter is authorized to sell such shares to
unit investment trusts such as each Account at net asset value.
NOW THEREFORE, in consideration of the premises and of the mutual
covenants herein contained and other good and valuable consideration the
receipt of which is hereby acknowledged, the parties hereto, intending to be
legally bound hereby, agree as follows:
ARTICLE 1. SALE OF INVESTMENT COMPANY SHARES
1.1 The Underwriter agrees to sell to the Company those shares of
Investment Company which each Account orders, executing such orders on a
daily basis at the net asset value next computed after receipt by the
Investment Company or its designee of the order for the shares of the
Investment Company. For purposes of this Section 1.1, the Company shall be
the designee of the Investment Company for receipt of such orders from each
Account and receipt by such designee shall constitute receipt by the
Investment Company; provided that the Investment Company receives notice of
such order by 8:00 a.m. Pacific time on the next following Business Day.
"Business Day" shall mean any day on which the New York Stock Exchange is
open for trading and on which Investment Company calculated its net asset
value pursuant to the rules of the Securities and Exchange Commission.
1.2 The Investment Company agrees to make its shares available
indefinitely for purchase at the applicable net asset value per share by the
Company and its Accounts on those days on which the Investment Company
calculates its net asset value pursuant to rules of the Securities and
Exchange Commission, and the Investment Company shall use reasonable efforts
to calculate such net asset value on each day on which the New York Stock
Exchange is open for trading. Notwithstanding the foregoing, the Board of
Directors of the Investment Company (hereinafter the "Board") may refuse to
sell shares of any Fund, 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 Board acting in good
faith and in light of their fiduciary duties under federal and any applicable
state laws, necessary in the best interests of the shareholders of such Fund.
1.3 The Investment Company and the Underwriter agree that no shares of
any Fund will be sold to the general public.
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1.4 The Investment Company agrees to redeem for cash, on the Company's
request, any full or fractional shares of the Investment Company held by the
Company, executing such requests on a daily basis at the net asset value next
computed after receipt by the Investment Company or its designee of the
request for redemption. For purposes of this Section 1.4, the Company shall
be the designee of the Investment Company for receipt of requests for
redemption from each Account, and receipt by such designee shall constitute
receipt by the Investment Company; provided that the Investment Company
receives notice of such request for redemption by 8:00 a.m. Pacific time on
the next following Business Day.
1.5 The Company agrees to purchase and redeem the shares of selected
Funds offered by the then-current prospectus of the Investment Company and in
accordance with the provisions of such prospectus. The parties agree that
all net amounts available under the variable life and annuity contracts with
the form number(s) which are listed on Schedule B attached hereto and
incorporated herein by this reference, as such Schedule B may be amended from
time to time hereafter by mutual written agreement of all the parties hereto
(the "Contracts"), may be invested in the Investment Company, in other
separate accounts of the Company, in other investment companies, in the
Company's general account, or in other funding vehicles.
1.6 The Company shall pay for Investment Company shares on the next
Business Day after an order to purchase Investment Company shares is made in
accordance with the provisions of Section 1.1 hereof. Payment shall be in
federal funds transmitted by wire.
1.7 Issuance and transfer of the Investment Company's shares will be by
book entry only. Stock certificates will not be issued to the Company or any
Account. Shares ordered from the Investment Company will be recorded in an
appropriate title for each Account.
1.8 The Investment Company shall furnish same day notice (by wire or
telephone, followed by written confirmation) to the Company of any income
dividends or capital gain distributions payable on the Investment Company's
shares. The Company hereby elects to receive all such income dividends and
capital gain distributions as are payable on the Fund shares in additional
shares of that Fund. The Company reserves the right to revoke this election
and to receive all such income dividends and capital gain distributions in
cash. Investment Company shall furnish same day notice to the Company of the
number of shares so issued as payment of such dividends and distributions.
1.9 The Investment Company 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 net asset value per share is calculated.
ARTICLE II. REPRESENTATIONS AND WARRANTIES
2.1 The Company represents and warrants that the Contracts are
registered under the 1933 Act or are exempt from registration thereunder;
that the Contracts will be issued and sold in compliance in all material
respects with all applicable Federal and State laws and that the sale of the
Contracts shall comply in all material respects with state insurance
suitability requirements. 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
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Account prior to any issuance or sale of Contracts funded thereby as a
segregated asset account under applicable state insurance law and that each
Account is or will be registered as a unit investment trust in accordance
with the provisions of the 1940 Act to serve as a segregated investment
account for the Contracts or is exempt from registration thereunder.
2.2 The Investment Company represents and warrants that Investment
Company shares sold pursuant to this Agreement shall be registered under the
1933 and 1940 Acts, duly authorized for issuance and sold in compliance with
the laws of the State of Washington and all applicable federal and state
securities laws and that the Investment Company is and shall remain
registered under the 1940 Act. The Investment Company shall amend the
Registration Statement for its shares under the 1933 and the 1940 Acts from
time to time as required in order to effect the continuous offering of its
shares. The Investment Company shall register and qualify the shares for
sale in accordance with the laws of the various states only if and to the
extent deemed advisable by the Investment Company or the Underwriter.
2.3 The Investment Company represents that it is currently qualified as
a Regulated Investment Company under Subchapter M of the Internal Revenue
Code of 1986, as amended, (the "Code") and that it will make every effort to
maintain such qualification (under Subchapter M or any successor or similar
provision) and that it will notify the Company immediately upon having a
reasonable basis for believing that it has ceased to so qualify or that it
might not so qualify in the future.
2.4 The Company represents that the Contracts are currently treated as
endowment, annuity or life insurance contracts, under applicable provisions
of the Code and that it will make every effort to maintain such treatment and
that it will notify the Investment Company and the Underwriter immediately
upon having a reasonable basis for believing that the Contracts have ceased
to be so treated or that they might not be so treated in the future.
2.5 The Investment Company currently does not intend to make any
payments to finance distribution expenses pursuant to Rule l2b-1 under the
1940 Act or otherwise, although it may make such payments in the future. To
the extent that it decides to finance distribution expenses pursuant to Rule
12b-1, the Investment Company undertakes to have its board of trustees, a
majority of whom are not interested persons of the Investment Company,
formulate and approve any plan under Rule l2b-1 to finance distribution
expenses.
2.6 The Investment Company 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 regulations of
the various states.
2.7 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
Investment Company shares in accordance with any applicable state laws and
federal securities laws, including without limitation the 1933 Act, the 1934
Act, and the 1940 Act.
2.8 The Investment Company represents that it is lawfully organized and
validly existing under the laws of the Commonwealth of Massachusetts and that
it does and will comply in all material respects with the 1940 Act.
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2.9 The Underwriter represents and warrants that the Adviser is and
shall remain duly registered in all material respects under all applicable
federal and state securities laws and that the Adviser shall perform its
obligations for the Investment Company in compliance in all material respects
any applicable state laws and federal securities laws.
2.10 The Investment Company and Underwriter represent and warrant that
all of their directors, officers, employees, investment advisers, and other
individuals/entities dealing with the money or securities of the Investment
Company are and shall continue to be at all times covered by a blanket
fidelity bond or similar coverage for the benefit of the Investment Company
in an amount not less than the minimal coverage as required currently by Rule
17g-(1) of the 1940 Act or related provisions as may be promulgated from time
to time. The aforesaid Bond shall include coverage for larceny and
embezzlement and shall be issued by a reputable bonding company.
2.11 The Company represents and warrants that all of its directors,
officers, employees, investment advisers, and other entities dealing with the
money or securities of the Investment Company are and shall continue to be at
all times covered by a blanket fidelity bond or similar coverage for the
benefit of the Investment Company in an amount not less than five million
dollars ($5 million). The aforesaid Bond shall include coverage for larceny
and embezzlement and shall be issued by a reputable bonding company.
ARTICLE III. PROSPECTUSES AND PROXY STATEMENTS: VOTING
3.1 The Underwriter shall provide the Company with as many printed
copies of the Investment Company's current prospectus and Statement of
Additional Information as the Company may reasonably request. If requested
by the Company in lieu thereof, the Investment Company shall provide
camera-ready film or computer diskettes containing the Investment Company's
prospectus and Statement of Additional Information and such other assistance
as is reasonably necessary in order for the Company once each year (or more
frequently if the prospectus and/or Statement of Additional Information for
the Investment Company is amended during the year) to have the prospectus for
the Contracts and the Investment Company's prospectus printed together in one
document, and to have the Statement of Additional Information for the
Investment Company and the Statement of Additional Information for the
Contracts printed together in one document. Alternatively, the Company may
print the Investment Company's prospectus and/or its Statement of Additional
Information in combination with other fund companies' prospectuses and
statements of additional information. Except as provided in the following
three sentences, all expenses of printing and distributing Investment Company
prospectuses and Statements of Additional Information distributed by the
Company shall be the expense of the Company. For Prospectuses and Statement
of Additional Information provided by the Company to its existing owners of
Contracts in order to update disclosure as required by the 1933 Act and/or
the 1940 Act, the cost of printing shall be borne by the Investment Company.
If the Company chooses to receive camera-ready film or computer diskettes in
lieu of receiving printed copies of the Investment Company's prospectus, the
Investment Company will reimburse the Company in an amount equal to the
product of A and B where A is the number of such prospectuses distributed to
owners of the Contracts, and B is the Investment Company's per unit cost of
typesetting and printing the Investment Company's
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prospectus. The same procedures shall be followed with respect to the
Investment Company's Statement of Additional Information.
The Company agrees to provide the Investment Company or its
designee with such information as may be reasonably requested by the
Investment Company to assure that the Investment Company's expenses do not
include the cost of printing any prospectuses or Statements of Additional
Information other than those actually distributed to existing owners of the
Contracts.
3.2 The Investment Company's prospectus shall state that the Statement
of Additional Information for the Investment Company is available from the
Underwriter or the Company (or in the Fund's discretion, the Prospectus shall
state that such Statement is available from the Investment Company).
3.3 The Investment Company, at its expense, shall provide the Company
with copies of its proxy statements, reports to shareholders, and other
required communications (except for prospectuses and Statement of Additional
Information, which are covered in Section 3.1) to shareholders in such
quantity as the Company shall reasonably require for distributing to Contract
owners.
3.4 The Company will provide pass-through voting privileges to all
Contract owners to the extent that and so long as the SEC continues to
interpret the Investment Company Act of 1940 as requiring pass-through voting
privileges for Contract owners. Accordingly, the Company, where applicable,
will vote shares of the Fund held in its Separate Accounts in a manner
consistent with voting instructions timely received from its Contract owners.
The Company will be responsible for assuring that each of its separate
accounts that participates in the Investment Company calculates voting
privileges in a manner consistent with other participating insurance
companies. The Company will vote shares for which it has not received timely
voting instructions, as well as shares it owns, in the same proportion as it
votes those shares for which it has received voting instructions.
3.5 If and to the extent Rule 6e-2 and Rule 6e-3(T) are amended, or if
Rule 6e-3 is adopted, to provide exemptive relief from any provision of the
Investment Company Act of 1940 or the rules thereunder with respect to mixed
and shared funding on terms and conditions materially different from any
exemptions granted in the Investment Company's mixed and shared funding
exemptive order, then the Investment Company, and/or the Company, as
appropriate, shall take such steps as may be necessary to comply with Rule
6e-2 and Rule 6e-3(T), as amended, and Rule 6e-3, as adopted, to the extent
such Rules are applicable.
3.6 The Investment Company will comply with all provisions of the 1940
Act requiring voting by shareholders, and in particular the Investment
Company will either provide for annual or special meetings or comply with the
requirements of Section 16(c) of the 1940 Act (although the Investment
Company is not one of the trusts described in Section 16(c) of that Act) as
well as with Sections 16(a) and, if and when applicable, 16(b). Further, the
Investment Company will act in accordance with the SEC's interpretation of
the requirements of Section 16(a) with respect to periodic elections of
directors and with whatever rules the SEC may promulgate with respect thereto.
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ARTICLE IV. SALES MATERIAL AND INFORMATION
4.1 The Company shall furnish, or shall cause to be furnished, to the
Investment Company or its designee, each piece of sales literature or other
promotional material, or component thereof, in which the Investment Company,
the Adviser, or the Underwriter is named, at least fifteen Business Days
prior to its use. No such material shall be used if the Investment Company
or its designee object to such use within fifteen Business Days after receipt
of such material. Once any such material has been so furnished to the
Investment Company or its designee and fifteen Business days have elapsed,
such materials need not again be so furnished absent any subsequent changes
to such material that affect the materials' discussion or presentation
relating to the Investment Company, its advisor, the Underwriter, or any of
their affiliates (other than the Company or persons that are deemed
affiliates only by virtue of being controlled by the Company). In
particular, materials that have been changed merely to update performance or
financial information need not be so furnished.
4.2 The Company shall not give any information or make any
representations or statements on behalf of the Investment Company or
concerning the Investment Company in connection with the sale of the
Contracts other than the information or representations contained in the
registration statement or prospectus for the Investment Company shares, as
such registration statement and prospectus may be amended or supplemented
from time to time, or in reports or proxy statements for the Investment
Company, or in sales literature or other promotional material approved by the
Investment Company or its designee or by the Underwriter, except with the
permission of the Investment Company or the Underwriter or the designee of
either.
4.3 The Investment Company, the Underwriter, or their designees shall
furnish, or shall cause to be furnished, to the Company or its designee, each
piece of sales literature or other promotional material, or component
thereof, in which the Company or its separate Accounts are named at least
fifteen Business Days prior to its use. No such material shall be used if
the Company or its designee objects to such use within fifteen Business Days
after receipt of such material.
4.4 The Investment Company and the Underwriter shall not give any
information or make any representations on behalf of the Company or
concerning the Company, each Account, or the Contracts other than the
information or representations contained in a registration statement,
prospectus or offering materials for the Contracts, as such may be amended or
supplemented from time to time, or in published reports for each Account
which are in the public domain or approved by the Company for distribution to
Contract owners, or in sales literature or other promotional material
approved by the Company or its designee, except with the permission of the
Company.
4.5 The Investment Company will provide to the Company at least one
complete copy of all registration statements, prospectuses, Statements of
Additional Information, reports, proxy statements, sales literature and other
promotional materials, applications for exemptions, requests for no-action
letters, and all amendments to any of the above, that relate to the
Investment Company or its shares, contemporaneously with the filing of such
document with the Securities and Exchange Commission or other regulatory
authorities.
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4.6 The Company will provide to the Investment Company at least one
complete copy of all registration statements, prospectuses, Statements of
Additional Information, reports, solicitations for voting instructions, sales
literature and other promotional materials, applications for exemptions,
requests for no-action letters, and all amendments to any of the above, that
relate to the Contracts or each Account, contemporaneously with the filing of
such document with the SEC or other regulatory authorities. In the case of
unregistered Contracts, in lieu of providing prospectuses and Statements of
Additional Information, the Company shall provide the Investment Company with
one complete copy of the offering materials for the Contracts.
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, electronic media, 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, 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,
and registration statements, prospectuses, Statements of Additional
Information, shareholder reports, and proxy materials.
ARTICLE V. POTENTIAL CONFLICTS
5.1 The parties acknowledge that Investment Company has received a
"mixed and shared funding "exemptive order from the SEC granting relief from
various provisions of the Investment Company Act of 1940 and the rules
thereunder to the extent necessary to permit Investment Company shares to be
sold to and held by Variable Insurance Products separate accounts of both
affiliated and unaffiliated participating insurance companies. The exemptive
order requires the Investment Company and each participating insurance
company to comply with conditions and undertakings substantially as provided
in this Article V. The Investment Company will not enter into a
participation agreement with any other participating insurance company unless
it imposes the same conditions and undertakings as are imposed on the Company.
5.2 The Investment Company's Board of Trustees ("Board") will monitor
the Investment Company for the existence of any material irreconcilable
conflict between the interests of Contract owners of all separate accounts
investing in the Investment Company. An irreconcilable material conflict may
arise for a variety of reasons, which may include: (a) an action by any state
insurance regulatory authority; (b) a change in applicable federal or state
insurance, tax, or securities laws or regulations, or a public ruling,
private letter ruling or any similar action by insurance, tax or securities
regulatory authorities; (c) an administrative or judicial decision in any
relevant proceeding; (d) the manner in which the investments of the
Investment Company are being managed; (e) a difference in voting instructions
given by Contract owners; and (f) a decision by a participating insurance
company to disregard the voting instructions of Contract owners.
5.3 The Company will report any potential or existing conflicts to the
Investment Company's Board. The Company will be responsible for assisting
the Board in carrying out its duties in this regard by providing the Board
with all information reasonably necessary for the Board to
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consider any issues raised. The responsibility includes, but is not limited
to, an obligation by the Company to inform the Board whenever it has
determined to disregard Contract owner voting instructions. These
responsibilities of the Company will be carried out with a view only to the
interests of the Contract owners.
5.4 If a majority of the Board or majority of its disinterested
Trustees, determines that a material irreconcilable conflict exists affecting
the Company, then the Company, at its expense and to the extent reasonably
practicable (as determined by a majority of the Board's disinterested
Trustees), will take any steps necessary to remedy or eliminate the
irreconcilable material conflict, including: (a) withdrawing the assets
allocable to some or all of the separate accounts from the Investment Company
or any Fund thereof and reinvesting those assets in a different investment
medium, which may include another Fund of the Investment Company, or another
investment company; (b) submitting the question as to whether such
segregation should be implemented to a vote of all affected Contract owners
and as appropriate, segregating the assets of any appropriate group (i.e.,
variable annuity or variable life insurance contract owners of one or more
participating insurance companies) that votes in favor of such segregation,
or offering to the affected Contract owners the option of making such a
change; and (c) establishing a new registered management investment company
(or series thereof) or managed separate account. If a material
irreconcilable conflict arises because of the Company's decision to disregard
Contract owner voting instructions, and that decision represents a minority
position or would preclude a majority vote, the Company may be required at
the election of the Investment Company, to withdraw its separate accounts'
investment in the Investment Company, and no charge or penalty will be
imposed as a result of such withdrawal. The responsibility to take such
remedial action shall be carried out with a view only to the interests of the
Contract owners.
For the purposes of this Section 5.4, a majority of the
disinterested members of the Board shall determine whether or not any
proposed action adequately remedies any irreconcilable material conflict but
in no event will the Investment Company or any investment adviser of the
Investment Company be required to establish a new funding medium for any
Contract. Further, the Company shall not be required by this Section 5.4 to
establish a new funding medium for any Contract if any offer to do so has
been declined by a vote of a majority of Contract owners materially and
adversely affected by the irreconcilable material conflict.
5.5 The Board's determination of the existence of an irreconcilable
material conflict and its implications shall be made known promptly and in
writing to the Company.
5.6 No less than annually, the Company shall submit to the Board such
reports, materials or data as the Board may reasonably request so that the
Board may fully carry out its obligations. Such reports, materials, and data
shall be submitted more frequently if deemed appropriate by the Board.
ARTICLE VI. FEES AND EXPENSES
6.1 The Investment Company and the Underwriter shall pay no fee or
other compensation to the Company under this Agreement, except that if the
Investment Company or any Fund adopts and implements a plan pursuant to Rule
l2b-1 to finance distribution expenses, then the Underwriter may make
payments to the Company or to the underwriter for the Contracts if and in
amounts agreed to by the Underwriter in writing and such payments will be
made out of
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existing fees otherwise payable to the Underwriter, past profits of the
Underwriter, or other resources available to the Underwriter. No such
payments shall be made directly by the Investment Company. Currently, no such
payments are contemplated.
6.2 All expenses incident to performance by the Investment Company
under this Agreement shall be paid by the Investment Company. The Investment
Company shall ensure that all its shares are registered and authorized for
issuance in accordance with applicable federal law and, if and to the extent
deemed advisable by the Investment Company, in accordance with applicable
state laws prior to their sale. The Investment Company shall bear the
expenses for the cost of registration and qualification of the Investment
Company's shares, preparation and filing of the Investment Company's
prospectus and registration statement, proxy materials and reports, setting
the prospectus in type, setting in type and printing the proxy materials and
reports to shareholders (including the costs of printing a prospectus that
constitutes an annual report), the preparation of all statements and notices
required by any federal or state law, and all taxes and fees on the issuance
or transfer of the Investment Company's shares.
6.3 The Company shall bear the expenses of distributing the Investment
Company's prospectus, proxy materials, and reports to owners of Contracts
issued by the Company.
ARTICLE VII. DIVERSIFICATION
7.1 The Investment Company will at all times invest money from the
Contracts in such a manner as to ensure that the Contracts will be treated as
variable contracts under the Internal Revenue Code and the regulations issued
thereunder. Without limiting the scope of the foregoing, the Investment
Company will at all times comply with Section 817(h) of the Code and Treasury
Regulation 1.817-5, relating to the diversification requirements for variable
annuity, endowment, or life insurance contracts and any amendments or other
modifications to such Section or Regulations.
ARTICLE VIII. INDEMNIFICATION
8.1 INDEMNIFICATION BY THE COMPANY
8.1(a). The Company agrees to indemnify and hold harmless the Investment
Company and each member of the Board and officers and each person, if any,
who controls the Investment Company within the meaning of Section 15 of the
1933 Act (collectively, the "Indemnified Parties" for purposes of this
Section 8.1) against any and all losses, claims, damages, liabilities
(including amounts paid in settlement with the written consent of the
Company) or litigation (including 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 action in respect thereof) or settlements are related to the
Company's sale or acquisition of the Investment Company's shares or the
Contracts and:
(i) arise out of or are based upon any untrue statements or
alleged untrue statements of any material fact contained in any Registration
Statement, prospectus or other offering materials for the Contracts or
contained in the Contracts or sales literature 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
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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 to the Company by
or on behalf of the Investment Company for use in any Registration Statement
or prospectus 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 Investment Company's shares; or
(ii) arise out of or as a result of statements or representations
(other than statements or representations contained in the Registration
Statement, prospectus or sales literature of the Investment Company not
supplied by the Company, or persons under its control) or wrongful conduct of
the Company or persons under its control, with respect to the sale or
distribution of the Contracts or Investment Company shares; or
(iii) arise out of any untrue statement or alleged untrue
statement of a material fact contained in a Registration Statement,
prospectus, or sales literature of the Investment Company 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 Investment Company by or
on behalf of the Company; or
(iv) arise as a result of any failure by the Company to provide
the services and furnish the materials under the terms of this Agreement; or
(v) arise out of a result from any material breach of any
representation or warranty made by the Company in this Agreement or arise out
of or result from any other material breach of this Agreement by the Company,
as limited by and in accordance with the provisions of Sections 8.1(b) and
8.1(c) hereof.
8.1(b). The Company shall not be liable under this indemnification
provision with respect to any losses, claims, damages, liabilities or
litigation incurred or assessed against an Indemnified Party as such may
arise from such Indemnified Party's willful misfeasance, bad faith, or gross
negligence in the performance of such Indemnified Party's duties or by reason
of such Indemnified Party's reckless disregard of obligations or duties under
this Agreement or to the Investment Company, whichever is applicable.
8.1(c). The Company shall not be liable under this indemnification
provision with respect to any claim made against an Indemnified Party unless
such Indemnified Party shall have notified the Company 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 Indemnified Party 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
may have to the Indemnified Party against whom such action is brought
otherwise than on account of this indemnification provision. In case any
such action is brought against the Indemnified Parties, the Company shall be
entitled to participate, at its own expense, in the defense of such action.
The Company also shall be entitled to assume the defense thereof, with
counsel satisfactory to the party named in the action. After notice from the
Company to such party of the Company's election to assume the defense
thereof, the Indemnified Party shall
11
bear the fees and expenses of any additional counsel retained by it, and the
Company 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.
8.1(d). 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 Investment Company shares or the Contracts or the
operation of the Investment Company.
8.2 INDEMNIFICATION BY THE UNDERWRITER
8.2(a). The Underwriter agrees to indemnify and hold harmless the Company
and each of its directors and officers and each person, if any, who controls
or is controlled by the Company within the meaning of Section 15 of the 1933
Act (collectively, the "Indemnified Parties" for purposes of this Section
8.2) against any and all losses, claims, damages, liabilities (including
amounts paid in settlement with the written consent of the Underwriter) or
litigation expenses (including legal and other expenses) to which the
Indemnified Parties may become subject under any statute, 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 Investment Company's shares or the Contracts and;
(i) arise out of or are based upon any untrue statement or
alleged untrue statement of any material fact contained in the
Registration Statement or prospectus or sales literature of the
Investment Company (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 to the Underwriter or
Investment Company by or on behalf of the Company for use in the
Registration Statement or prospectus for the Investment Company or
in the sales literature (or any amendment or supplement) or
otherwise for use in connection with the sale of the Contracts or
Investment Company shares; or
(ii) arise out of or as a result of statements or representations
(other than statements or representations contained in any
Registration Statement, prospectus, other offering materials or
sales literature for the Contracts not supplied by the Underwriter
or persons under its control) or wrongful conduct of the Investment
Company, Adviser, or Underwriter or persons under their control,
with respect to the sale or distribution of the Contracts or
Investment Company shares; or
(iii) arise out of any untrue statement or alleged untrue
statement of a material fact contained in any Registration
Statement, prospectus, other offering materials or sales literature
covering 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 information
furnished to the Company by or on behalf of the Investment Company;
or
12
(iv) arise as a result of any failure by the Investment Company
to provide the services and furnish the materials under the terms
of this Agreement (including a failure, whether unintentional or in
good faith or otherwise, to comply with the diversification
requirements specified in Article VII of this Agreement); or
(v) arise out of or result from any material breach of any
representation or warranty made by the Underwriter in this
Agreement or arise out of or result from any other material breach
of this Agreement by the Underwriter; as limited by and in
accordance with the provisions of Sections 8.2(b) and 8.2(c) hereof.
8.2(b). The Underwriter shall not be liable under this indemnification
provision with respect to any losses, claims, damages, liabilities or
litigation to which an Indemnified Party would otherwise be subject by reason
of such Indemnified Party's willful misfeasance, bad faith, or gross
negligence in the performance of such Indemnified Party's duties or by reason
of such Indemnified Party's reckless disregard of obligations and duties
under this Agreement or to the Company or each Account, whichever is
applicable.
8.2(c). The Underwriter shall not be liable under this indemnification
provision with respect to any claim made against an Indemnified Party unless
such Indemnified Party shall have notified the Underwriter 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 Indemnified Party shall have received notice
of such service on any designated agent), but failure to notify the
Underwriter of any such claim shall not relieve the Underwriter from any
liability which it may have to the Indemnified Party against whom such action
is brought otherwise than on account of this indemnification provision. In
case any such action is brought against the Indemnified Parties, the
Underwriter will be entitled to participate, at its own expense, in the
defense thereof. The Underwriter also shall be entitled to assume the
defense thereof, with counsel satisfactory to the party named in the action.
After notice from the Underwriter to such party of the Underwriter's election
to assume the defense thereof, the Indemnified Party shall bear the fees and
expenses of any additional counsel retained by it, and the Underwriter 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.
8.2(d). The Company agrees promptly to notify the Underwriter of the
commencement of any litigation or proceedings against it or any of its
officers or directors in connection with the issuance or sale of the
Contracts or the operation of any Account.
8.3 INDEMNIFICATION BY THE INVESTMENT COMPANY
8.3(a). The Investment Company agrees to indemnify and hold harmless the
Company and each of its directors and officers and each person, if any, who
controls or is controlled by the Company within the meaning of Section 15 of
the 1933 Act (collectively, the "Indemnified Parties" for purposes of this
Section 8.3) against any and all losses, claims, damages, liabilities
(including amounts paid in settlement with the written consent of the
Investment Company) or litigation expenses (including legal and other
expenses) to which the Indemnified Parties may become subject under any
statute, at common law or otherwise, insofar as such losses, claims,
13
damages, liabilities or expenses (or actions in respect thereof) or
settlements result from the gross negligence, bad faith or willful misconduct
of the Board or any member thereof, are related to the operations of the
Investment Company and:
(i) arise as a result of any failure by the Investment Company
to provide the services and furnish the materials under the terms
of this Agreement (including a failure to comply with the
diversification requirements specified in Article VII of this
Agreement); or
(ii) arise out of or result from any material breach of any
representation or warranty made by the Investment Company in this
Agreement or arise out of or result from any other material breach
of this Agreement by the Investment Company, as limited by and in
accordance with the provisions of Sections 8.3(b) and 8.3(c) hereof.
8.3(b). The Investment Company shall not be liable under this
indemnification provision with respect to any losses, claims, damages,
liabilities or litigation incurred or assessed against an Indemnified Party
as such may arise from such Indemnified Party's will misfeasance, bad faith,
or gross negligence in the performance of such Indemnified Party's duties or
by reason of such Indemnified Party's reckless disregard of obligations and
duties under this Agreement or to the Company, the Investment Company, the
Underwriter or any Account, which ever is applicable.
8.3(c). The Investment Company shall not be liable under this
indemnification provision with respect to any claim made against an
Indemnified Party unless such Indemnified Party shall have notified the
Investment Company 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 Indemnified Party
shall have received notice of such service on any designated agent), but
failure to notify the Investment Company of any such claim shall not relieve
the Investment Company from any liability which it may have to the
Indemnified Party against whom such action is brought otherwise than on
account of this indemnification provision. In case any such action is
brought against the Indemnified Parties, the Investment Company will be
entitled to participate, at its own expense, in the defense thereof. The
Investment Company also shall be entitled to assume the defense thereof, with
counsel satisfactory to the party named in the action. After notice from the
Investment Company to such party of the Investment Company's election to
assume the defense thereof, the Indemnified Party shall bear the fees and
expenses of any additional counsel retained by it, and the Investment Company
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.
8.3(d). The Company and the Underwriter agree promptly to notify the
Investment Company of the commencement of any litigation or proceeding
against it or any of its respective officers or directors in connection with
this Agreement, the issuance or sale of the Contracts, with respect to the
operation of any Account, or the sale or acquisition of shares of the
Investment Company.
14
ARTICLE IX. APPLICABLE LAW
9.1 This Agreement shall be construed and the provisions hereof
interpreted under and in accordance with the laws of the State of Washington.
9.2 To the extent they are applicable, 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 Securities and Exchange Commission may
grant and the terms hereof shall be interpreted and construed in accordance
therewith.
ARTICLE X. TERMINATION OF AGREEMENT
10.1 This Agreement shall continue in full force and effect until the
first to occur of:
(a) termination by any party for any reason by sixty (60) days
advance written notice delivered to the other parties; or
(b) termination by the Company by written notice to the
Investment Company and the Underwriter with respect to any fund based upon
the Company's determination that shares of such Fund are not reasonably
available to meet the requirements of the Contracts; or
(c) termination by the Company by written notice to the
Investment Company and the Underwriter with respect to any Fund in the event
any of the Fund's shares are not registered, issued, or sold materially in
accordance with applicable state or federal law or such law precludes the use
of such shares as the underlying investment media of the Contracts issued or
to be issued by the Company; or
(d) Termination by the Company by written notice to the
Investment Company and the Underwriter with respect to any Fund in the event
that such Fund ceases to qualify as a Regulated Investment Company under
Subchapter M of the Code or under any successor or similar provision, or if
the Company reasonably believes that the Investment Company may fail to so
qualify; or
(e) termination by the Company by written notice to the
Investment Company and the Underwriter with respect to any Fund in the event
that such Fund fails to meet the diversification requirements specified in
Article VII hereof; or
(f) termination by either the Investment Company or the
Underwriter by written notice to the Company, if either one or both of the
Investment Company or the Underwriter respectively, shall determine, in their
sole judgment exercised in good faith, that the Company or its affiliated
companies has suffered a material adverse change in its business, operations,
financial condition, or prospects since the date of this Agreement or is the
subject of material adverse publicity; or
(g) termination by the Company by written notice to the
Investment Company and the Underwriter, if the Company shall determine, in
its sole judgment exercised in good faith, that either the Investment Company
or the Underwriter has suffered a material adverse change in its
15
business, operations, financial condition, or prospects since the date of
this Agreement or is the subject of material adverse publicity.
10.2 Notwithstanding any termination of this Agreement, the Investment
Company and the Underwriter shall at the option of the Company, continue to
make available additional shares of the Investment Company pursuant to the
terms and conditions of this Agreement, for all Contracts in effect on the
effective date of termination of this Agreement (hereinafter referred to as
"Existing Contracts"). Specifically, without limitation, the owners of the
Existing Contracts shall be permitted to reallocate investment in the
Investment Company, redeem investments in the Investment Company, or invest
in the Investment Company upon the making of additional purchase payments
under the Existing Contracts.
10.3 The Company shall not redeem Investment Company shares attributable
to the Contracts (as opposed to Investment Company shares attributable to the
Company's assets held in any of the Accounts) except (i) as necessary to
implement Contract Owner initiated transactions, or (ii) as required by state
or federal laws or regulations or judicial or other legal precedent of
general application (hereinafter referred to as a "Legally Required
Redemption"). Upon request, the Company will promptly furnish to the
Investment Company and the Underwriter the opinion of counsel for the Company
(which counsel shall be reasonably satisfactory to the Investment Company and
the Underwriter) to the effect that any redemption pursuant to clause (ii)
above is a Legally Required Redemption. Furthermore, except in cases where
permitted under the terms of the Contracts, the Company shall not prevent
Existing Contract Owners from allocating payments to a Fund that was
otherwise available under the Contracts without first giving the Investment
Company or the Underwriter sixty (60) days notice of its intention to do so.
ARTICLE XI. 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.
If to the Investment Company:
000 X. Xxxxxx
Xxxxxx, Xxxxxxxxxx 00000
Attention: Xxxx X. Xxx, Esq.
If to the Company:
000 Xxxx Xxxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxxx 00000-0000
Attention:
-------------------------
If to the Underwriter:
000 X. Xxxxxx
Xxxxxx, Xxxxxxxxxx 00000
Attention: Xxxx X. Xxx, Esq.
16
ARTICLE XII. MISCELLANEOUS
12.1 All persons dealing with the Investment Company must look solely to
the property of the Investment Company for the enforcement of any claims
against the investment Company as neither the Board, officers, agents or
shareholders assume any personal liability for obligations entered into on
behalf of the Investment Company.
12.2 Subject to the requirements of legal process and regulatory
authority, each party hereto shall treat as confidential the names and
addresses of the owners of the Contracts and all information reasonably
identified as confidential in writing by any other party hereto and, except
as permitted by this Agreement, shall not disclose, disseminate or utilize
such names and addresses and other confidential information until such time
as it may come into the public domain without the express written consent of
the affected party.
12.3 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.
12.4 This Agreement may be executed simultaneously in two or more
counterparts, each of which taken together shall constitute one and the same
instrument.
12.5 If any provisions of this Agreement shall be held or made invalid
by a court decision, statute, rule or otherwise, the remainder of the
Agreement shall not be affected thereby.
12.6 Each party hereto shall cooperate with each other party and all
appropriate governmental authorities (including without limitation the SEC,
the NASD and state insurance regulators) and shall permit such authorities
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 generality of 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 variable life insurance operations of the Company are being
conducted in a manner consistent with the California Variable Life Insurance
Regulations and any other applicable law or regulations.
12.7 The rights, remedies and obligations contained in this Agreement
are cumulative and are in addition to any and all rights, remedies and
obligations, at law or in equity, which the parties hereto are entitled to
under state and federal laws.
12.8 This Agreement or any of the rights and obligations hereunder may
not be assigned by any party without the prior written consent of all parties
hereto; provided, however, that the Underwriter may assign this Agreement or
any rights or obligations hereunder to any affiliate of or company under
common control with the Underwriter, if such assignee is duly licensed and
registered to perform the obligations of the Underwriter under this Agreement.
17
12.9 The Company shall furnish, or shall cause to be furnished, to the
Investment Company or its designee copies of the following reports:
(a) the Company's annual statement prepared under statutory
accounting principles, as soon as practical and in any event within 90 days
after the end of each fiscal year;
(b) the Company's quarterly statement (statutory), as soon as
practical and in any event within 45 days after the end of each quarterly
period; and
(c) any financial statement, proxy statement, notice or report
of the Company sent to stockholders or policyholders, as soon as practical
after the delivery thereof; and
12.10 The Master Trust Agreement dated 11 July 1996, as amended from time
to time, establishing the Investment Company, which is hereby referred to and
a copy of which is on file with the Secretary of The Commonwealth of
Massachusetts, provides that the name Xxxxxxx Insurance Funds means the
Trustees from time to time serving (as Trustees but not personally) under
said Master Trust Agreement. It is expressly acknowledged and agreed that
the obligations of the Investment Company hereunder shall not be binding upon
any of the shareholders, Trustees, officers, employees or agents of the
Investment Company, personally, but shall bind only the trust property of the
Investment Company as provided in its Master Trust Agreement. The execution
and delivery of this Agreement have been authorized by the Trustees of the
Investment Company and signed by the President of the Investment Company,
acting as such, and neither such authorization by such Trustees nor such
execution and delivery by such officer shall be deemed to have been made by
any of them individually or to impose any liability on any of them
personally, but shall bind only the trust property of the Investment Company
as provided in its Master Trust Agreement.
IN WITNESS WHEREOF, each of the parties hereto have caused this
Agreement to be executed in its name and on behalf by its duly authorized
representative and its seal to be hereunder affixed hereto as of the date
first written above.
THE NORTHWESTERN MUTUAL LIFE INSURANCE
COMPANY
ATTEST: BY:
----------------------------------- ---------------------------------------
Secretary Title:
XXXXXXX INSURANCE FUNDS
ATTEST: BY:
----------------------------------- ---------------------------------------
Secretary President
XXXXXXX FUND DISTRIBUTORS, INC.
18
ATTEST: BY:
----------------------------------- ---------------------------------------
Secretary President
19
SCHEDULE A
ACCOUNTS
Name of Account Date of Resolution of Company's
Board that established the Account
NML Variable Annuity Account A February 14, 1968
NML Variable Annuity Account B February 14, 1968
NML Variable Annuity Account C July 22, 1970
Northwestern Mutual Variable Life Account November 23, 1983
20
SCHEDULE B
CONTRACTS
1. Contract Form Numbers:
Variable Life:
RR.VJL.(1298) RR Series Variable Joint Life
RR.VEL.(0398) RR Series Variable Executive Life
QQ.VCL QQ Series Variable CompLife
MM 15 MM Series Variable Whole Life
MM 16 MM Series Variable Single Premium Life
MM 17 MM Series Variable Extraordinary Life
Individual Variable Annuity:
QQV.ACCT.A QQV.ACCT.B QQ Series VAs
MM V 1A MM V 1B MM V 1 MM Series VAs
LL V 1A LL V 1B LL V 1 LL Series VAs
KK V 1A KK V 1B KK V 1 KK Series VAs
JJ V 1A JJ V 1B JJ Series VAs
Group Variable Annuity
NPV.1C NN Series GPA
MP V 1C MM Series GPA
LL V 1C LL Series GPA
KK V 1C KK Series GPA
JJ V 1C JJ Series GPA
2. Funds currently available to act as investment vehicles for the
above-listed contracts:
Xxxxxxx Insurance Funds: Multi-Style Equity Fund
Aggressive Equity Fund
Non-U.S. Fund
Core Bond Fund
Xxxxxxx Real Estate Securities Fund
21
