RETAIL FUND PARTICIPATION AGREEMENT
THIS AGREEMENT, made and entered into this 26th of August, 2011, and effective,
retroactively, as of May 21, 2010, 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"), XXXXXX XXXXXXX INSTITUTIONAL FUND, INC., an open-end diversified
management investment company organized under the laws of Maryland (hereinafter
"MSIF INC."), XXXXXX XXXXXXX INSTITUTIONAL FUND TRUST, an open-end diversified
management investment company organized under the laws of Pennsylvania
(hereinafter "MSIF TRUST"), XXXXXX XXXXXXX DISTRIBUTION, INC., a Pennsylvania
corporation (hereinafter the "UNDERWRITER") and XXXXXX XXXXXXX SERVICES COMPANY
INC., a Delaware corporation (hereinafter the "TRANSFER AGENT"), (together MSIF
Inc., MSIF Trust, Underwriter and Transfer Agent are referred to as "Fund
Parties").
WITNESSETH:
WHEREAS, each of MSIF Inc and MSIF Trust is an open-end investment company
registered under the 1940 Act (as defined herein), and the shares of each of its
Portfolios as set forth in SCHEDULE A to this Agreement (each, a "Fund" and
collectively, the "Funds") are registered under the 1933 Act (as defined
herein);
WHEREAS, beneficial interests in the Funds are divided into several series, each
representing the interest in a particular managed portfolio of securities and
other assets (the "PORTFOLIOS"); and
WHEREAS, each Fund is registered as an open-end management investment company
under the Investment Company Act of 1940, as amended (hereinafter the "1940
ACT") and the shares of each Portfolio 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 Financial
Industry Regulatory Authority (hereinafter "FINRA"); and
WHEREAS, to the extent permitted by applicable insurance laws and regulations,
the Company intends to purchase shares in the Portfolios 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.
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NOW, THEREFORE, in consideration of their mutual promises, the Company, the
Funds, the Transfer Agent and the Underwriter agree as follows:
ARTICLE I. Purchase and Redemption of Portfolio Shares.
1.1 Each Fund and the Underwriter agrees to sell to the Company those shares of
the Portfolios 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 the Transfer Agent 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 the Company shall
constitute receipt by the Funds; provided that the Funds or the Transfer Agent
receive notice of such order via the National Securities Clearing Corporation
(the "NSCC") by 6:00 a.m. Eastern Time on the next following Business Day. The
Transfer Agent will receive all orders to purchase Portfolio shares using the
NSCC's Defined Contribution Clearance & Settlement ("DCC&S") platform. The
Transfer Agent will also provide the Company with account positions and activity
data using the NSCC's Networking platform. The Company shall pay for Portfolio
shares by the scheduled close of federal funds transmissions on the same
Business Day it places an order to purchase Portfolio shares in accordance with
this section using the NSCC's Fund/SERV 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 each Portfolio's net asset value
pursuant to the rules of the SEC. "NETWORKING" shall mean the NSCC's product
that allows the Transfer Agent and the Company 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 Transfer Agent for Portfolio 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
Portfolios 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 the Transfer Agent 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 the Company shall
constitute receipt by the Funds; provided that the Transfer Agent receives
notice of such order by 10:00 a.m. Eastern Time on the next following Business
Day. The Company shall pay for Portfolio shares by the scheduled close of
federal funds transmissions on the same Business Day it places an order to
purchase Portfolio shares 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 the New York Stock Exchange is open for trading
and on which the Funds calculate each Portfolio's net asset value pursuant to
the rules of the SEC.
1.2 The Funds and the Underwriter agree to make shares of the Portfolios
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 Portfolio to any person, or suspend or
terminate the offering of shares of any Portfolio if such action is required by
law or by regulatory authorities having
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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 Portfolio.
1.3 The Funds and the Underwriter agree to redeem for cash, upon the Company's
request, any full or fractional shares of the Portfolios 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 the
Transfer Agent 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 the Company shall
constitute receipt by the Funds; provided the Transfer Agent receives notice of
such request for redemption via the NSCC by 6:00 a.m. Eastern Time on the next
following Business Day. The Transfer Agent will receive all orders to redeem
Portfolio shares using the NSCC's DCC&S platform. The Transfer Agent will also
provide the Company with account positions and activity data using the NSCC's
Networking platform. Payment for Portfolio shares redeemed shall be made in
accordance with this section using the NSCC's Fund/SERV 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 Transfer Agent
receives notice of the redemption order from the Company provided that the
Transfer Agent receives notice by 6:00 a.m. Eastern Time on such Business Day.
If the Company is somehow prohibited from submitting redemption and settlement
instructions to the Funds for Portfolio 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 Portfolios 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 the
Transfer Agent 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 the Company shall
constitute receipt by the Funds; provided the Transfer Agent receives notice of
such request for redemption by 10:00 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
Transfer Agent receives notice of the redemption order from the Company provided
that the Transfer Agent receives notice by 10:00 a.m. Eastern Time on such
Business Day.
1.4 The Company will place separate orders to purchase or redeem shares of each
Portfolio.
1.5 Issuance and transfer of the Portfolio's 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 Portfolios shares will be recorded in an
appropriate title for each Separate Account or the appropriate subaccount of
each Separate Account.
1.6 The Transfer Agent shall furnish prior day and same day notice to the
Company of any income, dividends or capital gain distributions payable on the
Portfolio's shares. The Company hereby elects to receive all such dividends and
distributions as are payable on a Portfolio's shares in the form of additional
shares of that Portfolio. The Transfer Agent 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 Transfer Agent.
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1.7 The Transfer Agent shall make the net asset value per share of each
Portfolio available to the Company on a daily basis as soon as reasonably
practical after the close of trading each Business Day, but in no event later
than 7:00 p.m. Eastern time on such Business Day.
1.8(a) If the Transfer Agent provides materially incorrect share net asset
value information through no fault of the Company, the Separate Accounts shall
be entitled to an adjustment with respect to the Portfolio shares purchased or
redeemed to reflect the correct net asset value per share.
1.8(b) The determination of the materiality of any net asset value pricing
error and its correction shall be based on the SEC's recommended guidelines
regarding these errors. Any material error in the calculation or reporting of
net asset value per share, dividend or capital gain information shall be
reported promptly to the Company upon discovery. The Underwriter and the Funds
shall indemnify and hold harmless the Company against any amount the Company is
legally required to pay Contract Owners, participants or beneficiaries that have
selected a Portfolio as an investment option ("Contract owners"), and which
amount is due to the Funds' or its agents' material miscalculation and/or
incorrect reporting of or failure to report the daily net asset value, dividend
rate or capital gains distribution rate. The Company shall submit an invoice to
the Funds or its agents for such losses incurred as a result of the above which
shall be payable within sixty (60) days of receipt. Should a material
miscalculation by the Funds or its agents result in a gain to the Company, the
Company shall immediately reimburse the Funds, the applicable Portfolios or its
agents for any material losses incurred by the Funds, the applicable Portfolios
or its agents as a result of the incorrect calculation, Should a material
miscalculation by the Funds or its agents result in a gain to Contract owners,
the Company will consult with the Funds or its designee as to what reasonable
efforts shall be made to recover the money and repay the Funds, the applicable
Portfolio or its agents. The Company shall then make such reasonable effort, at
the expense of the Funds or its agents, to recover the money and repay the
Funds, the applicable Portfolios or its agents; but the Company shall not be
obligated to take legal action against Contract owners.
With respect to the material errors or omissions described above, this section
shall control over other indemnification provisions in this Agreement.
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.
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2.2 Each Fund and the Underwriter represent and warrant that (i) the shares of
its Portfolios 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 Fund is and shall remain registered under the 1940 Act for as long as
the Portfolio shares are sold; (ii) the Fund shall amend the registration
statement 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 Fund shall register and qualify Portfolio shares for sales in accordance
with the laws of the various states only if and to the extent deemed advisable
by the Fund or the Underwriter.
2.3 The Funds represents that each Portfolio (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 Portfolio 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 under the 1940 Act for certain classes of shares of the Portfolios, the
Funds represent that their Board of Trustees or Directors, as applicable,
including a majority of the Trustees/Directors who are not interested persons of
the Funds, have formulated and approved one or more plans under Rule 12b-1 to
finance distribution and/or shareholder servicing expenses.
2.5 The Funds make no representation as to whether any aspect of their
operations (including, but not limited to, fees and expenses and investment
policies) complies with the insurance laws or insurance regulations of the
various states except that the Funds represents that the Funds' investment
policies, fees and expenses are and shall at all times remain in compliance with
applicable law. The Funds, the Transfer Agent and the Underwriter represent that
their respective operations are and shall at all times remain in material
compliance with applicable law to the extent required to perform this Agreement.
2.6 The Underwriter represents and warrants that it is a member in good
standing of FINRA and is registered as a broker-dealer with the SEC. The
Underwriter further represents that it will sell and distribute the Portfolio
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 0000 Xxx.
2.7 MSIF Inc. represents that it is lawfully organized and validly existing
under the laws of the State of Maryland and that it does and will comply in all
material respects with applicable provisions of the 1940 Act. MSIF Trust
represents that it is lawfully organized and validly existing under the laws of
the Commonwealth of Pennsylvania and that it does and will comply in all
material respects with applicable provisions of the 0000 Xxx.
2.8 The Funds represent and warrant that all of their Trustees/Directors,
officers, employees, investment advisers, and other individuals/entities having
access to the funds and/or securities of each Fund 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.
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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 Portfolios 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 the Portfolio shares
pursuant to this Agreement.
2.11 The Company represents that it has adopted written policies and procedures
reasonably designed to detect and deter frequent and/or disruptive trading in
Shares. The Company and the Fund Parties agree to reasonably cooperate for the
purpose of discouraging frequent or disruptive trading in shares of the Funds
and agree to negotiate a "shareholder information agreement" under Rule 22c-2 in
the form of EXHIBIT A, attached to this Agreement.
ARTICLE III. Prospectuses; Reports and Proxy Statements; Voting
3.1 The Funds, or their designated agent, shall provide the Company at no
charge with as many printed copies of each Portfolio's current prospectus and
statement of additional information as the Company may reasonably request. If
requested by the Company, in lieu of providing printed copies of the Portfolio's
current prospectus and statement of additional information, the Funds shall
provide, if available, camera-ready film, computer diskettes, e-mail
transmissions or PDF files containing the Portfolio'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 Portfolios are amended during
the year) to have the prospectus for the Contracts (if applicable) and the
Portfolio's prospectus printed together in one document or separately. The
Company may elect to print the Portfolio's prospectus and/or its statement 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
Portfolio proxy statements, Portfolio reports to shareholders, and other Fund or
Portfolio communications to shareholders in such quantity as the Company shall
reasonably require for distributing to Contract owners.
3.2(b) The Funds shall pay for the cost of typesetting, printing and
distributing all Portfolio prospectuses, statements of additional information,
Portfolio reports to shareholders and other Fund or Portfolio communications to
Contract owners and prospective Contract owners. The Funds shall pay for all
costs for typesetting, printing and distributing proxy materials.
3.3. The Portfolio's statement of additional information shall be obtainable by
Contract owners 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 Contract owners to whom voting privileges are
required to be extended and shall:
A. solicit voting instructions from Contract owners;
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B. vote the Portfolio shares held in the Separate Account in accordance
with instructions received from Contract owners; 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 Portfolio shares held in the Separate Account for
which no timely instructions have been received, in the same proportion
as Portfolio shares for which instructions have been received from the
Company's Contract owners. The Company reserves the right to vote
Portfolio shares held in any segregated asset account for its own
account, to the extent permitted by law. Notwithstanding the foregoing,
with respect to the Portfolio shares 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 Portfolio
shares allocated to such Contracts only in accordance with the Company's
agreements with such Contract owners.
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 Funds' investment adviser ("Adviser") or the
Underwriter is described, at least five calendar days prior to its use. No such
literature or material shall be used without prior approval from the Funds or
the Underwriter; however, the failure to object in writing within five 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 Neither the Company nor any person contracting with the Company shall give
any information or make any representations or statements on behalf of the
Portfolios or concerning the Portfolios in connection with the sale of the
Contracts other than the information or representations contained in the
registration statement or prospectus for the Portfolio shares, as such
registration statement and prospectus may be amended or supplemented from time
to time, or in reports to shareholders or proxy statements for the Portfolios,
or in sales literature or other promotional material approved by the Funds or
the Underwriter, except with the permission of the Funds or the Underwriter.
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 five calendar 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 five 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 Neither the Funds, the Underwriter nor the Transfer Agent 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
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each Separate Account which are in the public domain or approved by the Company
for distribution to Contract owners or participants, or in sales literature or
other promotional material approved by the Company, except with the permission
of the Company.
4.5 The Funds, or their designated agent, 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 Portfolios 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, 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, the Adviser, the Underwriter or
the Transfer Agent, 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, the Adviser, the Underwriter and the Transfer Agent. 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 or 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 the 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 the Underwriter shall not use any such names or marks
on its own behalf or on behalf of a Fund or Portfolio in connection with
marketing the Funds and the Portfolios without prior written consent of the
Company. Upon termination of this Agreement for any reason, the Funds and the
Underwriter shall cease all use of any such names or marks.
4.10 The Underwriter will provide the Company with as much notice as is
reasonably practicable of any proxy solicitation for any Portfolio, and of any
material change in a Fund's registration statement. The Underwriter will use its
reasonable best efforts to cooperate with the Company so as to enable the
Company to solicit proxies from Contract owners or to make changes to its sales
literature or other promotional material in an orderly manner.
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ARTICLE V. Fees and Expenses
5.1 The Funds and the Underwriter, as applicable, shall pay the fees and
expenses provided for in the attached SCHEDULE B.
ARTICLE VI. Indemnification
6.1 Indemnification by the Company
(a) The Company agrees to indemnify and hold harmless the Funds, the
Underwriter, the Transfer Agent and each of their respective
trustees, directors, officers, employees or agents and each person,
if any, who controls the Funds, the Underwriter or the Transfer
Agent 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 Portfolio 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
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 Portfolio shares; 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 registration statement,
prospectus or sales literature or other promotional material of a
Portfolio not supplied by the Company, or persons under its
control and other than statements or representations authorized by
the Funds, the Underwriter or the Adviser); or (b) the willful
misfeasance, bad faith, 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 Portfolio shares; or
(iii) arise out of or as a result of any untrue statement or alleged
untrue statement of a material fact contained in the registration
statement, prospectus, statement of additional information or
sales literature or other promotional material of a Portfolio (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
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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 failure by the Company to perform its
duties and obligations 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 6.4 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, 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 Company of the commencement of any litigation or
proceedings against them in connection with the issuance or sale of
the Portfolio shares or the Contracts or the operation of the Funds.
6.2 Indemnification by the Underwriter
(a) The Underwriter agrees, with respect to each Portfolio 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 settlements are related
to the sale or acquisition of the shares of the Portfolios that 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 statement, prospectus or statement of additional
information for the Portfolios or sales literature or other
promotional material for the Portfolios (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 Underwriter on behalf of the Company for use in the
registration statement, prospectus or statement of additional
information for the Fund or in sales literature of the Portfolios
(or any amendment or supplement thereto) or otherwise for use in
connection with the sale of the Contracts or the Portfolio shares;
or
(ii) arise out of or as a result of (a) statements or representations
by or on behalf of the Underwriter (other than statements or
representations contained in the registration statement,
prospectus or sales literature for the Contracts not supplied by
the Underwriter or persons under its control and other than
statements or representations authorized by the Company); or (b)
the willful
10
misfeasance, bad faith, negligence or reckless disregard of duty
of the Underwriter or persons under the control of the
Underwriter with respect to the sale or distribution of the
Contracts or Portfolio shares; 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 Underwriter or
persons under the control of the Underwriter; or
(iv) arise out of or as a result of any failure by the Underwriter to
perform its duties and obligations 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 Underwriter in this
Agreement or arise out of or result from any other material breach
of this Agreement by the Underwriter; except to the extent
provided in Sections 6.2(b) and 6.4 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, 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 with the
issuance or sale of the Portfolio shares or the Contracts or the
operation of the Separate Accounts.
6.3 Indemnification by the Funds
(a) Each Fund 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 Fund) 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 Fund's Portfolios 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, prospectus or statement of additional
information for a Portfolio (or any amendment or supplement to any
of the foregoing), or arise out of or are based upon 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; 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 Fund or the Underwriter on behalf of the
Company for use in
11
the registration statement, prospectus or statement of additional
information for the Portfolio (or any amendment or supplement
thereto) or otherwise for use in connection with the sale of the
Contracts or the Portfolio shares; or
(ii) arise out of or as a result of (a) statements or representations
by or on behalf of each Fund (other than statements or
representations contained in the registration statement,
prospectus or statement of additional information for the
Contracts not supplied by the Fund or persons under its 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 Fund or persons
under the control of the Fund with respect to the sale or
distribution of the Contracts or Portfolio shares; 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 Fund or persons under
the control of the Fund; or
(iv) arise out of or as a as a result of any failure by the Fund to
perform its duties and obligations under the terms of this
Agreement; or
(v) arise out of or result from any breach of any representation
and/or warranty made by the Fund in this Agreement or arise out of
or result from any other material breach of this Agreement by the
Fund; except to the extent provided in Sections 6.3(b) and 6.4
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, 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 Fund of the commencement of any litigation or
proceedings against them in connection with the issuance or sale of
the Portfolio shares or the Contracts or the operation of the
Separate Accounts.
6.4. Indemnification Procedure
(a) 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), such Indemnified Party shall have
notified the person obligated to provide indemnification under this
Article VI ("INDEMNIFYING PARTY" for the purpose of this Section
6.4) 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. 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
12
defense thereof, the Indemnified Party shall bear the fees and
expenses of any additional counsel retained by the Indemnified 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, without
reference to the conflicts of law principles thereof.
7.2 This Agreement shall be subject to the provisions of the 1933, 1934 and
1940 Acts, and the applicable 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. Term & Termination
8.1 Term.
(a) Except as otherwise provided below, the term of this Agreement shall
be for five (5) years from the date hereof, unless terminated
earlier by reason of a breach of contract or by law, or pursuant to
this section 8. At the end of the initial term of this Agreement,
this Agreement shall be automatically renewed for successive one
year periods, unless any party notifies the other no later than
thirty days before any anniversary of its intent to terminate this
Agreement.
8.2 This Agreement shall terminate:
(a) at the option of any party upon ninety 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 and the Transfer Agent
upon institution of formal proceedings against the Company by FINRA,
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
Portfolio shares, which in the judgment of the Funds, the Underwriter
or the Transfer
13
Agent 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 Transfer Agent by FINRA,
the SEC, or any state securities or insurance department or any
other regulatory body, related to the purchase or sale of Portfolio
shares 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, the Funds' or the Transfer Agent's ability to
perform its obligations under this Agreement; or
(d) at the option of the Company, if a Portfolio delineated in SCHEDULE A
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
Portfolio 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 either the Funds, the
Underwriter or the Transfer Agent 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, the Underwriter or the Transfer Agent,
if the Funds, the Underwriter or the Transfer Agent 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 Notice Requirement
(a) In the event that any termination of this Agreement is based upon
the provisions of Sections 8.1(b), 8.1(c) or 8.1(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 8.1(d), said termination shall be effective upon the
Portfolio's 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 8.1(f) or 8.1(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.
14
8.4 It is understood and agreed that the right to terminate this Agreement
pursuant to Section 8.1(a) may be exercised for any reason or for no reason.
8.5 Effect of Termination
(a) Notwithstanding any termination of this Agreement pursuant to
Section 8.1(a) through 8.1(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 Portfolios 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 Portfolio shares is proscribed by law, regulation or
an applicable regulatory body, or unless the Fund's Board of
Directors or Trustees determines that liquidation of the Portfolio
following termination of this Agreement is in the best interests of
the Portfolio. Specifically, without limitation, the owners of the
Existing Contracts shall be permitted to direct reallocation of
investments in the Portfolios, redeem investments in the Portfolios
and/or invest in the Portfolios upon the making of additional
purchase payments under the Existing Contracts unless such further
sale of Portfolio shares is proscribed by law, regulation or an
applicable regulatory body, or unless the Fund's Board of Directors
or Trustees determines that liquidation of the Portfolio following
termination of this Agreement is in the best interests of the
Portfolio.
(b) Fund and/or Underwriter shall remain obligated to pay Company the fee
in effect as of the date of termination for so long as shares are
held by the Accounts and Company continues to provide services to the
Accounts. Such fee shall apply to shares purchased both prior to and
subsequent to the date of termination. This Agreement, or any
provision thereof, shall survive the termination to the extent
necessary for each party to perform its obligations with respect to
shares for which a fee continues to be due subsequent to such
termination.
(c) In the event of the insolvency or liquidation of the Company, fees
shall continue to be payable directly to the Company or its
liquidator, receiver, conservator or statutory successor, without
diminution and reasonable provision for verification by the Company
or its liquidator, receiver, conservator or statutory successor.
ARTICLE IX. Notices
9.1 (a) Any notice shall be deemed 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 notices shall be deemed given the date
received or rejected by the addressee.
15
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:
Xxxxxx Xxxxxxx Institutional Funds
One Tower Bridge
000 Xxxxx Xxxxxx, Xxxxx 0000
Xxxx Xxxxxxxxxxxx, XX 00000-0000
Attention: Client Service Department
with a copy to:
Xxxxxx Xxxxxxx Investment Management Inc.
000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Legal Department
If to the Underwriter:
Xxxxxx Xxxxxxx Distribution, Inc.
000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Legal Department
with a copy to:
Xxxxxx Xxxxxxx Investment Management Inc.
000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Legal Department
16
If to the Transfer Agent:
Xxxxxx Xxxxxxx Services Company Inc.
Harborside Financial Xxxxxx, Xxxxx Xxx
Xxxxxx Xxxx, XX 00000-0000
Attn: President
with a copy to:
Xxxxxx Xxxxxxx Investment Management Inc.
000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attn: Legal Department
ARTICLE X Miscellaneous
10.1 Subject to law and regulatory authority, each party hereto shall treat as
confidential 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. In addition, 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,
statutes and regulations enacted pursuant to the Xxxxx-Xxxxx-Xxxxxx Act (Public
Law 106-102). "PERSONAL INFORMATION" means financial and medical information
that identifies an 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.
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, statute, rule or otherwise, the remainder of the Agreement shall
not be affected thereby.
10.5 This Agreement shall not be assigned by any party hereto without the prior
written consent of all the parties.
10.6 Each party hereto shall cooperate with each other party and all
appropriate governmental authorities (including without limitation the SEC, the
FINRA, 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
17
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 Portfolios of the Funds.
18
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 XXXXXX XXXXXXX DISTRIBUTION, INC.
By: /s/ Xxxxxxx X. Xxxx By: /s/ Xxxx Xxxxx
----------------------------------- -----------------------------------
Name: Xxxxxxx X. Xxxx Name: Xxxx Xxxxx
Title: Assistant Vice President Title: President
XXXXXX XXXXXXX INSTITUTIONAL FUND, XXXXXX XXXXXXX INSTITUTIONAL
INC. FUND TRUST
By: /s/ Xxxxxx Xxx By: /s/ Xxxxxx Xxx
----------------------------------- -----------------------------------
Name: Xxxxxx Xxx Name: Xxxxxx Xxx
Title: President & Principal Executive Title: President & Principal Executive
Officer Office
XXXXXX XXXXXXX SERVICES COMPANY INC.
By: /s/ Xxxxxx Xxxxxxx
-----------------------------------
Name: Xxxxxx Xxxxxxx
Title: Managing Director
19
SCHEDULE A
SEPARATE ACCOUNTS
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.
PORTFOLIOS
All Class I, P and H Shares of all MSIF Inc. and MSIF Trust Portfolios then
available to new shareholders, or otherwise permitted under a Portfolio's
then-current prospectus shall be available for purchase under the Agreement.
20
SCHEDULE B
In consideration of the services provided by the Company, the Funds and the
Underwriter agrees to pay the Company an amount equal to the following basis
points per annum on 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.
SERVICE
SHARE CLASS FEES 12B-1 FEES
--------------------------------------------------------------------------------
All Class I Shares 10 bps N/A
All Class P Shares 10 bps 25 bps
All Class H Shares 10 bps 25 bps
The Underwriter shall not be required to pay 12b-1 shareholder servicing fees
with respect to amounts invested in Class P shares or Class H shares upon the
termination of the Plan with respect to such shares or if, at any time, the fees
payable by the Portfolio or collected by the Underwriter under the Plan with
respect to such shares is waived or otherwise reduced. There shall be no 12b-1
fees paid on Class I Shares.
The fees for MSIF Inc. Portfolios are payable quarterly and shall be paid in
arrears within thirty (30) days following the end of each calendar quarter. The
fees for MSIF Trust Portfolios are payable monthly and shall be paid in arrears
within thirty (30) days following the end of each calendar month.
Notwithstanding the foregoing, no fee shall be paid to Company hereunder if any
other party is receiving payment for similar administrative and/or shareholder
services with respect to the same assets. Neither the Underwriter nor the
Transfer Agent shall be held responsible for any administrative services fee
payments the Funds are authorized to make under this Agreement.
21
EXHIBIT A
RULE 22C-2 SHAREHOLDER INFORMATION AGREEMENT
THIS AGREEMENT is entered into as of August 26, 2011 by and between (i) Hartford
Life Insurance Company and Hartford Life and Annuity Insurance Company
(together, "we" or "us") and (ii) Xxxxxx Xxxxxxx Services Company Inc. ("you")
in your capacity as the transfer agent of the Xxxxxx Xxxxxxx Institutional Fund
Inc. and Xxxxxx Xxxxxxx Institutional Fund Trust (each a "Fund" and together the
"Funds").
WHEREAS, Rule 22c-2 under the Investment Company Act of 1940, as amended,
requires mutual funds to enter into "shareholder information agreements" with
financial intermediaries that hold fund shares on behalf of other investors in
"omnibus accounts" and submit orders to purchase or redeem fund shares on behalf
of such investors directly to the fund, its transfer agent or principal
underwriter; and
WHEREAS, shares of one or more of the Funds are purchased and redeemed on an
omnibus basis directly by our Accounts (as defined below) in connection with for
one or more Contracts (as defined below).
NOW, THEREFORE, In consideration of the premises and mutual covenants contained
below, the parties hereby agree as follows:
1. DEFINITIONS. As used in this Agreement, the following terms have the
following meanings, unless a different meaning is clearly required by the
context:
(a) "ACCOUNT" means an insurance company separate account sponsored or
administered by us.
(b) "BUSINESS DAY" means any day that the
New York Stock Exchange is open
for trading.
(c) "CONFIDENTIAL INFORMATION" includes, but is not limited to: (i)
"Nonpublic Personal Information" as defined in Title V of the
Xxxxx-Xxxxx-Xxxxxx Act of 1999 or any successor federal or state
statute, and the rules and regulations thereunder, all as may be
amended or supplemented from time to time, (ii) "Protected Health
Information" as such term is defined in the Health Insurance
Portability and Accountability Act of 1996, or any successor federal
or state statute, and the rules and regulations thereunder, all as
may be amended or supplemented from time to time; and (iii)
"Shareholder Information" as such term is defined below.
(d) "CONTRACT" means a variable annuity contract, variable life insurance
policy or variable funding agreement issued through an Account.
(e) "FUND POLICIES" means policies established by the Fund and
communicated to us in writing for the purpose of eliminating or
reducing potentially harmful market timing or frequent trading in
shares of the Fund as described in the Fund's prospectus or
statement of additional information as amended from time to time.
This term "Fund" does not include any "excepted funds" as defined in
Rule 22c-2(b), 17 C.F.R. 270.22c-2(b).
1
(f) "INDIRECT INTERMEDIARY" means a "financial intermediary" as defined
by Rule 22c-2(c)(5)(iii)(excluding any exempted financial
intermediary pursuant to Rule 22c-2(c)(1)(iv)) that transmits
purchase and redemption orders directly to us on behalf of
Shareholders with respect to a Contract invested in a Fund through
an Account.
(g) "SHAREHOLDER" means (1) the holder of interests in a Contract or (2)
a participant in an employee benefit plan with a beneficial interest
in a Contract.
(h) "SHAREHOLDER-INITIATED TRANSFER PURCHASE" means a transaction that is
initiated or directed by a Shareholder that results in a transfer of
assets within a Contract to a Fund, but does not include transactions
that are executed: (i) automatically pursuant to contractual or
systematic programs or enrollments such as transfers of assets within
a Contract to a Fund as a result of "dollar cost averaging" programs,
asset allocation programs and automatic rebalancing programs; (ii)
pursuant to a Contract death benefit; (iii) a step-up (or comparable
benefit) in Contract value (or comparable benefit base) pursuant to a
Contract death benefit or guaranteed minimum withdrawal benefit; or
(iv) allocation of assets to a Fund through a Contract as a result of
payments such as loan repayments, scheduled contributions, or
retirement plan salary reduction contributions, or planned premium
payments to the Contract.
(i) "SHAREHOLDER-INITIATED TRANSFER REDEMPTION" means a transaction that
is initiated or directed by a Shareholder that results in a transfer
of assets within a Contract out of a Fund, but does not include
transactions that are executed: (i) automatically pursuant to
contractual or systematic programs or enrollments such as transfers
of assets within a Contract out of a Fund as a result of annuity
payouts, loans, systematic withdrawal programs, asset allocation
programs and automatic rebalancing programs; (ii) as a result of any
deduction of charges or fees under a Contract; (iii) within a
Contract out of a Fund as a result of scheduled withdrawals or
surrenders from a Contract; or (iv) as a result of the payment of a
death benefit from a Contract.
(j) "WRITTEN" means any communication other than an oral communication
transmitted in paper, electronically or by facsimile.
2. AGREEMENT TO PROVIDE REQUESTED SHAREHOLDER INFORMATION. Effective as of
October 16, 2007, we agree to use our best efforts to provide the following
information to you solely for the purpose of facilitating your compliance with
Rule 22c-2. Nothing herein, nor any action by us, shall be construed as, or
infer that we have undertaken any duty or obligation, whether express or
implied, at law or in equity, to detect abusive trading activities pursuant to
the Fund Policies. We agree to provide to you, upon prior written request, the
following information that is on our books and records (collectively,
"Shareholder Information") for all Shareholders that engaged in any purchase,
redemption, transfer or exchange transactions in the Fund shares through an
Account during the period covered by the request, if known:
(a) the taxpayer identification number ("TIN"), Individual/International
Taxpayer Identification Number ("ITIN") or other government issued
identifier ("GII");
(b) the individual Contract number or participant account number
associated with the Shareholder;
(c) the amount and date(s) and transaction type (purchase, redemption,
transfer, or exchange); and
2
(d) any other data mutually agreed upon in writing.
Unless otherwise specifically requested by you, this Paragraph 2 shall be
understood to require us to provide only Shareholder Information relating to
Shareholder-Initiated Transfer Purchases and Shareholder-Initiated Transfer
Redemptions.
All requests must contain the relevant fund account number, CUSIP, trade amount
and date. Requests must be made through NSCC's standard automated facility or
sent to us directly via e-mail at:
00X0XXXXXXXXXX@XXXXXXXXXXXX.XXX
or such other address we may communicate to you in writing from time to time.
3. PERIOD COVERED BY REQUEST AND FREQUENCY OF REQUESTS. Requests to provide
Shareholder Information shall set forth the specific period for which it is
sought, not to exceed 90 calendar days from the date of the request for which
Shareholder Information is sought. You shall not request Shareholder Information
more frequently than monthly, or older than 90 calendar days from the date of
the request, except as you deem reasonably necessary to investigate compliance
with Fund Policies.
4. FORM AND TIMING OF RESPONSE; PROCEDURES REGARDING INDIRECT INTERMEDIARIES.
(a) We agree to provide the requested Shareholder Information that is on our
books and records to you promptly, but in any event not later than 10 Business
Days after receipt of a good order request given in accordance with Paragraph 2
above, which shall contain the fund account number, CUSIP, trade amount and
date. If you so request, we agree to use best efforts to promptly determine
whether any specific person, identified by you from the requested Shareholder
Information, is itself an Indirect Intermediary. Upon your further request,
which must be given in accordance with Paragraph 2 above, we agree to use best
efforts either to: (i) provide (or arrange to have provided) the requested
Shareholder Information from the Indirect Intermediary; or (ii) if the Indirect
Intermediary refuses to provide the requested Shareholder Information and you so
direct us in writing, restrict or prohibit further purchases of Fund shares by
such Indirect Intermediary through the Account. We agree to inform you whether
we plan to perform (i) or (ii).
(b) Responses required by this paragraph must be communicated in writing and in
a format mutually agreed upon by the parties.
(c) To the extent reasonably practicable, the format for any Shareholder
Information provided to you will be consistent with the NSCC Standardized Data
Reporting Format.
5. LIMITATION ON USE OF INFORMATION. You agree that you shall not use the
information received pursuant to this Agreement, including any Confidential
Information, for any purpose other than to comply with Rule 22c-2. You and your
affiliates shall observe applicable state and federal privacy laws, rules and
regulations with respect to Confidential Information. You shall safeguard all
Confidential Information and promptly notify us of any voluntary or involuntary
dissemination thereof. Neither you nor any of your affiliates or subsidiaries
may use any information provided pursuant to this Agreement for marketing or
solicitation purposes.
6. AGREEMENT TO RESTRICT TRADING. We agree to execute reasonable, clear and
unequivocal written instructions from you given on behalf of the Fund to
restrict or prohibit further purchases of Fund shares by a Shareholder that has
been identified by you as having engaged in transactions of the Fund's shares
3
(directly or indirectly through an Account) that violate Fund Policies. Unless
you specifically direct us otherwise, such restrictions and prohibitions shall
apply only to Shareholder-Initiated Transfer Purchases and Shareholder-Initiated
Transfer Redemptions. We will execute such restrictions with respect to the
Shareholder, but only for the Contract through which such transactions in the
Fund's shares occurred. We will not impose any restriction, and nothing in this
Agreement shall require that we impose any restriction, on a Shareholder based
on any transactions other than transactions in the Fund's shares through an
Account. Instructions must be received by us via email at the following address:
00X0XXXXXXXXXX@XXXXXXXXXXX.XXX, or such other address that we may communicate to
you in writing from time to time. Other correspondence may be sent to us at the
following address, or such other address that we may communicate to you in
writing from time to time:
The Hartford 22c-2 Operations Team, B3W
000 Xxxxxxxxx Xxxxxx
Xxxxxxxx, XX 00000
Fax: 000.000.0000.
7. FORM OF INSTRUCTIONS. Instructions given in accordance with Paragraph 6
shall be given to us via e-mail in a mutually agreed upon file format. The
instructions in the file must include:
(a) the fund account number;
(b) the Shareholder's TIN, ITIN or GII, if known;
(c) the specific individual Contract owner number or participant account
number (if known) associated with the Shareholder;
(d) the specific restriction(s) to be executed with respect to such
Shareholder, including how long such restriction(s) are to remain in
place; and
(e) a brief written statement that may be provided to the Shareholder,
explaining how the Shareholder's transfer activity violated Fund
Policies.
If the TIN is not known, the instructions must include an equivalent identifying
number of the Shareholder(s) or account(s) or other agreed upon information to
which the instruction relates.
8. TIMING OF RESPONSE. We agree to use reasonable efforts to execute
instructions given in accordance with Paragraphs 6 and 7 promptly, but in any
event not later than 10 Business Days after receipt of such instructions. We
will provide written confirmation to you or your designee as soon as reasonably
practicable that instructions have been executed.
9. CONSTRUCTION OF THE AGREEMENT; FUND PARTICIPATION AGREEMENTS. The parties
have entered into one or more Fund Participation Agreements between or among
them for the purchase and redemption of shares of the Funds by the Accounts in
connection with the Contracts. This Agreement supplements those Fund
Participation Agreements. To the extent the terms of this Agreement conflict
with the terms of a Fund Participation Agreement, the terms of this Agreement
shall control.
10. DISPUTE RESOLUTION. The parties agree to use their best efforts to seek an
amicable solution to any controversy or dispute arising under this Agreement.
Any unresolved controversy, claim or dispute
4
arising under this Agreement shall be submitted to nonbinding arbitration in
accordance with the Commercial Rules of the American Arbitration Association and
judgment upon any such award may be entered in and enforced in any court of
competent jurisdiction. Arbitration shall be conducted by a single arbitrator
who shall have the authority to grant any and all appropriate relief, including,
but not limited to, injunctive relief or specific performance; provided,
however, the arbitrator shall have no power to award punitive, consequential or
statutory damages and the parties shall not seek such relief in any other forum.
The arbitrator may make an initial determination of the location of the
arbitration or whether proceedings may ensue based entirely upon documentary
evidence. Arbitration costs and expenses shall be borne equally by the parties.
Each party hereby agrees to waive and suspend enforcement of any and all rights
pursuant to this and all related agreements during the pendency of such
arbitration proceedings.
11. TERMINATION. This Agreement will terminate upon the termination of the Fund
Participation Agreements.
12. AMENDMENT. This Agreement may be modified or amended, and the terms of this
Agreement may be waived, only by a writing signed by the parties.
13. BINDING EFFECT. This Agreement shall be binding upon, and inure to the
benefit of, the parties hereto and their respective successors and assigns.
14. FORCE MAJUERE. We shall be excused from performance under this Agreement
and shall have no liability to any other party hereof or any third person for
any period that we are prevented, hindered or unable to perform any of our
obligations, in whole or in part, as a result of acts of God, strikes, terrorist
activities, power outages (including so-called xxxxx outs), material changes in
circumstances or laws, regulations or interpretations of the same affecting any
of our obligations hereunder, or other causes beyond our reasonable control; and
such non-performance shall not be a default under this Agreement; provided,
however, that if any of the above-enumerated circumstances prevent, hinder or
delay performance of our obligations for more than sixty (60) Business Days, the
Fund may, at its option, terminate this Agreement in accordance with Paragraph
11, above.
15. COUNTERPARTS. This Agreement may be executed in one or more counterparts
each of which, when taken together, shall constitute a single instrument.
16. CONSTRUCTION. The parties mutually acknowledge that this Agreement
represents the collective drafting efforts of each party and therefore any
ambiguity shall not be interpreted against the interests of any party.
5
HARTFORD LIFE INSURANCE COMPANY
HARTFORD LIFE AND ANNUITY INSURANCE COMPANY
FOR AND ON BEHALF OF ITSELF AND THE ACCOUNTS
By: /s/ Xxxxxxx X. Xxxx
-----------------------------------
Name: Xxxxxxx X. Xxxx
Title: Assistant Vice President
XXXXXX XXXXXXX SERVICES COMPANY INC.
By: /s/ Xxxxxx Xxxxxxx
-----------------------------------
Name: Xxxxxx Xxxxxxx
Title: Managing Director
6
