EXHIBIT h(36)(b)
AMENDMENT NO. 1
TO THE
PARTICIPATION AGREEMENT
BY AND AMONG
AIM VARIABLE INSURANCE FUNDS
AIM DISTRIBUTORS, INC.
HARTFORD LIFE INSURANCE COMPANY
ON BEHALF OF ITSELF AND ITS SEPARATE ACCOUNTS
AND
HARTFORD SECURITIES DISTRIBUTION COMPANY, INC.
WHEREAS, AIM Variable Insurance Funds ("AVIF"), A I M Distributors,
Inc. ("AIM"), Hartford Life Insurance Company ("LIFE COMPANY"), and Hartford
Securities Distribution Company, Inc. ("UNDERWRITER") (collectively, the
"Parties") have previously entered into a Participation Agreement dated July 2,
1998 (the "Agreement");
WHEREAS, AVIF was reorganized from a Maryland corporation into a
Delaware business trust on May 1, 2000, resulting in a technical change of
control of AVIF and thus an assignment of the Agreement;
WHEREAS, the Parties to the Agreement desired to consent to such
assignment and amended the Agreement by letter dated April 27, 2000, and
effective as of May 1, 2000, to give their consent to such assignment;
WHEREAS, certain Contracts issued by LIFE COMPANY have as their
principal underwriter Hartford Equity Sales Company, Inc. rather than Hartford
Securities Distribution Company, Inc. and the parties to the Agreement desire to
make Hartford Equity Sales Company, Inc. a Party to the Agreement;
WHEREAS, each of the parties hereto intends and has intended both
registered and unregistered Accounts of the Company to be able to invest in
shares of the Fund, including those Accounts exempt from registration under the
Investment Company Act of 1940 (the "1940 Act") pursuant to Sections 3(c)(1),
3(c)(7) or 3(c)(11) thereof;
WHEREAS, each of the parties hereto desires to expand the number of
Accounts of LIFE COMPANY that invest in shares of AVIF and to clarify those
Accounts that are and have been covered by the Agreement;
WHEREAS, each of the parties hereto desires to expand the number of
Funds of AVIF that the Accounts may invest in and to clarify those Funds that
are and have been covered by the Agreement; and
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WHEREAS, each of the parties hereto desires to amend the Agreement to
comply with the privacy provisions of the Xxxxx-Xxxxx-Xxxxxx Act of 1999 and
regulations promulgated thereunder and to make further revisions as appropriate;
NOW, THEREFORE, AVIF, AIM, LIFE COMPANY, and UNDERWRITER hereby agree
to amend the Agreement as follows:
1. The term "UNDERWRITER" as used in the Agreement, and any and all
amendments thereto, shall mean Hartford Securities Distribution
Company, Inc. and Hartford Equity Sales Company, Inc.
2. Section 4.2(a) is hereby amended as follows:
(a) AVIF will use its best efforts to comply with any
applicable state insurance laws or regulations, including the
furnishing of information not otherwise available to LIFE COMPANY which
is required by state insurance law to enable LIFE COMPANY to obtain the
authority needed to issue the Contracts in any applicable state.
3. Section 4.3(a) is hereby amended as follows:
(a) LIFE COMPANY and UNDERWRITER represent and warrant
that (i) interests in each Account pursuant to the Contracts will be
registered under the 1933 Act to the extent required by the 1933 Act,
(ii) the Contracts will be duly authorized for issuance in compliance
with all applicable federal and state laws, including, without
limitation, the 1933 Act, the 1934 Act, the 1940 Act and Connecticut
law, (iii) each Account is and will remain registered under the 1940
Act, to the extent required by the 1940 Act, (iv) each Account does and
will comply in all material respects with the requirements of the 1940
Act and the rules thereunder, to the extent required, (v) each
Account's 1933 Act registration statement relating to the Contracts,
together with any amendments thereto, will at all times comply in all
material respects with the requirements of the 1933 Act and the rules
thereunder, (vi) LIFE COMPANY will amend the registration statement for
its Contracts under the 1933 Act and for its Accounts under the 1940
Act from time to time as required in order to effect the continuous
offering of its Contracts or as may otherwise be required by applicable
law, and (vii) each Account Prospectus, statement of additional
information ("SAI"), and other documents pursuant to which Contracts
are offered, and any amendments or supplements thereto (collectively,
the "Account Prospectus") will at all times comply in all material
respects with the requirements of the 1933 Act and the rules
thereunder.
4. Section 4.3(f) is hereby added as follows:
4.3(f) For its unregistered Accounts that are exempt from
registration under the 1940 Act in reliance upon Section
3(c)(1) or Section 3(c)(7) thereof, LIFE COMPANY represents
and agrees that:
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(i) UNDERWRITER is the principal underwriter for each
such unregistered Account and its Subaccounts and is
a registered broker-dealer under the 1934 Act;
(ii) the Shares of the Funds of AVIF are and will continue
to be the only investment securities held by the
corresponding Subaccounts of the Account; and
(iii) with regard to each Fund, LIFE COMPANY, on behalf of
the corresponding Subaccount, will:
(a) vote such Shares held by it in the same
proportion as the vote of all other holders
of such Shares; and
(b) refrain from substituting Shares of another
security for such Shares unless the SEC has
approved such substitution in the manner
provided in Section 26 of the 1940 Act.
5. Sections 4.5(a) and (b) are hereby amended as follows:
(a) LIFE COMPANY upon written request of AVIF will
provide to AVIF or its designated agent at least one (1) complete copy
of all SEC registration statements, Account Prospectuses, private
placement memoranda or other disclosure documents (collectively,
"Disclosure Documents"), as well as any reports, any preliminary and
final voting instruction solicitation material, applications for
exemptions, requests for no-action letters, and all amendments to any
of the above, that relate to each Account or the Contracts,
contemporaneously with the filing of such document with the SEC or
other regulatory authorities.
(b) LIFE COMPANY will provide to AVIF or its designated
agent at least one (1) complete copy of each piece of sales literature
or other promotional material in which AVIF or any of its affiliates is
named, at least ten (10) Business Days prior to its use (first use for
"standardized material" as defined hereafter, unless more frequent
review is specifically requested by AVIF or its designated agent or
unless such material is amended in any respect other than to provide
updated performance figures or dates) or such shorter period as the
Parties hereto may, from time to time, agree upon. For purposes of this
paragraph, "standardized material" shall include material that is
identical in format and content to material that AVIF or its designated
agent has reviewed and approved pursuant to this paragraph with the
exception of updated dates and performance figures. LIFE COMPANY agrees
to bear all responsibility and liability for any error in any
standardized material (e.g., transposition of numbers) to the extent
any information contained therein does not conform to the information
provided to LIFE COMPANY by AIM or the Fund. No such material
(including the initial approval of standardized material) shall be used
if AVIF or its designated agent reasonably objects to such use within
five (5) Business Days after receipt of such material or such shorter
period as the Parties hereto may, from time to time, agree upon.
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AVIF hereby designates AIM as the entity to receive such sales
literature, until such time as AVIF appoints another designated agent
by giving notice to LIFE COMPANY in the manner required by Section 9
hereof.
6. Sections 4.6(a), (b) and (c) are hereby amended as follows:
(a) AVIF upon written request of LIFE COMPANY will
provide to LIFE COMPANY at least one (1) complete copy of all SEC
registration statements, AVIF Disclosure Documents, as well as any
reports, any preliminary and final proxy material, applications for
exemptions, requests for no-action letters, and all amendments to any
of the above, that relate to AVIF or the Shares of a Fund.
(b) AVIF will provide to LIFE COMPANY camera ready copy
of all AVIF Prospectuses and printed copies, in an amount specified by
LIFE COMPANY, of AVIF Prospectuses (to the extent that AIM is
responsible for printing and LIFE COMPANY has not requested camera
ready copy), SAI, proxy materials, periodic reports to shareholders and
other materials required by law to be sent to Participants who have
allocated any Contract value to a Fund. AVIF will provide such copies
to LIFE COMPANY in a timely manner so as to enable LIFE COMPANY, as the
case may be, to print and distribute such materials within the time
required by law to be furnished to Contract owners, annuitants,
insureds or participants (as appropriate) under the Contracts
(collectively, "Participants").
(c) AVIF will provide to LIFE COMPANY or its designated
agent at least one (1) complete copy of each piece of sales literature
or other promotional material in which LIFE COMPANY, or any of its
respective affiliates is named, or that refers to the Contracts, at
least ten (10) Business Days prior to its use or such shorter period as
the Parties hereto may, from time to time, agree upon. No such material
shall be used if LIFE COMPANY or its designated agent objects to such
use within five (5) Business Days after receipt of such material or
such shorter period as the Parties hereto may, from time to time, agree
upon. LIFE COMPANY shall receive all such sales literature until such
time as it appoints a designated agent by giving notice to AVIF in the
manner required by Section 9 hereof.
7. Section 6.1(b) is hereby amended as follows:
(b) at the option of AVIF upon completion of formal
proceedings against LIFE COMPANY or its affiliates by the NASD, the
SEC, any state insurance regulator or any other regulatory body
regarding LIFE COMPANY's obligations under this Agreement or related to
the sale of the Contracts, the operation of each Account, or the
purchase of Shares, if, in each case, AVIF reasonably determines that
such proceedings, or the facts on which such proceedings would be
based, have a material likelihood of imposing material adverse
consequences on the Fund with respect to which the Agreement is to be
terminated; or
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8. Section 6.5 is hereby amended to add the following as the last sentence
in Section 6.5:
The parties agree that this Section 6.5 will not change or
otherwise affect the obligations with respect to Existing Contracts set
forth above in Section 6.3.
9. Sections 12.1(a) and (b) are hereby amended as follows:
(a) Except to the extent provided in Sections 12.1(b) and
12.1(c), below, LIFE COMPANY and UNDERWRITER agree to indemnify and
hold harmless AVIF, AIM, their affiliates, and each person, if any, who
controls AVIF, AIM or their affiliates within the meaning of Section 15
of the 1933 Act and each of their respective Trustees and officers,
(collectively, the "Indemnified Parties" for purposes of this Section
12.1) against any and all losses, claims, damages, liabilities
(including amounts paid in settlement with the written consent of LIFE
COMPANY and UNDERWRITER) or actions in respect thereof (including, to
the extent reasonable, legal and other expenses), to which the
Indemnified Parties may become subject under any statute, regulation,
at common law or otherwise; provided, the Account owns shares of the
Fund and insofar as such losses, claims, damages, liabilities or
actions:
(i) arise out of or are based upon any untrue statement
or alleged untrue statement of any material fact
contained in any Account's Disclosure Documents, the
Contracts, or sales literature or advertising 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 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 LIFE
COMPANY or UNDERWRITER by or on behalf of AVIF for
use in any Account's Disclosure Documents, the
Contracts, or sales literature or advertising or
otherwise for use in connection with the sale of
Contracts or Shares (or any amendment or supplement
to any of the foregoing); or
(ii) arise out of or as a result of any other statements
or representations (other than statements or
representations contained in AVIF's 1933 Act
registration statement, AVIF Prospectus, sales
literature or advertising of AVIF, or any amendment
or supplement to any of the foregoing, not supplied
for use therein by or on behalf of LIFE COMPANY,
UNDERWRITER or their respective affiliates and on
which such persons have reasonably relied) or the
unlawful conduct of LIFE COMPANY, UNDERWRITER or
their respective affiliates or persons under their
control, in connection with the sale or distribution
of the Contracts or Shares; or
(iii) arise out of or are based upon any untrue statement
or alleged untrue statement of any material fact
contained in AVIF's 1933 Act registration
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statement, AVIF Prospectus, sales literature or
advertising of AVIF, or any amendment or supplement
to any of the foregoing, or the omission or alleged
omission to state therein a material fact required to
be stated therein or necessary to make the statements
therein not misleading if such a statement or
omission was made in reliance upon and in conformity
with information furnished to AVIF, AIM or their
affiliates by or on behalf of LIFE COMPANY,
UNDERWRITER or their respective affiliates for use in
AVIF's 1933 Act registration statement, AVIF
Prospectus, sales literature or advertising of AVIF,
or any amendment or supplement to any of the
foregoing; or
(iv) arise as a result of any failure by LIFE COMPANY or
UNDERWRITER to perform the obligations, provide the
services and furnish the materials required of them
under the terms of this Agreement, or any material
breach of any representation and/or warranty made by
LIFE COMPANY or UNDERWRITER in this Agreement or
arise out of or result from any other material breach
of this Agreement by LIFE COMPANY or UNDERWRITER.
(b) Neither LIFE COMPANY nor UNDERWRITER shall be liable
under this Section 12.1 with respect to any losses, claims, damages,
liabilities or actions to which an Indemnified Party would otherwise be
subject by reason of willful malfeasance or negligence in the
performance by that Indemnified Party of its duties or by reason of
that Indemnified Party's reckless disregard of obligations or duties
(i) under this Agreement, or (ii) to AVIF or AIM.
10. Sections 12.2(a) and (c) are hereby amended as follows:
(a) Except to the extent provided in Sections 12.2(c),
12.2(d) and 12.2(e), below, AVIF and AIM agree to indemnify and hold
harmless LIFE COMPANY, UNDERWRITER, their respective affiliates, and
each person, if any, who controls LIFE COMPANY, UNDERWRITER or their
respective affiliates within the meaning of Section 15 of the 1933 Act
and each of their respective Trustees and officers, (collectively, the
"Indemnified Parties" for purposes of this Section 12.2) against any
and all losses, claims, damages, liabilities (including amounts paid in
settlement with the written consent of AVIF and/or AIM) or actions in
respect thereof (including, to the extent reasonable, legal and other
expenses), to which the Indemnified Parties may become subject under
any statute, regulation, at common law, or otherwise; provided, the
Account owns shares of the Fund and insofar as such losses, claims,
damages, liabilities or actions:
(i) arise out of or are based upon any untrue statement
or alleged untrue statement of any material fact
contained in AVIF's Disclosure Documents, or sales
literature or advertising of AVIF (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
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or necessary to make the statements therein not
misleading, if such statement or omission was made in
reliance upon and in conformity with information
furnished to LIFE COMPANY, UNDERWRITER or their
respective affiliates by or on behalf of AVIF or AIM
for use in any Account's 1933 Act registration
statement, any Account Prospectus, sales literature
or advertising covering the Contracts, or any
amendment or supplement to any of the foregoing; or
(ii) arise out of or as a result of any other statements
or representations (other than statements or
representations contained in any Account's Disclosure
Documents, or sales literature or advertising for the
Contracts, or any amendment or supplement to any of
the foregoing, not supplied for use therein by or on
behalf of AVIF, AIM or their affiliates and on which
such persons have reasonably relied) or the unlawful
conduct of AVIF, AIM or their affiliates or persons
under its control, in connection with the sale or
distribution of AVIF Shares; or
(iii) arise out of or are based upon any untrue statement
or alleged untrue statement of any material fact
contained in any Account's Disclosure Documents, or
sales literature or advertising covering the
Contracts, or any amendment or supplement to any of
the foregoing, 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 statement or omission was
made in reliance upon and in conformity with
information furnished to LIFE COMPANY, UNDERWRITER or
their respective affiliates by or on behalf of AVIF
or AIM for use in any Account's 1933 Act registration
statement, any Account Prospectus, sales literature
or advertising covering the Contracts, or any
amendment or supplement to any of the foregoing; or
(iv) arise as a result of any failure by AVIF or AIM to
perform the obligations, provide the services and
furnish the materials required of it under the terms
of this Agreement, or any material breach of any
representation and/or warranty made by AVIF or AIM in
this Agreement or arise out of or result from any
other material breach of this Agreement by AVIF or
AIM.
(c) Neither AVIF nor AIM shall be liable under this
Section 12.2 with respect to any losses, claims, damages, liabilities
or actions to which an Indemnified Party would otherwise be subject by
reason of willful malfeasance or negligence in the performance by that
Indemnified Party of its duties or by reason of such Indemnified
Party's reckless disregard of its obligations and duties (i) under this
Agreement, or (ii) to LIFE COMPANY, UNDERWRITER, each Account or
Participants.
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11. Section 18(a) is hereby added and Section 18 is redesignated as Section
(b) - (d) as follows:
(a) For purposes of this Agreement, "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. Each Party agrees to use and disclose Personal
Information 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 of 1999 (Public Law 106-102). If
any 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.
(b) AVIF acknowledges that the identities of the customers of LIFE
COMPANY or any of its affiliates (collectively, the "LIFE
COMPANY Protected Parties" for purposes of this Section 18),
information maintained regarding those customers, and all
computer programs and procedures or other information
developed by the LIFE COMPANY Protected Parties or any of
their employees or agents in connection with LIFE COMPANY's
performance of its duties under this Agreement are the
valuable property of the LIFE COMPANY Protected Parties. AVIF
agrees that if it comes into possession of any list or
compilation of the identities of or other information about
the LIFE COMPANY Protected Parties, or any other information
or property of the LIFE COMPANY Protected Parties, other than
such information as may be independently developed or compiled
by AVIF from information supplied to it by the LIFE COMPANY
Protected Parties who also maintain accounts directly with
AVIF, AVIF will hold such information or property in
confidence and refrain from using, disclosing or distributing
any of such information or other property except: (a) with
LIFE COMPANY's prior written consent; or (b) as required by
law or judicial process.
(c) LIFE COMPANY acknowledges that the identities of the customers
of AVIF or any of its affiliates (collectively, the "AVIF
Protected Parties" for purposes of this Section 18),
information maintained regarding those customers, and all
computer programs and procedures or other information
developed by the AVIF Protected Parties or any of their
employees or agents in connection with AVIF's performance of
its duties under this Agreement are the valuable property of
the AVIF Protected Parties. LIFE COMPANY agrees that if it
comes into possession of any list or compilation of the
identities of or other information about the AVIF Protected
Parties or any other information or property of the AVIF
Protected Parties, other than such information as may be
independently developed or compiled by LIFE COMPANY from
information supplied to it by the AVIF Protected Parties who
also maintain accounts directly with LIFE COMPANY, LIFE
COMPANY will hold such information or property in confidence
and refrain from using, disclosing or distributing any of such
information or other property except: (a) with AVIF's prior
written consent; or (b) as required by law or judicial
process.
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(d) Each Party acknowledges that any breach of the agreements in
this Section 18 would result in immediate and irreparable harm
to the other parties for which there would be no adequate
remedy at law and agree that in the event of such a breach,
the other parties will be entitled to equitable relief by way
of temporary and permanent injunctions, as well as such other
relief as any court of competent jurisdiction deems
appropriate.
12. The term "Account" as used in the Agreement, and as reflected in
Schedule A to the Agreement, shall include Separate Account ICMG Series
III-B.
13. LIFE COMPANY represents and warrants that Separate Account ICMG Series
III-B is exempt from registration under the 1940 Act and that the
Contracts funded thereby are exempt from registration under the
Securities Act of 1933 (the "1933 Act").
14. Schedule A to the Agreement is hereby amended and replaced in its
entirety by Schedule A attached hereto.
IN WITNESS WHEREOF, each of the parties hereto has caused this
Amendment No. 1 to be executed in its name and on its behalf by its duly
authorized representative on this 29th day of April, 2002, to be effective as of
November 1, 2000.
AIM VARIABLE INSURANCE FUNDS
Attest: /s/ Xxxxx X. Xxxxxx By: /s/ Xxxxx X. Xxxxxxx
----------------------------- ----------------------------
Name: Xxxxx X. Xxxxxx Name: Xxxxx X. Xxxxxxx
Title: Assistant Secretary Title: Senior Vice President
A I M DISTRIBUTORS, INC.
Attest: /s/ Xxxxx X. Xxxxxx By: /s/ Xxxxxxx X. Xxxx
----------------------------- ----------------------------
Name: Xxxxx X. Xxxxxx Name: Xxxxxxx X. Xxxx
Title: Assistant Secretary Title: President
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HARTFORD LIFE INSURANCE COMPANY,
on behalf of itself and its
separate accounts
Attest: [ILLEGIBLE] By: /s/ Xxxxxx X. Xxxxxxx, Xx.
----------------------------- -----------------------------
Name: [ILLEGIBLE] Name: Xxxxxx X. Xxxxxxx, Xx.
Title: Product Filings Director Title: Vice President
HARTFORD SECURITIES DISTRIBUTION
COMPANY, INC.
Attest: /s/ Xxxxx Xxxxxxx By: /s/ Xxxxxx X. Xxx
----------------------------- -----------------------------
Name: Xxxxx Xxxxxxx Name: Xxxxxx X. Xxx
Title: Counsel Title: Controller
HARTFORD EQUITY SALES COMPANY,
INC.
Attest: /s/ Xxxxx Xxxxxxx By: /s/ Xxxxxx X. Xxx
----------------------------- -----------------------------
Name: Xxxxx Xxxxxxx Name: Xxxxxx X. Xxx
Title: Counsel Title: Controller
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SCHEDULE A
AVIF FUNDS AVAILABLE UNDER THE CONTRACTS
AIM V.I. Basic Value Fund
AIM V.I. Capital Appreciation Fund
AIM V.I. Diversified Income Fund
AIM V.I. Global Utilities Fund
AIM V.I. Growth Fund
AIM V.I. Growth and Income Fund
AIM V.I. High Yield Fund
AIM V.I. International Equity Fund
AIM V.I. Telecommunications and Technology Fund
AIM V.I. Value Fund
ACCOUNTS AND ASSOCIATED CONTRACTS
Account Contract(s)
------- -----------
Hartford Life Separate Account Two Nations Variable Annuity Contract
ICMG Series III-B GVL-93
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