EXHIBIT 26(h)(1)(i)
PARTICIPATION AGREEMENT
AMONG
SECURIAN FUNDS TRUST,
ADVANTUS CAPITAL MANAGEMENT, INC.
AND
MINNESOTA LIFE INSURANCE COMPANY
DATED MAY 1, 2012
THIS AGREEMENT, made and entered into as of the 1st day of May, 2012, by and
among Minnesota Life Insurance Company (hereinafter "Minnesota Life"), a
Minnesota corporation, on its own behalf and on behalf of each segregated asset
account of Minnesota Life set forth on Schedule A hereto, as may be amended
from time to time (each such account hereinafter referred to as "Account") and
Securian Funds Trust, a Delaware statutory trust (hereinafter the "Trust") and
Advantus Capital Management, Inc. (hereinafter the "Adviser"), a corporation
organized in the State of Minnesota.
WHEREAS, the Trust engages in business as an open-end management investment
company and is available to act as the investment vehicle for separate accounts
established for variable life insurance policies and variable annuity contracts
(hereinafter collectively, the "Variable Insurance Products") to be offered by
insurance companies which have entered into participation agreements with the
Trust and the Adviser (hereinafter "Participating Insurance Companies"); and
WHEREAS, the beneficial interest in the Trust is divided into several series of
shares, each designated a "Fund" and representing the interest in a particular
managed portfolio of securities and other assets and liabilities; and
WHEREAS, each Fund may issue its shares in one or more Classes as shown on
Schedule B attached hereto; and
WHEREAS, pursuant to an Agreement and Plan of Reorganization approved by both
the Board of Trustees of the Trust and the Board of Directors of Advantus
Series Fund, Inc. (the "Series Fund") on July 28, 2011, and approved by a
majority of the shareholders of each Portfolio of the Series Fund on
October 21, 2011, each Portfolio of the Series Fund was reorganized into a
separate Fund of the Trust effective as of May 1, 2012; and
WHEREAS, the Trust's predecessor, the Series Fund, obtained an order from the
Securities and Exchange Commission granting it exemptions from the provisions
of Sections 9(a), 13(a), 15(a) and 15(b) of the Investment Company Act of 1940
(the "1940 Act") and Rules 6e-2(b)(15) and 6e-3T(b)(15) thereunder so as to
permit the sale of Fund shares to both variable annuity and variable life
separate accounts of both affiliated and unaffiliated life insurance companies
subject to the undertakings set forth in the order (hereinafter the "Mixed and
Shared Funding Exemptive Order"); and
WHEREAS, the Trust is registered as an open-end management investment company
under the 1940 Act and its shares are registered under the Securities Act of
1933, as amended (hereinafter, the "1933 Act"); and
WHEREAS, the Adviser is duly registered as an investment adviser under the
federal Investment Advisers Act of 1940 (hereinafter, the "Advisers Act") and
any applicable state securities law; and
WHEREAS, Minnesota Life has registered or will register certain variable life
insurance policies and variable annuity contracts under the 1933 Act, unless an
exemption is available and each such contract or policy will provide for the
allocation of net amounts received by Minnesota Life to an Account or
Sub-Account for investment in the Trust and its Funds, or a designated Class
thereof, as that selection may be made by a participant or contract or policy
owner, as applicable under that contract or policy; and
WHEREAS, each Account is a duly organized, validly existing segregated asset
account, established by resolution of the Board of Directors of Minnesota Life,
to set aside and invest assets attributable to the aforesaid Variable Insurance
Products; and
WHEREAS, Minnesota Life has registered or will register each Account as a unit
investment trust under the 1940 Act, unless an exemption from registration is
available; and
WHEREAS, to the extent permitted by applicable insurance laws and regulations,
Minnesota Life intends to purchase shares in the Funds, or a designated Class
thereof, on behalf of each Account to fund certain of the aforesaid Variable
Insurance Products and the Adviser is authorized to sell such shares to each
Account at net asset value;
NOW, THEREFORE, in consideration of their mutual promises, Minnesota Life, the
Trust and the Adviser agree as follows:
ARTICLE I.
PURCHASE AND REDEMPTION OF TRUST FUND SHARES
____________________________________________
1.1 For purposes of this Article I, Minnesota Life shall be the Trust's
agent for receipt of purchase orders and requests for redemption relating to
each Fund from each Account or Sub-Account, provided that Minnesota Life
notifies the Trust of such purchase orders and requests for redemption by 10:00
a.m. Central time on the next following Business Day, as defined in
Section 1.3. The currently available Funds and Classes are as shown on
Schedule B attached hereto.
1.2 The Trust agrees to make shares of the Funds (or any Class thereof)
available to the Accounts and the Sub-Accounts of such Accounts for purchase at
the net asset value per share next computed after receipt of a purchase order
by the Trust (or its agent), as established in accordance with the provisions
of the then current prospectus of the Trust describing Fund purchase procedures
on those days on which the Trust calculates its net asset value pursuant to
rules of the Commission, and the Trust shall use its best efforts to calculate
such net asset value
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on each day on which the New York Stock Exchange ("NYSE") is open for trading.
Minnesota Life will transmit orders from time to time to the Trust for the
purchase of shares of the Funds (or any Class thereof). The Trustees of the
Trust (the "Trustees") may refuse to sell shares of any Fund (or any Class
thereof) to any person, or suspend or terminate the offering of shares of any
Fund (or any Class thereof) if such action is required by law or by regulatory
authorities having appropriate jurisdiction or if, in the sole discretion of
the Trustees acting in good faith and in light of their fiduciary duties under
federal and any applicable state laws, such action is deemed in the best
interests of the shareholders of such Fund (or any Class thereof).
1.3 Minnesota Life shall submit payment for the purchase of shares of a Fund
(or any Class thereof) on behalf of an Account or Sub-Account no later than the
close of the Federal Reserve Bank, which is 6:00 p.m. Central time, on the next
Business Day after the Trust receives the purchase order. Payment shall be made
in federal funds transmitted by wire to the Trust. Upon receipt by the Trust of
the federal funds so wired, such funds shall cease to be the responsibility of
Minnesota Life and shall become the responsibility of the Trust for this
purpose. "Business Day" shall mean any day on which the New York Stock Exchange
is open for trading and on which the Trust calculates its net asset value
pursuant to the rules of the Commission. If payment in federal funds for any
purchase is not received by the Trust or its designated custodian or is
received after such time, Minnesota Life shall promptly, upon written request,
reimburse the Trust for any charges, costs, fees, interest or other expenses
incurred by the Trust as a result of transactions effected by the Trust based
upon such purchase order.
1.4 The Trust will redeem for cash any full or fractional shares of any
Fund, when requested by Minnesota Life on behalf of an Account, at the net
asset value next computed after receipt by the Trust (or its agent) of the
request for redemption, as established in accordance with the provisions of the
then current prospectus of the Trust describing Fund redemption procedures. The
Trust shall make payment for such shares in the manner established from time to
time by the Trust. Redemption with respect to a Fund will normally be paid to
Minnesota Life for an Account or Sub-Account in federal funds transmitted by
wire to Minnesota Life before the close of the Federal Reserve Bank, which is
6:00 p.m. Central time on the next Business Day after the receipt of the
request for redemption. If payment in federal funds for any redemption request
is received by Minnesota Life after such time, the Trust shall promptly upon
Minnesota Life's written request, reimburse Minnesota Life for any charges,
costs, fees, interest, or other expenses incurred by Minnesota Life as a result
of such failure to provide redemption proceeds within the specified time.
Notwithstanding the foregoing, such payment may be delayed if the Fund's cash
position so requires or if extraordinary market conditions exist, but in no
event shall payment be delayed for a greater period than is permitted by the
0000 Xxx.
1.5 Payments for the purchase of shares of the Trust's Funds (or any Class
thereof) by Minnesota Life under Section 1.3 and payments for the redemption of
shares of the Trust's Funds under Section 1.4 may be netted against one another
on any Business Day for the purpose of determining the amount of any wire
transfer of that Business Day.
1.6 Issuance and transfer of the Trust's Fund shares (or any Class thereof)
will be by book entry only. Stock certificates will not be issued to Minnesota
Life, an Account or a Sub-Account. Fund Shares (or any Class thereof) purchased
from the Trust will be recorded in the appropriate title for each Account or
the appropriate sub-account of each Account.
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1.7 The Trust shall furnish, on or before a distribution date, notice to
Minnesota Life of any net investment income or net realized gain distributions
payable on the shares (or any Class thereof) of any Fund of the Trust.
Minnesota Life hereby elects to receive all such distributions as are payable
on a Fund's shares (or Class) in additional shares of the Fund (or Class). The
Trust shall notify Minnesota Life of the number of shares so issued as payment
of such distributions.
1.8 The Trust shall calculate the net asset value of each Fund (or any Class
thereof) on each Business Day, as defined in Section 1.3. The Trust shall make
the net asset value per share for each Fund available to Minnesota Life or its
designated agent on a daily basis as soon as reasonably practical after the net
asset value per share is calculated (normally by 6:30 p.m. Central time) and
shall use reasonable efforts to make such net asset value per share available
by 7:00 p.m. Central time each Business Day.
1.9 The Trust agrees that its Fund shares (or any Class thereof) will be
sold only to Participating Insurance Companies and their separate accounts and
to certain qualified pension and retirement plans to the extent permitted by
the Mixed and Shared Funding Exemptive Order. The Trust agrees that it will not
sell shares of its Funds (or any Class thereof) to any other insurance company
or separate account unless an agreement containing provisions substantially the
same as Section 2.4 and Articles I and V of this Agreement is in effect to
govern sales. No shares of any Fund (or any Class thereof) will be sold
directly to the general public. Minnesota Life agrees that it will use Trust
shares only for the purposes of funding the Variable Insurance Products through
the Accounts listed in Schedule A, as amended from time to time.
1.10 Minnesota Life agrees that all net amounts available under the Variable
Insurance Products referenced herein shall be invested in the Trust or in such
other investment companies advised by the Adviser or its affiliates as may be
mutually agreed to in writing by the parties hereto, or in Minnesota Life's
general account, provided that such amounts may also be invested in an
investment company other than the Trust if: (a) Minnesota Life gives the Trust
and the Adviser forty-five (45) days written notice of its intention to make
such other investment company available as a funding vehicle for these Variable
Insurance Products; or (b) such other investment company is available as a
funding vehicle for these Variable Insurance Products at the date of this
Agreement.
1.11 The Trust agrees that all Participating Insurance Companies shall have
the obligations and responsibilities regarding pass-through voting and
conflicts of interest corresponding to those contained in Section 2.10 and
Article IV of this Agreement.
1.12 In the event adjustments are required to correct any material error in
the computation of the net asset value of the Trust's shares (or any Class
thereof), the Trust shall notify Minnesota Life as soon as practicable after
discovering the need for those adjustments which result in a reimbursement to
an Account in accordance with the Trust's then current policies on
reimbursement, which the Trust represents are consistent with applicable SEC
standards. If an adjustment is to be made in accordance with such policies to
correct an error which has caused an Account to receive an amount different
than that to which it is entitled, the Trust shall make all necessary
adjustments to the number of shares owned in the Account and distribute to the
Account the amount of such underpayment for credit to Minnesota Life's
Contract/Policy Owners.
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ARTICLE II.
OBLIGATIONS OF THE PARTIES; FEES AND EXPENSES
_____________________________________________
2.1 The Trust shall prepare and be responsible for filing with the
Commission and any state regulators requiring such filing all shareholder
reports, notices, proxy materials (or similar materials such as voting
instruction solicitation materials), prospectuses and statements of additional
information of the Trust. The Trust shall bear the costs of registration and
qualification of its shares of the Funds, preparation and filing of the
documents listed in this Section 2.1 and all taxes to which an issuer is
subject on the issuance and transfer of its shares. For purposes of this
Agreement, including the definition of "Trust Documents" in Section 6.2(a)(i),
the term "prospectus" shall include, with respect to a Fund (or Class thereof)
of the Trust, each version of the Fund's or Trust's statutory prospectus that
satisfies the requirements of Section 10(a) of the 1933 Act or summary
prospectus described in paragraph (b) to Rule 498 under the 1933 Act, or any
supplement thereto filed with the SEC pursuant to Rule 497 under the 0000 Xxx.
2.2 At the option of Minnesota Life, the Trust or the Adviser shall either
(a) provide Minnesota Life with as many copies of portions of the Trust's
current prospectus, annual report, semi-annual report and other shareholder
communications, including any amendments or supplements to any of the
foregoing, pertaining specifically to the Funds (or any Class thereof) as
Minnesota Life shall reasonably request; or (b) provide Minnesota Life with a
camera ready copy of such documents in a form suitable for printing and from
which information relating to series of the Trust other than the Funds has been
deleted to the extent practicable. The Trust or the Adviser shall provide
Minnesota Life with a copy of its current statement of additional information,
including any amendments or supplements, in a form suitable for duplication by
Minnesota Life. Expenses of furnishing such documents for marketing purposes
shall be borne by Minnesota Life and expenses of furnishing such documents for
current contract owners invested in the Trust shall be borne by the Trust or
the Adviser.
2.3 Minnesota Life shall deliver (or arrange for delivery of) an appropriate
prospectus to each prospective owner of a Variable Insurance Product ("Contract
Owner") describing in all material respects the terms and features of the
Variable Insurance Product being offered. Except as provided below, Minnesota
Life shall also deliver (or arrange for delivery of) a summary prospectus for
each Fund of the Trust that a prospective Contract Owner identifies on his or
her application as an intended investment option under a Variable Insurance
Product or to which a Contract Owner currently allocates premium payments or
transfers Variable Insurance Product value. In addition, Minnesota Life
reserves the right to deliver the Fund's or Trust's statutory prospectus in
place of the summary prospectus. Minnesota Life shall deliver (or arrange for
delivery of) such summary or statutory prospectuses at the times required by
applicable provisions of the 1933 Act and 1940 Act, the rules or regulations
thereunder, and any applicable SEC guidance.
2.4 Minnesota Life may bind together the summary prospectuses or statutory
prospectuses for the Funds with summary prospectuses and statutory prospectuses
for shares of other investment companies available as investment options under
the Variable Insurance Products and the prospectus(es) describing the Variable
Insurance Products provided that such binding is done in compliance with Rule
498(c)(2) and any applicable SEC guidance. Minnesota Life shall deliver all
summary prospectuses and all statutory prospectuses in compliance with the
"Greater Prominence" requirements of Rule 498(f)(2) and any applicable SEC
guidance.
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2.5 The Trust shall maintain on its web site those documents prepared by the
Trust that, pursuant to Rule 498(e)(1), must be publicly accessible, free of
charge, at the web site address specified on the cover page or at the beginning
of the summary prospectus. Minnesota Life shall be permitted, but not required
to post a copy of the Trust's statutory prospectuses and/or summary
prospectuses on Minnesota Life's web site.
2.6 The Trust shall provide Minnesota Life with at least sixty (60) days
advance written notice of its intent to cease using the summary prospectus
delivery option so that Minnesota Life can arrange to deliver a statutory
prospectus in place of a summary prospectus in compliance with Section 2.3 of
this Agreement.
2.7 The Trust (at its expense) shall provide Minnesota Life with copies of
any Trust-sponsored proxy materials in such quantity as Minnesota Life shall
reasonably require for distribution to contract owners. The Trust shall bear
the costs of distributing proxy materials (or similar materials such as voting
solicitation instructions). Minnesota Life shall bear the cost of distributing
prospectuses and statements of additional information to contract owners.
Minnesota Life assumes sole responsibility for ensuring that such materials are
delivered to contract owners in accordance with applicable federal and state
securities laws.
2.8 If and to the extent required by law, Minnesota Life shall: (i) solicit
voting instructions from contract owners; (ii) vote the Trust shares in
accordance with the instructions received from contract owners; and (iii) vote
Trust shares for which no instructions have been received in the same
proportion as Trust shares of such Fund for which instructions have been
received; so long as and to the extent that the Commission continues to
interpret the 1940 Act to require pass-through voting privileges for variable
contract owners. Minnesota Life reserves the right to vote Trust shares held in
any segregated asset account in its own right, to the extent permitted by law.
2.9 Except as provided in Section 2.10, Minnesota Life shall not use any
designation comprised in whole or part of the names or marks "Securian Funds
Trust" or "Advantus Capital Management, Inc." without prior written consent of
the Trust or the Adviser, and upon termination of this Agreement for any
reason, Minnesota Life shall cease all use of any such name or xxxx as soon as
reasonably practicable.
2.10 Minnesota Life and its agents shall not give any information or make
any representations or statements on behalf of the Trust or concerning the
Trust or the Adviser or an Adviser in connection with the sale of the Variable
Insurance Products other than information or representations contained in and
accurately derived from the registration statement or prospectus for the Trust
shares (as such registration statement and prospectus may be amended or
supplemented from time to time), annual and semi-annual reports of the Trust,
Trust-sponsored proxy statements, or in sales literature or other promotional
material prepared or approved by the Trust or its designee, except as required
by legal process or regulatory authorities or with the written permission of
the Trust or its designee.
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2.11 The Trust shall use its best efforts to provide Minnesota Life, on a
timely basis, with such information about the Trust, the Funds and the Adviser
and any Sub-Advisers, in such form as Minnesota Life may reasonably require, as
Minnesota Life shall reasonably request in connection with the preparation of
registration statements and prospectuses and annual and semi-annual reports
pertaining to the Variable Insurance Products.
2.12 The Trust shall not give any information or make any representations or
statements on behalf of Minnesota Life or concerning Minnesota Life, the
Accounts or the Variable Insurance Products other than information or
representations contained in and accurately derived from the registration
statement or prospectus for the Variable Insurance Products (as any such
required registration statement and prospectus may be amended or supplemented
from time to time), or in materials prepared or approved by Minnesota Life for
distribution including sales literature or other promotional materials, except
as required by legal process or regulatory authorities or with the written
permission of Minnesota Life.
2.13 So long as, and to the extent that, the Commission interprets the 1940
Act to require pass-through voting privileges for contract owners, Minnesota
Life will provide pass-through voting privileges to contract owners whose
Contract values are invested, through the registered Accounts, in shares of one
or more Funds (or any Class thereof) of the Trust. The Trust shall require all
Participating Insurance Companies to calculate voting privileges in the same
manner and Minnesota Life shall be responsible for assuring that the Accounts
calculate voting privileges in the manner established by the Trust. With
respect to each registered Account, Minnesota Life will vote shares of each
Fund (or any Class thereof) of the Trust held by a registered Account for which
no timely voting instructions from contract owners are received in the same
proportion as those shares held by that registered Account for which voting
instructions are received. Minnesota Life and its agents will in no way
recommend or oppose or interfere with the solicitation of proxies for Fund
shares held to fund the Variable Insurance Products without the prior written
consent of the Trust, which consent may be withheld in the Trust's sole
discretion.
2.14 The Trust and Adviser shall pay no fee or other compensation to
Minnesota Life under this Agreement except as provided on Schedule C, if
attached. Nevertheless, the Trust or the Adviser or an affiliate may make
payments (other than pursuant to a Rule 12b-1 Plan) to Minnesota Life or its
affiliates in amounts agreed to by the Adviser in writing and such payments may
be made out of fees otherwise payable to the Adviser or its affiliates, profits
of the Adviser or its affiliates, or other resources available to the Adviser
or its affiliates.
ARTICLE III.
REPRESENTATIONS AND WARRANTIES
______________________________
3.1 Minnesota Life represents and warrants that it is an insurance company
duly organized and in good standing under the laws of the State of Minnesota
and that it has legally and validly established each Account as a segregated
asset account under such law as of the date set forth in Schedule A.
3.2 Minnesota Life represents and warrants that it has registered or, prior
to any issuance or sale of the Variable Insurance Contract(s), will register
each Account as a unit investment trust in accordance with the provisions of
the 1940 Act to serve as a segregated asset account for the Variable Insurance
Products, unless an exemption from registration is available.
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3.3 Minnesota Life represents and warrants that the Variable Insurance
Products will be registered under the 1933 Act, unless an exemption from
registration is available, prior to any issuance or sale of the Variable
Insurance Products; the Variable Insurance Products will be issued and sold in
compliance in all material respects with all applicable federal and state laws;
and the sale of the Variable Insurance Products shall comply in all material
respects with state insurance suitability requirements.
3.4 Minnesota Life represents and warrants that all of its directors,
officers, employees, investment advisers, and other individuals or entities
dealing with the money and/or securities are and shall be at all times covered
by a blanket fidelity bond or similar coverage in an amount not less than $5
million. The aforesaid bond shall include coverage for larceny and embezzlement
and shall be issued by a reputable bonding company. Minnesota Life agrees to
make all reasonable efforts to see that this bond or another bond containing
these provisions is always in effect, and agrees to notify the Trust and the
Adviser in the event that such coverage no longer applies.
3.5 The Trust represents and warrants that it is duly organized and validly
existing under the laws of the State of Delaware and that it does and will
comply in all material respects with the 1940 Act and the rules and regulations
thereunder and with the diversification rules applicable to the Trust and its
Funds under the Internal Revenue Code of 1986, as amended (hereinafter "Code").
3.6 The Trust represents and warrants that the Fund shares (or any Class
thereof) offered and sold pursuant to this Agreement will be registered under
the 1933 Act and the Trust shall be registered under the 1940 Act prior to and
at the time of any issuance or sale of such shares. The Trust shall amend its
registration statement under the 1933 Act and the 1940 Act from time to time as
required in order to effect the continuous offering of its shares. The Trust
shall register and qualify its shares for sale in accordance with the laws of
the various states only if and to the extent deemed advisable by the Trust or
the Adviser.
3.7 The Trust and its Adviser each represents and warrants that the
investment advisory or management fees paid to the Adviser are legitimate and
not excessive and are derived from an advisory contract which does not result
in a breach of fiduciary duty.
3.8 The Trust represents and warrants that should it ever desire to make any
payments to finance distribution expenses pursuant to Rule 12b-1 under the 1940
Act, the Trustees, including a majority who are not "interested persons" of the
Trust under the 1940 Act ("disinterested Trustees"), will formulate and approve
any plan under Rule 12b-1 to finance distribution expenses. To the extent that
any Class of the Trust may finance its distribution expenses pursuant to a Plan
adopted under Rule 12b-1, the Trust undertakes to comply with any then current
SEC and SEC staff interpretations concerning Rule 12b-1 or any successor
provisions.
3.9 The Trust represents and warrants that it, its Trustees, officers,
employees and others dealing with the money or securities, or both, of a Fund
shall at all times be covered by a
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blanket fidelity bond or similar coverage for the benefit of the Trust in an
amount not less than the minimum coverage required by Rule 17g-1 or other
regulations under the 1940 Act. Such bond shall include coverage for larceny
and embezzlement and be issued by a reputable bonding company.
3.10 The Adviser represents and warrants that it is duly organized and
validly existing under the laws of the State of Minnesota and that it is
currently registered and will, during the term of this Agreement, remain
registered as an investment adviser under the Advisers Act.
ARTICLE IV.
POTENTIAL CONFLICTS
___________________
4.1 The parties acknowledge that a Fund's shares may be made available for
investment to both variable annuity and variable life separate accounts and to
other Participating Insurance Companies. In such event, the Trustees will
monitor the Trust for the existence of any material irreconcilable conflict
between the interests of the contract owners of all Participating Insurance
Companies. An irreconcilable material conflict may arise for a variety of
reasons, including: (a) an action by any state insurance regulatory authority;
(b) a change in applicable federal or state insurance, tax, or securities laws
or regulations, or a public ruling, private letter ruling, no-action or
interpretative letter, or any similar action by insurance, tax, or securities
regulatory authorities; (c) an administrative or judicial decision in any
relevant proceeding; (d) the manner in which the investments of any Fund are
being managed; (e) a difference in voting instructions given by variable
annuity contract and variable life insurance contract owners; or (f) a decision
by an insurer to disregard the voting instructions of contract owners. The
Trust shall promptly inform Minnesota Life of any determination by the Trustees
that an irreconcilable material conflict exists and of the implications thereof.
4.2 Minnesota Life agrees to promptly report any potential or existing
conflicts of which it is aware to the Trustees. Minnesota Life will assist the
Trustees in carrying out their responsibilities under the Mixed and Shared
Funding Exemptive Order by providing the Trustees with all information
reasonably necessary for the Trustees to consider any issues raised including,
but not limited to, information as to a decision by Minnesota Life to disregard
contract owner voting instructions. All communications from Minnesota Life to
the Trustees may be made in care of the Trust.
4.3 If it is determined by a majority of the Trustees, or a majority of the
disinterested Trustees, that a material irreconcilable conflict exists that
affects the interests of contract owners, Minnesota Life shall, in cooperation
with other Participating Insurance Companies whose contract owners are also
affected, at its own expense and to the extent reasonably practicable take
whatever steps are necessary to remedy or eliminate the irreconcilable material
conflict.
4.4 If a material irreconcilable conflict arises because of a decision by
Minnesota Life to disregard contract owner voting instructions and that
decision represents a minority position or would preclude a majority vote,
Minnesota Life may be required, at the Trust's election, to withdraw the
affected Account's investment in the Trust and terminate this Agreement with
respect to such Account; provided, however, that such withdrawal and
termination shall be limited to the extent required by the foregoing material
irreconcilable conflict as determined by a
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majority of the disinterested Trustees. Any such withdrawal and termination
must take place within six (6) months after the Trust gives written notice that
this provision is being implemented. Until the end of such six (6) month
period, the Trust shall continue to accept and implement orders by Minnesota
Life for the purchase and redemption of shares of the Trust.
4.5 If a material irreconcilable conflict arises because a particular state
insurance regulator's decision applicable to Minnesota Life conflicts with a
majority of other state regulators to which Minnesota Life is subject, then
Minnesota Life will withdraw the affected Account's investment in the Trust and
terminate this Agreement with respect to such Account within six (6) months
after the Trustees inform Minnesota Life in writing it has determined that such
decision has created an irreconcilable material conflict; provided, however,
that such withdrawal and termination shall be limited to the extent required by
the foregoing material irreconcilable conflict as determined by a majority of
the disinterested Trustees. Until the end of such six (6) month period, the
Trust shall continue to accept and implement orders by Minnesota Life for the
purchase and redemption of shares of the Trust.
4.6 For purposes of Sections 4.3 through 4.6 of this Agreement, a majority
of the disinterested Trustees shall determine whether any proposed action
adequately remedies any irreconcilable material conflict, but in no event will
the Trust be required to establish a new funding medium for the Variable
Insurance Products. In the event that the disinterested Trustees determine that
any proposed action does not adequately remedy any irreconcilable material
conflict, then Minnesota Life will withdraw the Account's investment in the
Trust and terminate this Agreement within six (6) months after the Trustees
inform Minnesota Life in writing of the foregoing determination; provided,
however, that such withdrawal and termination shall be limited to the extent
required by any such material irreconcilable conflict as determined by a
majority of the disinterested Trustees.
4.7 Minnesota Life shall at least annually submit to the Trustees such
reports, materials or data as the Trustees may reasonably request so that the
Trustees may fully carry out the duties imposed upon them by the Mixed and
Shared Funding Exemptive Order, and said reports, materials and data shall be
submitted more frequently if reasonably deemed appropriate by the Trustees.
4.8 If and to the extent that Rule 6e-2 or Rule 6e-3T is amended, or similar
rule is adopted, so as to provide exemptive relief from any provision of the
1940 Act or the rules promulgated thereunder with respect to mixed funding (as
defined in the Mixed and Shared Funding Exemptive Order) on terms and
conditions materially different from those contained in the Mixed and Shared
Funding Exemptive Order, then the Trust and/or the Participating Insurance
Companies, as appropriate, shall take such steps as may be necessary to comply
with Rule 6e-2 or Rule 6e-3T, as amended, or any other rule, as adopted, to the
extent such rules are applicable.
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ARTICLE V.
DIVERSIFICATION AND QUALIFICATION
_________________________________
5.1 Both the Trust and the Adviser each represent and warrant that the Trust
will at all times sell the share of each Series and invest the assets of each
Series in such a manner as to ensure that the Variable Insurance Products will
be treated as life insurance or annuity contracts, as the case may be, under
the Code and the regulations issued thereunder. Without limiting the scope of
the foregoing, each of the Trust and the Adviser represent and warrant that the
Trust and each Fund thereof will at all times comply with Section 817(h) of the
Code and Treasury Regulation (S)1.817-5, as amended from time to time, and any
Treasury interpretations thereof, relating to the diversification requirements
for variable annuity, endowment, or life insurance contracts and any amendments
or other modifications or successor provisions to such Section or Regulations.
The Trust and the Adviser agree that shares of the Trust's Funds (or any Class
thereof) will be sold only to Participating Insurance Companies and their
separate accounts and to certain qualified pension and retirement plans to the
extent permitted by the Mixed and Shared Funding Exemptive Order. No shares of
any Trust's Funds (or any Class thereof) will be sold to the general public.
5.2 The Trust represents that it will not be subject to federal income
taxation under current laws and regulations, consistent with the provisions of
the Code.
5.3 The Trust or the Adviser will notify the Insurer immediately upon having
a reasonable basis for believing that the Trust or any Fund has ceased to
comply with the aforesaid Section 817(h) diversification requirements or might
not so comply in the future.
5.4 Each of the Trust and the Adviser acknowledges that full compliance with
the requirements referred to in Sections 5.1 and 5.2 hereof is absolutely
essential because any failure to meet those requirements would result in the
Variable Insurance Products not being treated as life insurance or annuity
contracts, as the case may be, for federal income tax purposes, which would
have adverse tax consequences for Contract owners and could also adversely
affect Minnesota Life's corporate tax liability. Each of the Trust and the
Adviser also acknowledges that it is solely within its power and control to
meet those requirements. Accordingly, without in any way limiting the effect of
Section 8.2 hereof and without in any way limiting or restricting any other
remedies available to Minnesota Life, the Adviser will pay all costs associated
with or arising out of any failure, or any anticipated or reasonably
foreseeable failure, of the Trust or any Fund to comply with Sections 5.1 or
5.2 hereof, including all costs associated with correcting or responding to any
such failure; such costs may include, but are not limited to, the costs
involved in creating and organizing a new investment company as a funding
medium for the Variable Insurance Products and/or the costs of obtaining
whatever regulatory authorizations are required to substitute shares of another
investment company for those of the failed Fund; such costs to include, but are
not limited to, fees and expenses of legal counsel and other advisers to
Minnesota Life and any federal income taxes or tax penalties incurred by
Minnesota Life or its contract owners in connection with any such failure or
anticipated or reasonably foreseeable failure.
5.5 Within 45 days of the close of each calendar quarter, the Trust shall
provide Minnesota Life or its designee with a certification of compliance with
the aforesaid Section 817(h) diversification and Code qualification
requirements, in substantially the form attached
11
hereto as Schedule D, provided, however, that providing such certification does
not relieve the Trust or the Adviser of its responsibility for such compliance
or of liability for any non-compliance.
ARTICLE VI.
INDEMNIFICATION
_______________
6.1 Indemnification by Minnesota Life
_________________________________
(a) Minnesota Life agrees to indemnify and hold harmless the Trust and
each of its Trustees, officers, employees and each person, if any, who controls
the Trust within the meaning of Section 15 of the 1933 Act (collectively, the
"Indemnified Parties" and individually the "Indemnified Party" for purposes of
this Article VI) against any an all losses, claims, damages, liabilities
(including amounts paid in settlement with the written consent of Minnesota
Life, which consent shall not be unreasonably withheld) or expenses (including
the reasonable costs of investigating or defending any alleged loss, claim,
damage, liability or expense and reasonable legal counsel fees incurred in
connection therewith) (collectively, "Losses"), to which the Indemnified
Parties may become subject under any statute or regulation, or at common law or
otherwise, insofar as such Losses are related to the sale or acquisition of
Trust Shares or the Variable Insurance Products and:
(i) arise out of or are based upon any untrue statements or alleged
untrue statements of any material fact contained in a registration
statement or prospectus for the Variable Insurance Products or in the
Variable Insurance Products themselves or in sales literature generated
by Minnesota Life on behalf of the Variable Insurance Products or
Accounts (or any amendment or supplement to any of the foregoing)
(collectively, "Company Documents" for the purposes of this Article VI),
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 indemnity 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 was accurately derived from written information
furnished to Minnesota Life by or on behalf of the Trust for use in
Company Documents or otherwise for use in connection with the sale of
the Variable Insurance Products or Trust shares; or
(ii) arise out of or result from written statements or
representations (other than statements or representations contained in
and accurately derived from Trust Documents as defined in Section 6.2
(a)(i)) or wrongful conduct of Minnesota Life or persons under its
control, with respect to the sale or acquisition of the Variable
Insurance Products or Trust shares; or
(iii) arise out of or result from any untrue statement or alleged
untrue statement of a material fact contained in Trust Documents as
defined in Section 6.2(a)(i) 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 accurately derived from written
information furnished to the Trust by or on behalf of Minnesota Life; or
12
(iv) arise out of or result from any failure by Minnesota Life to
provide the services or furnish the materials required 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 Minnesota Life in this Agreement
or arise out of or result from any other material breach of this
Agreement by Minnesota Life.
(b) Minnesota Life shall not be liable under this indemnification
provision with respect to any Losses to which an Indemnified Party would
otherwise be subject by reason of such Indemnified Party's willful misfeasance,
bad faith, or gross negligence in the performance of such Indemnified Party's
duties or by reason of such Indemnified Party's reckless disregard of
obligations and duties under this Agreement. Minnesota Life shall also not be
liable under this indemnification provision with respect to any claim made
against an Indemnified Party unless such Indemnified Party shall have notified
Minnesota Life in writing within a reasonable time after the summons or other
first legal process giving information of the nature of the claim shall have
been served upon such Indemnified Party (or after such Indemnified Party shall
have received notice of such service on any designated agent), but failure to
notify Minnesota Life of any such claim shall not relieve Minnesota Life from
any liability which it may have to the Indemnified Party against whom such
action is brought otherwise than on account of this indemnification provision.
Minnesota Life also shall be entitled to assume the defense thereof, with
counsel satisfactory to the party named in the action. After notice from
Minnesota Life to such party of Minnesota Life's election to assume the defense
thereof, the Indemnified Party shall bear the fees and expenses of any
additional counsel retained by it, and Minnesota Life 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.
(c) The Indemnified Parties will promptly notify Minnesota Life of the
commencement of any litigation or proceedings against them or their officers
and directors in connection with the issuance or sale of the Trust shares or
the Variable Insurance Products or the operation of the Trust.
6.2 Indemnification by the Adviser
______________________________
(a) The Adviser agrees to indemnify and hold harmless Minnesota Life and
each of its Directors, officers, employees and each person, if any, who
controls Minnesota Life within the meaning of Section 15 of the 1933 Act
(collectively, the "Indemnified Parties" and individually an "Indemnified
Party" 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 Adviser, which consent shall not be unreasonably withheld) or
expenses (including the reasonable costs of investigating or defending any
alleged loss, claim, damage, liability or expense and reasonable legal counsel
fees incurred in connection therewith) (collectively, "Losses") to which the
Indemnified Parties may become subject under any statute, at common law or
otherwise, insofar as such Losses are related to the sale or acquisition of the
Trust's Shares or the Variable Insurance Products and:
13
(i) arise out of or are based upon any untrue statements or alleged
untrue statements of any material fact contained in the Registration
Statement, prospectus or sales literature of the Trust (or any amendment
or supplement to any of the foregoing) (collectively, the "Trust
Documents") 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 of such alleged
statement or omission was made in reliance upon and in conformity with
information furnished to the Adviser or Trust by or on behalf of
Minnesota Life for use in the Registration Statement or prospectus for
the Trust or in sales literature (or any amendment or supplement) or
otherwise for use in connection with the sale of the Variable Insurance
Products or Trust shares; or
(ii) arise out of or as a result of written statements or
representations (other than statements or representations contained and
accurately derived from the registration statement, prospectus or sales
literature for the Variable Insurance Products) or wrongful conduct of
the Trust, Adviser or persons under their control, with respect to the
sale or distribution of the Variable Insurance Variable Insurance
Products or Trust shares; or
(iii) arise out of any untrue statement or alleged untrue statement
of a material fact contained in a registration statement, prospectus or
sales literature covering the Variable Insurance Products, or any
amendment thereof or supplement thereto, or the omission or alleged
omission to state therein a material fact required to be stated therein
or necessary to make the statement or statements therein not misleading,
if such statement or omission was made in reliance upon information
furnished to Minnesota Life by or on behalf of the Trust; or
(iv) arise as a result of any failure by the Trust or Adviser to
provide the services and furnish the materials under the terms of this
Agreement (including a failure, whether unintentional or in good faith
or otherwise, to comply with the qualification representation specified
in Section 5.2 of this Agreement and the diversification requirements
specified in Section 5.1 of this Agreement); or
(v) arise out of or result from any material breach of any
representation and/or warranty made by the Adviser in this Agreement or
arise out of or result from any other material breach of this Agreement
by the Adviser, as limited by and in accordance with the provisions of
Sections 5.2(b) and 5.2(c) hereof.
(b) The Adviser shall not be liable under this indemnification provision
with respect to any Losses to which an Indemnified Party would otherwise be
subject to reason of such Indemnified Party's willful misfeasance, bad faith,
or gross negligence in the performance of such Indemnified Party's duties or by
reason of such Indemnified Party's reckless disregard of obligations and duties
under this Agreement or to Minnesota Life or the Account, whichever is
applicable.
14
(c) The Adviser shall not be liable under this indemnification provision
with respect to any claim made against an Indemnified Party unless such
Indemnified Party shall have notified the Adviser in writing within a
reasonable time after the summons or other first legal process giving
information of the nature of the claim shall have been served upon such
Indemnified Party (or after such Indemnified Party shall have received notice
of such service on any designated agent), but failure to notify the Adviser of
any such claim shall not relieve the Adviser from any liability which it may
have to the Indemnified Party against whom such action is brought otherwise
than on account of this indemnification provision. In case any such action is
brought against the Indemnified Parties, the Adviser will be entitled to
participate at its own expense, in the defense thereof. The Adviser also shall
be entitled to assume the defense thereof, with counsel satisfactory to the
party named in the action. After notice from the Adviser to such party of the
Adviser's election to assume the defense thereof, the Indemnified Party shall
bear the expenses of any additional counsel retained by it, and the Adviser
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.
(d) Minnesota Life agrees promptly to notify the Adviser of the
commencement of any litigation or proceedings against it or any of its officers
or directors in connection with the issuance or sale of the Variable Insurance
Products or the operation of each Account.
6.3 Indemnification by the Trust
____________________________
(a) The Trust agrees to indemnify and hold harmless Minnesota Life, and
each of its directors and officers and each person, if any, who controls
Minnesota Life within the meaning of Section 15 of the 1933 Act (collectively,
the "Indemnified Parties" for purposes of this Section 5.3) against any and all
losses, claims, damages, liabilities (including amounts paid in settlement with
the written consent of the Trust, which consent shall not be unreasonably
withheld) or litigation (including legal and other expenses) to which the
Indemnified Parties may become subject under any statute, at common law or
otherwise, insofar as such losses, claims, damages, liabilities or expenses (or
actions in respect thereof) or settlements result from the gross negligence,
bad faith or willful misconduct of the Board or any member thereof, are related
to the operations of the Trust, and arise out of or result from any material
breach of any representation and/or warranty made by the Trust in this
Agreement or arise out of or result from any other material breach of this
Agreement by the Trust; as limited by and in accordance with the provisions of
Section 5.3(b) and 5.3(c) hereof. It is understood and expressly stipulated
that neither the holders of shares of the Trust nor any Trustee, officer, agent
or employee of the Trust shall be personally liable hereunder, nor shall any
resort to be had to other private property for the satisfaction of any claim or
obligation hereunder, but the Trust only shall be liable.
(b) The Trust shall not be liable under this indemnification provision
with respect to any losses, claims, damages, liabilities or litigation incurred
or assessed against any Indemnified Party as such may arise from such
Indemnified Party's willful misfeasance, bad faith, or gross negligence in the
performance of such Indemnified Party's duties or by reason of such Indemnified
Party's reckless disregard of obligations and duties under this Agreement to
Minnesota Life or the Account, whichever is applicable.
15
(c) The Trust shall not be liable under this indemnification provision
with respect to any claim made against an Indemnified Party unless such
Indemnified Party shall have notified the Trust in writing within a reasonable
time after the summons or other first legal process giving information of the
nature of the claims shall have been served upon such Indemnified Party (or
after such Indemnified Party shall have received notice of such service on any
designated agent), but failure to notify the Trust of any such claim shall not
relieve the Trust from any liability which it may have to the Indemnified Party
against whom such action is brought otherwise than on account of this
indemnification provision. In case any such action is brought against the
Indemnified Parties, the Trust will be entitled to participate, at its own
expense, in the defense thereof. The Trust also shall be entitled to assume the
defense thereof, with counsel satisfactory to the party named in the action.
After notice from the Trust to such party of the Trust's election to assume the
defense thereof, the Indemnified Party shall bear the fees and expenses of any
additional counsel retained by it, and the Trust 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.
(d) Minnesota Life and the Adviser agree promptly to notify the Trust of
the commencement of any litigation or proceedings against it or any of its
respective officers or directors in connection with this Agreement, the
issuance or sale of the Variable Insurance Products, with respect to the
operation of either the Account, or the sale or acquisition of shares of the
Trust.
ARTICLE VII.
TERMINATION
___________
7.1 This Agreement may be terminated by any party in its entirety or with
respect to one, some or all Funds for any reason by sixty (60) days advance
written notice delivered to the other parties, and shall terminate immediately
in the event of its assignment, as that term is used in the 1940 Act.
7.2 This Agreement may be terminated immediately by either the Trust or the
Adviser following consultation with the Trustees upon written notice to
Minnesota Life:
(a) if either one or both of the Trust or the Adviser respectively,
shall determine, in their sole judgment exercised in good faith, that
Minnesota Life has suffered a material adverse change in its business,
operations, financial condition or prospects since the date of this
Agreement; or
(b) if Minnesota Life gives the Trust and the Adviser the written
notice specified in Section 1.10 hereof and at the same time such notice
was given there was no notice of termination outstanding under any other
provision of this Agreement; provided, however, that any termination
under this Section 7.2(b) shall be effective forty-five (45) days after
the notice specified in Section 1.10 was given.
7.3 This Agreement may be terminated immediately by Minnesota Life upon
written notice to the Trust and the Adviser, if Minnesota Life shall determine,
in its sole judgment
16
exercised in good faith, that either the Trust or the Adviser has suffered a
material adverse change in its business, operations, financial conditions or
prospects since the date of this Agreement or is the subject of material
adverse publicity.
7.4 If this Agreement is terminated for any reason, except under Article IV
(Potential Conflicts) above, the Trust shall, at the option of Minnesota Life,
continue to make available additional shares of any Fund and redeem shares of
any Fund pursuant to all of the terms and conditions of this Agreement for all
Variable Insurance Products in effect on the effective date of termination of
this Agreement (hereinafter "Existing Contracts"). Specifically without
limitation the owners of the Existing Contracts shall be permitted to
reallocate investments in the Trust, redeem investments in the Trust, and/or
invest in the Trust upon the making of additional purchase payments under the
Existing Contracts. The parties agree that this Section 7.4 shall not apply to
any terminations pursuant to Article IV, and that the provisions of Article IV
shall govern.
7.5 The provisions of Articles III (Representations and Warranties) and VI
(Indemnification) shall survive the termination of this Agreement. All other
applicable provisions of this Agreement shall survive the termination of this
Agreement, as long as shares of the Trust are held on behalf of contract owners
in accordance with Section 7.4, except that the Trust and the Adviser shall
have no further obligation to sell Trust shares with respect to Variable
Insurance Products issued after termination.
7.6 Minnesota Life shall not redeem Trust shares attributable to the
Variable Insurance Products except (i) as necessary to implement contract owner
initiated or approved transactions, (ii) as required by state and/or federal
laws or regulations or judicial or other legal precedent of general application
(hereinafter referred to as a "Legally Required Redemption"), or (iii) as
permitted by an order of the Commission pursuant to Section 26(b) of the 1940
Act. Upon request, Minnesota Life will promptly furnish to the Trust and the
Adviser the opinion of counsel for Minnesota Life (which counsel shall be
reasonably satisfactory to the Trust and the Adviser) to the effect that any
redemption pursuant to clause (ii) above is a Legally Required Redemption.
Furthermore, except in cases where permitted under the terms of the Variable
Insurance Products, Minnesota Life shall not prevent contract owners from
allocating payments to a Fund that was otherwise available under the Variable
Insurance Products without first giving the Trust or the Adviser ninety
(90) days notice of its intention to do so.
ARTICLE VIII.
NOTICES
_______
Any notice shall be sufficiently given when sent by registered or certified
mail to the other party at the address of such party set forth below or at such
other address as such party may from time to time specify in writing to the
other party.
17
If to the Trust or the Adviser:
Advantus Capital Management, Inc.
000 Xxxxxx Xxxxxx Xxxxx
Xx. Xxxx, Xxxxxxxxx 00000-0000
Attention: President
If to Minnesota Life:
Minnesota Life Insurance Company
000 Xxxxxx Xxxxxx Xxxxx
Xx. Xxxx, Xxxxxxxxx 00000-0000
Attention: President
ARTICLE IX.
COMPLIANCE WITH ANTI-MONEY LAUNDERING LAWS AND REGULATIONS
__________________________________________________________
9.1 Minnesota Life agrees to comply with all applicable anti-money
laundering laws, regulations, rules and government guidance, including the
reporting, recordkeeping and compliance requirements of the Bank Secrecy Act
("BSA") as amended by the USA Patriot Act of 2011 (the "Patriot Act"), its
implementing regulations and related Securities and Exchange Commission and
self-regulatory organization rules and regulations. As required by the Patriot
Act, Minnesota Life agrees to implement a comprehensive anti-money laundering
compliance program that includes: internal policies; procedures and controls
for complying with the Patriot Act; a designated compliance officer or
officers; an ongoing training program for appropriate employees; and an
independent audit function.
Minnesota Life also agrees to be in compliance with the economic sanctions
programs administered by the U.S. Treasury Department's Office of Foreign
Assets control ("OFAC") and has an OFAC compliance program that satisfies all
applicable laws and regulations.
Minnesota Life will promptly notify the Trust whenever suspicious activity
or OFAC matches are detected with respect to the Trust. Further, Minnesota Life
agrees to promptly notify the Trust in writing of any material changes in its
policies.
9.2 Minnesota Life agrees as a condition precedent to any transaction taking
or continuing to be in effect, to comply with any and all anti-money laundering
laws, regulations, orders or requirements, and without prejudice to the
generality of the above, to provide regulatory authorities, the Trust, the
Trust's underwriter or their duly appointed agents, with all necessary reports
and information for them to fulfill their obligations, if any, under the
Patriot Act for the purposes of the Trust, the Trust's underwriter, or other
third parties complying with any and all anti-money laundering requirements,
including, without limitation, the enhanced due diligence obligations, imposed
by the Patriot Act, the filing of Form 8300s and/or of Suspicious Activity
Reports obligations required by the Patriot Act, and/or the sharing of
information requirements imposed by the Patriot Act.
18
9.3 In the event satisfactory reports and information are not received
within a reasonable time period from the date of the request, the Trust or the
Trust's underwriter reserve the right to reject any transaction.
9.4 Further, Minnesota Life represents that it has not received notice of,
and to its knowledge, there is no basis for, any claim, action, suit,
investigation or proceeding that might result in a finding that Minnesota Life
is not or has not been in compliance with the Patriot Act, and the rules and
regulations promulgated thereunder. Minnesota Life agrees to notify the Trust
and the Trust's underwriter promptly if the representation in the previous
sentence is no longer true or if Minnesota Life has a reasonable basis for
believing that such representation may no longer be true.
ARTICLE X.
MISCELLANEOUS
_____________
10.1 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.
10.2 This Agreement may be executed simultaneously in two or more
counterparts, each of which taken together shall constitute one and the same
instrument.
10.3 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.
10.4 This Agreement shall be construed and the provisions hereof interpreted
under and in accordance with the laws of the State of Minnesota. It shall also
be subject to the provisions of the federal securities laws and the rules and
regulations thereunder and to any orders of the Commission granting exemptive
relief therefrom and the conditions of such orders. Copies of any such orders
shall be promptly forwarded by the Trust to Minnesota Life.
10.5 The parties to this Agreement acknowledge and agree that all
liabilities of the Trust arising, directly or indirectly, under this Agreement,
of any and every nature whatsoever, shall be satisfied solely out of the assets
of the Trust and that no Trustee, officer, agent or holder of shares of
beneficial interest of the Trust shall be personally liable for any such
liabilities.
10.6 Each party shall cooperate with each other party and all appropriate
governmental authorities (including without limitation the Commission, the
Financial Industry Regulatory Authority and state insurance regulators) and
shall permit such authorities reasonable access to its books and records in
connection with any investigation or inquiry relating to this Agreement or the
transactions contemplated hereby.
10.7 The rights, remedies and obligations contained in this Agreement are
cumulative and are in addition to any and all rights, remedies and obligations,
at law or in equity, which the parties hereto are entitled to under state and
federal laws.
19
10.8 The parties of this Agreement acknowledge and agree that this Agreement
shall not be exclusive in any respect, except as provided in Section 1.10.
10.9 No provisions of this Agreement may be amended or modified in any
manner except by a written agreement properly authorized and executed by all
parties.
IN WITNESS WHEREOF, the parties have caused their duly authorized officers
to execute this Participation Agreement as of the date and year first above
written.
Minnesota Life:
Minnesota Life Insurance Company
By its authorized officer
By: /s/ Xxxxxx X. Xxxxxxx
-----------------------------
Name: Xxxxxx X. Xxxxxxx
Title: President and Chief Executive
Officer
The Trust:
Securian Funds Trust
By its authorized officer
By: /s/ Xxxxx X. Xxxxxx
-----------------------------
Name: Xxxxx X. Xxxxxx
Title: President
The Adviser:
Advantus Capital Management, Inc.
By its authorized officer
By: /s/ Xxxxxx X. Xxxxxxx
-----------------------------
Name: Xxxxxx X. Xxxxxxx
Title: President
20
SCHEDULE A
SEPARATE ACCOUNTS OF MINNESOTA LIFE INSURANCE COMPANY
_____________________________________________________
1. Variable Annuity Account
2. Variable Fund D
3. Minnesota Life Variable Life Account
4. Group Variable Annuity Account
5. Minnesota Life Variable Universal Account
6. Group Variable Universal Life Account
7. Variable Universal Life Account II
8. Variable Universal Life Account III
9. Variable Universal Life Account IV
10.Variable Universal Life Account V
11.Variable Universal Life Account VI
12.Minnesota Life Individual Variable Universal Life Account
A-1
SCHEDULE B
FUNDS OF THE TRUST AND CLASSES AVAILABLE
________________________________________
INVESTMENT INVESTMENT
FUND CLASS ADVISER SUB-ADVISER
---- -------- ------------------- ------------------------
Advantus Bond Advantus Capital
1 and 2 Management, Inc.
Advantus Money Market Advantus Capital
Management, Inc.
Advantus Mortgage Advantus Capital
Securities 1 and 2 Management, Inc.
Advantus Index 500 Advantus Capital
1 and 2 Management, Inc.
Advantus International Advantus Capital
Bond 1 and 2 Management, Inc. Franklin Advisers, Inc.
Advantus Index 400 Advantus Capital
Mid-Cap 1 and 2 Management, Inc.
Advantus Real Estate Advantus Capital
Securities 1 and 2 Management, Inc.
B-1
SCHEDULE C
FEES OR OTHER COMPENSATION
__________________________
Pursuant to the Trust's Rule 12b-1 Plan of Distribution, Minnesota Life shall
receive 12b-1 fees in connection with this Agreement in such amounts and
subject to such terms as are set forth in the separate Fund Shareholder
Services Agreement between Minnesota Life and the Trust's distributor, Securian
Financial Services, Inc.
C-1
SCHEDULE D
CERTIFICATE OF COMPLIANCE
_________________________
Name of Investment Company: Securian Funds Trust
Name of each Fund:
To: Minnesota Life Insurance Company
000 Xxxxxx Xxxxxx Xxxxx
Xxxxx Xxxx, Xxxxxxxxx 00000-0000
Attn: Xx. Xxxxxx X. Xxxxx
Life Fund Accounting
Station Number: A6-1735
We have reviewed compliance of each Fund named above with respect to certain
investment diversification requirements for the Fund for the quarter ending,
, . The review was limited to verifying whether the Fund
complied with the quarterly diversification requirements described in
Section 817(h) of the Internal Revenue Code of 1986, as amended, and the
regulations thereunder (the "Section 817(h) Diversification Requirements").
As of , , the Fund was in compliance with the
Section 817(h) Diversification Requirements.
Dated: -----------------------------
By: -----------------------------
Title: -----------------------------
D-1
