PARTICIPATION AGREEMENT
BETWEEN
FIDELITY DISTRIBUTORS CORPORATION
AND
SECURITY BENEFIT LIFE INSURANCE COMPANY
THIS AGREEMENT, made and entered into as of this 1st day of July, 2001
by and between Security Benefit Life Insurance Company, (hereinafter the
"Company"), a Kansas corporation, on its own behalf and on behalf of each
segregated asset account of the Company set forth on Schedule A hereto, as may
be amended from time to time, (each such account hereinafter referred to as an
"Account" and collectively as the "Accounts"), and FIDELITY DISTRIBUTORS
CORPORATION (hereinafter the "Underwriter"), a Massachusetts corporation.
WHEREAS, each Fund set forth on Schedule A hereto (which may be amended
from time to time by mutual written consent) engages in business as an open-end
management investment company.
WHEREAS, the beneficial interest in any Fund may be divided into
several series of shares, each designated a "Portfolio" as set forth in Schedule
A and representing the interest in a particular managed portfolio of securities
and other assets; and
WHEREAS, the Company has established the Accounts, to serve as
investment vehicles for the annuity contracts offered by the Company set forth
on Schedule A (which may be amended from time to time by mutual written consent)
("Contracts"). Selection of a particular investment company is made by the owner
of a Contract ("Contract Owner") in accordance with the provisions of the
applicable Contract; and
WHEREAS, the Underwriter is registered as a broker/dealer with the
Securities and Exchange Commission (the "SEC") under the Securities Exchange Act
of 1934, as amended, (hereinafter the "1934 Act"), and is a member in good
standing of the National Association of Securities Dealers, Inc. (hereinafter
"NASD"); and
WHEREAS, to the extent permitted by applicable securities and insurance
laws and regulations, the Company intends to purchase shares in the Portfolios
on behalf of each Account to fund certain of the aforesaid variable annuity
contracts.
NOW, THEREFORE, in consideration of their mutual promises, the Company
and the Underwriter agree as follows:
ARTICLE I. SALE OF FUND SHARES
1.1. The Underwriter agrees to make available shares of the Portfolios
indefinitely for purchase at the applicable net asset value per share next
computed in accordance with the then current prospectus for the applicable Fund
after receipt by the applicable Fund of the order for purchase by the Company
and its Accounts on those days on which the applicable Fund calculates its net
asset value pursuant to rules of the SEC; provided that the Company qualifies
for any sales load waiver described in the then current prospectus for such
Portfolio. For purposes of Sections 1.1 and 1.2, the Company shall be the agent
of the Funds for the limited purpose of accepting orders of purchase and
redemption for shares of the Funds on behalf of the Accounts, and receipt by the
Company shall therefore constitute receipt by the Fund of such orders for
purposes of determining the net asset value at which such orders will be
executed, so long as the requirements of the rest of this paragraph are met.
Beginning within three months of the effective date of this Agreement, the
Company agrees that orders for the purchase or redemption of shares of the Funds
on behalf of the Accounts will be placed directly by the Company with the Funds
or their transfer agent by electronic transmission or the National Securities
Clearing Corporation subject to an Agency Trading Agreement executed by both
parties. Company shall transmit orders directly to the Funds or their
designee(s) by 3:00 a.m. Eastern Time of the calendar day next following the
Business Day on which the Order was accepted by Company (provided again that the
Company's orders shall reflect only orders it receives from owners of Contracts
or participants under Contracts prior to 4:00 p.m. Eastern Time). The Funds will
execute purchase and redemption orders at the net asset value determined as of
the close of trading on the day of receipt of such orders by the Company,
provided that such orders are received by the Funds by 3:00 a.m. Eastern Time of
the calendar day next following the Business Day on which the Order was accepted
by Company AND payment for such orders is received by the Funds no later than
the close of the Fedwire system on the Business Day following the day on which
purchase instructions are treated as having been received by the Funds.
"Business Day" shall mean any day the New York Stock Exchange is open for
trading. Payment for net purchases shall be federal funds transmitted by wire by
the Company to a custodial account designated by the Funds. Likewise, orders for
net redemptions of shares of the Funds will be made in federal funds transmitted
by wire from the Funds' custodial account to an account designated by the
Company. Upon receipt by a Fund of the federal funds so wired, for purposes of
Section 2.6 such funds shall cease to be the responsibility of the Company and
shall become the responsibility of the Fund. In the event that the parties
execute an Agency Trading Agreement under which they will place and settle
trades for Portfolio shares through a the National Securities Clearing
Corporation, such Agency Trading Agreement shall govern in lieu of this Section
1.1.
The Funds shall use reasonable efforts to calculate such net asset value on each
day that the New York Stock Exchange is open for trading. The Funds shall make
the net asset values available to the Company on a daily basis as soon as
reasonably practical after the net asset value is calculated (normally by 6:30
p.m. Boston time) and shall use its best efforts to make such net asset value
per share available by 7 p.m. Boston time. Notwithstanding the foregoing, the
Board of Trustees of the Funds (hereinafter the "Board") may refuse to sell
shares of any Portfolio to any person, or suspend or terminate the offering of
shares of any Portfolio if such action is required by law or by regulatory
authorities having jurisdiction or is, in the sole discretion of the Board
acting in good faith and in light of their fiduciary duties under federal and
any applicable state laws, necessary in the best interests of the shareholders
of such Portfolio.
1.2. Each Fund, on behalf of its Portfolios, agrees to redeem for cash,
on the Company's request, any full or fractional shares of the Portfolios held
by the Company, executing such requests on a daily basis at the net asset value
next computed in accordance with the then current prospectus for the applicable
Fund after receipt by the applicable Fund of the request for redemption in
accordance with section 1.1 above.
1.3. Issuance and transfer of the Portfolios' shares will be by book
entry only. Stock certificates will not be issued to the Company or any Account.
Shares ordered from the Portfolios will be recorded in an appropriate title for
each Account or the appropriate subaccount of each Account.
1.4. The Funds shall furnish same day notice (by wire or telephone,
followed by written confirmation) to the Company of any income, dividends or
capital gain distributions payable on the Fund's shares. The Company hereby
elects to receive all such income dividends and capital gain distributions as
are payable on the Portfolio shares in additional shares of that Portfolio. The
Company reserves the right to revoke this election and to receive all such
income dividends and capital gain distributions in cash. The Funds shall notify
the Company of the number of shares so issued as payment of such dividends and
distributions.
1.5 The Company shall not redeem Fund shares attributable to the
Contracts (as opposed to shares attributable to the Company's assets held in the
Account) except (i) as necessary to implement Contract Owner or plan participant
initiated or approved transactions, or (ii) as required by state and/or federal
laws or regulations or judicial or legal precedent of general application
(hereinafter referred to as "Legally Required Redemptions") or (iii) as
permitted by a substitution order received by the Company under applicable
provisions of the Investment Company Act of 1940 (the "1940 Act"). Upon request,
the Company will promptly furnish to the Underwriter the opinion of counsel for
the Company (which counsel shall be reasonably satisfactory to the Underwriter)
to the effect that any redemption pursuant to clause (ii) above is a Legally
Required Redemption. Furthermore, except in cases where permitted under the
terms of the Contracts or the plans funded thereby, the Company shall not
prevent Contract Owners or plan participants, as the case may be, from
allocating payments to a Fund that was otherwise available under the Contracts
or the plans, as appropriate.
ARTICLE II. REPRESENTATIONS AND WARRANTIES
2.1. The Company represents and warrants that the Contracts are or will
be registered under the Securities Act of 1933 ("1933 Act") or are exempt from
registration thereof; that the Contracts will be issued and sold in compliance
in all material respects with all applicable Federal and State laws and that the
sale of the Contracts shall comply in all material respects with state insurance
suitability requirements. The Company further represents and warrants that it is
an insurance company duly organized and in good standing under applicable law
and that it has legally and validly established each Account prior to any
issuance or sale thereof as a segregated asset account under the Kansas
Insurance Code and that each Account either (1) is or will be registered as a
unit investment trust in accordance with the provisions of the 1940 Act to serve
as a segregated investment account for the Contracts or (2) is both (a) not
required to register as an investment company under the 1940 Act, and (b) is not
subject to treatment as an investment company for purposes of Section 12(d) of
the 0000 Xxx.
2.2. The Underwriter represents and warrants that each Fund is
currently qualified as a Regulated Investment Company under Subchapter M of the
Internal Revenue Code of 1986, as amended, (the "Code") and that it will make
every effort to maintain such qualification (under Subchapter M or any successor
or similar provision) and that it will notify the Company immediately upon
having a reasonable basis for believing that any Fund ceased to so qualify or
might not so qualify in the future.
2.3. The Company represents that the Contracts are currently treated as
annuity contracts under applicable provisions of the Code and that it will make
every effort to maintain such treatment and that it will notify the Underwriter
immediately upon having a reasonable basis for believing that the Contracts have
ceased to be so treated or that they might not be so treated in the future.
2.4. The Underwriter makes no representation as to whether any aspect
of any Fund's operations (including, but not limited to, fees and expenses and
investment policies) complies with the insurance laws or regulations of the
various states.
2.5. The Underwriter represents and warrants that it is a member in
good standing of the NASD and is registered as a broker-dealer with the SEC. The
Underwriter further represents that: (a) it will sell and distribute the Fund
shares in accordance with all applicable state and federal securities laws,
including without limitation the 1933 Act, the 1934 Act, and the 1940 Act; and
(b) the Funds will be registered under the 1933 and 1940 Acts, and duly
authorized for issuance in compliance with all applicable federal and state
securities laws.
2.6. The Company represents and warrants that all of its directors,
officers, employees, investment advisers, and other individuals/entities dealing
with the money and/or securities of the Funds are and shall continue to be at
all times covered by a blanket fidelity bond or similar coverage for the benefit
of the Funds, in an amount not less than $5 million. The aforesaid Bond shall
include coverage for larceny and embezzlement and shall be issued by a reputable
bonding company.
2.7 The Underwriter represents and warrants that all of its and the
Funds directors, officers, employees, investment advisers, and other
individuals/entities dealing with the money and/or securities of the Funds are
and shall continue to be at all times covered by a blanket fidelity bond or
similar coverage for the benefit of the Funds in an amount not less than the
minimal coverage as required currently by Rule 17g-(1) of the 1940 Act or
related provisions as may be promulgated from time to time. The aforesaid Bond
shall include coverage for larceny and embezzlement and shall be issued by a
reputable bonding company.
2.8. The Underwriter represents and warrants that the Funds are
lawfully organized and validly existing under the laws of the Commonwealth of
Massachusetts and that the Funds do and will comply in all material respects
with the 1940 Act.
2.9. The Underwriter represents and warrants that the investment
adviser(s) to the Funds is and shall remain duly registered in all material
respects under all applicable federal and state securities laws and that the
such investment adviser(s) shall perform its obligations for the Funds in
compliance in all material respects with the laws of the Commonwealth of
Massachusetts and any applicable state and federal securities laws.
ARTICLE III. PROXY STATEMENTS; VOTING
3.1. Unless otherwise required or permitted by applicable federal law,
the Company will distribute to Contract owners all proxy material furnished by
the Funds and will vote Portfolio shares in accordance with instructions
received from those Contract owners with Contract values allocated to Portfolio
shares. If and to the extent permitted by law, the Company may vote Portfolio
shares for which no instructions have been received in the same proportion as
shares for which such instructions have been received from Contract owners. The
Company and its agents will in no way recommend action in connection with or
oppose or interfere with the solicitation of proxies for Portfolio shares held
by Contract owners. The Company reserves the right to vote Fund shares held in
its segregated asset accounts in its own name to the extent permitted by
applicable law. If it distributes Fund proxies directly, Company will be
entitled to reimbursement as though it were a broker-dealer trading on an
omnibus basis. As an alternative to soliciting proxies directly, Company may
participate without charge in the Fund's proxy distribution process, provided
that Company supplies all necessary information and complies with the Fund's
procedures, and that Company remains responsible for legal compliance with proxy
voting requirements applicable to the Company, or its Contracts or Separate
Accounts.
ARTICLE IV. SALES MATERIAL AND INFORMATION
4.1. The Company shall furnish, or shall cause to be furnished, to the
Underwriter or its designee, each piece of sales literature or other promotional
material in which any Fund or its investment adviser or the Underwriter is
named, at least fifteen Business Days prior to its use. No such material shall
be used if the Underwriter or its designee objects to such use within fifteen
Business Days after receipt of such material.
4.2. The Company shall not give any information or make any
representations or statements on behalf of any Fund or concerning any Fund in
connection with the sale of the Contracts other than the information or
representations contained in the registration statement or prospectus for such
Fund shares, as such registration statement and prospectus may be amended or
supplemented from time to time, or in reports or proxy statements for such Fund,
or in sales literature or other promotional material approved by the Underwriter
or its designee, except with the permission of the Underwriter or its designee.
4.3. Sales literature in which any Fund or its investment advisor is
named shall be submitted to the SEC or NASD for review as required by applicable
law. Copies of any comments received that relate to a Fund or the Underwriter or
its affiliates shall be sent to the Underwriter or its designee.
4.4. The Underwriter or its designee shall furnish, or shall cause to
be furnished, to the Company or its designee, each piece of sales literature or
other promotional material in which the Company or any Account is named, at
least fifteen Business Days prior to its use. No such material shall be used if
the Company or its designee objects to such use within fifteen Business Days
after receipt of such material.
4.5. The Underwriter shall not give any information or make any
representations on behalf of the Company or concerning the Company, any Account,
the Contracts other than the information or representations in sales literature
or other promotional material approved by the Company or its designee, except
with the permission of the Company.
4.6. The Company will provide to the Underwriter at least one complete
copy of all registration statements, prospectuses, Statements of Additional
Information, reports, solicitations for voting instructions, applications for
exemptions, requests for no action letters, and all amendments to any of the
above, that relate to the Contracts or any Account, promptly after with the
filing of such document with the SEC or other regulatory authorities.
4.7. For purposes of this Article IV, the phrase "sales literature or
other promotional material" includes, but is not limited to, advertisements
(such as material published, or designed for use in, a newspaper, magazine, or
other periodical, radio, television, telephone or tape recording, videotape
display, signs or billboards, motion pictures, or other public media), sales
literature (I.E., any written communication distributed or made generally
available to customers or the public, including brochures, circulars, research
reports, market letters, form letters, seminar texts, reprints or excerpts of
any other advertisement, sales literature, or published article), educational or
training materials or other communications distributed or made generally
available to some or all agents or employees, and registration statements,
prospectuses, Statements of Additional Information, shareholder reports, and
proxy materials.
ARTICLE V. FEES AND EXPENSES
5.1. The Underwriter shall pay no fee or other compensation to the
Company under this agreement, except that if a Fund or any Portfolio adopts and
implements a plan pursuant to Rule 12b-1 to finance distribution expenses, then
the Underwriter may make payments to the Company or to the underwriter for the
Contracts if and in amounts agreed to by the Underwriter in writing and such
payments will be made out of existing fees otherwise payable to the Underwriter,
past profits of the Underwriter or other resources available to the Underwriter.
5.2. Each Fund shall bear the expenses for the cost of registration and
qualification of its shares, preparation and filing of its prospectus and
registration statement, proxy materials and reports. The Underwriter shall
provide to the Company one copy for each Account of each Fund's prospectus,
proxy materials and reports. The Company shall provide, at its own expense
unless otherwise agreed to in writing by the Company and any affiliate of the
Underwriter, a copy of such prospectuses, proxy materials and reports to
Contract owners who have allocated a portion of their Contract value to the
applicable Fund. In addition, the Company shall not permit any Contract owner to
allocate any portion of their Contract value to a Fund unless prior to such
allocation such Contract owner has received a copy of the Fund's current
prospectus. Nothing in this Agreement shall preclude the Company from receiving
prospectuses, SAIs, shareholder reports, proxy materials or other materials of
the Funds which would otherwise be available to the Company or its broker-dealer
affiliate pursuant to the Selling Dealer Agreement of even date between FDC and
the Company's broker-dealer affiliate.
ARTICLE VI. INDEMNIFICATION
6.1. INDEMNIFICATION BY THE COMPANY
6.1(a). The Company agrees to indemnify and hold harmless each Fund and
each trustee of the Board and officers and each person, if any, who controls any
Fund within the meaning of Section 15 of the 1933 Act (collectively, the
"Indemnified Parties" for purposes of this Section 6.1) against any and all
losses, claims, damages, liabilities (including amounts paid in settlement with
the written consent of the Company) or litigation (including legal and other
expenses), to which the Indemnified Parties may become subject under any
statute, regulation, at common law or otherwise, insofar as such losses, claims,
damages, liabilities or expenses (or actions in respect thereof) or settlements
are related to the sale or acquisition of any Fund's shares or of the Contracts
and arise out of or result from or are based upon:
(i) any untrue statements or alleged untrue statements of any
material fact contained in the Registration Statement or
prospectus for the Contracts or contained in the Contracts or
sales literature for the Contracts (or any amendment or
supplement to any of the foregoing), or arise out of or are
based upon the omission or the alleged omission to state therein
a material fact required to be stated therein or necessary to
make the statements therein not misleading, provided that this
agreement to indemnify shall not apply as to any Indemnified
Party if such statement or omission or such alleged statement or
omission was made in reliance upon and in conformity with
information furnished to the Company by or on behalf of any Fund
for use in the Registration Statement or prospectus for the
Contracts or in the Contracts or sales literature (or any
amendment or supplement thereto) or otherwise for use in
connection with the sale of the Contracts or any Fund shares; or
(ii) statements or representations (other than statements or
representations contained in the Registration Statement,
prospectus or sales literature of any Fund not supplied by the
Company, or persons under its control) or wrongful conduct of
the Company or persons under its control, with respect to the
sale or distribution of the Contracts or any Fund Shares; or
(iii) untrue statement or alleged untrue statement of a material
fact contained in a Registration Statement, prospectus, or sales
literature of any Fund or any amendment thereof or supplement
thereto or the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make
the statements therein not misleading if such a statement or
omission was made in reliance upon information furnished to the
Underwriter by or on behalf of the Company; or
(iv) failure by the Company to provide the services and furnish
the materials under the terms of this Agreement; or
(v) material breach of any representation and/or warranty made
by the Company in this Agreement or any other material breach of
this Agreement by the Company.
6.1(b). The Company shall not be liable under this indemnification
provision with respect to any claim made against an Indemnified Party unless
such Indemnified Party shall have notified the Company in writing within a
reasonable time after the summons or other first legal process giving
information of the nature of the claim shall have been served upon such
Indemnified Party (or after such Indemnified Party shall have received notice of
such service on any designated agent), but failure to notify the Company of any
such claim shall not relieve the Company from any liability which it may have to
the Indemnified Party against whom such action is brought otherwise than on
account of this indemnification provision. In case any such action is brought
against the Indemnified Parties, the Company shall be entitled to participate,
at its own expense, in the defense of such action. The Company also shall be
entitled to assume the defense thereof, with counsel reasonably satisfactory to
the party named in the action. After notice from the Company to such party of
the Company's election to assume the defense thereof, the Indemnified Party
shall bear the fees and expenses of any additional counsel retained by it, and
the Company will not be liable to such party under this Agreement for any legal
or other expenses subsequently incurred by such party independently in
connection with the defense thereof other than reasonable costs of
investigation.
6.1(c). The Indemnified Parties will promptly notify the Company of the
commencement of any litigation or proceedings against them in connection with
the issuance or sale of any Fund's Shares or the Contracts or the operation of
any Fund.
6.1(d). The Company shall not be liable under this indemnification
provision with respect to any losses, claims, damages, liabilities or litigation
incurred or assessed against an Indemnified Party as such may arise from such
Indemnified Party's willful misfeasance, bad faith, or gross negligence in the
performance of such Indemnified Party's duties or by reason of such Indemnified
Party's reckless disregard of obligations or duties under this Agreement or to
the Funds, whichever is applicable.
6.2. INDEMNIFICATION BY THE UNDERWRITER
6.2(a). The Underwriter agrees to indemnify and hold harmless the
Company and each of its directors and officers and each person, if any, who
controls the Company within the meaning of Section 15 of the 1933 Act
(collectively, the "Indemnified Parties" for purposes of this Section 6.2)
against any and all losses, claims, damages, liabilities (including amounts paid
in settlement with the written consent of the Underwriter) or litigation
(including legal and other expenses) to which the Indemnified Parties may become
subject under any statute, at common law or otherwise, insofar as such losses,
claims, damages, liabilities or expenses (or actions in respect thereof) or
settlements are related to the sale or acquisition of any Fund's shares or the
Contracts and arise out of or result from or are based upon any:
(i) untrue statement or alleged untrue statement of any material
fact contained in the Registration Statement or prospectus or
sales literature of any Fund (or any amendment or supplement to
any of the foregoing), or arise out of or are based upon the
omission or the alleged omission to state therein a material
fact required to be stated therein or necessary to make the
statements therein not misleading, provided that this agreement
to indemnify shall not apply as to any Indemnified Party if such
statement or omission or such alleged statement or omission was
made in reliance upon and in conformity with information
furnished to the Underwriter by or on behalf of the Company for
use in the Registration Statement or prospectus for any Fund or
in sales literature (or any amendment or supplement thereto) or
otherwise for use in connection with the sale of the Contracts
or any Fund shares; or
(ii) statements or representations (other than statements or
representations contained in the Registration Statement,
prospectus or sales literature for the Contracts not supplied by
the Underwriter or persons under its control) or wrongful
conduct of any Fund, or Underwriter or persons under their
control, with respect to the sale or distribution of the
Contracts or any Fund shares; or
(iii) untrue statement or alleged untrue statement of a material
fact contained in a Registration Statement, prospectus, or sales
literature covering the Contracts, or any amendment thereof or
supplement thereto, or the omission or alleged omission to state
therein a material fact required to be stated therein or
necessary to make the statement or statements therein not
misleading, if such statement or omission was made in reliance
upon information furnished to the Company by or on behalf of any
Fund; or
(iv) failure by any Fund to provide the services and furnish the
materials under the terms of this Agreement; or
(v) material breach of any representation and/or warranty made
by the Underwriter in this Agreement or any other material
breach of this Agreement by the Underwriter.
6.2(b). The Underwriter shall not be liable under this indemnification
provision with respect to any claim made against an Indemnified Party unless
such Indemnified Party shall have notified the Underwriter in writing within a
reasonable time after the summons or other first legal process giving
information of the nature of the claim shall have been served upon such
Indemnified Party (or after such Indemnified Party shall have received notice of
such service on any designated agent), but failure to notify the Underwriter of
any such claim shall not relieve the Underwriter from any liability which it may
have to the Indemnified Party against whom such action is brought otherwise than
on account of this indemnification provision. In case any such action is brought
against the Indemnified Parties, the Underwriter will be entitled to
participate, at its own expense, in the defense thereof. The Underwriter also
shall be entitled to assume the defense thereof, with counsel reasonably
satisfactory to the party named in the action. After notice from the Underwriter
to such party of the Underwriter's election to assume the defense thereof, the
Indemnified Party shall bear the fees and expenses of any additional counsel
retained by it, and the Underwriter will not be liable to such party under this
Agreement for any legal or other expenses subsequently incurred by such party
independently in connection with the defense thereof other than reasonable costs
of investigation.
6.2(c). The Company agrees promptly to notify the Underwriter of the
commencement of any litigation or proceedings against it or any of its officers
or directors in connection with the issuance or sale of the Contracts or the
operation of any Account.
6.2(d). The Underwriter shall not be liable under this indemnification
provision with respect to any losses, claims, damages, liabilities or litigation
incurred or assessed against an Indemnified Party as such may arise from such
Indemnified Party's willful misfeasance, bad faith, or gross negligence in the
performance of such Indemnified Party's duties or by reason of such Indemnified
Party's reckless disregard of obligations or duties under this Agreement or to
the Company or the Accounts, whichever is applicable.
ARTICLE VII. APPLICABLE LAW
7.1. This Agreement shall be construed and the provisions hereof
interpreted under and in accordance with the laws of the Commonwealth of
Massachusetts.
7.2. This Agreement shall be subject to the provisions of the 1933,
1934 and 1940 Acts, and the rules and regulations and rulings thereunder,
including such exemptions from those statutes, rules and regulations as the SEC
may grant and the terms hereof shall be interpreted and construed in accordance
therewith.
ARTICLE VIII. TERMINATION
8.1. This Agreement shall continue in full force and effect until the
first to occur of:
(a) termination by any party for any reason on one hundred eighty
(180) days' advance written notice delivered to the other
parties; or
(b) termination by the Company by written notice to the Underwriter
with respect to any Portfolio based upon the Company's
determination that shares of such Portfolio are not reasonably
available to meet the requirements of the Contracts; or
(c) termination by the Company by written notice to the Underwriter
with respect to any Portfolio in the event such Portfolio's
shares are not registered, issued or sold in accordance with
applicable state and/or federal law or such law precludes the
use of such shares as the underlying investment media of the
Contracts issued or to be issued by the Company; or
(d) termination by the Company by written notice to the Underwriter
in the event that any Portfolio ceases to qualify as a Regulated
Investment Company under Subchapter M of the Code or under any
successor or similar provision, or if the Company reasonably
believes that any Portfolio may fail to so qualify; or
(e) termination by the Underwriter by written notice to the Company,
in its sole judgment exercised in good faith, that the Company
and/or its affiliated companies has suffered a material adverse
change in its business, operations, financial condition or
prospects since the date of this Agreement or is the subject of
material adverse publicity; or
(f) termination by the Company by written notice to the Underwriter,
if the Company shall determine, in its sole judgment exercised
in good faith, that either the Underwriter or a Fund has
suffered a material adverse change in its business, operations,
financial condition or prospects since the date of this
Agreement or is the subject of material adverse publicity.
8.2 Notwithstanding any termination of this Agreement, the Underwriter
shall, at the option of the Company, continue to make available additional
shares of the Funds pursuant to the terms and conditions of this Agreement, for
all Contracts in effect on the effective date of termination of this Agreement.
The provisions of Articles II (Representations and Warranties), VI
(Indemnification), VII (Applicable Law) and X (Miscellaneous), excluding section
10.8, shall survive termination of this Agreement. In addition, all other
applicable provisions of this Agreement shall survive termination as long as
shares of the Fund are held on behalf of Contract owners in accordance with this
section 8.2, except that the Underwriter shall have no further obligation to
make Fund shares available in Contracts issued after termination.
ARTICLE IX. NOTICES
Any notice shall be sufficiently given when sent by registered or
certified mail to the other party at the address of such party set forth below
or at such other address as such party may from time to time specify in writing
to the other party.
If to the Underwriter:
00 Xxxxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Treasurer
If to the Company:
000 XX Xxxxxxxx
Xxxxxx, Xxxxxx 00000
Attention: General Counsel
ARTICLE X. MISCELLANEOUS
10.1. Subject to the requirements of legal process and regulatory
authority, the Underwriter shall treat as confidential the names and addresses
of the owners of the Contracts and each party hereto shall treat as confidential
all information reasonably identified as confidential in writing by any other
party hereto. Except as permitted by this Agreement, neither party shall
disclose, disseminate or utilize such names and addresses and other confidential
information of the other party without the express written consent of the other
party until after such time, if any, as it has come into the public domain.
10.2. The captions in this Agreement are included for convenience of
reference only and in no way define or delineate any of the provisions hereof or
otherwise affect their construction or effect.
10.3. This Agreement may be executed simultaneously in two or more
counterparts, each of which taken together shall constitute one and the same
instrument.
10.4. If any provision of this Agreement shall be held or made invalid
by a court decision, statute, rule or otherwise, the remainder of the Agreement
shall not be affected thereby.
10.5. Each party hereto shall cooperate with each other party and all
appropriate governmental authorities (including without limitation the SEC, the
NASD and state insurance regulators) and shall permit such authorities
reasonable access to its books and records in connection with any investigation
or inquiry relating to this Agreement or the transactions contemplated hereby.
10.6. 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.
10.7. This Agreement or any of the rights and obligations hereunder may
not be assigned by any party without the prior written consent of all parties
hereto; provided, however, that the Underwriter may assign this Agreement or any
rights or obligations hereunder to any affiliate of or company under common
control with the Underwriter, if such assignee is duly licensed and registered
to perform the obligations of the Underwriter under this Agreement.
10.8. The Company shall furnish, or shall cause to be furnished, to the
Fund or its designee copies of the following reports:
(a) the Company's annual statement (prepared under statutory
accounting principles) and annual report (prepared under
generally accepted accounting principles ("GAAP")), as soon as
practical and in any event within 90 days after the end of each
fiscal year;
(b) the Company's quarterly statements (statutory and GAAP), as soon
as practical and in any event within 45 days after the end of
each quarterly period;
(c) any financial statement, proxy statement, notice or report of the
Company sent to stockholders and/ or policyholders, as soon as
practical after the delivery thereof to stockholders;
(d) any registration statement (without exhibits) and financial
reports of the Company filed with the Securities and Exchange
Commission or any state insurance regulator, as soon as practical
after the filing thereof;
(e) any other nonconfidential report submitted to the Company by
independent accountants in connection with any annual, interim or
special audit made by them of the books of the Company, as soon
as practical after the receipt thereof.
10.9 All persons dealing with any Fund must look solely to the property
of the Fund for the enforcement of any claims against the Fund as neither the
Board, officers, agents or shareholders of any Fund assume any personal
liability for obligations entered into or on behalf of the Fund.
IN WITNESS WHEREOF, each of the parties hereto has caused this
Agreement to be executed in its name and on its behalf by its duly authorized
representative as of the date first above written.
SECURITY BENEFIT LIFE INSURANCE COMPANY
By: XXXXXX XXXX
-------------------------
Name: Xxxxxx Xxxx
Title: Chief Marketing Officer
Senior Vice President
FIDELITY DISTRIBUTORS CORPORATION
By: XXXX XXXXXXX
-------------------------
Xxxx Xxxxxxx
Executive Vice President
SCHEDULE A
Policy Form Numbers
Name and Date of of Contracts
Formation of Issued Through Corresponding Mutual
SEPARATE ACCOUNT SEPARATE ACCOUNT FUND OR FUND PORTFOLIO
-------------------- ------------------- ----------------------
SBL Variable Annuity Fidelity Advisor Value Strategies T
Account XIV 6/26/00 V6029
Fidelity Advisor Dividend Growth T
Fidelity Advisor Mid Cap T
Fidelity Advisor International
Capital Appreciation T
SUB-LICENSE AGREEMENT
Agreement effective as of this 1st day of July, 2001 by and between
Fidelity Distributors Corporation (hereinafter called "Fidelity"), a corporation
organized and existing under the laws of the Commonwealth of Massachusetts, with
a principal place of business at 00 Xxxxxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx,
and Security Benefit Life Insurance Company (hereinafter called "Company"), a
company organized and existing under the laws of the State of Kansas, with a
principal place of business at 000 XX Xxxxxxxx, Xxxxxx, XX 00000.
WHEREAS, FMR Corp., a Massachusetts corporation, the parent company of
Fidelity, is the owner of the trademark and the tradename "FIDELITY INVESTMENTS"
and is the owner of a trademark in a pyramid design (hereinafter, collectively
the "Fidelity Trademarks"), a copy of each of which is attached hereto as
Exhibit "A"; and
WHEREAS, FMR Corp. has granted a license to Fidelity (the "Master
License Agreement") to sub-license the Fidelity Trademarks to third parties for
their use in connection with Promotional Materials as hereinafter defined; and
WHEREAS, Company is desirous of using the Fidelity Trademarks in
connection with distribution of "sales literature and other promotional
material" with information, including the Fidelity Trademarks, printed in said
material (such material hereinafter called the Promotional Material). For the
purpose of this Agreement, "sales literature and other promotional material"
shall have the same meaning as in the certain Participation Agreement dated as
of the between Fidelity and Company (hereinafter "Participation Agreement"); and
WHEREAS, Fidelity is desirous of having the Fidelity Trademarks used in
connection with the Promotional Material.
NOW, THEREFORE, in consideration of the foregoing and for other good and
valuable consideration, the receipt and adequacy whereof is hereby acknowledged,
and of the mutual promises hereinafter set forth, the parties hereby agree as
follows:
1. Fidelity hereby grants to Company a non-exclusive, non-transferable
license to use the Fidelity Trademarks in connection with the promotional
distribution of the Promotional Material and Company accepts said license,
subject to the terms and conditions set forth herein.
2. Company acknowledges that FMR Corp. is the owner of all right, title
and interest in the Fidelity Trademarks and agrees that it will do nothing
inconsistent with the ownership of the Fidelity Trademarks by FMR Corp., and
that it will not, now or hereinafter, contest any registration or application
for registration of the Fidelity Trademarks by FMR Corp., nor will it, now or
hereafter, aid anyone in contesting any registration or application for
registration of the Fidelity Trademarks by FMR Corp.
3. Company agrees to use the Fidelity Trademarks only in the form and
manner approved by Fidelity and not to use any other trademark, service xxxx or
registered trademark in combination with any of the Fidelity Trademarks without
approval by Fidelity.
4. Company agrees that it will place all necessary and proper notices
and legends in order to protect the interests of FMR Corp. and Fidelity therein
pertaining to the Fidelity Trademarks on the Promotional Material including, but
not limited to, symbols indicating trademarks, service marks and registered
trademarks. Company will place such symbols and legends on the Promotional
Material as requested by Fidelity or FMR Corp. upon receipt of notice of same
from Fidelity or FMR Corp.
5. Company agrees that the nature and quality of all of the Promotional
Material distributed by Company bearing the Fidelity Trademarks shall conform to
standards set by, and be under the control of, Fidelity.
6. Company agrees to cooperate with Fidelity in facilitating Fidelity's
control of the use of the Fidelity Trademarks and of the quality of the
Promotional Material to permit reasonable inspection of samples of same by
Fidelity and to supply Fidelity with reasonable quantities of samples of the
Promotional Material upon request.
7. Company shall comply with all applicable laws and regulations and
obtain any and all licenses or other necessary permits pertaining to the
distribution of said Promotional Material.
8. Company agrees to notify Fidelity of any unauthorized use of the
Fidelity Trademarks by others promptly as it comes to the attention of Company.
Fidelity or FMR Corp. shall have the sole right and discretion to commence
actions or other proceedings for infringement, unfair competition or the like
involving the Fidelity Trademarks and Company shall cooperate in any such
proceedings if so requested by Fidelity or FMR Corp.
9. This agreement shall continue in force until terminated by Fidelity.
This agreement shall automatically terminate upon termination of the Master
License Agreement. In addition, Fidelity shall have the right to terminate this
agreement at any time upon notice to Company, with or without cause. Upon any
such termination, Company agrees to cease immediately all use of the Fidelity
Trademarks and shall destroy, at Company's expense, any and all materials in its
possession bearing the Fidelity Trademarks, and agrees that all rights in the
Fidelity Trademarks and in the goodwill connected therewith shall remain the
property of FMR Corp. Unless so terminated by Fidelity, or extended by written
agreement of the parties, this agreement shall expire on the termination of that
certain Participation Agreement.
10. Company shall indemnify Fidelity and FMR Corp. and hold each of them
harmless from and against any loss, damage, liability, cost or expense of any
nature whatsoever, including without limitation, reasonable attorneys' fees and
all court costs, arising out of use of the Fidelity Trademarks by Company.
11. In consideration for the promotion and advertising of Fidelity as a
result of the distribution by Company of the Promotional Material, Company shall
not pay any monies as a royalty to Fidelity for this license.
12. This agreement is not intended in any manner to modify the terms and
conditions of the Participation Agreement. In the event of any conflict between
the terms and conditions herein and thereof, the terms and conditions of the
Participation Agreement shall control.
13. This agreement shall be interpreted according to the laws of the
Commonwealth of Massachusetts.
IN WITNESS WHEREOF, the parties hereunto set their hands and seals, and
hereby execute this agreement, as of the date first above written.
FIDELITY DISTRIBUTORS CORPORATION
XXXX XXXXXXX
-------------------------
By: Xxxx Xxxxxxx
Title: Executive Vice President
Date: 7-20-01
SECURITY BENEFIT LIFE INSURANCE COMPANY
XXXXXX XXXX
-------------------------
By: Xxxxxx Xxxx
Title: Senior Vice President
& Chief Marketing Officer
Date: 7-12-01
EXHIBIT A
Int. Cl.: 36
Prior U.S. Cls.: 101 and 000
Xxx. Xx. 0,000,000
XXXXXX XXXXXX PATENT AND TRADEMARK OFFICE REGISTERED MAR. 15, 1988
---------------------------------------------------------------------------
SERVICE XXXX
PRINCIPAL REGISTER
FIDELITY
INVESTMENTS
FMR CORP. (MASSACHUSETTS FIRST USE 2-22-1984; IN COMMERCE 2-22-1984.
CORPORATION)
00 XXXXXXXXXX XXXXXX NO CLAIM IS MADE TO THE EXCLUSIVE RIGHT TO USE
XXXXXX, XX 00000, ASSIGNEE OF "INVESTMENTS", APART FROM THE XXXX AS SHOWN.
FIDELITY DISTRIBUTORS CORPORATION
(MASSACHUSETTS CORPORATION)
XXXXXX, XX
00000
SER. NO. 641,707, FILED 1-28-1987
FOR: MUTUAL FUND AND STOCK
BROKERAGE SERVICES, IN CLASS XXXX XXXXXX, EXAMINING ATTORNEY
36 (U.S. CLS. 101 AND 102)
