Participation Agreement
Among
The Victory Variable Insurance Funds,
BISYS Fund Services Limited Partnership,
Victory Capital Management Inc.,
And
New York Life Insurance and Annuity Corporation
TABLE OF CONTENTS
Page
2
ARTICLE I. Trust Shares
ARTICLE II. Representations and Warranties 5
ARTICLE III. Prospectuses, Reports to
Shareholders and Proxy Statements;
Voting 9
ARTICLE IV. Sales Material and Information 11
ARTICLE V. Expenses 13
ARTICLE VI. Potential Conflicts 13
ARTICLE VII. Indemnification 15
ARTICLE VIII. Applicable Law 23
ARTICLE IX. Termination 24
ARTICLE X. Notices 26
ARTICLE XI. Miscellaneous 27
SCHEDULE A Separate Accounts and Contracts 31
SCHEDULE B Participating Funds 32
SCHEDULE C Cost Allocation 33
PARTICIPATION AGREEMENT
THIS PARTICIPATION AGREEMENT ("Agreement"), made as of this 2nd day of
April, 2004 by and among New York Life Insurance and Annuity Corporation (the
"Company"), a life insurance company organized under the laws of the State of
Delaware, on its behalf and on behalf of each segregated asset account set forth
on Schedule A attached hereto as it may be amended from time to time by mutual
written agreement of the Parties hereto (the "Separate Accounts"); The Victory
Variable Insurance Funds, an unincorporated statutory trust organized under the
laws of the state of Delaware (the "Trust"), on behalf of each series,
individually and not jointly, set forth on Schedule B attached hereto as may be
amended from time to time by mutual written agreement of the Parties hereto
(each a "Fund" and collectively, the "Funds"); BISYS Fund Services Limited
Partnership, an Ohio Limited Partnership (the "Distributor"); and Victory
Capital Management Inc., a New York corporation, (the "Adviser") (each a
"Party," and collectively, the "Parties").
WHEREAS, the Trust engages in business as an open-end management
investment company, is registered with the Securities and Exchange Commission
(the "SEC") under the Investment Company Act of 1940, as amended (the "1940
Act"), and is available to act as the investment vehicle for separate accounts
established by insurance companies for life insurance policies and annuity
contracts; and
WHEREAS, the Trust intends to make available shares of the Funds to the
Separate Accounts of the Company; and
WHEREAS, the shares of the Trust are divided into several Funds, and each
Fund represents the interest in a particular managed portfolio of securities and
other assets; and
WHEREAS, the shares of the Fund are registered under the Securities Act of
1933, as amended (the "1933 Act") to the extent required thereby; and
WHEREAS, the Distributor is registered as a broker/dealer under the
Securities Exchange Act of 1934, as amended (the "1934 Act"), is a member in
good standing of the National Association of Securities Dealers, Inc. (the
"NASD") and serves as principal underwriter of the shares of the Funds; and
WHEREAS, the Adviser is registered as an investment adviser under the
Investment Advisers Act of 1940, as amended ("Advisers Act") and serves as the
investment adviser to the Funds; and
WHEREAS, the Company is an insurance company which has established or will
establish one or more Separate Accounts to offer variable annuities and/or
variable life insurance policies listed in Schedule A attached hereto as the
Parties may amend from time to time by mutual written agreement (the
"Contracts") issued by the Company and, to the extent permitted by applicable
insurance laws and regulations, the Company intends to purchase, on behalf of
the
Separate Accounts, shares of the Trust to fund certain Contracts, and the Trust
is authorized to sell such shares at net asset value. Persons that are parties
to a Contract with Company (or other persons who may exercise rights under the
Contracts) are Contract owners ("Contract owners"); and
WHEREAS, the Trust and the Distributor (under its former name, The
Winsbury Company Limited Partnership) relies on an order from the SEC, dated
January 16, 1996, (File No. 812-9236), as amended on December 10, 1998 (File No.
812-10694), granting participating insurance companies and variable annuity and
variable life insurance separate accounts exemptions from the provisions of
sections 9(a), 13(a), 15(a) and 15(b) of the 1940 Act, and Rules 6e-2(b)(15) and
6e-3(T)(b)(15) thereunder, to the extent necessary to permit shares of the Funds
to be sold to and held by variable annuity and variable life insurance separate
accounts of both affiliated and unaffiliated life insurance companies
(hereinafter the "Shared Funding Order").
NOW, THEREFORE, in consideration of their mutual promises, Company, the
Trust, the Distributor and the Adviser agree as follows:
ARTICLE I. TRUST SHARES
Section 1.1. Subject to Article IX and the terms set forth in the Trust's
registration statement, as may be amended from time to time, the Trust agrees to
make shares of the Funds available for purchase by the Company and the Separate
Accounts indefinitely, and the Distributor agrees to sell such shares to the
Company and the Separate Accounts to the extent made available by the Trust, at
the applicable net asset value per share ("NAV") by the Company and the Separate
Accounts on each Business Day pursuant to the rules of the SEC. The Trust will
execute purchase orders placed for each Separate Account on a daily basis at the
NAV of each Fund computed after receipt by the Trust or its designee of such
order. At Company's request, the Trust agrees to redeem for cash any full or
fractional shares of the Fund held by the Company and Separate Accounts, on a
daily basis at the NAV computed after receipt by the Trust or its designee of
the request for redemption.
However, if one or more Funds has determined to settle redemption
transactions for all of its shareholders on a delayed basis (more than one
Business Day, but in no event more than five Business Days, after the date on
which the redemption order is received, and consistent with Section 22(e) of the
1940 Act and any rules or orders of the SEC thereunder), the Trust shall be
permitted to delay sending redemption proceeds to Company by the same number of
days that the Trust is delaying sending redemption proceeds to the other
shareholders of the Funds; provided that in no event may any delay by the Trust
in paying redemption proceeds cause the Company or Separate Accounts to fail to
meet its obligations under Section 22(e) of the 1940 Act, or require the Company
to pay redemption proceeds out of its general account.
For purposes of this Section 1.1, Company shall be the agent of the Trust
for receipt of purchase orders and redemption requests from each Separate
Account and receipt by Company
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by the earlier of 4:00 p.m. (Eastern time) or the close of regular trading on
the New York Stock Exchange (or such other time that the Trust determines the
NAV as set forth in the prospectuses for the Funds) constitutes receipt by the
Trust on that day, provided the Trust or the Trust's agent receives notice of
net purchase orders or net redemption requests by 11:00 a.m. (Eastern time) on
the next following Business Day or such later time as permitted by Section 1.1.
Upon the request of the Trust, Company shall provide to the Trust, copies of
records of purchase orders and redemption requests placed with Company,
including records indicating the time at which such orders or requests were
received by Company.
Company will place net orders to purchase or redeem shares of each Fund.
Each order shall describe the net amount of shares and dollar amount of each
Fund to be purchased or redeemed. In the event of net purchases, Company will
pay for shares before 3:00 p.m. (Eastern time) on the same day it places the
order to purchase shares with the Fund as set forth in this Section 1.1. Payment
shall be in federal funds transmitted to the Trust by wire to an account
designated by the Trust. Upon receipt by the Trust of the federal funds so
wired, such funds shall cease to be the responsibility of the Company and shall
become the responsibility of the Trust. In the event of net redemptions, the
Trust shall pay and transmit proceeds of redemptions to the Company before 3:00
p.m. (Eastern time) on the same day the Company places the order to redeem Fund
shares with the Fund unless settlement of redemption transactions is delayed as
provided in this Section 1.1. Payment shall be in federal funds transmitted to
the Company or its designee by wire to an account designated by the Company.
Upon receipt by the Company of the federal funds so wired, such funds shall
cease to be the responsibility of the Trust and shall become the responsibility
of the Company.
For purposes of this Agreement, "Business Day" shall mean any day on which
the New York Stock Exchange is open for trading and on which the Trust
calculates the net asset value of each Fund pursuant to the rules of the SEC, as
set forth in each Fund's prospectus.
Section 1.2. The Board of Trustees of the Trust ("Board"), acting in good
faith and in the exercise of its fiduciary responsibilities to Fund shareholders
(including the Company and its Separate Accounts), may refuse to permit the
Trust to sell shares of any Fund to any person, or suspend or terminate the
offering of shares of any Fund if such action is required by law or by
regulatory authorities having jurisdiction over the sale of shares, or is
determined by the Board to be in the best interests of the Fund's shareholders.
Section 1.3. The Trust represents and warrants that shares of each Fund
have been and will be sold only to life insurance companies and their separate
accounts and to persons or plans (collectively, "Qualified Persons") that
represent and warrant to the Trust that they qualify to purchase shares of the
Fund under Section 817(h) of the Internal Revenue Code of 1986 ("Code"), and the
regulations thereunder without impairing the ability of the Separate Account to
consider the portfolio investments of the Fund as constituting investments of
the Separate Account for the purpose of satisfying diversification requirements
of Section 817(h). The Trust represents and warrants that no shares of any Fund
have been or will be sold to the general public. The Trust shall not sell Fund
shares to any insurance company or separate account unless an agreement
substantially complying with Articles VI and VII and Sections 1.3, 2.1, 2.3,
2.6,
3
and 3.2 of this Agreement is in effect to govern such sales, to the extent
required. Company hereby represents and warrants that it and the Separate
Accounts are Qualified Persons.
Section 1.4. Issuance and transfer of Fund shares will be by book entry
only. Share certificates will not be issued to Company or any Separate Account.
Shares purchased from the Trust will be recorded in an appropriate title for
each Separate Account or the appropriate sub-account of each Separate Account.
The Trust shall furnish to Company the CUSIP number assigned to each Fund.
Section 1.5. The Trust shall provide monthly statements of account as of
the end of each month for all Company's accounts by the fifteenth (15) Business
Day of the following month.
Section 1.6. The Trust or its designee shall notify Company (by wire or
telephone, followed by written confirmation) in advance of any dividends or
capital gain distributions payable on the Funds' shares, but in no case later
than 6:00 p.m. Eastern time on the payable date. Company hereby elects to
reinvest all such dividends and capital gain distributions as are payable on a
Fund's shares in additional shares of that Fund. The Trust shall notify Company
by the end of the next Business Day following the date any dividends or capital
gain distributions are paid of the number of shares issued as payment of such
dividends and distributions. Company reserves the right to revoke this election
and to receive all such dividends and capital gain distributions in cash.
Section 1.7. The Trust or its agent shall make the NAV of each Fund
available to Company on a daily basis as soon as reasonably practical after the
NAV is calculated and reported in a manner required or permitted by applicable
law. The Trust shall use reasonable efforts to make such NAV available by 6:00
p.m. Eastern time on each Business Day. In the event that the Trust is unable to
meet the 6:00 p.m. time stated herein, the Trust shall provide additional time
for the Company to place orders for the purchase and redemption of shares equal
to the additional time it takes the Trust to make the NAVs available to the
Company. However, if the NAVs are not available for inclusion in the next
business cycle and purchase orders/redemptions are not able to be calculated and
available for the Company to execute within the time frame identified in
Sections 1.1 hereof, the Company on behalf of the Separate Account(s), shall be
entitled to an adjustment to the number of shares purchased or redeemed to
reflect the NAV computed as of the close of the prior Business Day. The Trust
shall calculate such NAV in accordance with the Trust's registration statement.
In the event of an error in the computation of a Fund's NAV or any
dividend or capital gain distribution (each, a "pricing error"), the Trust shall
notify the Company as soon as possible after discovery of the error. Such
notification may be verbal, but shall be confirmed promptly in writing in
accordance with Section 10.1 of this Agreement. A pricing error shall be
corrected as follows: (a) if the pricing error results in a difference between
the erroneous NAV and the correct NAV of less than $0.01 per share, then no
corrective action need be taken; (b) if the pricing error results in a
difference between the erroneous NAV and the correct NAV equal to or greater
than $0.01 per share, but less than 1/2 of 1% of the designated Fund's NAV at
the time of the error, then the Trust shall take all steps necessary to obtain
reimbursement for any loss from any party responsible for
4
the pricing error ("Responsible Party")., after taking into consideration any
positive effect of such error; however, no adjustments to Contract owner
accounts need be made; and (c) if the pricing error results in a difference
between the erroneous NAV and the correct NAV equal to or greater than 1/2 of 1%
of the Fund's NAV at the time of the error, then the Trust shall take all steps
necessary to obtain reimbursement for any loss from any Responsible Party
(without taking into consideration any positive effect of such error) and shall
reimburse the Company for reasonable administrative and/or systems costs of
adjustments made to correct Contract owner accounts. For any money market fund,
the correction of pricing errors shall be determined in a manner consistent with
Rule 2a-7 under the 1940 Act. With respect to (c) above, if an adjustment to
Contract owner accounts is necessary to correct a pricing error which has caused
Contract owners to receive less than the amount to which they are entitled, the
number of shares of the appropriate designated Fund(s) attributable to the
accounts of the Contract owners will be adjusted and the amount of any
underpayments shall be credited by the Trust to the Company for crediting of
such amounts to the applicable Contract owner accounts. Upon notification by the
Trust of any overpayment due to a pricing error, the Company shall promptly
remit to the Trust any overpayment that has not been paid to Contract owners;
however, the Trust acknowledges that the Company does not intend to seek
additional payments from any Contract owner who, because of a pricing error, may
have underpaid for units of interest credited to his/her account. In no event
shall the Company be liable to Contract owners for any such adjustments or
underpayment amounts.
The standards set forth in this Section 1.7 are based on the Parties'
understanding of the views expressed by the staff of the SEC as of the date of
this Agreement. In the event the views of the SEC staff are later modified or
superseded by SEC or judicial interpretation, the Parties shall amend the
foregoing provisions of this Agreement to comport with the appropriate
applicable standards, on terms mutually satisfactory to all Parties.
With respect to the pricing errors described above, this Section shall
control over other indemnification provisions in this Agreement.
ARTICLE II. REPRESENTATIONS AND WARRANTIES
Section 2.1. Company represents and warrants that:
A. It is an insurance company duly organized and in good standing under
the laws of Delaware and that it has legally and validly established each
Separate Account as a segregated asset account under such laws,
B. It has registered or, prior to any issuance or sale of the Contracts,
will register each Separate Account as a unit investment trust in accordance
with the provisions of the 1940 Act unless exempt therefrom and cause each
Separate Account to remain so registered to the extent required thereby to serve
as a segregated asset account for the Contracts.
C. The interests under the Contracts are or will be registered under the
1933 Act to the extent required prior to any issuance or sale of the Contracts
and that the Contracts will be
5
issued and sold in compliance in all material respects with all applicable
federal and state laws and regulations.
D. The Contracts are currently, and at the time of issuance shall be,
treated as annuity contracts or life insurance contracts, under applicable
provisions of the Code, and Company will maintain such treatment, and will
notify the Trust immediately upon having a reasonable basis for believing the
Contracts have ceased to be so treated or that they might not be so treated in
the future.
Section 2.2. The Trust, on behalf of each Fund, , separately and not
jointly, represents and warrants that:
A. The shares of the Funds sold pursuant to this Agreement are registered
under the 1933 Act and the regulations thereunder to the extent required.
B. The shares of the Funds are duly authorized for issuance in accordance
with the laws of each jurisdiction in which shares will be offered, to the
extent required by applicable laws.
C. The shares of the Funds shall be sold in material compliance with this
Agreement and with all applicable federal and state laws and regulations.
D. The Trust is and shall remain lawfully organized and validly existing
under the laws of the state of Delaware, that it is registered and shall remain
registered with the SEC under the 1940 Act and the regulations thereunder to the
extent required.
E. Subject to Section 1.2, 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 the Funds' shares.
F. Each Fund is lawfully organized and validly existing in accordance with
the Trust's organization document.
G. The Trust complies and will operate in compliance in all material
respects with all applicable law, including without limitation the 1940 Act and
the regulations thereunder.
H. The Trust has disclosed or made available, in writing, all information
relating to the Trust operations requested by the Company and such information
is true and accurate in all material respects as of the effective date of this
Agreement. Without prior notice to the Company, the Trust will not make any
fundamental changes in its investment policies, any sub-advisers or advisory
fees.
I. Each Fund is and at all times since its inception has been qualified as
a regulated investment company under Subchapter M of the Code, and will at times
invest money from the Contracts in such a manner and take such other actions as
necessary to qualify as a regulated
6
investment company under Subchapter M or any successor or similar provision) and
that the Fund will make every effort to maintain such qualification and will
notify the Company immediately in writing upon having a reasonable basis for
believing that the Fund has ceased to so qualify or that it might not so qualify
in the future.
J. Each Fund will at all times invest money from the Contracts in such a
manner as to ensure that the Contracts will be treated as variable contracts
under the Code and the regulations issued thereunder (or any successor
provisions) and at all times since its inception, each Fund has complied, and
will continue to comply, with Section 817 of the Code and Treasury Regulation
1.817-5, and any Treasury interpretations thereof, relating to the
diversification requirements for variable annuity, endowment, or life insurance
contracts and any amendments or other modifications to such Section or
regulations. The Trust will notify Company immediately upon having a reasonable
basis for believing any Fund has ceased to comply or might not so comply, and
will take all steps necessary to adequately diversify the Fund so as to achieve
compliance within the grace period afforded by Treasury Regulation ss.1.817-5.
K. All of its respective directors, officers, employees, investment
advisers, and other individuals or entities dealing with the money and/or
securities of any Fund in which a Separate Account invests are, and shall
continue to be at all times, covered by one or more blanket fidelity bonds or
similar coverage for the benefit of the Fund in an amount not less than the
minimal coverage required by Rule 17g-1 under the 1940 Act or related provisions
as may be promulgated from time to time. The aforesaid bonds shall include
coverage for larceny and embezzlement and shall be issued by a reputable bonding
company.
Section 2.3. The Trust, on behalf of each Fund, separately and not
jointly, and the Distributor, each represents and warrants that no other
insurance company or separate account has purchased or will purchase shares of
any Fund except pursuant to an agreement containing representations, warranties,
and agreements to indemnify substantially the same as those set out in Sections
2.1 and 7.1 hereof. In addition, the Trust and Distributor each shall
immediately notify the Company if it becomes aware of any circumstances that
would preclude the Company from "looking through" to the investments of any Fund
in which it invests, pursuant to the "look-through" rules found in Treasury
Regulation 1.817-5.
Section 2.4. The Distributor represents and warrants that:
A. It is lawfully organized and validly existing under the laws of its
state of organization. It is a member in good standing of the NASD and a
broker-dealer registered with the SEC. It is and will remain duly registered and
licensed in all material respects under all applicable federal and state laws
and regulations and that it will perform its obligations under this Agreement in
material compliance with applicable federal and state laws and regulations.
B. The shares of the Funds sold by it shall be sold in material compliance
with all applicable federal and state laws and regulations.
7
C. The Trust, Adviser, Company and the Separate Accounts may rely upon the
Shared Funding Order to permit shares of the Trust or its Funds to be sold to
and held by variable insurance product separate accounts of both affiliated and
unaffiliated life insurance companies, including Company.
D. It shall not, either through action or inaction, cause the Trust to
breach any of its representations or warranties set out in Section 2.2 hereof.
Section 2.5. The Adviser represents and warrants that:
A. It is duly organized, validly existing and in good standing under the
laws of the State of New York, is and will remain duly registered as an
investment adviser under the Advisers Act, as amended, and that it will perform
its obligations for the Funds and under this Agreement in material compliance
with applicable federal and state laws and regulations.
B. Each Fund is and at all times since its inception has been qualified as
a regulated investment company under Subchapter M of the Code, and will at times
invest money from the Contracts in such a manner and take such other actions as
necessary to qualify as a regulated investment company under Subchapter M or any
successor or similar provision) and that the Fund will make every effort to
maintain such qualification and will notify the Company immediately in writing
upon having a reasonable basis for believing that the Fund has ceased to so
qualify or that it might not so qualify in the future.
C. Each Fund will at all times invest money from the Contracts in such a
manner as to ensure that the Contracts will be treated as variable contracts
under the Code and the regulations issued thereunder (or any successor
provisions) and at all times since its inception, each Fund has complied, and
will continue to comply, with Section 817 of the Code and Treasury Regulation
1.817-5, and any Treasury interpretations thereof, relating to the
diversification requirements for variable annuity, endowment, or life insurance
contracts and any amendments or other modifications to such Section or
regulations. The Adviser will notify Company immediately upon having a
reasonable basis for believing any Fund has ceased to comply or might not so
comply, and will take all steps necessary to adequately diversify the Fund so as
to achieve compliance within the grace period afforded by Treasury Regulation
ss.1.817-5.
D. All of its respective directors, officers, employees, investment
advisers, and other individuals or entities dealing with the money and/or
securities of any Fund in which a Separate Account invests are, and shall
continue to be at all times, covered by one or more blanket fidelity bonds or
similar coverage for the benefit of the Fund in an amount not less than the
minimal coverage required by Rule 17g-1 under the 1940 Act or related provisions
as may be promulgated from time to time. The aforesaid bonds shall include
coverage for larceny and embezzlement and shall be issued by a reputable bonding
company.
E. It shall not, either through action or inaction, cause the Trust to
breach any of its representations or warranties set out in Section 2.2 hereof.
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Section 2.6. Each Party represents and warrants that:
A. It shall comply with anti-money laundering laws and regulations
applicable to it, including the relevant provisions of the USA PATRIOT Act (Pub.
L. No. 107-56 (2001) and the regulations issued thereunder.
B. It shall comply with privacy and notice provisions of 15 U.S.C. xx.xx.
6801-6827 and any regulations promulgated thereunder (including but not limited
to 17 C.F.R. Part 248) applicable to it as they may be amended from time to
time.
C. It has full power and authority to enter into and perform its
obligations under this Agreement; it has duly taken all necessary steps to
authorize the person signing this Agreement on its behalf to do so and to
authorize the performance of its obligations under this Agreement and assuming
the accuracy of and compliance with this representation and warranty by all
other Parties, this Agreement will be valid, binding on, and enforceable against
such Party in accordance with its terms, subject only to such limitations as
apply generally to the rights of creditors, such as, but not limited to,
bankruptcy laws, laws governing the insolvency of insurance companies and other
entities, and principles of equity.
ARTICLE III. PROSPECTUSES; REPORTS TO SHAREHOLDERS
AND PROXY STATEMENTS; VOTING
Section 3.1. The Trust shall, or, as appropriate, shall cause its agent
to, print and provide Company with as many printed copies of the Funds' current
prospectus(es) and statement of additional information, proxy materials,
notices, periodic reports, and other materials (which the Funds' provide to its
shareholders) in quantities as Company may reasonably request for delivery by
Company to existing or prospective Contract owners.
Company may elect to print the Funds' prospectus(es) and/or its statement
of additional information in combination with other fund companies' prospectuses
and statements of additional information. At Company's request, the Trust will
provide such documents (including a "camera-ready" copy of such documents as set
in type, a diskette in the form sent to the financial printer, or an electronic
copy of the documents in a format suitable for posting on the Company's website,
all as Company may reasonably request) and such other assistance as is
reasonably necessary in order for Company to have prospectuses. statements of
additional information, supplements, proxy statements, and annual/semi-annual
reports for the Contracts and the Funds printed together in a single document or
posted on Company's website.
Each Party shall bear, or cause its agents to bear, the costs associated
with its obligations with regard to the foregoing and other materials as
described in, and in accordance with, Schedule C attached hereto and
incorporated herein by reference, as the Parties may mutually agree in writing
to amend from time to time ("Schedule C").
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Section 3.2. Voting
A. Company shall provide pass-through voting privileges to all Contract
owners with respect to shares of Trust owned by Company's Separate Accounts that
are registered as investment companies under the 1940 Act so long as and to the
extent the SEC continues to interpret the 1940 Act as requiring pass-through
voting privileges or to the extent otherwise required by law. Accordingly,
Company, where applicable, shall vote shares of a Fund held in each Separate
Account in a manner consistent with voting instructions timely received from its
Contract owners.
B. Company shall be responsible for assuring that the Separate Account
determines voting privileges on matters relating to the Fund in a manner
consistent with other insurance companies that offer variable annuity and/or
variable life insurance contracts and that has entered into an agreement with
Trust for the purpose of making Fund shares available to serve as the underlying
investment medium for such contracts ("Participating Companies"). The obligation
to calculate voting privileges in a manner consistent with all other registered
separate accounts investing in Trust will be a contractual obligation of all
Participating Companies under the agreements governing participation in Trust.
Participating Companies shall vote shares for which it has not received timely
voting instructions, as well as shares it owns, in the same proportion as it
votes those shares for which it has received voting instructions.
C. The Trust shall provide the Company and each Participating Company with
a written copy of the conditions set forth in the notice related to the Shared
Funding Order and such other assistance as may be necessary to facilitate
coordination between Company and other Participating Companies in complying with
such conditions and provided further that Company shall be free to vote Trust
shares attributable to any Separate Account in any manner permitted by
applicable law, to the extent the Shared Funding Order is superseded by SEC or
administrative practice (including no-action relief). Company reserves the right
to vote Trust shares held in its general account and any segregated asset
account in its own right, to the extent permitted by law.
D. If and to the extent Rule 6e-2 and Rule 6e-3(T) under the 1940 Act are
amended, or if Rule 6e-3 is adopted, to provide exemptive relief from any
provision of the 1940 Act or the rules thereunder with respect to mixed and
shared funding on terms and conditions materially different from any exemptions
granted in the Shared Funding Order, then Trust, and/or the Participating
Companies, as appropriate, shall take such steps as may be necessary to comply
with Rule 6e-2 and Rule 6e-3(T), as amended, and Rule 6e-3, as adopted, to the
extent such Rules are applicable and Sections 3.2(b), 3.2(c), 3.3, and 6.1-6.7
of this Agreement shall continue in effect only to the extent that terms and
conditions substantially identical to such Sections are contained in such
Rule(s) as so amended or adopted.
E. The Trust will comply with all provisions of the 1940 Act, the
regulations thereunder, and applicable SEC staff interpretations regarding
pass-through voting.
Section 3.3. Each Fund will comply with all the provisions of the 1940 Act
requiring voting by shareholders, and in particular, the Fund will either
provide for annual meetings or
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comply with Section 16(c) of the 1940 Act (although the Fund is not one of the
trusts described in Section 16(c) of that Act) as well as with Section 16(a) and
if and when applicable Section 16(b). Further, the Fund will act in accordance
with the Commission's interpretation of the requirements of Section 16(b).
Further, the Fund will act in accordance with the Commission's interpretation of
the requirements of Section 16(a) with respect to periodic elections of trustees
and with whatever rules the Commission may promulgate with respect thereto.
Section 3.4. Notwithstanding anything herein to the contrary, the Adviser
or their designee shall reimburse the Company for the reasonable costs
associated with substituting one or more different portfolios of a registered
investment company for one or more Funds where due to the acts of the Trust or
the Adviser (i) the Fund either offers its shares at public sale, ceases to
qualify as a regulated investment company under Subchapter M of the Code (or any
successor or similar provision), or fails to comply with the diversification
requirements of Section 817(h) of the Code (or any successor or similar
provision), and as a result the Fund no longer qualifies to serve as a funding
vehicle for the Contracts, (ii) there is a material change in a fundamental
investment objective of the Fund requiring shareholder approval which results in
the reclassification of the investment style of the designated Fund by a
nationally recognized mutual fund ranking organization, and the Company
furnishes the Trust or the Adviser with written notice of its objection to such
change prior to shareholder approval of such change, (iii) the Trust has
discontinued or intends to discontinue the offering of its shares to existing or
prospective Contract owners, or (iv)the Agreement is terminated in accordance
with Sections 9.1.B, C, D, I, K, L, and M. The costs of such substitution shall
include, without limitation, reasonable legal fees for obtaining any required
SEC order approving such substitution, and expenses for printing and
distributing any Separate Account prospectus or SAI supplement or other
disclosure of the substitution or elimination of the Fund as an investment
vehicle under the Contracts.
ARTICLE IV. SALES MATERIAL AND INFORMATION
Section 4.1. Company shall furnish, or shall cause to be furnished, to the
Distributor prior to use, each piece of sales literature or advertising prepared
by Company in which the Trust or the Funds, the Adviser or the Distributor is
described. No sales literature or advertising will be used if the Trust or the
Adviser reasonably objects to its use within ten (10) Business Days following
receipt by the Adviser and without the prior written approval of the
Distributor.
Section 4.2. Company will not give any information or make any
representations or statements on behalf of the Trust or concerning the Trust in
connection with the advertising or sale of the Contracts, other than information
or representations contained in: (a) the registration statement or Funds'
prospectus(es), as may be amended from time to time, (b) reports to
shareholders, (c) proxy statements for the Funds or, (d) sales literature or
other promotional material approved by the Adviser, or the Distributor.
Section 4.3. Each Fund shall furnish, or shall cause to be furnished, to
Company and the Distributor prior to use, each piece of sales literature or
advertising prepared by or for the Trust in which Company, the Contracts or
Separate Accounts, are described. No sales literature or
11
advertising will be used if Company reasonably objects to its use within ten
(10) Business Days following receipt by Company and without prior written
approval of the Distributor.
Section 4.4. Neither the Trust, the Distributor nor the Adviser will give
any information or make any representations or statements on behalf of Company,
the Contracts, or the Separate Accounts or concerning Company, the Contracts or
the Separate Accounts, in connection with the advertising or sale of the
Contracts or Fund shares, other than the information or representations
contained in: (a) the registration statement or prospectus for the Contracts, as
may be amended from time to time (b) reports to shareholders, or (c) in sales
literature or other promotional material approved by Company under Section 4.3.
The Fund and the Adviser and the Distributor shall comply with all applicable
federal and state laws and regulations in connection with any efforts they make,
directly, or indirectly, to promote sales of the Fund's shares.
Section 4.5. The Trust will provide to Company, upon Company's request, at
least one complete copy of all registration statements, prospectuses, statements
of additional information, reports to shareholders, proxy statements, sales
literature and other promotional materials, applications for exemptions and
requests for no-action letters, and all amendments, that relate to the Funds
contemporaneously with the filing of such document with the SEC or other
regulatory authority.
Section 4.6. Company will provide to the Trust, upon the Trust's request,
at least one complete copy of all registration statements, prospectuses,
statements of additional information, reports, solicitations for voting
instructions, sales literature and other promotional materials, applications for
exemptions, and requests for no action letters, and all amendments, that relate
to the Company or the Contracts contemporaneously with the filing of such
document with the SEC or other regulatory authority.
Section 4.7. For purposes of this Section, the terms, "sales literature",
"advertising" or "other promotional material" includes, but is not limited to:
advertisements (such as material published, or designed for use in, newspapers,
magazines, other periodicals, radio, television, telephone or tape recording,
videotape display, signs or billboards, motion pictures, electronic
publications, websites, or other public media) (i.e., any written communication
distributed or generally made available to customers or the public including
electronic and website materials, brochures, circulars, research reports, market
letters, e-mail messages, form letters, newsletters, seminar texts, reprints or
excerpts of any other advertisement, sales literature, or published article);
educational or training materials or other communications distributed or made
generally available to some or all agents or employees; registration statements,
prospectuses, statements of additional information, shareholder reports, and
proxy materials, and any other material constituting sales literature or
advertising under NASD rules, the 1933 Act or the 1940 Act, including electronic
and website materials.
12
ARTICLE V. EXPENSES
Section 5.1. Except as otherwise expressly provided in this Agreement,
each Party agrees to bear all expenses incident to performance by the Party
under this Agreement.
ARTICLE VI. POTENTIAL CONFLICTS
This Article VI is subject to, and limited in its entirety by, the terms
of the Shared Funding Order, and shall apply only upon the sale of shares of any
Fund to a variable life insurance separate account, and then only to the extent
required under the 1940 Act.
Section 6.1. The Trust represents that the Board will monitor the Funds
for the existence of any material irreconcilable conflict between the interests
of the Contract owners of all separate accounts investing in the Funds. 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 policy owners; or (f) a decision by an insurer to disregard the voting
instructions of Contract owners. The Board shall promptly inform Company in
writing if it determines that an irreconcilable material conflict exists and the
implications thereof.
Section 6.2. Company will report any potential or existing material
irreconcilable conflict of which it is aware to the Board. The Company will
assist the Board in carrying out its responsibilities under the relevant
provisions of the federal securities laws, including Rule 6e-3(T)(b)(15), and
the conditions set forth in the Shared Funding Order, by providing the Board
with all information reasonably necessary for it to consider any issues raised.
This includes, but is not limited to, an obligation by the Company to inform the
Board whenever Contract owner voting instructions are disregarded by the
Company. These responsibilities will be carried out with a view only to the
interests of the Contract owners.
Section 6.3. If it is determined by a majority of the Board, or a majority
of its independent Trustees, that a material irreconcilable conflict exists,
affecting the Company, then the Company will, at its expense and to the extent
reasonably practicable, take whatever steps it can which are necessary to remedy
or eliminate the irreconcilable material conflict, up to and including: (a)
withdrawing the assets allocable to some or all of the Separate Accounts from
the Trust or any Fund thereof and reinvesting those assets in a different
investment medium, which may include another Fund of the Trust or another
investment company, or submitting the question as to whether such withdrawal
should be implemented to a vote of all affected Contract
13
owners and, as appropriate, segregating the assets of any appropriate group or
class (i.e., Contract owners of one or more participating insurance companies)
that votes in favor of such withdrawal; or (b) establishing a new registered
management investment company or managed separate account. The responsibility to
take such remedial action shall be carried out with a view only to the interests
of the Contract owners.
If a material irreconcilable conflict arises because of a decision by the
Company to disregard Contract owner voting instructions and that decision
represents a minority position or would preclude a majority vote, the Company
may be required, at the Trust's election, to withdraw the affected Separate
Account's investment in the Trust and terminate this Agreement with respect to
such Separate 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 majority of the independent Trustees of the Board.
Any such withdrawal and termination must take place within 6 months after the
Trust gives written notice that this provision is being implemented, and until
the end of that 6 month period, the Trust shall continue to accept and implement
orders by the Company for the purchase (and redemption) of shares of the Funds.
No charge or penalty will be imposed as a result of such withdrawal.
If a material irreconcilable conflict arises because a particular state
insurance regulator's decision applicable to the Company conflicts with the
majority of other state regulators, then the Company will withdraw the affected
Separate Account's investment in the Fund and terminate this Agreement with
respect to such Fund within 6 months after the Board informs the Company in
writing that 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 independent trustees of the Board.
Until the end of the foregoing 6 month period, the Fund shall continue to accept
and implement orders by the Company for the purchase (and redemption) of shares
of the Funds.
Section 6.4. For the purposes of this Section 6.4, a majority of the
independent Trustees shall determine whether or not any proposed action
adequately remedies any material irreconcilable conflict, but in no event will
the Trust be required to establish a new funding medium for any Contract.
Further, the Company shall not be required by this Section 6.4 to establish a
new funding medium for any Contract if an offer to do so has been declined by a
vote of a majority of Contract owners affected in a materially adverse manner by
the irreconcilable material conflict. In the event that the Board determines
that any proposed action does not adequately remedy any irreconcilable material
conflict, then the Company will withdraw the affected Separate Account's
investment in the Fund and terminate this Agreement with respect to the Fund
within 6 months after the Board informs the Company 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 independent Trustees.
Section 6.5. Company, at the request of the Board will, at least annually,
submit to the Board such reports, materials or data as the Board may reasonably
request so that the Board may
14
fully carry out the obligations imposed upon them. All reports received by the
Board of potential or existing conflicts, and all Board action with regard to
determining the existence of a conflict, and determining whether any proposed
action adequately remedies a conflict, shall be properly recorded in the minutes
of the Board or other appropriate records, and such minutes or other records
shall be made available to the SEC upon request.
Section 6.6. If and to the extent any mixed and shared funding order or
any amendment thereto contains terms and conditions different from Article VI of
this Agreement, then the Fund and/or the Company, as appropriate, shall take
such steps as may be necessary to comply with the mixed and shared funding
exemptive order, and this Article VI shall be deemed to incorporate such new
terms and conditions, and any term or condition of this Article VI that is
inconsistent therewith shall be deemed to be succeeded thereby. If and to the
extent that Rule 6e-2 and 6e-3(T) are amended, or Rule 6e-3 under the 1940 Act
is adopted, to provide exemptive relief from any provision of the 1940 Act or
the rules promulgated thereunder with respect to mixed and shared funding on
terms and conditions materially different from those contained in the Shared
Funding Order, then (a) the Fund and/or the Company as appropriate, shall take
such steps as may be necessary to comply with Rules 6e-2 and 6e-3(T), as
amended, and Rule 6e-3, as adopted, to the extent such rules are applicable; and
(b) this Article VI shall be deemed to incorporate such new terms and
conditions, and any term or condition of this Article VI that is inconsistent
therewith, shall be deemed to be succeeded thereby.
Section 6.7. The Trust will provide the Company with as much notice as is
reasonably practicable of any proxy solicitation, and of any material change in
the Trust's registration statement, particularly any change that could result in
a change to the registration statement or prospectus for any Separate Account or
a Contract. The Trust will work with the Company so as to enable the Company to
solicit proxies from Contract owners, or to make changes to its prospectus or
registration statement, in an orderly manner. The Trust will make reasonable
efforts to attempt to have changes affecting Contract prospectuses become
effective simultaneously with the annual update for such prospectuses.
ARTICLE VII. INDEMNIFICATION
Section 7.1. Indemnification by Company
A. Company agrees to indemnify and hold harmless the Distributor, the
Adviser, the Trust and each of their directors, Trustees or (if applicable),
officers, employees and agents and each person, if any, who controls the
Distributor, the Adviser, or the Trust within the meaning of Section 15 of the
1933 Act (collectively, the "Victory Indemnified Parties" and individually, a
"Victory Indemnified Party") against any and all losses, claims, damages,
liabilities, investigations or litigation (including amounts paid in settlement
with the written consent of Company, 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 any of the Victory Indemnified Parties may become subject under any
statute
15
or regulation, or at common law or otherwise, insofar as such Losses are related
to the sale or acquisition of the Contracts or the purchase or redemption of
Fund shares in connection with the Contracts and:
1. Arise out of or are based upon any untrue statement or alleged
untrue statement of any material fact contained in a registration statement for
the Contracts or in the Contracts themselves or in sales literature relating to
the Contracts or Separate Accounts (or any amendment or supplement to any of the
foregoing) (collectively, "Company 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 indemnity shall not apply to a Victory Indemnified Party to
the extent that any Loss arises out of or is based upon any untrue statement or
omission or alleged untrue statement or omission that was made in reliance upon
and was accurately derived from written information furnished to Company by or
on behalf of such Victory Indemnified Party for use in Company Documents or
otherwise for use in connection with the sale of the Contracts or shares of the
Funds; or
2. Arise out of or result from wrongful or inaccurate statements or
representations (other than statements or representations contained in and
accurately derived from Trust Documents as defined in Section 7.2A.1) or
wrongful conduct of Company or persons under its control, with respect to the
sale or acquisition of the Contracts or shares of the Funds; or
3. Arise out of or result from any untrue statement or alleged
untrue statement of a material fact contained in information furnished in
writing by Company for use in Trust Documents as defined in Section 7.2A.1 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, the Distributor or the Adviser by or
on behalf of Company; or
4. Arise out of or result from any failure by Company to provide the
services or furnish the materials required under the terms of this Agreement; or
5. Arise out of or result from any material breach by the Company of
any representation and/or warranty made by Company in this Agreement or arise
out of or result from any other material breach of this Agreement by Company; as
limited by and in accordance with, Sections 7.1B and 7.1C hereof.
B. Company shall not be liable to a Victory Indemnified Party under this
indemnification provision with respect to any Losses which are due to such
Victory Indemnified Party's willful misfeasance, bad faith, or negligence in the
performance of such Victory Indemnified Party's duties or by reason of such
Indemnified Party's reckless disregard of obligations and duties under this
Agreement or to the Trust, the Distributor or the Adviser, whichever is
applicable.
16
C. Company shall not be liable under this indemnification provision with
respect to any claim made against a Victory Indemnified Party unless a Victory
Indemnified Party shall have notified 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 Victory Indemnified Party
(or after such Victory Indemnified Party shall have received notice of such
service on any designated agent), but failure to notify Company of any such
claim shall not relieve Company from any liability which it may have to the
Victory Indemnified Party against whom such action is brought otherwise than on
account of this indemnification provision. In case any such action is brought
against any of the Victory Indemnified Parties, Company shall be entitled to
participate, at its own expense, in the defense of such action. Company also
shall be entitled to assume the defense thereof, with counsel satisfactory to
the Party named in the action. After notice from Company to such Party of
Company's election to assume the defense thereof, as long as Company is
performing its obligations under this Article, the Victory Indemnified Party
shall bear the fees and expenses of any additional counsel retained by it, and
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.
D. Each Victory Indemnified Party will promptly notify Company 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 shares of the Funds
or the Contracts or the operation of the Trust.
Section 7.2. Indemnification by the Distributor
A. The Distributor agrees to indemnify and hold harmless Company and each
of its directors, officers, employees and agents and each person, if any, who
controls Company within the meaning of Section 15 of the 1933 Act
(collectively, the "Company Indemnified Parties" and individually, a "Company
Indemnified Party") against any and all losses, claims, damages, liabilities,
investigations or litigation (including amounts paid in settlement with the
written consent of the Distributor, 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 Company 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 the shares of the Funds or the Contracts
and:
1. Arise out of or are based upon any untrue statement or alleged
untrue statement of any material fact contained in the registration statement,
prospectus, statement of additional information or sales literature of the Trust
applicable to the Funds (or any amendment or supplement to any of the foregoing)
(collectively, "Trust Documents") or arise out of or are based upon the omission
or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, (i) if such
statement of omission was made in reliance upon and accurately derived from
written information furnished by the Distributor or (ii) if such Trust Document
(other than information contained therein
17
provided by any person other than the Adviser) was prepared by the Distributor,
provided in either of the foregoing cases, that this indemnity shall not apply
as to any Company Indemnified Party to the extent that any Loss arises out of or
is based upon any untrue statement or omission or alleged untrue statement or
omission that was made in reliance upon and was accurately derived from written
information furnished to the Trust, the Adviser, or the Distributor by or on
behalf of Company for use in Trust Documents or otherwise for use in connection
with the sale of the Contracts or shares of the Funds; or
2. Arise out of or result from wrongful or inaccurate statements or
representations (other than statements or representations contained in and
accurately derived from Company Documents) or wrongful conduct of the
Distributor or persons under its control, with respect to the sale or
distribution of the Contracts or shares of the Funds; or
3. Arise out of or result from any untrue statement or alleged
untrue statement of a material fact contained in information furnished by the
Distributor for use in Company Documents, 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 (including
information about the Trust or the Funds) furnished to Company by the
Distributor on its own behalf or by another party on behalf of the Distributor;
or
4. Arise out of or result from any failure by the Distributor to
provide the services or furnish the materials required under the terms of this
Agreement; or
5. Arise out of or result from any material breach by the
Distributor of any representation and/or warranty made by the Distributor in
this Agreement or arise out of or result from any other material breach of this
Agreement by the Distributor; as limited by, and in accordance with, Sections
7.2.B and 7.2.C hereof.
B. The Distributor shall not be liable under this indemnification
provision with respect to any Losses which are due to an Company Indemnified
Party's willful misfeasance, bad faith, or negligence in the performance of such
Company Indemnified Party's duties or by reason of such Company Indemnified
Party's reckless disregard of obligations and duties under this Agreement or to
Company or the Separate Account, whichever is applicable.
C. The Distributor shall not be liable under this indemnification
provision with respect to any claim made against a Company Indemnified Party
unless such Company Indemnified Party shall have notified the Distributor 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
Company Indemnified Party (or after such Company Indemnified Party shall have
received notice of such service on any designated agent), but failure to notify
the Distributor of any such claim shall not relieve the Distributor from any
liability which it may have to the Company 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 Company Indemnified Parties, the
Distributor shall be entitled to participate, at its own expense, in the
18
defense thereof. The Distributor also shall be entitled to assume the defense
thereof, with counsel satisfactory to the Company Indemnified Party named in the
action. After notice from the Distributor to such Company Indemnified Party of
its election to assume the defense thereof, as long as the Distributor is
performing its obligations under this Article, the Company Indemnified Party
shall bear the expenses of any additional counsel retained by it, and the
Distributor 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. The Company Indemnified Parties shall promptly notify the Distributor
of the commencement of any litigation or proceedings against them or any of
their officers or directors in connection with the issuance or sale of the
Contracts or the operation of a Separate Account.
Section 7.3. Indemnification by the Adviser
A. The Adviser agrees to indemnify and hold harmless the Company
Indemnified Parties against any and all losses, claims, damages, liabilities,
investigations or litigation (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 Company 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 the shares of the Funds or the Contracts and;
1. Arise out of or are based upon any untrue statement or alleged
untrue statement of any material fact in any Trust Documents or omission or
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading, (i) if such
statement or omission was made in reliance upon and accurately derived from
written information furnished by the Adviser or (ii) if such Trust Document
(other than information contained therein provided by any person other than the
Adviser) was prepared by the Adviser, provided that in either of the foregoing
cases, this indemnity shall not apply as to any Company Indemnified Party to the
extent that any Loss arises out of or is based upon any untrue statement or
omission or alleged untrue statement or omission that was made in reliance upon
and was accurately derived from written information furnished to the Trust, the
Adviser, or the Distributor by or on behalf of Company for use in Trust
Documents or otherwise for use in connection with the sale of the Contracts or
shares of the Funds; or
2. Arise out of or result from wrongful or inaccurate statements or
representations (other than statements or representations contained in and
accurately derived from Company Documents) or wrongful conduct of the Adviser or
persons under its control, with respect to the sale or distribution of the
Contracts or shares of the Funds; or
3. Arise out of or result from any untrue statement or alleged
untrue statement of a material fact contained in information furnished in
writing by the Adviser for use
19
in Company Documents, 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 (including information about the
Trust or the Funds) furnished to Company by or on behalf of the Adviser; or
4. Arise out of or result from any failure by the Adviser to provide
the services or furnish the materials required under the terms of this
Agreement; or
5. 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, Sections 7.3B and 7.3C hereof.
B. The Adviser shall not be liable under this indemnification provision
with respect to any Losses which are due to a Company Indemnified Party's
willful misfeasance, bad faith, or negligence in the performance of such Company
Indemnified Party's duties or by reason of such Company Indemnified Party's
reckless disregard of obligations and duties under this Agreement or to Company
or the Separate Account, whichever is applicable.
C. The Adviser shall not be liable under this indemnification provision
with respect to any claim made against a Company Indemnified Party unless such
Company 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 Company
Indemnified Party (or after such Company 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 Company 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 Company Indemnified Parties, the Adviser shall 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 Company Indemnified Party named in the action. After notice from the
Adviser to such Company Indemnified Party of its election to assume the defense
thereof, as long as the Adviser is performing its obligations under this
Article, the Company 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. The Company Indemnified Parties shall promptly notify the Adviser of
the commencement of any litigation or proceedings against them or any of their
officers or directors in connection with the issuance or sale of the Contracts
or the operation of a Separate Account.
20
Section 7.4. Indemnification by the Trust
A. The Trust agrees to indemnify and hold harmless the Company Indemnified
Parties against any and all losses, claims, damages, liabilities,
investigations or litigation (including amounts paid in settlement with the
written consent of the Trust, 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
Company 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 the shares of the Funds or the Contracts and:
1. Arise out of or are based upon any untrue statement or alleged
untrue statement of any material fact contained in any Trust Documents generated
or approved by the Trust or arise out of or are based upon the Trust's omission
or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, provided
that this indemnity shall not apply as to any Company Indemnified Party to the
extent that any Loss arises out of or is based upon any untrue statement or
omission or alleged untrue statement or omission that was made in reliance upon
and was accurately derived from written information furnished to the Trust, the
Adviser, or the Distributor by or on behalf of Company for use in Trust
Documents or otherwise for use in connection with the sale of the Contracts or
shares of the Funds; or
2. Arise out of or result from wrongful or inaccurate statements or
representations (other than statements or representations contained in and
accurately derived from Company Documents) or wrongful conduct of the Trust or
persons under its control, with respect to the sale or distribution of the
Contracts or shares of the Funds; or
3. Arise out of or result from any untrue statement or alleged
untrue statement of a material fact contained in information furnished in
writing by the Company for use in Company Documents, 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 Company by or on behalf of the Trust or the Funds; or
4. Arise out of or result from any failure by the Trust to provide
the services or furnish the materials required under the terms of this
Agreement; or
5. 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, Sections 7.4B and 7.4C hereof.
B. The Trust shall not be liable under this indemnification provision with
respect to any Losses which are due to a Company Indemnified Party's willful
misfeasance, bad faith, or
21
negligence in the performance of such Company Indemnified Party's duties or by
reason of such Company Indemnified Party's reckless disregard of obligations and
duties under this Agreement or to Company or the Separate Account, whichever is
applicable.
C. The Trust shall not be liable under this indemnification provision with
respect to any claim made against a Company Indemnified Party unless such
Company 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 claim shall have been served upon such Company
Indemnified Party (or after such Company 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 Company 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 Company Indemnified Parties, the Trust shall 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 Company Indemnified Party named in the action. After notice from the
Trust to such Company Indemnified Party of its election to assume the defense
thereof, as long as the Trust is performing its obligations under this Article,
the Company Indemnified Party shall bear the 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. The Company Indemnified Parties shall promptly notify the Trust of the
commencement of any litigation or proceedings against them or any of their
officers or directors in connection with the issuance or sale of the Contracts
or the operation of a Separate Account.
E. Company acknowledges and agrees that the obligations of the Trust under
this Section 7.4 are to be construed as the obligation individually of each
Fund, and under no circumstances shall any right or remedy of Company with
respect to indemnification by a Fund be deemed an obligation or responsibility
of any other Fund.
Section 7.5. With respect to any claim, the Parties each shall give the
others reasonable access during normal business hours to its books, records, and
employees and those books, records, and employees within its control pertaining
to such claim, and shall otherwise cooperate with one another in the defense of
any claim. Regardless of which Party defends a particular claim, the defending
Party shall give the other Parties written notice of any significant development
in the case as soon as practicable,
Section 7.6. If a Party is defending a claim and indemnifying another
Party hereto, and: (i) a settlement proposal is made by the claimant, or (ii)
the defending Party presents a settlement proposal to the claimant that is
accepted by the claimant (subject to acceptance by the indemnified Party), then
the defending Party promptly shall provide written notice to the indemnified
Party of such settlement proposal together with its counsel's recommendation. If
the defending Party desires to enter into the settlement and the indemnified
Party fails to consent to such settlement within thirty (30) business days after
receipt of such notice (unless such period is
22
extended, in writing, by mutual agreement of such Parties), then the indemnified
Party, commencing on the earlier of the date the indemnified Party declined to
accept the settlement or the expiration of the thirty (30) day period, shall
defend the claim (at the defending Party's expense) and shall relieve the
defending Party of any obligation hereunder to indemnify it and hold it harmless
for all Losses associated with the claim that are in excess of the proposed
settlement amount. The defending Party, however, shall remain obligated
hereunder to indemnify and hold harmless the indemnified Party for any Losses up
to and including the amount of the proposed settlement.
Regardless of which Party is defending the claim: (i) if a settlement
requires an admission of liability by the non-defending Party or (ii) would
require the non-defending Party to either take action (other than purely
ministerial action) or refrain from taking action (due to an injunction or
otherwise) (a "Specific Performance Settlement"), the defending Party may agree
to such settlement only after obtaining the express, written consent of the
non-defending Party. If a non-defending Party fails to consent to a Specific
Performance Settlement, the consequences described in the last sentence of the
first paragraph of Section 7.6 shall not apply.
Section 7.7. The Parties shall use good faith efforts to resolve any
dispute concerning this indemnification obligation. Should those efforts fail to
resolve the dispute, the ultimate resolution shall be determined in a de novo
proceeding, separate and apart from the underlying matter complained of, before
a court of competent jurisdiction. Either Party may initiate such proceedings
with a court of competent jurisdiction at any time following the termination of
the efforts by such Parties to resolve the dispute (termination of such efforts
shall be deemed to have occurred thirty (30) days from the commencement of the
same unless such time period is extended by the written agreement of the
Parties). The prevailing Party in such a proceeding shall be entitled to recover
reasonable attorneys' fees, costs, and expenses.
Section 7.8. A successor by law of the Parties to this Agreement shall be
entitled to the benefits of the indemnification contained in this Article VII.
The provisions of this Article VII shall survive termination of this Agreement.
ARTICLE VIII. APPLICABLE LAW
Section 8.1. This Agreement shall be construed and the provisions hereof
interpreted under and in accordance with the laws of the State of New York.
Section 8.2. This Agreement, its terms and definitions, shall be subject
to the provisions of the 1933 Act, the 1934 Act, and the 1940 Act, and the rules
and regulations and rulings thereunder, including such exemptions from those
statutes, rules and regulations as the SEC may grant.
Section 8.3. For purposes of this Agreement, a Party's obligations
hereunder to comply with "applicable federal and state laws and regulations"
shall be limited to complying with only those federal and state laws and
regulations that apply to it.
23
ARTICLE IX. TERMINATION
Section 9.1. This Agreement shall continue in full force and effect until
terminated in accordance with the provisions herein. This Agreement shall
terminate in its entirety or with respect to a particular Fund, as specified
below, without penalty upon the first to occur of:
A. Termination as to any Fund by any Party for any reason upon ninety (90)
days advance written notice delivered to the other Parties, unless a shorter
time is agreed to by all the Parties; or
B. Termination by Company by written notice to the Trust, the Adviser and
the Distributor with respect to any Fund in the event (i) any of the shares of
the Fund are not registered, issued or sold in accordance with applicable
federal and/or state law, or such law precludes the use of such shares as the
underlying investment medium of the Contracts issued or to be issued by Company
or (ii) shares of that Fund are not reasonably available to meet the
requirements of the Contracts as determined by Company; or
C. Termination by Company upon written notice to the Trust and the Adviser
with respect to any Fund in the event that such Fund ceases to qualify as a
Regulated Investment Company under Subchapter M of the Code or under any
successor or similar provision; or
D. Termination by Company upon written notice to the Trust and the
Distributor with respect to any Fund in the event that such Fund fails to meet
the diversification requirements specified in Sections 1.3 and 2.3 of this
Agreement; or
E. Termination by the Trust upon written notice to Company in the event
that the Contracts fail to meet the qualifications specified in Section 2.1B
hereof; or
F. Termination by any Party in the event that the Trust's Board of
Trustees determines that a material irreconcilable conflict exists as provided
in Article VI hereof; or
G. Termination in the event the Distributor ceases to serve as distributor
of aFund provided the Trust, on behalf of the Fund, shall promptly notify the
other Parties of such an event; or
H. Termination as to a Fund, upon termination of the investment advisory
agreement between the Fund and Adviser or its successors unless each other Party
to this Agreement specifically approves the selection of a new Fund investment
adviser. The terminating Party shall give notice of such termination to all
other Parties, and the termination shall be effective as of the date specified
in the notice, which shall be not more than thirty (30) days after such notice
has been received by all such Parties. The Trust, on behalf of such Fund, shall
promptly furnish notice of termination of the Adviser to each other Party to
this Agreement;
24
I. Termination by the Company, upon any substitution of the shares of
another investment company or series thereof for shares of the Fund in
accordance with the terms of the Contracts, provided that the Company has given
at least forty-five (45) days prior written notice to the Fund and the Adviser
of the date of substitution;
J. Termination by any Party, upon another Party's breach of any material
provision of this Agreement. The terminating Party shall deliver notice of such
breach to all other Parties to this Agreement. The termination shall be
effective thirty (30) days after the notice has been received by all such
Parties, but only if the breaching Party shall not have cured the breach, in all
material respects, by the end of the thirty (30) day period;
K. Termination by any Party to this Agreement, if that Party shall
determine, in its sole judgment reasonably exercised in good faith, that any
other Party to this Agreement (or any affiliate of such Party) has suffered a
material adverse change in its business or financial condition or is the subject
of material adverse publicity and such material adverse change or material
adverse publicity is likely to have a material adverse impact upon the business
and operation of the terminating Party, such terminating Party shall notify each
other Party in writing of such determination and its intent to terminate this
Agreement, and, if, after considering the actions taken by the entity suffering
the adverse change or adverse publicity and any other changes in circumstances
since the giving of such notice, such determination of the terminating Party
shall continue to apply on the thirtieth (30th) day after such notice has been
received by all other Parties, such thirtieth (30th) day shall be the effective
date of termination;
L. As to a Fund, at the option of any Party to this Agreement, upon the
institution of formal proceedings against any other Party to this Agreement by
the SEC, NASD. or any other regulatory body, the expected or anticipated ruling,
judgment or outcome of which would, in the terminating Party's reasonable
judgment, materially impair that other Party's ability to meet and perform its
obligations and duties hereunder. Prompt notice of election to terminate shall
be furnished by the terminating Party to all other Parties, with said
termination to be effective upon receipt of notice by all such Parties;
M. Termination upon mutual written agreement of the Parties to this
Agreement.
Section 9.2. Effect of Termination.
Notwithstanding any termination of this Agreement pursuant to Section 9.1,
the Trust and the Distributor shall, at the option of Company, continue to make
available additional shares of the Fund pursuant to the terms and conditions of
this Agreement, for all Contracts in effect on the effective date of termination
of this Agreement (the "Existing Contracts") unless such further sale of any
Fund's shares is proscribed by law, regulation or applicable regulatory body, or
unless the Trust requests that Company seek an order pursuant to Section 26(b)
of the 1940 Act to permit the substitution of other securities for the shares of
the Fund. The Trust shall bear the cost of any such substitution in the above
described event. Specifically, without limitation, the owners of the Existing
Contracts or Company, whichever shall have legal authority to do so, will be
permitted to direct allocation and reallocation of investments in the Trust,
redeem investments in the Fund
25
and invest in the Fund through additional purchase payments. If such Fund shares
continue to be made available after such termination, the provision of this
Agreement shall remain in effect.
Section 9.3. Articles I, II, III, IV, V, VI, and VII shall survive any
termination of this Agreement to the extent necessary to carry out the
provisions of Section 9.2. Articles II and VII shall survive any termination of
this Agreement.
Section 9.4. The Parties agree to cooperate and give reasonable assistance
to one another in taking all necessary and appropriate steps for the purpose of
ensuring that the Separate Account owns no shares of a Fund after the effective
date of this Agreement's termination with respect to such shares, or, if such
ownership following termination cannot be avoided, that the duration thereof is
as brief as reasonably practicable.
ARTICLE X. NOTICES
Section 10.1. 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 Trust: With a copy to:
Victory Capital Management Inc. KeyBank National Association
000 Xxxxxx Xxxxxx - 13th Floor 000 Xxxxxx Xxxxxx - 0xx Xxxxx
Xxxxxxxxx, XX 00000 Xxxxxxxxx, XX 00000
Attn: Xxxxxxxx X. Xxxxxx Attn: Xxxxxxx X. Xxxxx
Senior Vice President and
Associate General Counsel
And
The Victory Variable Insurance Funds
c/o Xxxxxx Xxxxx Xxxxxxxx & Xxxxxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attn: Xxx X. Xxxxx
If to the Distributor: With a copy to:
BISYS Fund Services Limited Partnership The BISYS Group, Inc.
000 Xxxxxx Xxxxxx, Xxxxx 0000 00 Xxxx Xxxxxx, 00xx Xxxxx
Xxxxxx, XX 00000 Xxx Xxxx, XX 00000
Attn: Broker Dealer Compliance Attn: General Counsel
26
If to the Adviser: With a copy to:
Victory Capital Management Inc. KeyBank National Association
000 Xxxxxx Xxxxxx - 13th Floor 000 Xxxxxx Xxxxxx - 0xx Xxxxx
Xxxxxxxxx, XX 00000 Xxxxxxxxx, XX 00000
Attn: Xxxxxxxx X. Xxxxxx Attn: Xxxxxxx X. Xxxxx
Senior Vice President and
Associate General Counsel
If to the Company: With a copy to:
New York Life Insurance and New York Life Insurance and
Annuity Corporation Annuity Corporation
00 Xxxxxxx Xxxxxx 00 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000 Xxx Xxxx, Xxx Xxxx 00000
Attn: Attn: the Office of General
Counsel
ARTICLE XI. MISCELLANEOUS
Section 11.1. Subject to the requirements of legal process and regulatory
authority, each Party will treat as confidential the names and addresses of the
owners of the Contracts and all information reasonably identified as
confidential in writing by any other Parties and, except as permitted by this
Agreement or as required by any governmental agency, regulator or other
authority, shall not without the express written consent of the affected Party
disclose, disseminate or utilize such names and addresses and other confidential
information until such time as it may come into the public domain.
Section 11.2. 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.
Section 11.3. This Agreement may be executed in counterparts, each of
which taken together shall constitute one and the same instrument.
Section 11.4. If any provision of this Agreement shall be held or made
invalid by a court decision, statute, rule or otherwise, the remainder of this
Agreement shall not be affected thereby.
Section 11.5. Each Party shall:
27
A. Cooperate with each other Party and all governmental authorities having
jurisdiction over such other Party (including, without limitation, the Federal
Reserve Board, the SEC, the NASD and state insurance regulators) and shall
permit such authorities (and other Parties) reasonable access to its relevant
books and records in connection with any investigation or inquiry relating to
this Agreement or the transactions contemplated hereby.
B. At the request of any Party to this Agreement, make available to the
requesting Party's independent auditors and/or representatives of the
appropriate regulatory agencies, all records, data, and access to operating
procedures that may be reasonably requested in connection with compliance and
regulatory requirements related to this Agreement or any Party's obligations
under this Agreement.
C. Notify the other Parties in writing of reasonable concerns or issues it
may have from time to time concerning market-timing, excessive trading, or other
potentially detrimental trading activities that affect or may affect a Separate
Account or a Fund, and shall consult with each other Party and work
cooperatively to reach a mutually satisfactory solution or action plan to
address such Party's concerns or issues, it being understood and agreed to by
all Parties (i) that there is no universally accepted understanding of what may
constitute market timing, excessive trading, or other detrimental trading
activity, (ii) that the state of the law regarding such trading activities is
currently uncertain, and (iii) that Congress, the SEC and other regulatory
bodies may adopt new laws or regulations that may require the Parties to revise
the terms and conditions of this Agreement.
Section 11.6. 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.
Section 11.7. 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.
Section 11.8. This Agreement may not be amended or modified except by
written agreement executed by each of the Parties.
Section 11.9. Acknowledgements:
A. Company acknowledges that the identity of the Trust's, Adviser's and
Distributor's (and their affiliates' and/or subsidiaries') customers and all
information maintained about those customers constitute the valuable property of
the Trust, Adviser and Distributor, respectively. Company agrees that, should it
come into contact or possession of any such information (including, but not
limited to, lists or compilations of the identity of such customers), Company
shall hold such information or property in confidence and shall not use,
disclose or distribute any such information or property except with prior
written consent of the Trust, Adviser and Distributor or as required by law or
judicial process or to perform its obligations under this Agreement.
28
B. The Trust, Adviser and Distributor acknowledge that the identity of
Company's (and its affiliates' and/or subsidiaries') customers and all
information maintained about those customers constitute the valuable property of
Company. The Trust, Adviser and Distributor agree that, should they come into
contact or possession of any such information (including, but not limited to,
lists or compilations of the identity of such customers), they shall hold such
information or property in confidence and shall not use, disclose or distribute
any such information or property except with Company's prior written consent or
as required by law or judicial process or to perform its obligations under this
Agreement.
This Section 11.9 shall survive the expiration or termination of this
Agreement.
Section 11.10. It is understood and expressly stipulated that neither the
shareholders of shares of any Fund nor the Trustees or officers of the Trust
shall be personally liable hereunder solely as a result of their capacities as
such. No Fund shall be liable for the obligations or liabilities of any other
Fund. All persons dealing with a particular Fund must look solely to the
property of that Fund for enforcement of any claims against the that Fund. It is
also understood that each Fund shall be deemed to be entering into a separate
Agreement with Company so that it is as if each of Fund had signed a separate
Agreement with Company and that a single document is being signed simply to
facilitate the execution and administration of the Agreement.
Section 11.11. Nothing contained in this Agreement shall supercede the
terms of the distribution agreement between the Trust and the Distributor; it
being understood and agreed to by the Parties that such distribution agreement
does not and shall not affect or govern in any way the rights and obligations of
any Party under this Agreement.
29
IN WITNESS WHEREOF, each of the Parties has caused this Agreement to be
executed in as name and on its behalf by its duly authorized representative as
of the date specified above.
NEW YORK LIFE INSURANCE AND ANNUITY CORPORATION On its behalf and each Separate
Account named in Schedule A, as may be amended from time to time
By: /s/ Xxxx X. Xxxxx
-----------------------------------
Name: Xxxx X. Xxxxx
Its: Senior Vice President
THE VICTORY VARIABLE INSURANCE FUNDS,
on behalf of each Fund set forth on Exhibit B hereto individually and not
jointly.
By: /s/ Xxxxxxxx X. Xxxxxx
-----------------------------------
Name: Xxxxxxxx X. Xxxxxx
Its: President
BISYS FUND SERVICES LIMITED PARTNERSHIP
By: /s/ Xxxxxxx Xxxxx
-----------------------------------
Name: Xxxxxxx Xxxxx
Its: Vice President
VICTORY CAPITAL MANAGEMENT INC.
By: /s/ Xxxxx Xxxxx
-----------------------------------
Name: Xxxxx Xxxxx
Its: Managing Director
30
SCHEDULE A
SEPARATE ACCOUNTS AND CONTRACTS
-------------------------------------------------------------------------------
Name of Separate Account and Date Established Contract Form Numbers
-------------------------------------------------------------------------------
NYLIAC Variable Annuity Separate Account - I, 933-190
established 10/15/92
-------------------------------------------------------------------------------
NYLIAC Variable Annuity Separate Account - II, 933-190
established 10/15/92
-------------------------------------------------------------------------------
NYLIAC Variable Annuity Separate Account - III, 000-190, 995-190, 999-190,
established 11/30/94 200-090, 200-190, 202-192,
203-190
-------------------------------------------------------------------------------
NYLIAC Variable Annuity Separate Account - IV, 203-193
established 6/10/03
-------------------------------------------------------------------------------
31
SCHEDULE B
PARTICIPATING FUNDS
Diversified Stock Fund - Class A Shares
32
Schedule C
COST ALLOCATION
--------------------------------------------------------------------------------
The COMPANY The TRUST or its Agent (as appropriate)
--------------------------------------------------------------------------------
Preparing and filing the Separate Preparing and filing the Trust
Account registration statements. registration statement.
------------------------------------------------------------------------------
Text composition and alterations for Text composition and alterations for
the Separate Account prospectuses, the Trust prospectuses, SAIs and any
SAIs and any supplements thereto. supplements thereto, including
versions of these documents to
accommodate various combinations
of Funds offered under Separate
Account prospectuses.
------------------------------------------------------------------------------
Printing of the Trust prospectuses, Supplying typeset, camera and/or
SAIs and supplements thereto for web-ready Trust prospectuses, SAIs
prospective Contract owners. Printing and supplements. Printing of the
Separate Account prospectuses, SAIs Trust prospectuses, SAIs and
and supplements thereto. supplements thereto for existing
Contract owners that invest in the
Trust.
------------------------------------------------------------------------------
Mailing and distributing the Trust All or the Trust's pro-rata portion
prospectuses, SAIs and supplements (if combined with documents of other
thereto to prospective Contract funds) of mailing and distributing
owners. Mailing and distributing the Trust prospectuses, SAIs and
Separate Account prospectuses, SAIs supplements thereto to existing
and supplements to prospective and Contract owners. (SAIs are
existing Contract owners. (SAIs are distributed only upon request of the
distributed only upon request of the Contract owner.)
Contract owner.)
------------------------------------------------------------------------------
Text composition and alterations of Text composition and alterations of
the Separate Account portion of the the Trust proxy statements and voting
annual and semi-annual reports. instructions solicitation materials
to Contract owners with respect to
proxies related to the Trust,
annual and semi-annual reports for
the Trust and other communications
to shareholders.
------------------------------------------------------------------------------
Printing, mailing and distributing Supplying typeset, camera and/or
annual and semi-annual reports for web-ready Trust proxy statements and
prospective Contract owners. voting instructions solicitation
materials, annual and semi-annual
reports and other communications
to shareholders. Printing costs
for copies of such materials
distributed to Contract owners.
------------------------------------------------------------------------------
Text composition, alterations, All or the Trust's pro-rata portion
printing, mailing and distributing, (if combined with documents of other
and tabulation of proxy statements funds) of mailing and distributing
and voting instruction solicitation annual and semi-annual reports for
materials to Contract owners with the Trust to existing Contract owners
respect to proxies related to the that invest in the Trust.
Separate Account(s).
------------------------------------------------------------------------------
Preparation, printing and distributing Mailing and distributing and
sales material and advertising related tabulation of proxy statements and
to the Trust and contained in Separate voting instruction solicitation
Account advertising and sales materials to Contract owners with
materials; and filing such materials respect to proxies related to the
with and obtaining approval from, the Trust.
SEC, the National Association of
Securities Dealers, Inc., any state
insurance regulatory authority and any
other appropriate regulatory
authority, to the extent required.
33
