PARTICIPATION AGREEMENT
by and among
DFA INVESTMENT DIMENSIONS GROUP INC.,
DIMENSIONAL FUND ADVISORS LP,
DFA SECURITIES LLC
and
FIRST SYMETRA NATIONAL LIFE INSURANCE COMPANY OF NEW YORK
THIS AGREEMENT, made and entered into this 8th day of November, 2012,
by and among First Symetra National Life Insurance Company Of New York
("Company"), on its own behalf and on behalf of segregated asset accounts of
the Company that may be established from time to time (individually, an
"Account" and collectively, the "Accounts"); DFA Investment Dimensions Group
Inc. ("Fund"); the Fund's investment adviser, Dimensional Fund Advisors LP
("Adviser"); and DFA Securities LLC ("DFAS") (individually, a "Party" and
collectively, the "Parties").
The Company, the Fund, the Adviser and DFAS, intending to be legally
bound, hereby agree as follows:
1. Sales of Shares/Procedures
1.1 Shares of the respective portfolios ("Portfolios") of the Fund
listed on Schedule 1.1 hereto, as amended from time to time by
the Parties, shall be sold by the Fund through its agent DFAS,
and purchased by the Company for the appropriate subaccount of
each Account, at the net asset value next computed after
receipt by the Fund or its designee of each order of the
Accounts, in accordance with the provisions of this Agreement,
the then current prospectus(es) of the Portfolios, and the
variable contracts that use the Portfolios as an underlying
investment medium ("Contracts").
1.1(a) Transmission of Instructions For each Portfolio and
for each Account maintained by the Company with such
Portfolio, the Company shall transmit, or cause its
designated agent(s) to transmit, to National
Securities Clearing Corporation ("NSCC") (which shall
forward the information to the transfer agent of the
Fund), no more than 10 aggregate purchase orders as
follows:
(i) 5 purchase orders for the Accounts expressed
in dollars (sent via NSCC's DCC&S System);
and
(ii) 5 purchase orders for the Accounts expressed
in shares (sent via NSCC's DCC&S System);
and no more than 10 aggregate redemption orders as
follows:
(i) 5 redemption orders for the Accounts expressed
in dollars (sent via NSCC's DCC&S System);
and
(ii) 5 redemption orders for the Accounts expressed
in shares (sent via NSCC's DCC&S System);
each of which reflects the aggregated effect of all
purchases and all redemptions of shares of the
Portfolios in such categories, based upon instructions
from each Account (collectively, "Instructions")
received prior to the Close of Trading on a given
Business Day ("Trade Date"). "Close of Trading" shall
mean 4:00 p.m. Eastern Time on a Business Day or such
other time as the net asset value of a Portfolio is
calculated, as disclosed in the then current
prospectus(es) of the Portfolios. "Business Day"
shall mean, unless otherwise noted in this Agreement,
any day on which the New York Stock Exchange (the
"NYSE") is open for trading and on which a Portfolio
calculates its net asset value pursuant to the rules
of the Securities and Exchange Commission ("SEC").
"Business Day," for the purposes of this Section 1.1(a),
shall also include any day on which the NSCC's DCC&S
System is open to transmit and settle orders, even if
the NYSE is closed for trading on such day.
On any given Business Day, the Company shall accept
Instructions in proper form from an Account up to the
Close of Trading, but in no event shall the Company
accept Instructions that have been received by the
Company after the Close of Trading on such Business
Day. Instructions received in proper form by the
Company after the Close of Trading on any Business Day
shall be treated as if accepted on the next following
Business Day. Each transmission of Instructions by
the Company will constitute a representation that all
purchase and redemption orders from the Accounts were
received by the Company prior to 4:00 p.m. Eastern
Time or the close of the NYSE, whichever is earlier,
on the Business Day on which the purchase or
redemption orders are transmitted, in accordance with
Rule 22c 1 under the Investment Company Act of 1940,
as amended (the "1940 Act").
1.1(b) Transmission Deadlines for the Accounts The
transmission of orders for the Accounts will be
accepted by the Fund only if provided through NSCC's
DCC&S System in the file delivered to the Fund or its
transfer agent prior to 6:30 a.m. Eastern Time
(currently NSCC Cycle 8) on the next Business Day
following the Trade Date. Any information delivered
to the Fund after such 6:30 a.m. Eastern Time file is
received will be rejected by the Fund or its transfer
agent, subject to the Fund's sole discretion to accept
any trade.
In the event that NSCC systems are not functioning on
a given Business Day, the Company or its designate
agent(s) may transmit Instructions to the Fund, its
transfer agent or as otherwise directed by the Fund or
the Adviser via facsimile by 8:00 a.m. Eastern Time on
the next Business Day following the Trade Date;
provided however, the Company will notify the Fund and
the Adviser prior to transmitting Instructions via
facsimile. However, this paragraph will not be
applicable to Instructions which have already been
entered via NSCC but not received by the Fund or its
transfer agent. The Company or its designated agent(s)
must notify the Fund of the existence of any such
Instructions, and the Fund and its transfer agent will
use commercially reasonable efforts to process those
Instructions in a mutually satisfactory manner.
Notwithstanding the foregoing, on a limited basis, the
Company may transmit instructions until 9:00 a.m.
Eastern Time via NSCC Cycles 9 through 12 on the next
Business Day following the Trade Date for corrections
to Instructions already submitted for contingency
purposes.
1.1(c) Settlement Aggregated purchase and net redemption
transactions shall be settled in accordance with NSCC
rules and procedures. "Business Day," for the purposes
of this Section 1.1(c), shall also include any day on
which the NSCC's DCC&S System is open to transmit and
settle orders, even if the NYSE is closed for trading
on such day.
In the event that NSCC systems are not functioning on
a given Business Day (1) for net purchase Instructions,
the Company shall, or cause its designated agent(s) to,
wire payment, or arrange for payment to be wired by
the Company's designated bank, in immediately available
funds, to the Portfolio's custodial account at the
Fund's custodian; and (2) for net redemption
Instructions, the Fund or its transfer agent shall
wire payment, or arrange for payment to be wired, in
immediately available funds, to an account designated
by the Company in writing. Wires from the Company
must be received no later than the close of the Federal
Reserve Wire Transfer System on the next day on which
the Federal Reserve Wire Transfer System is open.
In the event that the total redemption order for any
one Business Day shall exceed dollar limits set for a
Portfolio by the Fund, such Portfolio shall have the
option of (i) settling the redemption on the second
Business Day following trade date through the NSCC's
money settlement process, (ii) settling the redemption
outside of Fund/SERV, if necessary as determined in
the discretion of the Fund, at any time within seven
(7) days after receipt of the redemption order, in
accordance with provisions of the 1940 Act, or (iii)
in any other manner provided for in the Portfolio's
then current prospectus(es) and statement of additional
information.
Nothing herein shall prevent the Fund, on behalf of a
Portfolio, from delaying or suspending the right of
purchase or redemption in accordance with the
provisions of the 1940 Act and the rules thereunder.
The Fund will not bear any responsibility whatsoever
for the proper disbursement or crediting of redemption
proceeds; the Company alone will be responsible for
such action.
1.1(d) Errors The Company shall be solely responsible for
the accuracy of any Instruction transmitted to the
Fund or its transfer agent via NSCC systems or
otherwise, and the transmission of such Instruction
shall constitute the Company's representation to the
Fund that the Instruction is accurate, complete and
duly authorized by the Accounts that are purchasing
or redeeming shares of the Portfolio. The Company
shall assume responsibility for any loss to the Fund,
the Portfolios or their transfer agent caused by a
cancellation or correction made subsequent to the date
as of which an Instruction has been placed, and the
Company will immediately pay such loss to the Adviser,
the Fund or such Portfolio(s) upon notification.
Each Party shall notify the other Parties of any errors
or omissions in any information and interruptions in
or delay or unavailability of, the means of transmittal
of any such information as promptly as possible. The
Company agrees to maintain reasonable errors and
omissions insurance coverage commensurate with the
Company's responsibilities under this Agreement.
In the event of an error in the computation of a
Portfolio's net asset value per share, the Fund will
follow its then current policy adopted for the sale
and distribution of shares of the Portfolio regarding
appropriate error correction standards. Any gain to
the Company or an Account attributable to the incorrect
calculation or reporting of a Portfolio's daily net
asset value shall be immediately returned to the
Portfolio. The Company agrees to make commercially
reasonable efforts to recover from the Account(s) any
material losses incurred by the Adviser, the Fund or
the Portfolios as a result of the foregoing.
The Company shall maintain a record of the total number
of shares of the Portfolios which are so purchased,
based on information provided by the Fund or its
designee to the Company, and shall reconcile with the
Fund on a periodic basis the number of shares of each
Portfolio attributable to each Account. If an order
to purchase shares of a Portfolio must be canceled due
to nonpayment, the Company will be responsible for any
loss incurred by the Fund or the Portfolio arising out
of such cancellation. To recover any such loss, the
Fund and the Portfolios reserve the right to redeem
shares of the affected Portfolio(s) held in the name
of the Company or a corresponding subaccount of the
applicable Account.
1.2 The Fund will redeem the shares of the Portfolios when
requested on behalf of the Company or the corresponding
subaccount of the applicable Account at the net asset value
next computed after receipt by the Fund or its designee of
each request for redemption, in accordance with the provisions
of this Agreement, the then current prospectus(es) of the
Portfolios, the statement of additional information of the
Fund and the Contracts; provided, however, if any conflicts
exist among any such documents, then the terms of the Fund's
current prospectus(es) describing the Portfolios and the
statement of additional information describing the Portfolios
shall control.
The Company shall apply any net redemption proceeds received
by it in accordance with the applicable Contracts. The
Company shall not process or effect any redemptions with
respect to shares of any Portfolio after receipt by the
Company of notification of suspension of the determination of
the net asset value of such Portfolio. The Board of Directors
of the Fund ("Directors") may refuse to sell shares of any
Portfolio to any person, including the Company with respect to
the Accounts, or suspend or terminate the offering of shares
of such Portfolio, if such action is required by law or by
regulatory authorities having jurisdiction, or is deemed by
the Directors, in their sole discretion, acting in good faith
and in light of the Directors' duties under federal and any
applicable state laws, necessary in the best interests of
shareholders of the Portfolio.
1.3 The Company agrees to purchase and redeem the shares of each
Portfolio in accordance with the provisions of this Agreement
and the then current prospectus(es) of the Portfolios. Except
as necessary to implement transactions initiated by Contract
holders, or as otherwise may be required by applicable U.S.
federal laws or regulations with respect to maintaining the
Contracts' status under the Internal Revenue Code of 1986, as
amended from time to time and any successor provisions
thereto (the "Code"), the Company shall not redeem shares of
the Portfolios attributable to the Contracts.
1.4 Issuance and transfer of shares of the Portfolios will be by
book-entry only. Stock certificates will not be issued to the
Company or to the applicable Accounts. Shares purchased from
the Fund will be recorded in appropriate book-entry titles for
the Accounts by the Fund or its designee.
1.5 The Company will receive pricing and dividend rate and capital
gain distribution rate information and payments through the
NSCC System. The Company hereby elects to receive all such
dividends and distributions as are payable on shares of a
Portfolio in additional shares of that Portfolio. The Fund
shall notify the Company or its delegates of the number of
shares of the Portfolios so issued as payment of such
dividends and distributions.
The Company shall maintain a record of the number of shares of
the Portfolios held by the Accounts on behalf of each Contract
holder, and the Company shall maintain appropriate records of
Contract holder information.
The Company shall investigate all inquiries from Contract
holders relating to their interests in the Accounts and the
Portfolios, and shall respond to all communications from
Contract holders and other persons having an interest in the
Contracts relating to the Company's duties hereunder, in such
form of correspondence as the Company, the Fund and the
Adviser may mutually agree.
2. Proxy Solicitations and Voting
2.1 The Fund agrees that the terms on which shares of the
Portfolios are offered to the Accounts will not be materially
altered without at least sixty (60) days' prior written notice
to the Company during any period when the Accounts own shares
of the Portfolios.
2.2 If and to the extent required by applicable law or by the
terms of the Contracts, the Company shall:
(i) solicit voting instructions from the Contract holders;
(ii) vote the shares of the Portfolios held by the Accounts
in accordance with instructions received from the
Contract holders; and
(iii) vote the shares of the Portfolios held by the Accounts
for which no timely instructions have been received
from the Contract holders in the same proportion as
shares of such Portfolio for which instructions have
been received,
if and to the extent that (i) the SEC continues to interpret
the 1940 Act to require pass-through voting privileges for
variable contract holders, and (ii) such interpretation is
deemed applicable to the Contracts. The Company reserves the
right to vote Portfolio shares held in any segregated asset
account in its own right, to the extent permitted by applicable
law. The Company will calculate voting privileges in a manner
consistent with other separate accounts investing in the
Portfolios and in accordance with applicable law. The Company
agrees to hold the Fund, the Portfolios, the Adviser and DFAS
harmless from and against any liability that may arise as a
result of the Company's voting Portfolio shares held in any
segregated account in its own right.
2.3 The Fund, on behalf of the Portfolios, will comply with all
provisions of the 1940 Act requiring voting by shareholders,
and in particular, the Fund, at its option, will either
provide for annual or special meetings or comply with Section
16(c) of the 1940 Act, as well as with Sections 16(a) and, if
and when applicable, 16(b) of the 1940 Act and the rules
thereunder. Further, the Fund will act in accordance with the
SEC's interpretation of the requirements of Section 16(a) of
the 1940 Act with respect to periodic elections of directors
and with whatever rules the SEC may promulgate with respect
thereto.
3. Representations and Warranties
3.1 The Company represents and warrants that it is an insurance
company within the meaning of Section 816(a) of the Code, duly
organized and in good standing under applicable law, and that
it has legally and validly established each Account prior to
any issuance or sale thereof as a segregated asset account
under applicable state insurance law, and that it has and will
maintain the capacity to issue all Contracts that may be sold;
and that it is properly licensed, qualified and in good
standing to sell the Contracts in all jurisdictions where the
Company does business. The Company represents and warrants
that the Contracts will be issued and sold in compliance, in
all material respects, with all applicable federal and state
laws, and that the sale of the Contracts shall comply in all
material respects with state insurance suitability requirements.
3.2 The Company represents and warrants that the Contracts are or
will be registered under the Securities Act of 1933, as
amended (the "1933 Act") (or exempt from such registration
requirements).
3.3 The Company represents and warrants that it has or will have
registered each Account as a unit investment trust, in
accordance with the provisions of the 1940 Act or each such
Account is, and will continue to be, exempt from registration
under section 3(c) of the 1940 Act, to serve as a segregated
investment account for the Contracts.
3.4 The Company represents that the Contracts are currently
treated as variable life insurance endowment or annuity
contracts under applicable provisions of the Code, and that
the Company will maintain such treatment and that the Company
will notify the Adviser and the Fund promptly upon having a
reasonable basis for believing that the Contracts have ceased
to be so treated or that the Contracts might not be so treated
in the future.
3.5 This Agreement has been duly authorized, executed and delivered
by the Company, and is a valid and legally binding contract
enforceable in accordance with its terms. No consent, approval,
authorization or order of any court or governmental authority
is required for the consummation by the Company of the
transactions contemplated by this Agreement. The execution
and delivery of this Agreement did not, and the consummation
of the transactions contemplated by this Agreement will not,
violate the Company's organizational documents or Bylaws, or
any resolution, agreement or arrangement to which the Company
is a party or by which the Company is bound.
3.6 The Company and the Accounts are duly authorized to acquire
shares of the Portfolios as contemplated by the terms of this
Agreement. The Company will cooperate with the Fund in
providing information as provided in Schedule 3.6 hereto and
will assist the Fund in preventing possible market timing and
other trading activities in violation of the Fund's policies
and procedures, including without limitation restricting or
prohibiting further purchases or exchanges of Fund shares as
provided in Schedule 3.6 hereto.
3.7 There are no material legal, administrative or other
proceedings pending or, to the Company's knowledge, threatened
against the Company or its property or assets that could
result in liability on its part. The Company knows of no
facts that might form the basis for the institution of such
proceedings. Neither the Company nor the Accounts are parties
to or subject to the provisions of any order, decree or
judgment of any court or governmental body that materially and
adversely affects its or their business or its or their
ability to consummate the transactions herein contemplated.
3.8 Except as noted below, the disclosure contained in the
applicable offering documents for the Accounts does not contain
any untrue statements of a material fact or omit to state any
material fact required to be stated therein or necessary to
make the statements therein not misleading, and such disclosure
meets all legal requirements of applicable federal and state
laws and regulations. The Company represents and warrants that
all current and future offering documents with respect to the
Accounts and other materials that mention the Company, the
Fund, the Portfolios, DFAS or the Adviser shall meet the
requirements described in the first sentence of this
subparagraph; provided, however, that the Company shall not be
responsible for any disclosure that is provided to it in the
Fund's current prospectus(es) describing the Portfolios or the
Fund's registration statement as filed with the SEC.
3.9 The Fund represents and warrants that it is lawfully
established and validly existing under the laws of the State
of Maryland. The Fund represents that its operations are and
shall at all times remain in material compliance with the laws
of the State of Maryland to the extent required to perform this
Agreement.
3.10 The Fund represents and warrants that the shares of the
Portfolios sold pursuant to this Agreement are registered
under the 1933 Act, and duly authorized for issuance; that the
Fund shall amend its registration statement for the Portfolios
under the 1933 Act and the 1940 Act, from time to time, as
required in order to effect the continuous offering of the
shares of the Portfolios; that the Fund will sell such shares
in compliance with all applicable federal and state laws; and
that the Fund is and will remain registered under, and complies
and will comply in all material respects with, the 1940 Act.
The Fund shall register and qualify the shares of the
Portfolios for sale in accordance with the laws of the various
states only if, and to the extent, deemed advisable by the
Fund or DFAS.
3.11 The Fund represents and warrants that the Portfolios will take
reasonable steps to satisfy (or as to Portfolios that have not
yet commenced business, will invest the money received from
the sale of Portfolio shares so as to satisfy) the
diversification requirements of Section 817(h) of the Code
and the Treasury Regulations promulgated thereunder, and that
the Fund will take all reasonable steps to ensure that the
Portfolios continue to satisfy such requirements. The Fund
agrees to notify the Company upon having a reasonable basis
for believing that any Portfolio has ceased to satisfy such
diversification requirements.
3.12 The Fund represents and warrants that the Portfolios qualify
(or as to Portfolios that have not yet commenced business,
will qualify) as regulated investment companies under
Subchapter M of the Code, and that the Fund will take all
reasonable steps to maintain such qualification, subject to
the reservation of the right of the Directors of the Fund to
not maintain the qualification of a Portfolio as a regulated
investment company if the Directors determine this course of
action to be beneficial to shareholders. The Fund agrees to
notify the Company upon having a reasonable basis for
believing that any Portfolio has ceased to so qualify or
upon the Directors taking any such action.
3.13 DFAS represents and warrants that it is and will remain a
member in good standing of the Financial Industry Regulatory
Authority, Inc. ("FINRA"), and is and will be duly registered
as a broker-dealer with the SEC under the Securities Exchange
Act of 1934, as amended (the "1934 Act"). DFAS represents
that its operations are, and shall at all times remain, in
material compliance with the laws of the State of Delaware to
the extent required to perform this Agreement. DFAS further
represents and warrants that it will sell and distribute the
shares of the Portfolios in accordance with any applicable
state laws and federal securities laws, including without
limitation, the 1933 Act, the 1934 Act, and the 0000 Xxx.
3.14 The Parties represent and warrant to each other that all of
their directors, officers, employees, investment advisers, and
other individuals/entities dealing with the money and/or
securities of the Portfolios are and shall continue to be at
all times covered by a blanket fidelity bond or similar
coverage for the benefit of the Fund in an amount not less
than the amount required by the applicable rules of the FINRA
and the federal securities laws, including the 1940 Act, as
applicable. The aforesaid bond shall include coverage for
larceny and embezzlement and shall be issued by a reputable
bonding company. The Parties agree to make all reasonable
efforts to assure that such bond or another bond containing
these provisions is continuously in effect, and each agrees
to notify promptly the other Parties in the event that such
coverage no longer applies.
3.15 The Parties agree to limit, and not facilitate, a Contract
holder's participation in the Fund's investment process in
contravention of the following, which the Parties represent
and warrant to each other to be true: (1) there is not, and
there will not be, any arrangement, plan, contract or
agreement between the Adviser (or a subadviser) and a Contract
holder regarding the availability of the Fund as an Account
under the Contract, or the specific assets to be held by the
Fund or a fund that the Fund may invest its assets; (2) other
than a Contract holder's ability to allocate Contract premiums
and transfer amounts in the Company's Account to and from the
Company's Account corresponding to the Fund, all investment
decisions concerning the Fund will be made by the Adviser,
any subadviser(s) and the Fund's Board of Directors in their
sole and absolute discretion; (3) the percentage of the Fund's
assets invested in a particular fund will not be fixed in
advance of any Contract holder's investment and will be
subject to change by the Adviser or a subadviser at any time
without notice; (4) a Contract holder cannot, and will not be
able to, direct the Fund's investment in any particular asset
or recommend a particular investment or investment strategy;
(5) there is not, and will not be, any agreement or plan
between the Adviser or a subadviser and a Contract holder
regarding a particular investment of the Fund; (6) a Contract
holder cannot, and will not be able to, communicate directly
or indirectly with the Adviser or a subadviser concerning the
selection, quality or rate of return on any specific
investment or group of investments held by the Fund; (7) a
Contract holder does not have, and will not have, any current
knowledge of the Fund's specific assets other than as may be
required to be presented in periodic reports to the Fund's
shareholders; (8) a Contract holder does not have, and will
not have, any legal, equitable, direct or indirect ownership
interest in any of the assets of the Fund; and (9) a Contract
holder only has, and only will have, a contractual claim
against the insurance company offering the Contract to receive
cash from the insurance company under the terms of his or her
Contract.
4. Sales Material and Information
4.1 The Company shall promptly provide the Fund with copies of any
Contract holder complaints respecting the Contracts that
relate to the Fund or to the Portfolios.
4.2 Except with the written consent of the Adviser, the Fund or
DFAS, as appropriate, the Company shall not make any oral or
written material representations concerning the Adviser, DFAS,
the Fund or the Portfolios, other than the information or
representations contained in: (a) a registration statement or
prospectus for the Fund, as amended or supplemented from time
to time; (b) published reports or statements of the Fund which
are in the public domain or are approved by the Fund; or
(c) sales literature or other promotional material of the
Fund.
Notwithstanding the foregoing, this provision shall not be
interpreted to prevent the Company from providing information
about the Adviser, DFAS and the Fund or this Agreement to
their Directors, regulators, accountants, legal counsel or
otherwise in the ordinary course of their business.
4.3 Except with the written consent of the Company, the Adviser,
DFAS, or the Fund shall not make any material representations
concerning the Company, other than the information or
representations contained in:
(a) a registration statement or offering memoranda for the
Contracts, as amended or supplemented from time to
time;
(b) published reports or statements of the Contracts or
the Accounts which are in the public domain or are
approved by the Company; or
(c) sales literature or other promotional material of the
Company.
Notwithstanding the foregoing, this provision shall not be
interpreted to prevent the Adviser, DFAS and the Fund from
providing information about the Company or this Agreement to
their Directors, regulators, accountants, legal counsel or
otherwise in the ordinary course of their business.
4.4 No Party shall use any other Party's names, logos, trademarks
or service marks, whether registered or unregistered, without
the prior written consent of such Party.
4.5 Upon request, the Fund will provide to the Company at least
one complete copy of all registration statements, prospectuses,
(including any current summary prospectus, if applicable, as
such term is defined in Rule 498), statements of additional
information, reports, proxy statements, sales literature and
other promotional materials, applications for exemptions,
requests for no-action letters, and all amendments to any of
the above, that relate to the Portfolios or their shares, in
final form as filed with the SEC. Notwithstanding the
foregoing, the Fund shall provide such documentation
(including a final copy of the amended prospectus(es) of the
Portfolios as set in type (including an 8 1/2" x 11" size
camera-ready stat) at the Fund's expense) and other assistance
as is reasonably necessary in order for the Company once each
year, at the Company's expense, to print and provide to the
contract owners the current prospectus(es) for the Portfolios.
4.6 Upon request, the Company will provide to the Fund at least
one complete copy of all offering materials describing the
Fund, the Portfolios and the Contracts, including application
and investment election forms, sample illustrations, reports,
solicitations for voting instructions, sales literature and
any other promotional materials, applications for exemptions,
requests for no-action letters, and all amendments to any of
the above, that relate to the Contracts and each Account.
In the event any such documents are required to be filed with
any regulatory authority or body, the Company shall provide
such materials in final form as filed with such regulatory
authority or body. The Company represents and warrants that
the Contracts, registration statements, offering memoranda and
any other filing in connection therewith with respect to the
Accounts will not materially deviate from the form of such
documents provided to the Fund.
4.7 For purposes of this Section 4, the phrase "sales literature
or other promotional material" shall be construed in accordance
with all applicable securities laws and regulations.
4.8 To the extent required by applicable law, including the
administrative requirements of regulatory authorities, or as
mutually agreed between the Company and DFAS, the Company
reserves the right to modify any of the Contracts in any
respect whatsoever. The Company reserves the right, in its
sole discretion, to suspend the sale of any Contract, in whole
or in part, or to accept or reject any application for the sale
of a Contract. The Company agrees to notify the other Parties
promptly upon the occurrence of any event that the Company
believes might necessitate a material modification or
suspension.
4.9 The Parties agree to review the arrangements set forth herein
from time to time for possible changes and will make their
personnel reasonably available for this purpose.
5. Fees and Expenses
5.1 The Fund shall bear the cost of registration and qualification
of the shares of the Portfolios; preparation and filing of the
Portfolios' prospectus(es) and the Fund's registration
statement, proxy materials and reports relating to the
Portfolios, including prospectuses, statements of additional
information, and proxy materials for the Portfolios, as
required by applicable state and federal law; preparation of
all other statements and notices relating to the Portfolios
required by any federal or state law; payment of all
applicable fees, including, without limitation, all fees due
under Rule 24f 2 of the 1940 Act relating to the Portfolios;
and all taxes on the issuance or transfer of the Portfolios'
shares.
5.2 The Company shall assure that the Contracts are registered
under the 1933 Act, (or are properly exempt from such
registration requirements) and that each Account is
registered as a unit investment trust in accordance with the
1940 Act (or are properly exempt from such registration
requirements). The Company shall bear the expenses for the
costs of preparation and filing of the Company's prospectus
and registration statement with respect to the Contracts;
preparation of all other statements and notices relating to
each Account or Contracts required by any federal or state
law; all expenses for the solicitation and sale of the
Contracts, including all costs of printing and distributing
all copies of advertisements, prospectuses, statements of
additional information, proxy materials and reports to
Contract holders and prospective purchasers of the Contracts,
as required by applicable state and federal law; payment of
all applicable fees and taxes relating to the Contracts; all
costs of drafting, filing and obtaining approvals of the
Contracts in the various states under applicable insurance
laws; and all other costs associated with ongoing compliance
with all such laws and its obligations hereunder.
6. Indemnification
6.1 Indemnification by the Company
6.1(a) The Company agrees to indemnify, defend and hold
harmless the Fund, the Portfolios, DFAS and the
Adviser, and each of their directors and officers
(as applicable), and each person, if any, who controls
any of them within the meaning of Section 15 of the
1933 Act (collectively, the "Indemnified Parties" for
purposes of this Section 6.1) against any and all
losses, claims, damages, liabilities (including
amounts paid in settlement with the written consent of
the Company) or litigation (including legal and other
expenses) (except in all cases, excluding consequential
or special damages), to which the Indemnified Parties
may become subject under any statute, regulation, at
common law or otherwise, and:
(i) arise out of or are based upon any untrue
statements or alleged untrue statements of any
material fact contained in the registration
statement, offering memoranda or sales
literature for the Contracts (or any amendment
or supplement to any of the foregoing), or
arise out of or are based upon the omission or
the alleged omission to state therein a
material fact required to be stated therein or
necessary to make the statements therein not
misleading, provided that this Section 6.1(a)
shall not apply as to any Indemnified Party if
such statement or omission or such alleged
statement or omission was made in reliance
upon and in conformity with information
furnished to the Company by or on behalf of
the Fund for use in the registration statement
or offering memoranda for the Contracts (or
any amendment or supplement) or otherwise for
use in connection with the sale of the
Contracts or the shares of the Portfolios;
(ii) arise out of, or as a result of, statements or
representations or wrongful conduct of the
Company or persons under its control, with
respect to the sale or distribution of the
Contracts or the shares of the Portfolios;
(iii) arise out of any untrue statement or alleged
untrue statement of a material fact contained
in a registration statement, prospectus, or
sales literature covering the Fund and the
Portfolios or any amendment thereof or
supplement thereto, or the omission or alleged
omission to state therein a material fact
required to be stated therein, or necessary
to make the statements therein not misleading,
if such a statement or omission was made in
reliance upon information furnished to the
Fund by or on behalf of the Company;
(iv) arise out of, or as a result of, any failure
by the Company or persons under its control to
provide the services and furnish the materials
contemplated under the terms of this Agreement;
or
(v) arise out of, or result from, any material
breach of any representation and/or warranty
made by the Company or persons under its
control in this Agreement or arise out of or
result from any other material breach of this
Agreement by the Company or persons under its
control;
as limited by and in accordance with the provisions of
Sections 6.1(b) and 6.1(c) hereof.
6.1(b) The Company shall not be liable under this
indemnification provision with respect to any losses,
claims, damages, liabilities or litigation to
which an Indemnified Party would otherwise be subject
by reason of such Indemnified Party's willful
misfeasance, bad faith, or gross negligence in the
performance of such Indemnified Party's duties or by
reason of such Indemnified Party's reckless disregard
of obligations or duties under this Agreement or to
the Fund, whichever is applicable, or to the extent of
such Indemnified Party's gross negligence.
6.1(c) The Company shall not be liable under this
indemnification provision with respect to any claim
made against an Indemnified Party unless such
Indemnified Party shall have notified the Company in
writing within a reasonable time after the summons or
other first legal process giving information of the
nature of the claim shall have been served upon such
Indemnified Party (or after such Indemnified Party
shall have received notice of such service on any
designated agent), but failure to notify the Company
of any such claim shall not relieve the Company from
any liability which it may have to the
Indemnified Party otherwise than on account of this
indemnification provision. In case any such action is
brought against the Indemnified Parties, the Company
shall be entitled to participate, at its own expense,
in the defense of such action, provided that it gives
written notice of such intention to the Indemnified
Parties. The Company also shall be entitled to assume
and to control the defense thereof. After notice from
the Company to such Party of the Company's election to
assume the defense thereof, the Indemnified Party
shall bear the fees and expenses of any additional
counsel retained by it, and the Company will not be
liable to such Party under this Agreement for any
legal or other expenses subsequently incurred by such
Party independently in connection with the defense
thereof other than reasonable costs of investigation.
6.1(d) The Indemnified Parties will promptly notify the
Company of the commencement of any litigation or
proceedings against them in connection with the
issuance or sale of the shares of the Portfolios or
the Contracts or the operation of the Portfolios.
6.2 Indemnification by DFAS
6.2(a) DFAS agrees to indemnify, defend and hold harmless the
Company and each of its directors and officers and
each person, if any, who controls the Company within
the meaning of Section 15 of the 1933 Act (collectively,
the "Indemnified Parties" for purposes of this Section
6.2) against any and all losses, claims, damages,
liabilities (including amounts paid in settlement with
the written consent of the Fund or DFAS) or litigation
(including legal and other expenses) (except in all
cases, excluding consequential or special damages) to
which the Indemnified Parties may become subject under
any statute, regulation, at common law or otherwise,
and:
(i) arise out of or are based upon any untrue
statement or alleged untrue statement of any
material fact contained in the registration
statement or current prospectus(es) or sales
literature of the Fund and the Portfolios (or
any amendment or supplement to any of the
foregoing), or arise out of or are based upon
the omission or the alleged omission to state
therein a material fact required to be stated
therein or necessary to make the statements
therein not misleading, provided that this
Section 6.2(a) shall not apply as to any
Indemnified Party if such statement or omission
or such alleged statement or omission was made
in reliance upon and in conformity with
information furnished to the Fund by or on
behalf of the Company for use in the
registration statement or prospectus(es) for
the Portfolios or in sales literature (or any
amendment or supplement) or otherwise for use
in connection with the sale of the shares of
the Portfolios;
(ii) arise out of, or as a result of, statements or
representations or wrongful conduct of DFAS or
the Fund or persons under their control, with
respect to the sale or distribution of the
shares of the Portfolios (it is understood that
the persons who are involved in the sale or
distribution of the Contracts are not under
the control of DFAS, the Adviser or the Fund);
(iii) arise out of any untrue statement or alleged
untrue statement of a material fact contained
in a registration statement, offering memoranda
or sales literature covering the Contracts, or
any amendment thereof or supplement thereto,
or the omission or alleged omission to state
therein a material fact required to be stated
therein, or necessary to make the statements
therein not misleading, if such statement or
omission was made in reliance upon information
furnished to the Company by or on behalf of
the Fund;
(iv) arise out of, or as a result of, any failure
by DFAS, the Fund or persons under their
control to provide the services and furnish
the materials contemplated under the terms of
this Agreement; or
(v) arise out of or result from any material
breach of any representation and/or warranty
made by DFAS, the Fund or persons under their
control in this Agreement or arise out of or
result from any other material breach of this
Agreement by DFAS, the Fund or persons under
their control;
as limited by and in accordance with the provisions of
Sections 6.2(b) and 6.2(c) hereof.
6.2(b) DFAS shall not be liable under this indemnification
provision with respect to any losses, claims, damages,
liabilities or litigation to which an Indemnified Party
would otherwise be subject by reason of such
Indemnified Party's willful misfeasance, bad faith, or
gross negligence in the performance of such
Indemnified Party's duties or by reason of such
Indemnified Party's reckless disregard of obligations
and duties under this Agreement or to the Company or
the Accounts, whichever is applicable, or to the
extent of such Indemnified Party's gross negligence.
6.2(c) DFAS shall not be liable under this indemnification
provision with respect to any claim made against an
Indemnified Party unless such Indemnified Party shall
have notified DFAS in writing within a reasonable time
after the summons or other first legal process giving
information of the nature of the claim shall have been
served upon such Indemnified Party (or after such
Indemnified Party shall have received notice of such
service on any designated agent), but failure to
notify DFAS of any such claim shall not relieve DFAS
from any liability which it may have to the Indemnified
Party otherwise than on account of this indemnification
provision. In case any such action is brought against
the Indemnified Parties, DFAS will be entitled to
participate, at its own expense, in the defense
thereof, provided that it gives written notice of such
intention to the Indemnified Parties. DFAS also shall
be entitled to assume and to control the defense
thereof. After notice from DFAS to such Party of
DFAS's election to assume the defense thereof, the
Indemnified Party shall bear the fees and expenses of
any additional counsel retained by it, and DFAS will
not be liable to such party under this Agreement for
any legal or other expenses subsequently incurred by
such Party independently in connection with the
defense thereof other than reasonable costs of
investigation.
6.2(d) The Indemnified Parties will promptly notify DFAS of
the commencement of any litigation or proceedings
against them in connection with the issuance or sale
of the Contracts or the operation of the Accounts.
6.3 Indemnification by the Adviser
6.3(a) The Adviser agrees to indemnify and hold harmless the
Company and each of its directors and officers and
each person, if any, who controls the Company within
the meaning of Section 15 of the 1933 Act
(collectively, the "Indemnified Parties" for purposes
of this Section 6.3) against any and all losses,
claims, damages, liabilities (including amounts paid
in settlement with the written consent of the Fund or
the Adviser) or litigation (including legal and other
expenses) (except in all cases, excluding
consequential or special damages) to which the
Indemnified Parties may become subject under any
statute, regulation, at common law or otherwise,
and:
(i) arise out of or based upon any untrue
statement or alleged untrue statement of any
material fact contained in the registration
statement or current prospectus(es) or sales
literature of the Fund and the Portfolios (or
any amendment or supplement to any of the
foregoing), or arise out of or are based upon
the omission or the alleged omission to state
therein a material fact required to be stated
therein or necessary to make the statements
therein not misleading, provided that this
Section 6.3(a) shall not apply as to any
Indemnified Party if such statement or
omission or such alleged statement or omission
was made in reliance upon and in conformity
with information furnished to the Fund or the
Adviser by or on behalf of the Company for
use in the registration statement or
prospectus(es) for the Portfolios or in sales
literature (or any amendment or supplement) or
otherwise for use in connection with the sale
of the shares of the Portfolios;
(ii) arise out of, or as a result of, statement or
representations or wrongful conduct of DFAS,
the Fund or the Adviser or persons under their
control, with respect to the sale or
distribution of the shares of the Portfolios
(it is understood that the persons who are
involved in the sale or distribution of the
Contracts are not under the control of DFAS,
the Adviser or the Fund);
(iii) arise out of any untrue statement or alleged
untrue statement of a material fact contained
in a registration statement, offering
memoranda or sales literature covering the
Contracts, or any amendment thereof or
supplement thereto, or the omission or alleged
omission to state therein a material fact
required to be stated therein, or necessary
to make the statements therein not misleading,
if such statement or omission was made in
reliance upon information furnished to the
Company by or on behalf of the Fund or the
Adviser;
(iv) arise out of, or as a result of, any failure
by DFAS, the Adviser, the Fund or persons
under their control to provide the services
and furnish the materials contemplated under
the terms of this Agreement; or
(v) arise out of or result from any material
breach of any representation and/or warranty
made by DFAS, the Fund, the Adviser or persons
under their control in this Agreement or arise
out of or result from any other material
breach of this Agreement by DFAS, the Adviser,
the Fund or persons under their control;
as limited by and in accordance with the provisions of
Sections 6.3(b) and 6.3(c) hereof.
6.3(b) The Adviser shall not be liable under this
indemnification provision with respect to any losses,
claims, damages, liabilities or litigation to which an
Indemnified Party would otherwise be subject by reason
of such Indemnified Party's willful misfeasance, bad
faith, or gross negligence in the performance of such
Indemnified Party's duties or by reason of such
Indemnified Party's reckless disregard of obligations
and duties under this Agreement or to the Company or
the Accounts, whichever is applicable, or to the
extent of such Indemnified Party's gross negligence.
6.3(c) The Adviser shall not be liable under this
indemnification provision with respect to any claim
made against an Indemnified Party unless such
Indemnified Party shall have notified the Fund or the
Adviser in writing within a reasonable time after the
summons or other first legal process giving
information of the nature of the claim shall have been
served upon such Indemnified Party (or after such
Indemnified Party shall have received notice of such
service on any designated agent), but failure to
notify the Fund or the Adviser of any such claim shall
not relieve the Adviser from any liability which it
may have to the Indemnified Party otherwise than on
account of this indemnification provision. In case
any such action is brought against the Indemnified
Parties, the Adviser will be entitled to participate,
at its own expense, in the defense thereof, provided
that it gives written notice of such intention to the
Indemnified Parties. The Adviser also shall be
entitled to assume and to control the defense
thereof. After notice from the Adviser to such Party
of the Adviser's election to assume the defense
thereof, the Indemnified Party shall bear the fees and
expenses of any additional counsel retained by it, and
the 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.
6.3(d) The Indemnified Parties will promptly notify the Fund
or the Adviser of the commencement of any litigation
or proceedings against them in connection with the
issuance or sale of the Contracts or the operation of
the Accounts.
7. Potential Conflicts
7.1 The Directors will monitor the Fund for the existence of any
material irreconcilable conflict between the interests of the
contract owners of all separate accounts investing in the
Portfolios. 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
insurance (including federal, state or other jurisdiction),
tax, or securities laws or regulations, or a public ruling,
private letter ruling, no-action or interpretive 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 Portfolio are being managed; (e) a difference in voting
instructions given by variable annuity contract and variable
life insurance contract owners; or (f) a decision by an
insurer to disregard the voting instructions of contract
owners. The Directors shall promptly inform the Company if
they determine that an irreconcilable material conflict exists
and the implications thereof.
7.2 The Company will report any potential or existing conflicts of
which it is aware to the Directors and, on an annual basis,
shall provide the Fund with written notification that the
Company is not aware of any conflict, if such is the case.
The Company will assist the Directors in carrying out their
responsibilities under any applicable provisions of the
federal securities laws and/or any exemptive orders granted by
the SEC, including the order obtained by the Fund from the
SEC, dated March 12, 2002 (File No. 812 12760) ("Exemptive
Order"), by providing the Directors with all information
reasonably necessary for the Directors to consider any issues
raised. This includes, but is not limited to, an obligation
by the Company to inform the Directors whenever Contract
holder voting instructions are disregarded.
The Company acknowledges that: (i) the Company's disregard
of voting instructions may conflict with the majority of
Contract holders' voting instructions; and (ii) the Company's
action could preclude a majority vote approving a proposed
change or could represent a minority view. If the Company's
judgment represents a minority position or would preclude a
majority vote, then the Company may be required, at the
Fund's election, to withdraw the Accounts' investment in the
Portfolios. Other than possible decline in the value of an
Account due to fluctuations in the net asset value of the
Portfolios, no charge or penalty will be imposed as a result
of such withdrawal.
7.3 If it is determined by a majority of the Directors, or a
majority of its disinterested Directors, that a material
irreconcilable conflict exists, the Company shall, at its
expense and to the extent reasonably practicable (as
determined by a majority of disinterested Directors), take
whatever steps are necessary to remedy or eliminate the
irreconcilable material conflict, up to and including:
(1) withdrawing the assets allocable to some or all of the
Accounts from any Portfolio and reinvesting such assets in a
different investment medium, including (but not limited to)
another Portfolio of the Fund, or submitting the question
whether such segregation should be implemented to a vote of
all affected Contract holders and, as appropriate, segregating
the assets of any appropriate group that votes in favor of
such segregation, or offering to the affected Contract holders
the option of making such a change; and (2) establishing a
new registered management investment company or managed
separate account.
7.4 If a material irreconcilable conflict arises because a
particular state insurance regulator's decision applicable to
the Company conflicts with the majority of other insurance
regulators, then the Company will withdraw the affected
Account's investment in the Portfolio(s) and terminate this
Agreement with respect to such Account within six (6) months
after the Directors inform the Company in writing that the
Directors have determined that such decision has created an
irreconcilable material conflict; provided, however, that such
withdrawal and termination shall be limited to the extent
required by the foregoing material irreconcilable conflict as
determined by a majority of the disinterested Directors.
Until the end of the foregoing six (6) month period, DFAS and
the Fund shall continue to accept and implement orders by the
Company for the purchase (and redemption) of shares of the
Portfolios.
7.5 For purposes of Sections 7.3 through 7.5 of this Agreement, a
majority of the disinterested Directors shall determine
whether any proposed action adequately remedies any
irreconcilable material conflict. The Company shall not be
required by Section 7.3 to establish a new funding medium for
the Contracts if an offer to do so has been declined by vote
of a majority of Contract holders materially adversely
affected by the irreconcilable material conflict. In the
event that the Directors determine that any proposed action
does not adequately remedy any irreconcilable material
conflict, then the Company will withdraw an Account's
investment in the Portfolios and terminate this Agreement
within six (6) months after the Directors inform 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.
7.6 If and to the extent that Rule 6e 2 and Rule 6e 3(T) are
amended, or Rule 6e 3 is adopted, to provide exemptive relief
from any provision of the 1940 Act or the rules promulgated
thereunder with respect to mixed or shared funding (as defined
in any Exemptive Order) on terms and conditions materially
different from those contained in any Exemptive 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) Sections 7.1, 7.2, 7.3 and
7.4 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 by the SEC.
8. Term and Termination
8.1 This Agreement may be terminated by any Party with or without
cause on thirty (30) days' advance written notice.
8.2 Notwithstanding any other provision of this Agreement, DFAS,
the Adviser or the Fund may terminate this Agreement for cause
on not less than thirty (30) days' prior written notice to the
Company, unless the Company has cured such cause within thirty
(30) days of receiving such notice, for any material breach by
the Company of any representation, warranty, covenant or
obligation hereunder.
8.3 Notwithstanding any other provision of this Agreement, the
Company may terminate this Agreement for cause on not less
than thirty (30) days' prior written notice to DFAS, the
Adviser and the Fund, unless DFAS, the Adviser or the Fund, as
appropriate, has cured such cause within thirty (30) days of
receiving such notice, for any material breach by DFAS, the
Adviser or the Fund of any representation, warranty, covenant
or obligation hereunder.
8.4 Notwithstanding any other provision of this Agreement, the
Company may terminate this Agreement by written notice to the
Fund and DFAS with respect to any Portfolio based upon the
Company's determination that shares of such Portfolio are not
reasonably available to meet the requirements of the Contracts.
8.5 Notwithstanding any other provision of this Agreement, the
Company may terminate this Agreement by written notice to the
Fund, the Adviser and DFAS with respect to any Portfolio in
the event such Portfolio's shares are not registered, issued
or sold in accordance with applicable state and/or federal
law, or such law precludes the use of such shares as the
underlying investment media of the Contracts issued or to be
issued by the Company.
8.6 Notwithstanding any other provision of this Agreement, the
Company may terminate this Agreement by written notice to the
Fund, the Adviser and DFAS with respect to any Portfolio in
the event that such Portfolio ceases to qualify as a
"regulated investment company" under Subchapter M of the Code,
or if the Company reasonably believes that any such Portfolio
may fail to so qualify.
8.7 Notwithstanding any other provision of this Agreement, the
Company may terminate this Agreement by written notice to the
Fund, the Adviser and DFAS with respect to any Portfolio in
the event that such Portfolio fails to satisfy the
diversification requirements of Section 817 of the Code and
the Treasury regulations promulgated thereunder.
8.8 Notwithstanding any other provision of this Agreement, the
Fund, the Adviser or DFAS may terminate this Agreement by
written notice to the Company, if any one or all shall
determine, in their sole judgment, exercised in good faith,
that the Company has suffered a material adverse change in
its business, operations, financial condition or prospects
since the date of this Agreement or is the subject of material
adverse publicity.
8.9 Notwithstanding any other provision of this Agreement, the
Company may terminate this Agreement by written notice to the
Fund, the Adviser and DFAS, if the Company shall determine, in
its sole judgment, exercised in good faith, that any of the
Fund, the Portfolios, the Adviser or DFAS has suffered a
material adverse change in its business, operations, financial
condition or prospects since the date of this Agreement or is
the subject of material adverse publicity.
8.10 Notwithstanding any other provision of this Agreement, any
Party may terminate this Agreement for cause on not less than
thirty (30) days' prior written notice to all other Parties,
unless any of the other Parties has cured such cause within
thirty (30) days of receiving such notice, for any one of the
following reasons:
(a) change in control of any Party or such Party's
ultimate controlling person; however, a change in the
name of the Party will not constitute a change in
control;
(b) a material change in, or other material revision to,
the Contracts or the prospectus(es) of the Portfolios,
which material change or revision is not acceptable
to any of the other Parties; or
(c) any action taken by federal, state or other regulatory
authorities of competent jurisdiction which, in the
reasonable judgment of any of the Parties, either
(i) materially and adversely alters the terms,
advantages and/or benefits of the Contracts to current
or prospective purchasers; or (ii) materially or
adversely alters the terms or conditions of such
Party's participation in the subject matter of this
Agreement.
8.11 Notwithstanding the termination of this Agreement, each
Party shall continue for so long as any Contracts remain
outstanding to perform such of its duties hereunder as are
necessary to ensure the continued tax status thereof and the
payment of benefits thereunder, with respect to a Portfolio
and the corresponding subaccount of each Account.
9. Notices
Any notice shall be deemed sufficiently given when sent by registered
or certified mail, or via facsimile, to the other Parties at the address of
such Parties set forth below or at such other address as such Parties may
from time to time specify in writing to the other Parties.
If to the Fund:
Xxxxxxxxx X. Xxxxxx, Esq.
Vice President and Secretary
DFA Investment Dimensions Group Inc.
0000 Xxx Xxxx Xxxx, Xxxxxxxx Xxx
Xxxxxx, XX 00000
If to the Adviser:
Xxxxxxxxx X. Xxxxxx, Esq.
Vice President and Secretary
Dimensional Fund Advisors Inc.
0000 Xxx Xxxx Xxxx, Xxxxxxxx Xxx
Xxxxxx, XX 00000
If to DFAS:
Xxxxxxxxx X. Xxxxxx, Esq.
Vice President and Secretary
DFA Securities LLC
0000 Xxx Xxxx Xxxx, Xxxxxxxx Xxx
Xxxxxx, XX 00000
If to the Company:
First Symetra National Life Insurance Company of New York
000 000xx Xxx XX, Xxxxx 0000
Legal Dept. SC-11
Attn: Legal Counsel
Xxxxxxxx, XX 00000
10. Miscellaneous
10.1 The captions in this Agreement are included for convenience of
reference only and in no way affect the construction or effect
of any provisions hereof.
10.2 If any portion of this Agreement shall be held or made invalid
by a court decision, statute, rule or otherwise, the remainder
of the Agreement shall not be affected thereby.
10.3 This Agreement may be executed simultaneously in two or more
counterparts, each of which taken together shall constitute
one and the same instrument.
10.4 Each Party shall cooperate with each other Party and all
appropriate governmental authorities (including, without
limitation, the SEC, FINRA, and any applicable insurance,
securities or other regulator of competent jurisdiction), and
shall permit such authorities reasonable access to its books
and records as required by applicable law in connection with
any investigation or inquiry relating to this Agreement.
10.5 Each Party hereto grants to the other Parties the right to
audit its records relating to the terms and conditions of this
Agreement upon reasonable notice during reasonable business
hours in order to confirm compliance with this Agreement.
10.6 The rights, remedies and obligations contained in this
Agreement are cumulative and are in addition to any and all
rights, remedies and obligations, at law or in equity, which
the Parties hereto are entitled to under state and federal
laws.
10.7 Subject to the requirements of legal process and regulatory
authority, the Fund, the Adviser and DFAS shall treat as
confidential the names and addresses of the owners of the
Contracts and all information reasonably identified as
confidential in writing by the Company hereto and, except as
permitted by this Agreement, shall not disclose, disseminate
or utilize such names and addresses and other confidential
information without the express written consent of the Company
until such time as it may come into the public domain.
10.8 This Agreement or any of the rights and obligations hereunder
may not be assigned by any Party without the prior written
consent of all Parties hereto.
10.9 In any dispute arising hereunder, each Party waives its right
to demand a trial by jury and hereby consents to a bench trial
of all such disputes.
10.10 The terms of this Agreement shall be construed and the
provisions hereof interpreted under and in accordance with
the laws of the State of Texas, without regard to the conflicts
of law principles thereof; provided, however, that all
performances rendered hereunder shall be subject to compliance
with all applicable state and federal laws and regulations.
To the extent they are applicable, this Agreement shall be
subject to the provisions of the 1933 Act, the 1934 Act, and
the 1940 Act, and the rules and regulations and
interpretations thereunder, including such exemptions from
those statutes, rules and regulations as the SEC may grant,
and any applicable FINRA regulations or interpretations, and
the terms hereof shall be interpreted and construed in
accordance therewith.
IN WITNESS WHEREOF, each of the Parties hereto has caused this
Agreement to be duly executed as of the date first set forth above.
Company:
FIRST SYMETRA NATIONAL LIFE INSURANCE
COMPANY OF NEW YORK
By: /s/Xxxxxx X. Xxxxxxxx
Name: Xxxxxx X. Xxxxxxxx
Title: Executive Vice President
Fund:
DFA INVESTMENT DIMENSIONS GROUP INC.
By: /s/Xxxx Xxxx
Name: Xxxx Xxxx
Title: Vice President
Adviser:
DIMENSIONAL FUND ADVISORS LP
By: Dimensional Holdings Inc.,
general partner
By: /s/Xxxxxxx Xxxxxx
Name: Xxxxxxx Xxxxxx
Title: Vice President
DFAS:
DFA SECURITIES LLC
By: /s/Xxxxxxx X.
Name: Xxxxxxx X.
Title: Vice President
Schedule 1.1
VA U.S. Targeted Value Portfolio
VA U.S. Large Value Portfolio
VA International Value Portfolio
VA International Small Portfolio
VA Short-Term Fixed Portfolio
VA Global Bond Portfolio
SCHEDULE 3.6: Rule 22c-2 Provisions
1. Agreement to Provide Information. The Company (hereafter, an
"Intermediary") agrees to provide the Fund, upon written request, the
taxpayer identification number ("TIN"), the Individual/International
Taxpayer Identification Number ("ITIN")(1), or other government-issued
identifier ("GII"), if known, of any or all Contract holders or
shareholder(s) of the account (together, "Shareholder(s)") and the
amount, date, name or other identifier of any investment
professional(s) associated with the Shareholder(s) or account
(if known), and transaction type (purchase, redemption, transfer, or
exchange) of every purchase, redemption, transfer, or exchange of
Fund shares ("Shares") held through an account maintained by the
Intermediary during the period covered by the request.
2.
2.1. Period Covered by Request. Requests must set forth a specific
period, generally not to exceed 90 days from the date of the
request, for which transaction information is sought. Fund or
its designee may request transaction information older than
90 days from the date of the request as it deems necessary to
investigate compliance with policies established by the Fund
for the purpose of eliminating or reducing any dilution of the
value of the outstanding shares issued by the Fund or if the
Funds or Dimensional believe that any combination of trading
activity in Shareholder accounts is potentially disruptive to
a Fund.
2.2. Form and Timing of Response.
2.2.1. Intermediary agrees to provide, promptly but in any
event not later than five (5) business days, or as
otherwise agreed to by the parties, after receipt of a
request of the Fund or its designee, the requested
information specified in Section 1. If requested by
the Fund or its designee, Intermediary agrees to use
its best efforts to determine promptly whether any
specific person about whom it has received the
identification and transaction information specified
in Section 1 is itself a financial intermediary
("indirect intermediary") and, upon further request
of the Fund or its designee, promptly either (i)
provide (or arrange to have provided) the information
set forth in Section 1 for those shareholders who hold
an account with an indirect intermediary, or (ii) if
directed by the Fund restrict or prohibit the indirect
intermediary from purchasing, in nominee name on
behalf of other persons, securities issued by the Fund.
Intermediary additionally agrees to inform the Fund
whether it plans to perform (i) or (ii). For purposes
of this provision, an "indirect intermediary" has the
same meaning as in SEC Rule 22c-2 under the 1940 Act.
2.2.2. Responses required by this paragraph must be
communicated in writing and in a format mutually
agreed upon by the parties.
2.2.3. To the extent practicable, the format for any
transaction information provided to the Fund should
be consistent with the NSCC Standardized Data
Reporting Format.
2.3. Limitations on Use of Information. The Fund agrees not to use
the information received from the Intermediary for the Fund's
use in external solicitation or marketing to shareholders
without the prior written consent of the Intermediary. The
Fund is permitted to use the information received from the
Intermediary for the Fund's internal purposes, including
monitoring compliance with the Fund's internal policies,
procedures and practices. The Fund agrees to keep any non-
public information furnished by the Intermediary confidential
consistent with the Fund's then current privacy policy, except
as necessary to comply with federal, state, or local laws,
rules, or other applicable legal requirements.
3. Agreement to Restrict Trading. Intermediary agrees to execute written
instructions from the Fund to restrict or prohibit further purchases
or exchanges of Shares by a Shareholder that has been identified by
the Fund as having engaged in transactions in the Fund's Shares
(directly or indirectly through the Intermediary's account) that
violate policies established by the Fund for the purpose of
eliminating or reducing any dilution of the value of the outstanding
Shares issued by the Fund.
3.1. Form of Instructions. Instructions to restrict or prohibit
trading must include the TIN, ITIN, or GII, if known, and the
specific restriction(s) to be executed. If the TIN, ITIN, or
GII is not known, the instructions must include an equivalent
identifying number of the Shareholder(s) or account(s) or
other agreed upon information to which the instruction relates.
3.2. Timing of Response. Intermediary agrees to execute
instructions from the Fund to restrict or prohibit trading as
soon as reasonably practicable, but not later than five (5)
business days after receipt of the instructions by the
Intermediary.
3.3. Confirmation by Intermediary. Intermediary must provide
written confirmation to the Fund that instructions have been
executed. Intermediary agrees to provide confirmation as soon
as reasonably practicable, but not later than ten (10)
business days after the instructions have been executed.
4. Definitions. For purposes of this Schedule 3.6:
4.1. The term "Fund" includes the Fund's principal underwriter and
transfer agent. The term not does include any "excepted
funds" as defined in SEC Rule 22c-2(b) under the 1940 Act.(2)
4.2. The term "Shares" means the interests of Shareholders
corresponding to the redeemable securities of record issued by
the Fund under the 1940 Act that are held by the Intermediary.
4.3. The term "Shareholder" means the beneficial owner of Shares,
whether the Shares are held directly or by the Intermediary
in nominee name; except:
4.3.1. with respect to retirement plan recordkeepers, the
term "Shareholder" means the Plan participant
notwithstanding that the Plan may be deemed to be the
beneficial owner of Shares; and
4.3.2. with respect to insurance companies, the term
"Shareholder" means the holder of interests in a
variable annuity or variable life insurance contract
issued by the Intermediary.
4.4. The term "written" includes electronic writings and facsimile
transmissions.
4.5. The term "Intermediary" shall mean a "financial intermediary"
as defined in SEC Rule 22c-2.(3)
4.6. The term "purchase" does not include the automatic reinvestment
of dividends.
4.7. The term "promptly" as used in Section 1.2 shall mean as soon
as practicable but in no event later than 10 business days
from the Intermediary's receipt of the request for information
from the Fund or its designee.
--------------------------
1 According to the IRS' website, the ITIN refers to the Individual
Taxpayer Identification number, which is a nine-digit number that
always begins with the number 9 and has a 7 or 8 in the fourth digit,
example 9XX-7X-XXXX.. The IRS issues ITINs to individuals who are
required to have a U.S. taxpayer identification number but who do not
have, and are not eligible to obtain a Social Security Number (SSN)
from the Social Security Administration (SSA). SEC Rule 22c-2
inadvertently refers to the ITIN as the International Taxpayer
Identification Number.
2 As defined in SEC Rule 22c-2(b), the term "excepted fund" means any:
(1) money market fund; (2) fund that issues securities that are listed
on a national exchange; and (3) fund that affirmatively permits short-
term trading of its securities, if its prospectus clearly and
prominently discloses that the fund permits short-term trading of its
securities and that such trading may result in additional costs for
the fund.
3 "Financial intermediary" is defined in SEC Rule 22c-2(c)(1) as: "(i)
any broker, dealer, bank, or other entity that holds securities of
record issued by the fund, in nominee name; (ii) a unit investment
trust or fund that invests in the fund in reliance on section
12(d)(1)(E) of the Act (15 U.S.C. 80a-12(d)(1)(E)); and (iii) in the
case of a participant-directed employee benefit plan that owns the
securities issued by the fund, a retirement plan's administrator
under section 3(16)(A) of the Employee Retirement Income Security Act
of 1974 (29 U.S.C. 1002(16)(A)) or any entity that maintains the
plan's participant records."
