SHAREHOLDER SERVICES AGREEMENT
This
Agreement is made as of December 28, 2007, by and between
Xxxxxxxx Advisors, Inc. (the
“Distributor”), a Delaware company, and Xxxxxxx Xxxxx Life Insurance Company (the “Company”), an
Arkansas life insurance company.
WHEREAS, the Company has entered into a participation agreement dated October 11, 2002 with
Xxxxxxxx Value Fund Series, Inc. (the “Fund”), an open-end investment company registered under the
Investment Company Act of 1940 (the “1940 Act”) with respect to the purchase of a class of shares
designated as “A Shares” of one or more series of the Fund (each a “Portfolio”), by certain
separate accounts of the Company (“Accounts”); and
WHEREAS, the Distributor serves as the distributor to the Fund; and
WHEREAS, the Company desires to provide certain shareholder services to owners (“Contract
Owners”) of variable life insurance policies or variable annuity contracts (“Contracts”) in
connection with their allocation of contract values to the Portfolios and Distributor desires
Company to provide such services, subject to the conditions of this Agreement; and
WHEREAS, pursuant to Rule 12b-l under the 1940 Act, the Fund has adopted an Administration,
Shareholder Services and Distribution Plan (the “12b-1 Plan”) which, among other things,
authorizes the Distributor to enter into this Agreement with organizations such as Company and to
compensate such organizations out of each Portfolio’s average daily net assets attributable to the
A Shares:
NOW, THEREFORE, in consideration of mutual covenants contained in this Agreement, the
Distributor and the Company agree as follows:
1. Services of Company
(a) The Company shall provide any combination of the following support services, as agreed
upon by the parties from time to time, to Contract Owners who allocate contract values to the A
Shares of the Portfolios: delivering prospectuses, statements of additional information,
shareholder reports and proxy statements to existing Contract Owners; providing educational
materials regarding the Portfolio, the A Shares and the Fund’s manager; providing facilities to
answer questions from prospective and existing Contract Owners about the Portfolios; receiving and
answering correspondence; and various other services as the Contract Owners may request.
(b) The Company will provide such office space and equipment, telephone facilities, and
personnel as may be reasonably necessary or beneficial in order to provide such services to
Contract Owners.
(c) The Company will furnish to the Distributor, the Fund, or their designees such
information as the Distributor may reasonably request, and will otherwise cooperate with the
Distributor in the preparation of reports to the Fund’s Board of Directors concerning this
Agreement, as well as any other reports or filings that may be required by law.
2. Maintenance of Records. The Company shall maintain and preserve all records
as required by law to be maintained and preserved in connection with providing the services
herein. Upon the reasonable request of Distributor or the Fund, Company shall provide
Distributor, the Funds, or the representative of either, copies of all such records.
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3. Fees. In consideration of the Company’s performance of the services described
in this Agreement, Distributor shall pay to the Company a quarterly fee (“Servicing Fee”)
based on the percentage per annum set forth on Exhibit A applied to the aggregate average daily net
assets of the Portfolios held by or on behalf of Contract Owners. The Company agrees that the Distributor has no obligation to pay the Servicing Fee, and waives the right to receive Payment of the Servicing Fee, until the Distributor receives payment of the Servicing Fee from the Fund. No fees provided for any 12b-1 related agreement by and between the Distributor and the Company or any of its affiliates shall be due or payable by the Distributor with respect to the services provided by Company pursuant to this Agreement.
assets of the Portfolios held by or on behalf of Contract Owners. The Company agrees that the Distributor has no obligation to pay the Servicing Fee, and waives the right to receive Payment of the Servicing Fee, until the Distributor receives payment of the Servicing Fee from the Fund. No fees provided for any 12b-1 related agreement by and between the Distributor and the Company or any of its affiliates shall be due or payable by the Distributor with respect to the services provided by Company pursuant to this Agreement.
Distributor will calculate the fee at the end of each calendar quarter and will make such
payment to the Company, upon invoice from the Company, within thirty (30) days thereafter. Such
payments will be accompanied by a statement showing the calculation of the amounts being paid by
Distributor and such other supporting data as may be reasonably requested by the Company.
Payment of fees under this Agreement shall be made to Company in accordance with Company
procedures. Company may amend such procedures and in the event of such amendment will provide
sufficient notice to the paying entity.
4. Representations, Warranties and Agreements.
The Company represents, warrants, and covenants that if required by applicable law, the
Company will disclose to each Contract Owner the existence of the Servicing Fee received by the
Company pursuant to this Agreement in a form consistent with the requirements of applicable law.
The Distributor represents and warrants that it is a broker-dealer registered under the
Securities Exchange Act of 1934 and it is authorized by the Fund’s Board of Directors to enter
into this Agreement.
5. Termination.
(a) Unless sooner terminated with respect to any Portfolio, this Agreement will continue with
respect to a Portfolio only if the continuance of a form of this Agreement is specifically
approved at least annually by the vote of a majority of the members of the Board of Directors of
the Fund and by a majority of all the members of the Board who are not “interested persons” (as
such term is defined in the 0000 Xxx) and who have no direct or indirect financial interest in the
12b-1 Plan relating to such Portfolio or any agreement relating to such 12b-1 Plan, including this
Agreement, cast in person at a meeting called for the purpose of voting on such approval.
(b) This Agreement will automatically terminate with respect to a Portfolio in the event of
its assignment (as such term is defined in the 0000 Xxx) with respect to such Portfolio. This
Agreement may be terminated with respect to any Portfolio by the Distributor or by the Company,
without penalty, upon sixty (60) days’ prior written notice to the other party. This Agreement
may also be terminated with respect to any Portfolio at any time without penalty by the vote of a
majority of the members of the Board of Directors of the Fund who are not “interested persons”
(as such term is defined in the 0000 Xxx) and who have no direct or indirect financial interest
in the 12b-1 Plan relating to such Portfolio or any agreement relating to such
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Plan, including this Agreement, or by a vote of a majority of the A Shares of such Portfolio on 60
days’ written notice.
(c) In addition, either party may terminate this Agreement immediately if at any time it is
determined by any federal or state regulatory authority that compensation to be paid under this
Agreement is in violation of or inconsistent with any federal or state law.
6. Miscellaneous.
(a) No modification of any provision of this Agreement will be binding unless in writing and
executed by the parties. No waiver of any provision of this Agreement will be binding unless in
writing and executed by the party granting such waiver.
(b) This Agreement shall be binding upon and shall inure to the benefit of the parties and
their respective successors and assigns; provided, however, that neither this Agreement nor any
rights, privileges, duties, or obligations of the parties may be assigned by either party without
the written consent of the other party or as expressly contemplated by this Agreement.
(c) This Agreement shall be governed by and interpreted in accordance with the laws of the
State of New York, exclusive of conflicts of laws.
(d) This Agreement may be executed in several counterparts, each of which shall be an
original but all of which together shall constitute one and the same instrument.
| XXXXXXX XXXXX LIFE INSURANCE COMPANY |
||||
By:
|
/s/ Xxxxx X. Xxxxxxxxxx | |||
Name:
|
Xxxxx X. Xxxxxxxxxx | |||
Title:
|
President | |||
| XXXXXXXX ADVISORS, INC. | ||||
By:
|
/s/ Xxxxxxx X. Xxxxxx | |||
Name:
|
Xxxxxxx X. Xxxxxx | |||
Title:
|
President | |||
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EXHIBIT A to Shareholders Service Agreement
| Name of Portfolio | Fee Factor* | |||
All Portfolios of Xxxxxxxx Small-Cap Value Fund
|
0.25 | % | ||
(A Shares) |
||||
| * | Shall not exceed 0.25% |
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