FOURTH AMENDMENT TO PARTICIPATION AGREEMENT
(as amended and supplemented from time to time)
AMONG
XXXXXXX VARIABLE SERIES I ("SYS I") DEUTSCHE
INVESTMENT MANAGEMENT AMERICAS INC. XXXXXXX
DISTRIBUTORS, INC.
AND
THE INSURANCE COMPANIES EXECUTING THIS DOCUMENT
The parties hereto agree that the Participation Agreement is amended to add the
following additional Designated Portfolio to Schedule B, Section A, related to
the Xxxxxxx Advocate Rewards, Xxxxxxx Advocate Advisor and Xxxxxxx Advocate
Advisor ST1 Contracts:
Additional Designated Portfolios Class
-------------------------------- -----
SVS I BOND PORTFOLIO B
IN WITNESS WHEREOF, each of the parties has caused this Supplement to be
executed as of this 15th day of April, 2005.
The Travelers Insurance Company Deutsche Investment Management
Americas, Inc.
By: /s/ ILLEGIBLE By: /s/ ILLEGIBLE
--------------------------------- ------------------------------------
Title: ILLEGIBLE Title: ILLEGIBLE
The Travelers Life and Annuity
Company
By: /s/ ILLEGIBLE
---------------------------------
Title: ILLEGIBLE
Xxxxxxx Variable Series I Xxxxxxx Distributors, Inc.
By: /s/ ILLEGIBLE By: /s/ ILLEGIBLE
--------------------------------- ---------------------------------
Title: Vice President & Secretary Title: ILLEGIBLE
THIRD AMENDMENT
TO
PARTICIPATION AGREEMENT
This Third Amendment ("Amendment") is effective as of May 3, 2004
(Effective Date), and is hereby made a part of and incorporated into the
Participation Agreement ("Agreement") dated as of the 5th day of June, 2003 by
and among THE TRAVELERS INSURANCE COMPANY, and THE TRAVELERS LIFE AND ANNUITY
COMPANY (collectively the "Company"), both Connecticut life insurance companies,
on their own behalf and on behalf of each segregated asset account of the
Company set forth on Schedule A as may be amended from time to time (each
separate account hereinafter referred to as the "Account"), TRAVELERS
DISTRIBUTION LLC, a Delaware corporation (the "Distributor") and XXXXXXX
VARIABLE SERIES I (the "Fund"), a Massachusetts business trust created under a
Declaration of Trust, as amended, XXXXXXX DISTRIBUTORS, INC. (the
"Underwriter"), a Delaware corporation, and DEUTSCHE INVESTMENT MANAGEMENT
AMERICAS INC., a Delaware corporation (the "Adviser"). ("Company", "Account",
"Distributor", "Fund", "Underwriter" and "Adviser" are collectively referred to
as "Parties")
WHEREAS, the Parties desire to amend the Agreement to add certain variable
contracts to Schedule A and Schedule B.
NOW THEREFORE, in consideration of the promises and the mutual agreements
herein contained, the parties hereto agree to amend the Agreement by replacing
the existing Schedules A and B with new Schedules A and B, attached.
Except as expressly supplemented, amended or consented to hereby, all of
the representations and conditions of the Agreement will remain unamended and
will continue to be in full force and effect.
IN WITNESS WHEREOF, each of the parties has caused this Supplement to be
executed in its name and on its behalf by its duly authorized representative as
of May 3, 2004.
THE TRAVELERS INSURANCE COMPANY:
By: /s/ ILLEGIBLE
------------------------------------
Title: SECRETARY
THE TRAVELERS LIFE AND ANNUITY COMPANY:
By: /s/ ILLEGIBLE
------------------------------------
Title: SECRETARY
TRAVELERS DISTRIBUTION, LLC:
/s/ ILLEGIBLE
----------------------------------------
Title: SECRETARY
XXXXXXX VARIABLE S I:
By: /s/ ILLEGIBLE
------------------------------------
Title: Secretary
XXXXXXX DISTRIBUTORS, INC.:
By: /s/ ILLEGIBLE
------------------------------------
Title: Vice President
DEUTSCHE INVESTMENT MANAGEMENT AMERICAS
INC:
By: /s/ ILLEGIBLE
------------------------------------
Title: ILLEGIBLE
2
SCHEDULE A
SEPARATE ACCOUNT AND DATE ESTABLISHED
TIC Separate Account Eleven for Variable Annuities 12-11-02
TLAC Separate Account Twelve for Variable Annuities 12-12-02
CONTRACTS FUNDED BY SEPARATE ACCOUNT
Premier Advisers III
Xxxxxxx Advocate Rewards
Xxxxxxx Advocate Advisor
Xxxxxxx Advocate Advisor STI
3
SCHEDULE B
Designated Portfolios and Classes Thereof
X. Xxxxxxx Advocate Rewards, Xxxxxxx Advocate Advisor and Xxxxxxx Advocate
Advisor STI Contracts.
Designated Portfolio Class
-------------------- -------
1. 215th Century Growth Portfolio Class B
2. Capital Growth Portfolio Class B
3. Global Discovery Portfolio Class B
4. Growth and Income Portfolio Class B
5. Health Sciences Portfolio Class B
6. International Portfolio Class B
B. Premier Advisers III Contract.
Designated Portfolio Class
-------------------- -------
1. Growth and Income Portfolio Class B
4
SECOND AMENDMENT
TO
PARTICIPATION AGREEMENT
This Second Amendment ("Amendment") is effective as of December 12, 2003
(Effective Date), and is hereby made a part of and incorporated into the
Participation Agreement ("Agreement") dated as of the 5th day of June, 2003 as
supplemented as of August 1, 2003 by and among THE TRAVELERS INSURANCE COMPANY,
THE TRAVELERS LIFE AND ANNUITY COMPANY (collectively the "Company"), both
Connecticut life insurance companies, on their own behalf and on behalf of each
segregated asset account of the Company set forth on Schedule A as may be
amended from time to time (each separate account hereinafter referred to as the
"Account"), TRAVELERS DISTRIBUTION, LLC, a Delaware corporation (the
"Distributor") and XXXXXXX VARIABLE SERIES I (the "Fund"), a Massachusetts
business trust created under a Declaration of Trust, as amended, XXXXXXX
DISTRIBUTORS, INC. (the "Underwriter"), a Delaware corporation, and DEUTSCHE
INVESTMENT MANAGEMENT AMERICAS INC., a Delaware corporation (the "Adviser").
("Company", "Account", "Distributor", "Fund", "Underwriter" and "Advisor" are
collectively referred to as "Parties")
WHEREAS, the Parties entered into the Agreement to set forth the terms
relating to the provision for an investment vehicle for the Company's Variable
Insurance Products, for services and for other matters; and,
WHEREAS, the Parties desire to amend the Agreement to modify the
compensation provision;
NOW THEREFORE, for and in consideration of the premises and the promises
and the mutual agreements hereinafter set forth, the Parties hereto, intending
to be legally bound, covenant and agree to amend the Agreement as follows:
A new final sentence is to be added to the first paragraph to Section 2.3
of the Agreement as follows:
"Notwithstanding the preceding and in addition to the other payments required to
be made by the Fund and Underwriter under this Agreement, the Adviser shall make
payments monthly, whether or not this Agreement is terminated, to the Company in
order to reimburse the Company for distribution expenses incurred in connection
with distributing the Xxxxxxx Advocate Rewards products through Merrill, Lynch,
Xxxxxx, Xxxxxx & Xxxxx, Inc. and its affiliates ("MLPF&S") and with distributing
the Xxxxxxx Advocate Advisor through Citigroup Global Markets Inc., formerly
Solomon Xxxxx Xxxxxx Inc, and its affiliates ("CGMI") as set forth on Schedule
E."
1
Except as otherwise provided in this Amendment, the Parties hereby reaffirm
all the terms and conditions as set forth in the Agreement, and the said terms
and conditions remain as though they were cited in full herein.
THE TRAVELERS INSURANCE COMPANY:
By its authorized officer
By: /s/ ILLEGIBLE
------------------------------------
Title: Vice President & Secretary
THE TRAVELERS LIFE AND ANNUITY COMPANY:
By its authorized officer
By: /s/ ILLEGIBLE
------------------------------------
Title: Vice President & Secretary
TRAVELERS DISTRIBUTION LLC:
By its authorized officer
By: /s/ ILLEGIBLE
------------------------------------
Title: Secretary
XXXXXXX VARIABLE SERIES I:
By its authorized officer
By: /s/ ILLEGIBLE
------------------------------------
Title: Secretary
XXXXXXX DISTRIBUTORS, INC.:
By its authorized officer
By: /s/ ILLEGIBLE
------------------------------------
Title: Vice President
DEUTSCHE INVESTMENT MANAGEMENT AMERICAS INC:
By its authorized officer
By: /s/ ILLEGIBLE
------------------------------------
Title: Managing Director
2
SCHEDULE E
DISTRIBUTION REIMBURSEMENT EXPENSE
A. MLPF &S - (i) Adviser remittance to reimburse for distribution expenses for
the Xxxxxxx Advocate Rewards ("SAR") product distributed through MLF&S
shall be calculated as follows:
For SAR contract years 2 through 9, the amount of reimbursable distribution
expense shall equal an annualized rate of 0.20% of the average of each
month's assets held in Designated Portfolios of the Fund (as defined in the
Agreement) under SAR.
For SAR contract year 10 and following, the amount of reimbursable
distribution expense shall equal an annualized rate of 0.25% of the average
of each month's assets held in Designated Portfolios of the Fund (as
defined in the Agreement) under SAR.
(ii) Adviser remittance to reimburse for distribution expenses
for the Xxxxxxx Advocate Advisor ("SAA") product distributed through MLF &S
shall be calculated as follows:
For SAA contract years 2 and following, the amount of reimbursable
distribution expense shall equal an annualized rate of 0.20% of the average
of each month's assets held in Designated Portfolios of the Fund (as
defined in the Agreement) under SAA.
X. XXXX - Adviser remittance to reimburse for distribution expenses for the
Xxxxxxx Advocate Advisor ("SAA") product distributed through COMI shall be
calculated as follows:
For SAA contract year 2 and following, the amount of reimbursable
distribution expense shall equal an annualized rate of 0.20% of the average
of each month's assets held in Designated Portfolios of the Fund (as
defined in the Agreement) under SAA.
In connection with each monthly invoice for the foregoing, the Company
shall provide the Adviser with such supporting documentation as Adviser
shall reasonably request to substantiate the basis therefor.
Amounts payable under this Schedule E shall only be paid to Company to
reimburse it for the additional cost of special distribution payments made
by Company to MLPF&S and COM!.
3
In the event of termination of this Agreement, the payments under this
Schedule E shall continue only with respect to investments made prior to
termination.
4
SUPPLEMENT TO PARTICIPATION AGREEMENT
DATED AS OF JUNE 5, 2003 (as amended and
supplemented from time to time)
AMONG
XXXXXXX VARIABLE SERIES I DEUTSCHE INVESTMENT
MANAGEMENT AMERICAS INC. XXXXXXX DISTRIBUTORS,
INC.
AND
THE TRAVELERS INSURANCE COMPANY AND
THE TRAVELERS LIFE AND ANNUITY COMPANY
The parties hereto agree that the Participation Agreement is amended to include
Travelers Distribution LLC, a Delaware corporation (the "Distributor"), as a
party to the Agreement.
The parties hereto agree that the Participation Agreement is amended to add
certain Separate Accounts to Schedule A, and to add Premier Advisers L to
Schedules A, B, and D. The Participation Agreement is therefore amended by
replacing the existing Schedules A, B, and D with new Schedules A, B, and D,
attached.
The parties hereto agree that the Participation Agreement is amended to add the
following to the end of Section 1.4 of the Agreement:
"A pricing error shall be corrected in accordance with the procedures for
correcting net asset value errors adopted by the Fund's Board of Trustees and in
effect at the time of the error. The Fund represents and warrants that its
procedures for correcting net asset value errors currently comply, and will
continue to comply, with the 1940 Act and generally industry-wide accepted SEC
staff interpretations concerning pricing errors in effect at the time of an
error."
The parties hereto agree that the Participation Agreement is amended to replace
Section 2.1 of the Agreement in its entirety with the following:
"2.1 The Company represents and warrants that the Contracts (a) are or,
prior to issuance, will be registered under the 1933 Act or, alternatively (b)
are not registered
because they are properly exempt from registration under the 1933 Act or will be
offered exclusively in transactions that are properly exempt from registration
under the 1933 Act. The Company further represents and warrants that the
Contracts will be issued in compliance in all material respects with all
applicable federal securities and state securities and insurance laws. The
Company further represents and warrants that it is an insurance company duly
organized and in good standing under applicable law, that it has legally and
validly established the Account prior to any issuance or sale thereof as a
segregated asset account under applicable insurance laws, and that it (a) has
registered or, prior to any issuance or sale of the Contracts, will register the
Account as a unit investment trust in accordance with the provisions of the 1940
Act to serve as a segregated investment account for the Contracts, or
alternatively (b) has not registered the Account in proper reliance upon an
exclusion from registration under the 1940 Act. The Company shall register and
qualify the Contracts or interests therein as securities in accordance with the
laws of the various states only if and to the extent deemed advisable by the
Company."
The parties hereto agree that the Participation Agreement is amended to replace
Section 2.3 of the Agreement in its entirety with the following:
"2.3. The provisions of this Section 2.3 apply to Class B Shares. The
Distributor agrees to provide distribution services ("Distribution Services")
for the Class B Shares of the Designated Portfolios including the following
types of services:
(1) Printing and mailing of Fund prospectuses, statements of
additional information, any supplements thereto and shareholder reports for
prospective Contract owners.
(2) Developing, preparing, printing and mailing of Fund
advertisements, sales literature and other promotional materials describing
and/or relating to the Fund and including materials intended for use within the
Company, or for brokerdealer only use or retail use.
(3) Holding seminars and sales meetings designed to promote the
distribution of Fund Shares.
(4) Obtaining information and providing explanations to Contract
owners regarding Fund investment objectives and policies and other information
about the Fund and its Portfolios, including the performance of the Portfolios.
(5) Training sales personnel regarding the Fund.
(6) Compensating broker-dealer firms who have entered into selling
agreements in connection with the allocation of cash values and premiums of the
Contracts to the Fund.
2
(7) Personal service with respect to Fund Shares attributable to
Contract accounts.
In consideration of the Distributor performing the Distribution Services, the
Underwriter will make quarterly payments to the Distributor pursuant to the
Fund's Master Distribution Plan for Class B Shares, as amended from time to
time, at the annual rate of 0.25% of the average daily net asset value of the
Class B shares of each Designated Portfolio held by the Company pursuant to this
Agreement.
The Company shall perform all record keeping services (the "Record
Keeping Services") with respect to the Contracts, including, without limitation,
the following:
(a) Maintaining separate records for each Contract owner, which shall
reflect the Designated Portfolio shares purchased and redeemed in relation to
Contract values, associated with each Contract owner. The Company will maintain
omnibus accounts with each Designated Portfolio on behalf of Contract owners,
and such accounts shall be in the name of the Company (or its nominee) as the
record owner of shares beneficially owned by such Contract owners in support of
the Account's obligations.
(b) Disbursing or crediting to Contract owners all proceeds of
redemptions of shares of the Designated Portfolios in relation to Contract owner
requests to redeem their contract value and processing all dividends and other
distributions reinvested in shares of the Designated Portfolios.
(c) Preparing and transmitting to Contract owners, as required by law,
periodic statements showing allocations to sub-accounts investing in the
Designated Portfolios, purchases and redemptions of Designated Portfolio shares
and dividends and other distributions paid in relation to Contract owner
transaction requests, and such other information as may be required, from time
to time, by Contract owners.
(d) Maintaining and preserving all records required by law to be
maintained and preserved in connection with providing the foregoing services for
Contract owners.
(e) Generating written confirmations to Contract owners, to the extent
required by law.
(f) Administering the distribution to existing Contract owners of Fund
prospectuses, proxy materials, periodic reports to shareholders and other
materials that the Designated Portfolios provide to their shareholders (the
printing and distribution expense to be born ILLEGIBLE as set forth on Schedule
C).
(g) Aggregating and transmitting purchase and redemption orders to the
Designated Portfolios.
3
In consideration of the Company performing the Record Keeping Services, the
Fund agrees to pay the Company, quarterly, a record keeping fee as set forth in
Schedule D hereto with respect to the Class B Shares of each Designated
Portfolio held by the Company pursuant to this Agreement. The Company represents
and agrees that no charge imposed by it on Contract owners is specifically
intended or designed solely to compensate the Company for the Record Keeping
Services."
The parties hereto agree that the Participation Agreement is amended to add the
following as a new Section 2.11 of the Agreement:
"2.11. The Company and Distributor represent and warrant as follows:
1. The Company and Distributor have in place an anti-money laundering
program ("AML program") and policies and procedures relating to duties required
by the Office of Foreign Assets Control ("OFAC") that do now and will continue
to comply with applicable laws and regulations, including the relevant
provisions of the USA PATRIOT Act (Pub. L. No. 107-56 (2001)) and the
regulations issued thereunder by the U.S. Treasury Department and the rules of
the NASD and the New York Stock Exchange, Inc., as applicable.
2. The Company and Distributor have conducted "know your customer" due
diligence resulting in no information on any of their Contract owners that
requires reporting.
The Company and Distributor further agree promptly to notify the Fund and the
Underwriter should either become aware of any change in the above
representations and warranties.
The Company and Distributor agree to include a provision in Selling Agreements
with any broker-dealer that distributes the Contracts concerning the requirement
to have an AML Program that mandates substantial compliance with the foregoing.
In addition, the Underwriter and the Fund hereby provide notice to the Company
that the Underwriter and/or the Fund reserve the right to make reasonable
inquiries of and request additional information from the Company and Distributor
regarding their AML program."
The parties hereto agree that the Participation Agreement is amended to add the
following to the end of Section 2.6 of the Agreement:
"The Distributor represents and warrants that it is a member in good
standing of the NASD and is registered as a broker-dealer with the SEC. The
Distributor further represents that the Contracts will be distributed in
compliance with any applicable state and federal securities laws and state
insurance laws."
4
The parties hereto agree that the Participation Agreement is amended to replace
Section 4.6 of the Agreement in its entirety with the following:
"4.6 Upon request, the Company will provide to the Fund at least one
complete copy of all registration statements, prospectuses (which shall include
an offering memorandum, if any, if the Contracts issued by the Company or
interests therein are not registered under the 1933 Act), SAIs, reports,
solicitations for voting instructions, sales literature and other promotional
materials, applications for exemptions or substitutions, requests for no-action
letters, and all amendments to any of the above, that relate to the Contracts or
the Account, contemporaneously with the filing of such document(s) with the SEC
or other regulatory authorities. The Company shall provide to the Fund and the
Underwriter any complaints received from the Contract owners pertaining to the
Fund or the Designated Portfolio."
The parties hereto agree that the Participation Agreement is amended to delete
Section 5.5 of the Agreement in its entirety.
IN WITNESS WHEREOF, each of the parties has caused this Supplement to be
executed in its name and on its behalf by its duly authorized representative as
of August 1, 2003.
The Travelers Insurance Company
By: /s/ ILLEGIBLE
------------------------------------
Title: Vice President - Secretary
The Travelers Life and Annuity Company
By: /s/ ILLEGIBLE
------------------------------------
Title: Vice President - Secretary
Travelers Distribution LLC
By: /s/ ILLEGIBLE
------------------------------------
Title:
5
Xxxxxxx Variable Series I
By: /s/ ILLEGIBLE
------------------------------------
Title: Secretary
Deutsche Investment Management Americas
Inc.
By: /s/ ILLEGIBLE
------------------------------------
Title: V.P. & Managing Director
Xxxxxxx Distributors, Inc.
By: /s/ ILLEGIBLE
------------------------------------
Title: ILLEGIBLE
6
SCHEDULE A
SEPARATE ACCOUNT AND DATE ESTABLISHED
TIC Separate Account Eleven for Variable Annuities 12-11-02
TLAC Separate Account Twelve for Variable Annuities 12-12-02
TIC Variable Annuity Separate Account 2002 09-17-02
TLAC Variable Annuity Separate Account 2002 09-17-02
The Travelers Fund ABD for Variable Annuities 06-24-96
The Travelers" Fund ABD II for Variable Annuities 06-24-96
The Travelers Separate Account Seven for Variable Annuities 06-30-98
The Travelers Separate Account Eight for Variable Annuities 06-30-98
CONTRACTS FUNDED BY SEPARATE ACCOUNT
Xxxxxxx Advocate Rewards
Xxxxxxx Advocate Advisor
Premier Advisers III
Premier Advisers L
SCHEDULE B
Designated Portfolios And Classes Thereof
X. Xxxxxxx Advocate Rewards and Xxxxxxx Advocate Advisor Contracts.
Designated Portfolio Class
-------------------- -------
1. 2151 Century Growth Portfolio Class B
2. Capital Growth Portfolio Class B
3. Global Discovery Portfolio Class B
4. Growth and Income Portfolio Class B
5. Health Sciences Portfolio Class B
6. International Portfolio Class B
B. Premier Advisers III and Premier Advisers L Contracts.
Designated Portfolio Class
-------------------- -------
Growth and Income Portfolio Class B
SCHEDULE D
RECORD KEEPING FEES
X. Xxxxxxx Advocate Rewards and Xxxxxxx Advocate Advisor Contracts: The record
keeping fee paid pursuant to Section 2.3 shall be 0.10% annually of the
average daily net assets of the Class B Shares of each Designated Portfolio
held by the Company under such Contracts pursuant to this Agreement.
B. Premier Advisers III and Premier Advisers L Contracts: The record keeping
fee paid pursuant to Section 2.3 shall be 0.15% annually of the average
daily net assets of the Class B Shares of each Designated Portfolio held by
the Company under such Contracts pursuant to this Agreement.
PARTICIPATION AGREEMENT
THIS AGREEMENT, dated as of the 5th day of June, 2003 by and among THE
TRAVELERS INSURANCE COMPANY, THE TRAVELERS LIFE AND ANNUITY COMPANY
(collectively the "Company"), both Connecticut life insurance companies, on
their own behalf and on behalf of each segregated asset account of the Company
set forth on Schedule A hereto as may be amended from time to time (each
separate account hereinafter referred to as the "Account"), XXXXXXX VARIABLE
SERIES I (the "Fund"), a Massachusetts business trust created under a
Declaration of Trust, as amended, XXXXXXX DISTRIBUTORS, INC. (the
"Underwriter"), a Delaware corporation, and DEUTSCHE INVESTMENT MANAGEMENT
AMERICAS INC., a Delaware corporation (the "Adviser").
WHEREAS, the Fund engages in business as an open-end management
investment company and is or will be available to act as the investment vehicle
for separate accounts established for variable life insurance and variable
annuity contracts (the "Variable Insurance Products") to be offered by insurance
companies which have entered into participation agreements with the Fund and
Underwriter ("Participating Insurance Companies");
WHEREAS, the beneficial interest in the Fund is divided into several
series of shares of beneficial interest without par value, and, with respect to
certain series, classes thereof ("Shares"), and additional series of Shares, and
classes thereof, may be established, each such series of Shares designated a
"Portfolio" and representing the interest in a particular managed portfolio of
securities and other assets;
WHEREAS, the Fund has obtained an order from the Securities and
Exchange Commission (the "SEC"), dated October 11, 1985 (Release No. IC-14752;
File No. 812-6082) 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 Investment Company
Act of 1940, as amended (the "1940 Act") and Rules 6e-2(b)(15) and 6e3(T)(b)(15)
thereunder, to the extent necessary to permit Shares of the Fund to be sold to
and held by variable annuity and variable life insurance separate accounts of
both affiliated and unaffiliated life insurance companies (the "Mixed and Shared
Funding Exemptive Order");
WHEREAS, the Fund is registered as an open-end management investment
company under the 1940 Act and Shares of the Portfolios are registered under the
Securities Act of 1933, as amended (the "1933 Act");
WHEREAS, the Adviser, which serves as investment adviser to the Fund,
is duly registered as an investment adviser under the Investment Advisers Act of
1940, as amended, and any applicable state securities laws;
WHEREAS, the Company has issued or will issue certain variable life
insurance and/or variable annuity contracts supported wholly or partially by the
Account (the "Contracts"),
Page 1 of 30
and said Contracts are listed in Schedule A hereto, as it may be amended from
time to time by mutual written agreement;
WHEREAS, the Account is duly established and maintained as a
segregated asset account, established pursuant to the authority of the Board of
Directors of the Company, on the date shown for such Account on Schedule A
hereto, to set aside and invest assets attributable to the aforesaid Contracts;
WHEREAS, the Underwriter, which serves as distributor to the Fund, is
registered as a broker dealer with the SEC under the Securities Exchange Act of
1934, as amended (the "1934 Act"), and is a member in good standing of the
National Association of Securities Dealers, Inc. (the "NASD"); and
WHEREAS, to the extent permitted by applicable insurance laws and
regulations, the Company intends to purchase shares in the Portfolios, and
classes thereof, listed in Schedule B hereto, as it may be amended from time to
time by mutual written agreement (the "Designated Portfolios") on behalf of the
Account to fund the aforesaid Contracts, and the Underwriter is authorized to
sell such Shares to the Account at net asset value;
NOW, THEREFORE, in consideration of their mutual promises, the
Company, the Fund, the Adviser and the Underwriter agree as follows:
ARTICLE I. Sale of Fund Shares
1.1. The Fund has granted to the Underwriter exclusive authority to
distribute the Fund's Shares, and has agreed to instruct, and has so instructed,
the Underwriter to make available to the Company for purchase, on behalf of the
Account, Fund Shares of those Designated Portfolios selected by the Underwriter.
Pursuant to such authority and instructions, and subject to Article X hereof,
the Underwriter agrees to make available to the Company for purchase on behalf
of the Account, Shares of those Designated Portfolios listed on Schedule B to
this Agreement, such purchases to be effected at net asset value in accordance
with Section 1.3 of this Agreement. Notwithstanding the foregoing, (i) Fund
series (other than those listed on Schedule B) in existence now or that may be
established in the future will be made available to the Company only as the
Underwriter may so provide, and (ii) the Board of Trustees of the Fund (the
"Board") may refuse to sell shares of any Designated Portfolio to any person, or
suspend or terminate the offering of Fund Shares of any Designated Portfolio or
class thereof, if such action is required by law or by regulatory authorities
having jurisdiction or if, in the sole discretion of the Board acting in good
faith and in light of its fiduciary duties under federal and any applicable
state laws, suspension or termination is in the best interests of the
shareholders of such Designated Portfolio.
1.2. The Fund shall redeem, at the Company's request, any full or
fractional Designated Portfolio Shares held by the Company on behalf of the
Account, such redemptions to be effected at net asset value in accordance with
Section 1.3 of this Agreement. Notwithstanding the foregoing, (i) the Company
shall not redeem Fund Shares attributable to Contract owners except in the
circumstances permitted in Section 10.3 of this Agreement, and (ii) the Fund may
Page 2 of 30
suspend the right of redemption or postpone the date of payment or satisfaction
upon redemption of Fund Shares of any Designated Portfolio to the extent
permitted by the 1940 Act, any rules, regulations or orders thereunder.
1.3. Purchase and Redemption Procedures
(a) The Fund hereby appoints the Company as an agent of the Fund for
the limited purpose of receiving purchase and redemption requests on behalf of
the Account (but not with respect to any Fund Shares that may be held in the
general account of the Company) for Shares of those Designated Portfolios made
available hereunder, based on allocations of amounts to the Account or
subaccounts thereof under the Contracts and other transactions relating to the
Contracts or the Account. Receipt of any such request (or relevant transactional
information therefore) on any day the New York Stock Exchange is open for
trading and on which the Fund calculates its net asset value pursuant to the
rules of the SEC (a "Business Day") by the Company as such limited agent of the
Fund prior to the time that the Fund calculates its net asset value as described
from time to time in the Fund Prospectus (which as of the date of execution of
this Agreement is 4:00 p.m. Eastern Time) shall constitute receipt by the Fund
on that same Business Day, provided that the Fund receives notice of such
request by 9:30 a.m. Eastern Time on the next following Business Day.
(b) The Company shall pay for Shares of each Designated Portfolio on
the same day that it notifies the Fund of a purchase request for such Shares.
Payment for Designated Portfolio Shares shall be made in federal funds
transmitted to the Fund by wire to be received by the Fund by end of the
Business Day (normally 5:00 p.m. Eastern Time) on the day the Fund is notified
of the purchase request for Designated Portfolio Shares (unless the Fund
determines and so advises the Company that sufficient proceeds are available
from redemption of Shares of other Designated Portfolios effected pursuant to
redemption requests tendered by the Company on behalf of the Account). If
federal funds are not received on time, such funds will be invested, and
Designated Portfolio Shares purchased thereby will be issued, as soon as
practicable and the Company shall promptly, upon the Fund's request, reimburse
the Fund for any charges, costs, fees, interest or other expenses incurred by
the Fund in connection with any advances to, or borrowing or overdrafts by, the
Fund, or any similar expenses incurred by the Fund, as a result of portfolio
transactions effected by the Fund based upon such purchase request. Upon receipt
of federal funds so wired, such funds shall cease to be the responsibility of
the Company and shall become the responsibility of the Fund.
(c) The Fund will redeem Designated Portfolio Shares requested on
behalf of the Account, and make payment therefore, in accordance with the
provisions of the then current registration statement of the Fund. Payment for
Designated Portfolio Shares redeemed by the Account or the Company normally
shall be made in federal funds transmitted by wire to the Company or any other
designated person by the end of Business Day (normally 5:00 p.m. Eastern Time)
on the same Business Day the Fund is properly notified of the redemption order
of such Shares (unless redemption proceeds are to be applied to the purchase of
Shares of other Designated Portfolios in accordance with Section 1.3(b) of this
Agreement). The Fund shall not bear any responsibility whatsoever for the proper
disbursement or crediting of redemption proceeds by the Company, the Company
alone shall be responsible for such action.
Page 3 of 30
(d) Any purchase or redemption request for Designated Portfolio Shares
held or to be held in the Company's general account shall be effected at the net
asset value per share next determined after the Fund's receipt of such request,
provided that, in the case of a purchase request, payment for Fund Shares so
requested is received by the Fund in federal funds prior to close of business
for determination of such value, as defined from time to time in the Fund
Prospectus.
1.4. The Fund shall use its best efforts to make the net asset value per
share for each Designated Portfolio available to the Company by 6:30 p.m.
Eastern Time each Business Day, and in any event, as soon as reasonably
practicable after the net asset value per share for such Designated Portfolio is
calculated, and shall calculate such net asset value in accordance with the
Fund's Prospectus. Neither the Fund, any Designated Portfolio, the Underwriter,
nor any of their affiliates shall be liable for any information provided to the
Company pursuant to this Agreement which information is based on incorrect
information supplied by the Company or any other Participating Insurance Company
to the Fund or the Underwriter.
1.5. The Fund shall furnish notice (by wire or telephone followed by
written confirmation) to the Company as soon as reasonably practicable of any
income dividends or capital gain distributions payable on any Designated
Portfolio Shares. The Company, on its behalf and on behalf of the Account,
hereby elects to receive all such dividends and distributions as are payable on
any Designated Portfolio Shares in the form of additional Shares of that
Designated Portfolio. The Company reserves the right, on its behalf and on
behalf of the Account, to revoke this election and to receive all such dividends
and capital gain distributions in cash. The Fund shall notify the Company of the
number of Designated Portfolio Shares so issued as payment of such dividends and
distributions.
1.6. Issuance and transfer of Fund Shares shall be by book entry only.
Stock certificates will not be issued to the Company or the Account. Purchase
and redemption orders for Fund Shares shall be recorded in an appropriate ledger
for the Account or the appropriate subaccount of the Account.
1.7. The parties hereto acknowledge that the arrangement contemplated by
this Agreement is not exclusive; the Fund's Shares may be sold to other
insurance companies (subject to Section 1.8 hereof) and to certain qualified
retirement plans, and the cash value of the Contracts may be invested in other
investment companies.
1.8. The Underwriter and the Fund shall sell Fund Shares only to
Participating Insurance Companies and their separate accounts and to persons or
plans ("Qualified Persons") that qualify to purchase Shares of the Fund under
Section 817(h) of the Internal Revenue Code of 1986, as amended (the "Code"),
and the regulations thereunder without impairing the ability of the Account to
consider the portfolio investments of the Fund as constituting investments of
the Account for the purpose of satisfying the diversification requirements of
Section 817(h). The Underwriter and the Fund shall not sell Fund Shares to any
insurance company or separate account unless an agreement complying with Article
VI of this Agreement is in effect to govern such sales. The Company hereby
represents and warrants that it and the Account are Qualified
Page 4 of 30
Persons. The Fund reserves the right to cease offering Shares of any Designated
Portfolio in the discretion of the Fund.
ARTICLE II. Representation and Warranties
2.1. The Company represents and warrants that the Contracts (a) are or,
prior to issuance, will be registered under the 1933 Act or, alternatively (b)
are not registered because they are properly exempt from registration under the
1933 Act or will be offered exclusively in transactions that are properly exempt
from registration under the 1933 Act. The Company further represents and
warrants that the Contracts will be issued and sold in compliance in all
material respects with all applicable federal securities and state securities
and insurance laws and that the sale of the Contracts shall comply in all
material respects with state insurance suitability requirements. The Company
further represents and warrants that it is an insurance company duly organized
and in good standing under applicable law, that it has legally and validly
established the Account prior to any issuance or sale thereof as a segregated
asset account under applicable insurance laws, and that it (a) has registered
or, prior to any issuance or sale of the Contracts, will register the Account as
a unit investment trust in accordance with the provisions of the 1940 Act to
serve as a segregated investment account for the Contracts, or alternatively (b)
has not registered the Account in proper reliance upon an exclusion from
registration under the 1940 Act. The Company shall register and qualify the
Contracts or interests therein as securities in accordance with the laws of the
various states only if and to the extent deemed advisable by the Company.
2.2. The Fund represents and warrants that Fund Shares sold pursuant to
this Agreement shall be registered under the 1933 Act, duly authorized for
issuance and sold in compliance in all material respects with all applicable
federal securities laws and that the Fund is and shall remain registered under
the 0000 Xxx. The Fund shall amend the registration statement for its Shares
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 Designated Portfolios. The
Fund shall register and qualify such Shares for sale in accordance with the laws
of the various states only if and to the extent deemed advisable by the Fund or
the Underwriter after taking into consideration any state insurance law
requirements that the Company advises the Fund may be applicable.
2.3. With respect to the Class B Shares of a Designated Portfolio, the Fund
may make payments quarterly to the Underwriter for remittance to the Company in
order to pay or reimburse the Company for distribution expenses incurred or paid
(as the case may be) by the Company and approved by the Fund's Board pursuant to
the Fund's Master Distribution Plan for Class B Shares, as amended from time to
time. No such payment to the Company shall be made with respect to any quarterly
period in excess of an amount determined for such period at the annual rate of
0.25% of the average daily net asset value of the Class B shares of such
Designated Portfolio attributable to the Contract owners during that quarterly
period. The Company shall submit to the Underwriter within a reasonable period
of time following each quarter for which payment is sought a Quarterly
Distribution Expense Report in a form reasonably acceptable to the Underwriter.
The Fund's prospectus or statement of additional information may provide further
details about such payments.
Page 5 of 30
The following provisions shall apply to Class B Shares. The Company
shall perform all record keeping services (the "Record Keeping Services") with
respect to the Contracts, including, without limitation, the following:
(a) Maintaining separate records for each Contract owner, which shall
reflect the Designated Portfolio shares purchased and redeemed and Designated
Portfolio share balances of such Contract owners. The Company will maintain
omnibus accounts with each Designated Portfolio on behalf of Contract owners,
and such accounts shall be in the name of the Company (or its nominee) as the
record owner of shares owned by such Contract owners.
(b) Disbursing or crediting to Contract owners all proceeds of
redemptions of shares of the Designated Portfolios and processing all dividends
and other distributions reinvested in shares of the Designated Portfolios.
(c) Preparing and transmitting to Contract owners, as required by law,
periodic statements showing the total number of shares owned, purchases and
redemptions of Designated Portfolio shares and dividends and other distributions
paid, and such other information as may be required, from time to time, by
Contract owners.
(d) Maintaining and preserving all records required by law to be
maintained and preserved in connection with providing the foregoing services for
Contract owners.
(e) Generating written confirmations to Contract owners, to the extend
required by law.
(f) Administering the distribution to existing Contract owners of Fund
prospectuses, proxy materials, periodic reports to shareholders and other
materials that the Designated Portfolios provide to their shareholders (the
printing and distribution expense to be borne as set forth on Schedule C).
(g) Aggregating and transmitting purchase and redemption orders to the
Designated Portfolios on behalf of the Contract owners.
In consideration of the Company performing the Record Keeping
Services, the Fund agrees to pay the Company, quarterly, a record keeping fee as
set forth in Schedule D hereto with respect to the Class B Shares of each
Designated Portfolio held by the Company pursuant to this Agreement. The Company
agrees that it will not seek reimbursement for expenses for performing the
Record Keeping Services under the Fund's Master Distribution Plan for Class B
Shares adopted pursuant to Rule 12b-l under the 1940 Act except to the extent
that such expenses exceed the level of the record keeping fee set forth above;
however, the foregoing shall not affect the right of the Company to seek
reimbursement for any other eligible expenses under the Fund's Master
Distribution Plan for Class B Shares as provided above in this Section 2.3. In
addition, the Company represents and agrees that no charge imposed by it on
Contract owners is specifically intended or designed to compensate the Company
for the Record Keeping Services.
Page 6 of 30
2.4. The Fund makes no representations as to whether any aspect of its
operations, including, but not limited to, investment policies, fees and
expenses, complies with the insurance and other applicable laws of the various
states, except that the Fund represents that the investment policies, fees and
expenses of the Designated Portfolios, are and shall at all times remain in
compliance with the insurance laws of the state of organization of the Company
set forth on the first page (the "State") to the extent required to perform this
Agreement. The Company will advise the Fund in writing as to any requirements of
State insurance law that affect the Designated Portfolios, and the Fund will be
deemed to be in compliance with this Section 2.4 so long as the Fund complies
with such advice of the Company.
2.5. The Fund represents that it is a Massachusetts business trust duly
organized and validly existing under the laws of the Commonwealth of
Massachusetts and that the Designated Portfolios do and will comply in all
material respects with all applicable provisions of the 1940 Act.
2.6. The Underwriter represents and warrants that it is a member in good
standing of the NASD and is registered as a broker-dealer with the SEC. The
Underwriter further represents that it will sell and distribute the shares of
the Designated Portfolios in accordance with any applicable state and federal
securities laws.
2.7. The Adviser represents and warrants that it is and shall remain duly
registered as an investment adviser under all applicable federal and state
securities laws and that it shall perform its obligations for the Fund in
compliance in all material respects with any applicable state and federal
securities laws.
2.8. The Fund, the Adviser and the Underwriter represent and warrant that
all of their trustees, directors, officers, employees, investment advisers, and
other individuals or entities dealing with the money and/or securities of the
Fund 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 minimum coverage as required currently by Rule 17 g-l of the 1940 Act or
such related provisions as may be promulgated from time to time. The aforesaid
bond shall include coverage for larceny and embezzlement and shall be issued by
a reputable bonding company.
2.9. The Company represents and warrants that all of its directors,
officers, employees, investment advisers, and other individuals or entities
employed or controlled by the Company dealing with the money and/or securities
of the Account are covered by a blanket fidelity bond or similar coverage for
the benefit of the Account, in an amount not less than $5 million. The aforesaid
bond includes coverage for larceny and embezzlement and is issued by a reputable
bonding company. The Company agrees to hold for the benefit of the Fund and to
pay to the Fund any amounts lost from larceny, embezzlement or other events
covered by the aforesaid bond to the extent such amounts properly belong to the
Fund pursuant to the terms of this Agreement. The Company agrees to make all
reasonable efforts to see that this bond or another bond containing these
provisions is always in effect, and agrees to notify the Fund and the
Underwriter in the event that such coverage no longer applies.
Page 7 of 30
2.10. The Company represents and warrants that all shares of the Designated
Portfolios purchased by the Company will be purchased on behalf of one or more
unmanaged separate accounts that offer interests therein that are registered
under the 1933 Act and upon which a registration fee has been or will be paid or
that are unregistered because the interests are exempt from registration under
the 1933 Act, and the Company acknowledges that the Fund intends to rely upon
this representation and warranty for purposes of calculating SEC registration
fees payable with respect to such Shares of the Designated Portfolios pursuant
to Form 24F-2 or any similar form or SEC registration fee calculation procedure
that allows the Fund to exclude Shares so sold for purposes of calculating its
SEC registration fee. The Company will certify the amount of any Shares of the
Designated Portfolios purchased by the Company on behalf of any separate account
offering interests not subject to registration under the 1933 Act. The Company
agrees to cooperate with the Fund on no less than an annual basis to certify as
to its continuing compliance with this representation and warranty.
ARTICLE III. Prospectuses and Proxy Statements; Voting
3.1. The Underwriter shall provide the Company with as many copies of the
Fund's current prospectus (describing only the Designated Portfolios listed on
Schedule B) as the Company may reasonably request. If requested by the Company
in lieu thereof, the Fund shall provide such documentation (including a final
copy of the new prospectus on computer diskette or other electronic means at the
Fund's expense) and other assistance as is reasonably necessary in order for the
Company once each year (or more frequently if the prospectus for a Designated
Portfolio is amended) to have the prospectus for the Contracts and the
prospectus for the Designated Portfolios printed together in one document.
Expenses with respect to the foregoing shall be borne as provided under Article
V.
3.2. The Fund's prospectus shall state that the current Statement of
Additional Information ("SAI") for the Fund is available from the Company (or in
the Fund's discretion, from the Fund), and the Fund shall provide a copy of such
SAI to any owner of a Contract who requests such SAI and to the Company in such
quantities as the Company may reasonably request. Expenses with respect to the
foregoing shall be borne as provided under Article V.
3.3. The Fund shall provide the Company with copies of its proxy material,
reports to shareholders, and other communications to shareholders of the
Designated Portfolios in such quantity as the Company shall reasonably require
for distributing to Contract owners. Expenses with respect to the foregoing
shall be borne as provided under Article V.
3.4. The Company shall:
(i) solicit voting instructions from Contract owners;
(ii) vote the shares of each Designated Portfolio in accordance with
instructions received from Contract owners; and
(iii) vote shares of each Designated Portfolio for which no
instructions have been received in the same proportion as fund shares of such
Designated Portfolio for which
Page 8 of 30
instructions have been received, so long as and to the extent that the SEC
continues to interpret the 1940 Act to require pass-through voting privileges
for variable contract owners or to the extent otherwise required by law. The
Company reserves the right to vote shares of each Designated Portfolio held in
any segregated asset account in its own right, to the extent permitted by law.
3.5. The Fund reserves the right, upon prior written notice to the Company
(given at the earliest practicable time), to take all actions, including but not
limited to, the dissolution, termination, merger and sale of all assets of the
Fund or any Designated Portfolio upon the sole authorization of the Board, to
the extent permitted by the laws of the Commonwealth of Massachusetts and the
1940 Act.
3.6. Participating Insurance Companies shall be responsible for assuring
that each of their separate accounts participating in a Designated Portfolio
calculates voting privileges as required by the Mixed and Shared Funding
Exemptive Order and consistent with any reasonable standards that the Fund may
adopt and provide in writing.
3.7. It is understood and agreed that, except with respect to information
regarding the Fund, the Underwriter, the Adviser or Designated Portfolios
provided in writing by the Fund, the Underwriter or the Adviser, none of the
Fund, the Underwriter or the Adviser is responsible for the content of the
prospectus or statement of additional information for the Contracts.
3.8. The Company shall comply with any applicable privacy and notice
provisions of 15 U.S.C. Sections 6801-6827 and any applicable regulations
promulgated thereunder (including but not limited to 17 C.F.R. Part 248) as they
may be amended.
ARTICLE IV. Sales Material and Information
4.1. The Company shall furnish, or shall cause to be furnished, to the Fund
or its designee, each piece of sales literature or other promotional material
that the Company develops or uses and in which the Fund (or a Designated
Portfolio thereof) or the Adviser or the Underwriter is named at least fifteen
(15) Business Days prior to its use. No such material shall be used if the Fund
or its designee reasonably objects to such use within ten (10) Business Days
after receipt of such material. The Fund or its designee reserves the right to
reasonably object to the continued use of any such sales literature or other
promotional material in which the Fund (or a Designated Portfolio thereof) or
the Adviser or the Underwriter is named, and no such material shall be used if
the Fund or its designee so objects.
4.2. The Company shall not give any information or make any representations
or statements on behalf of the Fund or concerning the Fund in connection with
the sale of the Contracts other than the information or representations
contained in the registration statement or prospectus or SAI for the Fund
Shares, as such registration statement and prospectus or SAI may be amended or
supplemented from time to time, or in reports or proxy statements for the Fund,
or in sales literature or other promotional material approved by the Fund or its
designee or by the Underwriter, except with the permission of the Fund or the
Underwriter or the designee of either.
Page 9 of 30
4.3. The Fund and the Underwriter, or their designee, shall furnish, or
shall cause to be furnished, to the Company, each piece of sales literature or
other promotional material that it develops or uses and in which the Company,
and/or its Account, is named at least fifteen (15) Business Days prior to its
use. No such material shall be used if the Company reasonably objects to such
use within ten (l0) Business Days after receipt of such material. The Company
reserves the right to reasonably object to the continued use of any such sales
literature or other promotional material in which the Company and/or its Account
is named, and no such material shall be used if the Company so objects.
4.4. The Fund and the Underwriter shall not give any information or make
any representations on behalf of the Company or concerning the Company, the
Account, or the Contracts other than the information or representations
contained in a registration statement, prospectus (which shall include an
offering memorandum, if any, if the Contracts issued by the Company or interests
therein are not registered under the 1933 Act), or SAI for the Contracts, as
such registration statement, prospectus, or SAI may be amended or supplemented
from time to time, or in published reports for the Account which are in the
public domain or approved by the Company for distribution to Contract owners, or
in sales literature or other promotional material approved by the Company or its
designee, except with the permission of the Company.
4.5. The Fund will provide to the Company at least one complete copy of all
registration statements, prospectuses, SAIs, 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 Fund or its Shares, contemporaneously with the filing of such
document(s) with the SEC or other regulatory authorities.
4.6. The Company will provide to the Fund at least one complete copy of all
registration statements, prospectuses (which shall include an offering
memorandum, if any, if the Contracts issued by the Company or interests therein
are not registered under the 1933 Act), SAIs, reports, solicitations for voting
instructions, sales literature and other promotional materials, applications for
exemptions or substitutions, requests for no-action letters, and all amendments
to any of the above, that relate to the Contracts or the Account,
contemporaneously with the filing of such document(s) with the SEC or other
regulatory authorities. The Company shall provide to the Fund and the
Underwriter any complaints received from the Contract owners pertaining to the
Fund or the Designated Portfolio.
4.7. The Fund will provide the Company with as much notice as is reasonably
practicable of any proxy solicitation for any Designated Portfolio, and of any
material change in the Fund's registration statement, particularly any change
resulting in a change to the registration statement or prospectus for any
Account. The Fund 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 Fund will make reasonable
efforts to attempt to have changes affecting Contract prospectuses become
effective simultaneously with the annual updates for such prospectuses.
4.8. For purposes of this Article IV, the phrase "sales literature and
other promotional materials" includes, but is not limited to, any of the
following that refer to the Fund or any
Page 10 of 30
affiliate of the Fund: advertisements (such as material published, or designed
for use in a newspaper, magazine, or other periodical, radio, television,
internet website (or other electronic media), telephone or tape recording,
videotape display, signs or billboards, motion pictures, or other public media),
sales literature (i.e., any written communication distributed or made generally
available to customers or the public, including brochures, circulars, reports,
market letters, form letters, seminar texts, reprints or excerpts of any other
advertisement, sales literature, or published article), educational or training
materials or other communications distributed or made generally available to
some or all agents or employees, and registration statements, prospectuses,
SAIs, shareholder reports, proxy materials, and any other communications
distributed or made generally available with regard to the Fund.
ARTICLE V. Fees and Expenses
5.1. The Fund, the Adviser and the Underwriter shall pay no fee or other
compensation to the Company under this Agreement, although the parties hereto
will bear certain expenses in accordance with Schedule C and other provisions of
this Agreement.
5.2. All expenses incident to performance by the Fund under this Agreement
shall be paid by the Fund, except and as further provided in Schedule C. The
cost of setting the Fund's prospectus in type, setting in type and printing the
Fund's proxy materials and reports to shareholders (including the costs of
printing a prospectus that constitutes an annual report), the preparation of all
statements and notices relating to the Fund required by any federal or state
law, and all taxes on the issuance or transfer of the Fund's Shares shall be
borne by the parties hereto as set forth in Schedule C.
5.3. The expenses of distributing the Fund's prospectus to new and existing
owners of Contracts issued by the Company and of distributing the Fund's proxy
materials and reports to Contract owners shall be borne by the parties hereto as
set forth in Schedule C.
5.4 The Company will develop, implement and maintain policies and
procedures reasonably designed to prevent the use of the Accounts by persons
engaged in market timing, short-term trading or excessive trading.
In addition to the foregoing, the Company will, subject to its
absolute discretion, develop, implement and maintain procedures as necessary or
appropriate to further any specific policies and procedures of the Fund, the
Adviser or the Underwriter for one or more Designated Portfolios in regard to
market timing, short-term trading or excessive trading.
If, notwithstanding the foregoing, the Fund, the Adviser or the
Underwriter notifies the Company that a pattern or patterns of transactions
involving market timing, short-term trading or excessive trading in one or more
Accounts is having or may have, in their sole discretion, an adverse effect on a
Designated Portfolio, the Company will promptly take such actions and implement
such procedures as are appropriate to prevent such trading. The parties hereto
acknowledge that, if necessary, such actions and procedures may include the
identification of Account participants engaged in such trading and the
imposition of complete or partial restrictions on their requests to purchase
shares of the Designated Portfolio.
Page 11 of 30
The Company acknowledges that all orders accepted by the Company for
the Accounts are subject to the obligations of the Company in this Section 5.4,
including the obligation to prevent the use of the Accounts for market timing,
short-term trading or excessive trading, and that the Fund, the Adviser or the
Underwriter may take such actions as it deems to be in the best interests of
shareholders of the Designated Portfolios to enforce such obligations and to
otherwise prevent such trading in shares of the Designated Portfolios,
including, among other things, the right to revoke, reject or cancel purchase
orders for shares of the Designated Portfolios made by the Company. Any such
revocation, rejection or cancellation may be made in whole or in part, it being
understood that the Fund, the Adviser and the Underwriter are not required to
isolate objectionable trades.
The Fund, the Adviser and the Underwriter shall not be responsible for
any losses or costs incurred by the Company, the Account or Account participants
as a result of the revocation, rejection or cancellation orders made by the
Company in furtherance of the enforcement of their policy to prevent market
timing, short-term trading and excessive trading in shares of the Designated
Portfolios.
5.5. The Company agrees that the Fund, the Underwriter and the Adviser
shall bear no responsibility for any act of any unaffiliated fund or the
investment adviser or underwriter thereof.
ARTICLE VI. Diversification and Qualification
6.1. The Fund will invest the assets of each Designated Portfolio in such a
manner as to ensure that the Contracts will be treated as annuity or life
insurance contracts, whichever is appropriate, under the Code and the
regulations issued thereunder (or any successor provisions). Without limiting
the scope of the foregoing, the Fund will, with respect to each Designated
Portfolio, comply with Section 817(h) of the Code and Treasury Regulation
Section 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 or successor provisions to
such Section or Regulations. In the event of a breach of this Article VI by the
Fund, it will take all reasonable steps (a) to notify the Company of such breach
and (b) to adequately diversify the affected Designated Portfolio so as to
achieve compliance within the grace period afforded by Treasury Regulation
Section 1.817-5.
6.2. The Fund represents that each Designated Portfolio is or will be
qualified as a Regulated Investment Company under Subchapter M of the Code, and
that it will make every effort to maintain such qualification (under Subchapter
M or any successor or similar provisions) and that it will notify the Company
immediately upon having a reasonable basis for believing that a Designated
Portfolio has ceased to so qualify or that it might not so qualify in the
future.
6.3. The Company represents that the Contracts are currently, and at the
time of issuance shall be, treated as life insurance or annuity insurance
contracts, under applicable provisions of the Code, and that it will make every
effort to maintain such treatment, and that it will notify the Fund and the
Underwriter immediately upon having a reasonable basis for
Page 12 of 30
believing the Contracts have ceased to be so treated or that they might not be
so treated in the future. The Company agrees that any prospectus offering a
contract that is a "modified endowment contract" as that term is defined in
Section 7702A of the Code (or any successor or similar provision), shall
identify such contract as a modified endowment contract.
ARTICLE VII. Potential Conflicts
7.1. The Board will monitor the Fund for the existence of any material
irreconcilable conflict among the interests of the Contract owners of all
separate accounts investing in the Fund. 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 laws or regulations;
(c) a tax ruling or provision of the Internal Revenue Code or the regulations
thereunder; (d) any other development relating to the tax treatment of insurers,
Contract or policy owners or beneficiaries of variable annuity contracts or
variable life insurance policies; (e) the manner in which the investments of any
Designated Portfolio are being managed; (f) a difference in voting instructions
given by variable annuity contract holders, on the one hand, and variable life
insurance policy owners, on the other hand, or by the contract holders or policy
owners of different Participating Insurance Companies; or (g) a decision by a
Participating Insurance Company to disregard the voting instructions of its
Contract owners. The Board shall promptly inform the Company by written notice
if it determines that an irreconcilable material conflict exists and the
implications thereof.
7.2. The Company and the Adviser will report any potential or existing
conflicts of which it is aware to the Board. The Company will assist the Board
in carrying out its responsibilities under the Mixed and Shared Funding
Exemptive Order, by providing the Board with all information reasonably
necessary for the Board 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. At least annually, and more
frequently if deemed appropriate by the Board, the Company shall submit to the
Adviser, and the Adviser shall at least annually submit to the Board, such
reports, materials and data as the Board may reasonably request so that the
Board may fully carry out the obligations imposed upon it by the conditions
contained in the Mixed and Shared Funding Exemptive Order; and said reports,
materials and data shall be submitted more frequently if deemed appropriate by
the Board. The responsibility to report such information and conflicts to the
Board will be carried out with a view only to the interests of the Contract
owners.
7.3. If it is determined by a majority of the Board, or a majority of its
disinterested members, that a material irreconcilable conflict exists, the
Company and other Participating Insurance Companies shall, at their expense and
to the extent reasonably practicable (as determined by a majority of the
disinterested Board members), 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 separate accounts from
the Fund or any Designated Portfolio and reinvesting such assets in a different
investment medium, including (but not limited to) another Designated Portfolio
of the Fund, or submitting the question whether such segregation should be
implemented to a vote of all affected contract owners and, as appropriate,
segregating the assets of any appropriate group (i.e., annuity contract owners,
life insurance
Page 13 of 30
contract owners, or variable contract owners of one or more Participating
Insurance Companies) that votes in favor of such segregation, or offering to the
affected contract owners 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 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 Fund's election, to withdraw the affected Account's
investment in any Designated Portfolio and terminate this Agreement with respect
to such Account; provided, however, that such withdrawal and termination shall
be limited to the extent required by the foregoing material irreconcilable
conflict as determined by a majority of the disinterested members of the Board.
The Company will bear the cost of any remedial action, including such withdrawal
and termination. Any such withdrawal and termination must take place within six
(6) months after the Fund gives written notice that this provision is being
implemented, and until the end of that six month period the Fund shall continue
to accept and implement orders by the Company for the purchase (and redemption)
of shares of such Designated Portfolio.
7.5. 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 Account's investment in the Fund and terminate this Agreement with
respect to such Account within six 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 disinterested members of the Board.
Until the end of the foregoing six month period, the Fund shall continue to
accept and implement orders by the Company for the purchase (and redemption) of
shares of such Designated Portfolios.
7.6. For purposes of Sections 7.3 through 7.6 of this Agreement, a majority
of the disinterested members of the Board shall determine whether any proposed
action adequately remedies any irreconcilable material conflict, but in no event
will the Fund be required to establish a new funding medium for the Contracts.
The Company shall not be required by Section 7.3 to establish a new funding
medium for the Contract if an offer to do so has been declined by vote of a
majority of Contract owners materially adversely affected 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 an Account's investment in any Designated Portfolio and
terminate this Agreement within six (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
disinterested members of the Board.
7.7. If and to the extent the Mixed and Shared Funding Exemption Order or
any amendment thereto contains terms and conditions different from Sections 3.4,
3.6, 7.1, 7.2, 7.3, 7.4, and 7.5 of this Agreement, then the Fund and/or the
Participating Insurance Companies, as
Page 14 of 30
appropriate, shall take such steps as may be necessary to comply with the Mixed
and Shared Funding Exemptive Order, and Sections 3.4, 3.6, 7.1, 7.2, 7.3, 7.4
and 7.5 of this Agreement shall continue in effect only to the extent that terms
and conditions substantially identical to such Sections are contained in the
Mixed and Shared Funding Exemptive Order or any amendment thereto. If and to the
extent that Rule 6e-2 and Rule 6e-3(T) are amended, or Rule 6e-3 or any similar
rule 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 the Mixed and Shared Funding Exemptive Order) on terms and conditions
materially different from those contained in the Mixed and Shared Funding
Exemptive Order, then (a) the Fund and/or the Participating Insurance Companies,
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 or any similar rule, as adopted, to
the extent such rules are applicable; and (b) Sections 3.4, 3.6, 7.1., 7.2, 7.3,
7.4, and 7.5 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.
ARTICLE VIII. Indemnification
8.1. Indemnification by the Company
(a) The Company agrees to indemnify and hold harmless the Fund, the
Adviser and the Underwriter and each of its trustees, directors, trustees and
officers, and each person, if any, who controls the Fund, the Adviser or
Underwriter within the meaning of Section 15 of the 1933 Act or who is under
common control with the Underwriter (collectively, the "Indemnified Parties" for
purposes of this Section 8.1) against any and all losses, claims, damages,
liabilities (including amounts paid in settlement with the written consent of
the Company) or litigation (including legal and other expenses), to which the
Indemnified Parties may become subject under any statute or regulation, at
common law or otherwise, insofar as such losses, claims, damages, liabilities or
expenses (or actions in respect thereof) or settlements are related to the sale
or acquisition of the Shares of the Designated Portfolios or the Contracts; and:
(i) arise out of or are based upon any untrue statement or
alleged untrue statements of any material fact contained in the registration
statement, prospectus (which shall include an offering memorandum, if any), or
SAI for the Contracts or contained in the Contracts or sales literature for the
Contracts (or any amendment or supplement to any of the foregoing), or arise out
of or are based upon the omission or the alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, provided that this agreement to indemnify shall not
apply as to any Indemnified Party if such statement or omission or such alleged
statement or omission was made in reliance upon and in conformity with
information furnished in writing to the Company by or on behalf of the Fund for
use in the registration statement, prospectus or SAI for the Contracts or in the
Contracts or sales literature (or any amendment or supplement) or otherwise for
use in connection with the sale of the Contracts or Fund Shares; or
(ii) arise out of or are based upon any untrue statement or
alleged untrue statements of any material fact contained in the registration
statement, prospectus (which shall include an offering memorandum, if any), or
SAI covering insurance products sold by the
Page 15 of 30
Company or any insurance company which is an affiliate thereof, or any
amendments or supplements thereto, or arise out of or are based upon the
omission or the alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading,
provided that this agreement to indemnify shall not apply as to any Indemnified
Party if such statement or omission or such alleged statement or omission was
made in reliance upon and in conformity with information furnished in writing to
the Company by or on behalf of the Fund for use in the registration statement,
prospectus or SAI covering insurance products sold by the Company or any
insurance company which is an affiliate thereof, or any amendments or
supplements thereto; or
(iii) arise out of or as a result of statements or
representations (other than statements or representations contained in the
registration statement, prospectus, SAI, or sales literature of the Fund not
supplied by the Company or persons under its control) or wrongful conduct of the
Company or its agents or persons under the Company's authorization or control,
or any affiliate thereof, with respect to the sale or distribution of the
Contracts or Fund Shares; or
(iv) arise out of any untrue statement or alleged untrue
statement of a material fact contained in a registration statement, prospectus,
SAI, or sales literature of the Fund or any amendment thereof or supplement
thereto or the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading if such a statement or omission was made in reliance upon information
furnished to the Fund by or on behalf of the Company; or
(v) arise out of or are based upon any untrue statements or
alleged untrue statements of any material fact contained in any registration
statement, prospectus, statement of additional information or sales literature
for any fund not affiliated with the Fund ("Unaffiliated Fund"), 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, or otherwise pertain to or arise in connection with the
availability of any Unaffiliated Fund as an underlying funding vehicle in
respect of the Contracts, or arise out of or are based upon any act or omission
on the part of the investment adviser or underwriter of an Unaffiliated Fund; or
(vi) arise as a result of any material failure by the Company to
provide the services and furnish the materials under the terms of this Agreement
(including a failure, whether unintentional or in good faith or otherwise, to
comply with the qualification requirements specified in Article VI of this
Agreement); or
(vii) arise out of or result from any material breach of any
representation and/or warranty made by the Company in this Agreement or arise
out of or result from any other material breach of this Agreement by the
Company,
as limited by and in accordance with the provisions of Sections 8.1(b), 8.1(c)
and 8.1(d) hereof.
Page 16 of 30
(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 its obligations or duties under this Agreement.
(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 that it may have to
the Indemnified Party against whom such action is brought otherwise than on
account of this indemnification provision, except to the extent that the Company
has been materially prejudiced by such failure to give notice. In case any such
action is brought against an Indemnified Party, the Company shall be entitled to
participate, at its own expense, in the defense of such action. The Company also
shall be entitled to assume the defense thereof, with counsel satisfactory to
the party named in the action and to settle the claim at its own expense;
provided, however, that no such settlement shall, without the Indemnified
Parties' written consent, include any factual stipulation referring to the
Indemnified Parties or their conduct. 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, but, in case the Company does not elect to assume the defense of
any such suit, the Company will reimburse the Fund, such officers, trustees and
directors or controlling person or persons, defendant or defendants in such
suit, for the reasonable fees and expenses of any counsel retained by them.
(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 Fund Shares or the Contracts or the operation of the
Fund.
8.2. Indemnification by the Underwriter
(a) The Underwriter agrees to indemnify and hold harmless the Company
and each of its directors and officers and each person, if any, who controls the
Company within the meaning of Section 15 of the 1933 Act (collectively, the
"Indemnified Parties" for purposes of this Section 8.2) against any and all
losses, claims, damages, liabilities (including amounts paid in settlement with
the written consent of the Underwriter) or litigation (including legal and other
expenses) to which the Indemnified Parties may become subject under any statute
or regulation, at common law or otherwise, insofar as such losses, claims,
damages, liabilities or expenses (or actions in respect thereof) or settlements
are related to the sale or acquisition of Shares of the Designated Portfolios or
the Contracts; and:
Page 17 of 30
(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 prospectus or SAI or sales literature of the Fund (or any amendment
or supplement to any of the foregoing), or arise out of or are based upon the
omission or the alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading,
provided that this agreement to indemnify shall not apply as to any Indemnified
Party if such statement or omission or such alleged statement or omission was
made in reliance upon and in conformity with information furnished to the
Underwriter or Fund by or on behalf of the Company for use in the registration
statement, prospectus or SAI for the Fund or in sales literature (or any
amendment or supplement) or otherwise for use in connection with the sale of the
Contracts or Fund Shares; or
(ii) arise out of or as a result of statements or representations
(other than statements or representations contained in the registration
statement, prospectus, SAI or sales literature for the Contracts not supplied by
the Underwriter or persons under its control) or wrongful conduct of the Fund or
Underwriter or persons under their control, with respect to the sale or
distribution of the Contracts or Fund Shares; or
(iii) arise out of any untrue statement or alleged untrue
statement of a material fact contained in a registration statement, prospectus,
SAI or sales literature covering the Contracts, or any amendment thereof or
supplement thereto, or the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statement
or statements therein not misleading, if such statement or omission was made in
reliance upon information furnished to the Company by or on behalf of the Fund
or the Underwriter; or
(iv) arise as a result of any failure by the Fund or the
Underwriter to provide the services and furnish the materials under the terms of
this Agreement (including a failure of the Fund, whether unintentional or in
good faith or otherwise, to comply with the diversification and other
qualification requirements specified in Article VI of this Agreement); or
(v) arise out of or result from any material breach of any
representation and/or warranty made by the Underwriter in this Agreement or
arise out of or result from any other material breach of this Agreement by the
Underwriter;
as limited by and in accordance with the provisions of Sections 8.2(b), 8.2(c)
and 8.2(d) hereof.
(b) The Underwriter 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 or 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, the Fund, the Adviser, the Underwriter or the Account, whichever is
applicable.
(c) The Underwriter shall not be liable under this indemnification
provision with respect to any claim made against an Indemnified Party unless
such Indemnified Party shall
Page 18 of 30
have notified the Underwriter in writing within a reasonable time after the
summons or other first legal process giving information of the nature of the
claim shall have been served upon such Indemnified Party (or after such
Indemnified Party shall have received notice of such service on any designated
agent), but failure to notify the Underwriter of any such claim shall not
relieve the Underwriter from any liability which it may have to the Indemnified
Party against whom such action is brought otherwise than on account of this
indemnification provision, except to the extent that the Underwriter has been
prejudiced by such failure to give notice. In case any such action is brought
against the Indemnified Party, the Underwriter will be entitled to participate,
at its own expense, in the defense thereof. The Underwriter also shall be
entitled to assume the defense thereof, with counsel satisfactory to the party
named in the action and to settle the claim at its own expense; provided,
however, that no such settlement shall, without the Indemnified Parties' written
consent, include any factual stipulation to the Indemnified Parties or their
conduct. After notice from the Underwriter to such party of the Underwriter's
election to assume the defense thereof, the Indemnified Party shall bear the
fees and expenses of any additional counsel retained by it, and the Underwriter
will not be liable to such party under this Agreement for any legal or other
expenses subsequently incurred by such party independently in connection with
the defense thereof other than reasonable costs of investigation.
(d) The Company agrees promptly to notify the Underwriter of the
commencement of any litigation or proceedings against it or any of its officers
or directors in connection with the issuance or sale of the Contracts or the
operation of the Account.
8.3. Indemnification by the Fund
(a) The Fund 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 8.3) against any and all
losses, claims, expenses, damages, liabilities (including amounts paid in
settlement with the written consent of the Fund) or litigation (including legal
and other expenses) to which the Indemnified Parties may be required to payor
may become subject under any statute or regulation, at common law or otherwise,
insofar as such losses, claims, expenses, damages, liabilities or expenses (or
actions in respect thereof) or settlements, are related to the operations of the
Fund and:
(i) arise as a result of any failure by the Fund to provide the
services and furnish the materials under the terms of this Agreement (including
a failure, whether unintentional or in good faith or otherwise, to comply with
the diversification and other qualification requirements specified in Article VI
of this Agreement); or
(ii) arise out of or result from any material breach of any
representation and/or warranty made by the Fund in this Agreement or arise out
of or result from any other material breach of this Agreement by the Fund;
as limited by and in accordance with the provisions of Sections 8.3(b), 8.3(c)
and 8.3(d) hereof.
Page 19 of 30
(b) The Fund 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, the Fund, the Adviser, the Underwriter or the Account, whichever is
applicable.
(c) The Fund 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 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 of any such claim shall not
relieve the Fund from any liability which it may have to the Indemnified Party
against whom such action is brought otherwise than on account of this
indemnification provision, except to the extent the Fund has been prejudiced by
such failure to give notice. In case any such action is brought against the
Indemnified Parties, the Fund will be entitled to participate, at its own
expense, in the defense thereof. The Fund also shall be entitled to assume the
defense thereof, with counsel satisfactory to the party named in the action and
to settle the claim at its own expense; provided, however, that no such
settlement shall, without the Indemnified Parties' written consent include any
factual stipulation referring to the Indemnified Parties or their conduct. After
notice from the Fund to such party of the Fund'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 Fund 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, the Adviser and the Underwriter agree promptly to
notify the Fund of the commencement of any litigation or proceeding against it
or any of its respective officers or trustees in connection with the Agreement,
the issuance or sale of the Contracts, the operation of any Account, or the sale
or acquisition of Shares of the Fund.
ARTICLE IX. Applicable Law
9.1. This Agreement shall be construed and the provisions hereof
interpreted under and in accordance with the laws of the Commonwealth of
Massachusetts.
9.2. This Agreement shall be subject to the applicable provisions of the
1933, 1934 and 1940 Acts, and the rules and regulations and rulings thereunder,
including such exemptions from those statutes, rules and regulations as the SEC
may grant (including, but not limited to, any Mixed and Shared Funding Exemptive
Order) and the terms hereof shall be interpreted and construed in accordance
therewith. If, in the future, the Mixed and Shared Funding Exemptive Order
should no longer be necessary under applicable law, then Article VII shall no
longer apply.
Page 20 of 30
ARTICLE X. Termination
10.1. This agreement shall continue in full force and effect until the
first to occur of:
(a) termination by any party, for any reason with respect to some or
all Designated Portfolios, by three (3) months advance written notice delivered
to the other parties; or
(b) termination by the Company by written notice to the Fund, the
Adviser and the Underwriter based upon the Company's reasonable and good faith
determination that Shares of any Designated Portfolio are not reasonably
available to meet the requirements of the Contracts; or
(c) termination by the Company by written notice to the Fund, the
Adviser and the Underwriter in the event any of the Designated Portfolio's
Shares are not registered, issued or sold in accordance with applicable state
and/or federal securities laws or such law precludes the use of such Shares as
the underlying investment media of the Contracts issued or to be issued by the
Company; or
(d) termination by the Fund, the Adviser or Underwriter in the event
that formal administrative proceedings are instituted against the Company or any
affiliate by the NASD, the SEC, the Insurance Commissioner or like official of
any state or any other regulatory body regarding the Company's duties under this
Agreement or related to the sale of the Contracts, the operation of any Account,
or the purchase of the Fund's Shares; provided, however, that the Fund, the
Adviser or Underwriter determines in its sole judgment exercised in good faith,
that any such administrative proceedings will have a material adverse effect
upon the ability of the Company to perform its obligations under this Agreement;
or
(e) termination by the Company in the event that formal administrative
proceedings are instituted against the Fund, the Adviser or Underwriter by the
NASD, the SEC, or any state securities or insurance department or any other
regulatory body; provided, however, that the Company determines in its sole
judgment exercised in good faith, that any such administrative proceedings will
have a material adverse effect upon the ability of the Fund or Underwriter to
perform its obligations under this Agreement; or
(f) termination by the Company by written notice to the Fund, the
Adviser and the Underwriter with respect to any Designated Portfolio in the
event that such Portfolio ceases to qualify as a Regulated Investment Company
under Subchapter M or fails to comply with the Section 817(h) diversification
requirements specified in Article VI hereof, or if the Company reasonably
believes that such Designated Portfolio may fail to so qualify or comply; or
(g) termination by the Fund, the Adviser or Underwriter by written
notice to the Company in the event that the Contracts fail to meet the
qualifications specified in Article VI hereof; or
Page 21 of 30
(h) termination by any of the Fund, the Adviser or the Underwriter by
written notice to the Company, if any of the Fund, the Adviser or the
Underwriter respectively, 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, insurance company rating or prospects
since the date of this Agreement or is the subject of material adverse
publicity; or
(i) termination by the Company by written notice to the Fund, the
Adviser and the Underwriter, if the Company shall determine, in its sole
judgment exercised in good faith, that the Fund, the Adviser or the Underwriter
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, and that material adverse change or publicity will
have a material effect on the Fund's or the Underwriter's ability to perform its
obligation under this Agreement; or
(j) termination by the Company upon any substitution of the Shares of
another investment company or series thereof for Shares of a Designated
Portfolio of the Fund in accordance with the terms of the Contracts, provided
that the Company has given at least 45 days prior written notice to the Fund and
Underwriter of the date of substitution; or
(k) termination by any party in the event that the Fund's Board of
Trustees determines that a material irreconcilable conflict exists as provided
in Article VII; or
(l) at the option of the Company, as one party, or the Fund, the
Adviser and the Underwriter, as one party, upon the other party's material
breach of any provision of this Agreement upon 30 days' written notice and the
opportunity to cure within such notice period; or
(m) at the option of the Fund or the Adviser in the event the
Contracts are not treated as annuity contracts or life insurance policies, as
the case may be, under applicable provisions of the Code.
10.2. Notwithstanding any termination of this Agreement, the Fund and the
Underwriter shall, at the option of the Company, continue, for a one year period
from the date of termination and from year to year thereafter if deemed
appropriate by the Fund and the Adviser, to make available additional Shares of
a Designated Portfolio pursuant to the terms and conditions of this Agreement,
for all Contracts in effect on the effective date of termination of this
Agreement (hereinafter referred to as "Existing Contracts"), unless the
Underwriter elects to compel a substitution of other securities for the Shares
of the Designated Portfolios. Specifically, the owners of the Existing Contracts
may be permitted to reallocate investments in the Designated Portfolios, redeem
investments in the Designated Portfolios and/or invest in the Designated
Portfolios upon the making of additional purchase payments under the Existing
Contracts (subject to any such election by the Underwriter). The parties agree
that this Section 10.2 shall not apply to any terminations under Article VII and
the effect of such Article VII terminations shall be governed by Article VII of
this Agreement. The parties further agree that this Section 10.2 shall not apply
to any terminations under Section 10.1 (d),(g) or (m) of this Agreement.
Page 22 of 30
10.3. The Company shall not redeem Fund Shares attributable to the
Contracts (as opposed to Fund Shares attributable to the Company's assets held
in the Account) except (i) as necessary to implement Contract owner initiated or
approved transactions, (ii) as required by state and/or federal laws or
regulations or judicial or other legal precedent of general application
(hereinafter referred to as a "Legally Required Redemption"), (iii) as permitted
by an order of the SEC pursuant to Section 26(c) of the 1940 Act, but only if a
substitution of other securities for the Shares of the Designated Portfolios is
consistent with the terms of the Contracts, or (iv) as permitted under the terms
of the Contract. Upon request, the Company will promptly furnish to the Fund and
the Underwriter reasonable assurance that any redemption pursuant to clause (ii)
above is a Legally Required Redemption. Furthermore, except in cases where
permitted under the terms of the Contacts, the Company shall not prevent
Contract owners from allocating payments to a Designated Portfolio that was
otherwise available under the Contracts without first giving the Fund or the
Underwriter 45 days notice of its intention to do so.
10.4. Notwithstanding any termination of this Agreement, each party's
obligation under Article VIII to indemnify the other parties shall survive.
ARTICLE XI. Notices
Any notice shall be sufficiently given when sent by registered or certified
mail to the other party at the address of such party set forth below or at such
other address as such party may from time to time specify in writing to the
other party.
If to the Fund:
Xxxxxxx Variable Series I
Two International Place
Boston, MA 02110-4103
Attn.: Secretary
If to the Company:
The Travelers Insurance Company
The Travelers Life and Annuity Company
Xxx Xxxxxxxxx
Xxxxxxxx, XX 00000
Attn: General Counsel
If to the Underwriter:
Xxxxxxx Distributors, Inc.
Xxx Xxxxxxxxxxxxx Xxxxx
Xxxxxx, XX 00000-0000
Attn.: Secretary
Page 23 of 30
If to the Adviser:
Deutsche Investment Management Americas Inc.
Xxx Xxxxxxxxxxxxx Xxxxx
Xxxxxx, XX 00000-0000
Attn.: Secretary
ARTICLE XII. Miscellaneous
12.1. The Fund's name is the designation of the Board for the time being
under a Declaration of Trust, as amended, and all persons dealing with the Fund
must look solely to the property of the Fund, and in the case of a series
company, the respective Designated Portfolios listed on Schedule B hereto as
though each such Designated Portfolio had separately contracted with the Company
and the Underwriter for the enforcement of any claims against the Fund. The
parties agree that neither the Board, officers, agents or shareholders of the
Fund assume any personal liability or responsibility for obligations entered
into by or on behalf of the Fund. No Portfolio shall be liable for any
obligations properly attributable to any other Portfolio.
12.2. Subject to the requirements of legal process and regulatory
authority, each party hereto shall 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 party 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 affected party until such time as such information has come into the
public domain.
12.3. 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.
12.4. This Agreement may be executed simultaneously in two or more
counterparts, each of which taken together shall constitute one and the same
instrument.
12.5. This Agreement incorporates the entire understanding and agreement
among the parties hereto, and supersedes any and all prior understandings and
agreements between the parties hereto with respect to the subject matter hereof.
12.6. If any provision of this Agreement shall be held or made invalid by a
court decision, statute, rule or otherwise, the remainder of the Agreement shall
not be affected thereby.
12.7. Each party hereto shall cooperate with each other party and all
appropriate governmental authorities (including without limitation the SEC, the
NASD, and state insurance regulators) and shall permit such authorities
reasonable access to its books and records in connection with any investigation
or inquiry relating to this Agreement or the transactions contemplated hereby.
Notwithstanding the generality of the foregoing, each party hereto further
agrees to furnish the State Insurance Commissioner with any information or
reports in connection with services provided under this Agreement which such
Commissioner may request
Page 24 of 30
in order to ascertain whether the variable annuity operations of the Company are
being conducted in a manner consistent with the State variable annuity laws and
regulations and any other applicable law or regulations.
12.8. 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.
12.9. 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.
12.10. The Company shall furnish, or shall cause to be furnished, to the
Fund or its designee upon request copies of the following reports:
(a) the Company's annual statement (prepared under statutory
accounting principles) and annual report (prepared under generally accepted
accounting principles) filed with any state or federal regulatory body or
otherwise made available to the public, as soon as practicable and in any event
within 90 days after the end of each fiscal year; and
(b) any registration statement (without exhibits) and financial
reports of the Company filed with the Securities and Exchange Commission or any
state insurance regulatory, as soon as practicable after the filing thereof.
12.11. All persons are expressly put on notice of the Fund's Agreement and
Declaration of Trust and all amendments thereto, all of which are on file with
the Secretary of the Commonwealth of Massachusetts, and the limitation of
shareholder and trustee liability contained therein. This Agreement has been
executed by and on behalf of the Fund by its representatives as such
representatives and not individually, and the obligations of the Fund with
respect to a Designated Portfolio hereunder are not binding upon any of the
trustees, officers or shareholders of the Fund individually, but are binding
upon only the assets and property of such Designated Portfolio. All parties
dealing with the Fund with respect to a Designated Portfolio shall look solely
to the assets of such Designated Portfolio for the enforcement of any claims
against the Fund hereunder.
12.12. The Company is expressly put on notice that prospectus disclosure
regarding the potential risks of mixed and shared funding may be appropriate.
Page 25 of 30
IN WITNESS WHEREOF, each of the parties hereto has caused this
Agreement to be executed in its name and on its behalf by its duly authorized
representative and its seal to be hereunder affixed hereto as of the date first
above written.
THE TRAVELERS INSURANCE COMPANY
By its authorized officer
By:
------------------------------------
Title:
---------------------------------
THE TRAVELERS LIFE AND ANNUITY COMPANY
By its authorized officer
By:
------------------------------------
Title:
---------------------------------
XXXXXXX VARIABLE SERIES I
By its authorized officer
By:
------------------------------------
Title:
---------------------------------
XXXXXXX DISTRIBUTORS, INC.
By its authorized officer
By:
------------------------------------
Title:
---------------------------------
DEUTSCHE INVESTMENT MANAGEMENT AMERICAS INC.
By its authorized officer
By:
------------------------------------
Title:
---------------------------------
Page 26 of 30
SCHEDULE A
SEPARATE ACCOUNT AND DATE ESTABLISHED
TIC Separate Account Eleven for Variable Annuities 12-11-02
TLAC Separate Account Twelve for Variable Annuities 12-12-02
CONTRACTS FUNDED BY SEPARATE ACCOUNT
Xxxxxxx Advocate Rewards
Xxxxxxx Advocate Advisor
Premier Advisers III
Page 27 of 30
SCHEDULE B
DESIGNATED PORTFOLIOS AND CLASSES THEREOF
X. Xxxxxxx Advocate Rewards and Xxxxxxx Advocate Advisor Contracts.
DESIGNATED PORTFOLIO CLASS
-------------------- -------
1. 21st Century Growth Portfolio Class B
2. Capital Growth Portfolio Class B
3. Global Discovery Portfolio Class B
4. Growth and Income Portfolio Class B
5. Health Sciences Portfolio Class B
6. International Portfolio Class B
B. Premier Advisers III Contract.
DESIGNATED PORTFOLIO CLASS
-------------------- -------
Growth and Income Portfolio Class B
Page 28 of 30
SCHEDULE C
EXPENSES
PARTY RESPONSIBLE
ITEM FUNCTION FOR EXPENSE
---- --------------------------------- -----------------
FUND PROSPECTUS
Update Typesetting Fund
New Sales Printing Company
Distribution Company
Existing Owners: Printing Fund
Distribution Fund
STATEMENTS OF ADDITIONAL INFORMATION Same as Prospectus
PROXY MATERIALS OF THE FUND Typesetting Fund
Printing Fund
Distribution Fund
ANNUAL REPORTS AND OTHER COMMUNICATIONS
WITH SHAREHOLDERS OF THE FUND
All Typesetting Fund
Marketing(1) Printing Company
Distribution Company
Existing Owners Printing Fund
Distribution Fund
OPERATIONS OF FUND All operations and related Fund
expenses, including the cost of
registration and qualification of
the Fund's shares, preparation
and filing of the Fund's
prospectus and registration
statement, proxy materials and
reports, the preparation of all
statements and notices required
by any federal or state law and
all taxes on the issuance of the
Fund's shares, and all costs of
management of the business
affairs of the Fund.
---------
(1) Solely as it relates to the contracts listed on Schedule A, as it is
attached to the same Agreement as this Schedule C.
Page 29 of 30
SCHEDULE D
RECORD KEEPING FEES
X. Xxxxxxx Advocate Rewards and Xxxxxxx Advocate Advisor Contracts: The
record keeping fee paid pursuant to Section 2.3 shall be 0.10%
annually of the average daily net assets of the Class B Shares of each
Designated Portfolio held by the Company under such Contracts pursuant
to this Agreement.
B. Premier Advisers III Contracts: The record keeping fee paid pursuant
to Section 2.3 shall be 0.15% annually of the average daily net assets
of the Class B Shares of each Designated Portfolio held by the Company
under such Contracts pursuant to this Agreement.
Page 30 of 30
