Exhibit (e)(3)
RETAIL FUND PARTICIPATION AGREEMENT
THIS AGREEMENT is made and entered into as of the ___ day of _________,
200_, by and among HARTFORD LIFE INSURANCE COMPANY, a stock life insurance
company organized under the laws of Connecticut (hereinafter the "Company"), on
its own behalf and on behalf of each separate account of the Company set forth
in Schedule A hereto, as it may be amended from time to time (each such account
hereinafter referred to as a "Separate Account"), THE MUTUAL FUNDS IN THE
XXXXXXXX GROUP set forth in Schedule B hereto, as it may be amended from time to
time (hereinafter a "Fund" or collectively, the "Funds") XXXXXXXX ADVISORS,
INC., a Delaware corporation (hereinafter the "Underwriter") and XXXXXXXX DATA
CORP., a New York Corporation.
WITNESSETH:
WHEREAS, beneficial interests in certain of the Funds are divided into
several series of shares, each representing the interest in a particular managed
portfolio of securities and other assets (together with beneficial interests in
the remaining Funds, collectively referred to as the "Portfolios"); and
WHEREAS, each Fund is registered as an open-end management investment
company under the Investment Company Act of 1940, as amended (hereinafter the
"1940 Act") and its shares are registered under the Securities Act of 1933, as
amended (hereinafter the "1933 Act"); and
WHEREAS, the Company issues certain group variable annuity contracts and
group funding agreements (the "Contracts") in connection with retirement plans
intended to meet the qualification requirements of Sections 401, 403(b) or 457
of the Internal Revenue Code of 1986, as amended (the "Code"); and
WHEREAS, each Separate Account is a duly organized, validly existing
segregated asset account, established by resolution of the Board of Directors of
the Company under the insurance laws of the State of Connecticut to set aside
and invest assets attributable to the Contracts; and
WHEREAS, the Underwriter is the principal underwriter for each Fund and is
registered as a broker-dealer with the Securities and Exchange Commission
(hereinafter the "SEC") under the Securities Exchange Act of 1934, as amended
(hereinafter the "1934 Act"), and is a member in good standing of the National
Association of Securities Dealers, Inc. (hereinafter "NASD"); and
WHEREAS, Xxxxxxxx Data Corp. is the shareholder servicing agent of the
Funds;
WHEREAS, to the extent permitted by applicable insurance laws and
regulations, the Company intends to purchase shares of the Portfolios set forth
in Schedule A on behalf of each corresponding Separate Account set forth on such
Schedule A to fund the Contracts and the Underwriter is authorized to sell such
shares to unit investment trusts such as the Separate Accounts at net asset
value.
NOW, THEREFORE, in consideration of their mutual promises, the Company, the
Fund and the Underwriter agree as follows:
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ARTICLE I. Purchase and Redemption of Fund Shares.
1.1 Each Fund and the Underwriter agree to sell to the Company those Class
A shares of the Portfolios which the Company orders on behalf of any Separate
Account, executing such orders on a daily basis at the net asset value next
computed after receipt and acceptance by the Fund or its designee of such order.
For purposes of this Section, the Company shall be the designee of each Fund for
receipt of such orders from each Separate Account. Receipt by such designee
shall constitute receipt by the Fund; provided that (i) the Company receives
such orders in good order on a Business Day; and (ii) the Fund or the
Underwriter receives notice of such order via the National Securities Clearing
Corporation (the "NSCC") by 10:00 a.m. Eastern Time on the next following
Business Day. Each Fund will receive all orders to purchase Portfolio shares
using the NSCC's Defined Contribution Clearance & Settlement ("DCC&S") platform.
The Funds will also provide the Company with account positions and activity data
using the NSCC's Networking platform. The Company shall pay for Portfolio shares
by the scheduled close of federal funds transmissions on the same Business Day
it places an order to purchase Portfolio shares in accordance with this section
using the NSCC's Fund/SERV System. Payment shall be in federal funds transmitted
by wire from the Fund's designated Settling Bank to the NSCC. "Business Day"
shall mean any day on which the New York Stock Exchange is open for trading and
on which the Funds calculate their net asset value pursuant to the rules of the
SEC. "Networking" shall mean the NSCC's product that allows Funds' and Companies
to exchange account level information electronically. "Settling Bank" shall mean
the entity appointed by the Funds to perform such settlement services on behalf
of the Funds and agrees to abide by the NSCC's Rules and Procedures insofar as
they relate to the same day funds settlement.
If the Company is somehow prohibited from submitting purchase and
settlement instructions to a Fund for Portfolio shares via the NSCC's DCC&S
platform the following shall apply to this Section:
Each Fund and the Underwriter agree to sell the Company those Class A
shares of the Portfolios which the Company orders on behalf of any Separate
Account, executing such orders on a daily basis at the net asset value next
computed after receipt and acceptance by the Fund or its designee of such order.
For purposes of this Section, the Company shall be the designee of each Fund for
the receipt of such orders from the Separate Account and receipt by such
designee shall constitute receipt by the Fund; provided that (i) the Company
receives such orders in good order on a Business Day; and (ii) the Fund or the
Underwriter receives notice of such order by 10:00 a.m. Eastern Time on the next
following Business Day. The Company shall pay for Portfolio shares by the
scheduled close of federal funds transmissions on the same Business Day it
places an order to purchase Portfolio shares in accordance with this section.
Payment shall be in federal funds transmitted by wire to the Fund's designated
custodian. "Business Day" shall mean any day on which the New York Stock
Exchange is open for trading and on which the Fund calculates it net asset value
pursuant to the rules of the SEC.
1.2 Each Fund and the Underwriter agrees to make shares of the Portfolios
available indefinitely for purchase at the applicable net asset value per share
by the Company on Business Days; provided, however, that the Trustees or Board
of Directors, as applicable, of the Funds (hereinafter the "Trustees/Directors")
may refuse to sell shares of any Portfolio to any person, or suspend or
terminate the offering of shares of any Portfolio if such action is required by
law or by regulatory authorities having jurisdiction or is, in the sole
discretion of the Trustees/Directors, acting in good faith and in compliance
with their fiduciary duties under federal and any applicable state laws,
necessary in the best interests of the shareholders of any Portfolio.
1.3 Each Fund agrees to redeem for cash, upon the Company's request, any
full or fractional shares of the Fund held by the Company on behalf of a
Separate Account, executing such requests on a daily
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basis at the net asset value next computed after receipt and acceptance by the
Fund or its designee of the request for redemption. For purposes of this
Section, the Company shall be the designee of each Fund for receipt of requests
for redemption from each Separate Account and receipt by such designee shall
constitute receipt by the Fund; provided (i) the Company receives such orders in
good order on a Business Day; and (ii) the Fund or its designee receives notice
of such request for redemption via the NSCC by 10:00 a.m. Eastern Time on the
next following Business Day. The Fund will receive all orders to redeem
Portfolio shares using the NSCC's DCC&S platform. The Fund will also provide the
Company with account positions and activity data using the NSCC's Networking
platform. Payment for Fund shares redeemed shall be made in accordance with this
section using the NSCC's Fund/SERV System. Payment shall be in federal funds
transmitted by the NSCC to the Separate Account's Settling Bank as designated by
the Company, on the same Business Day the Fund receives notice of the redemption
order from the Company provided that the Fund receives notice by 10:00 a.m.
Eastern Time on such Business Day.
If the Company is somehow prohibited from submitting redemption and
settlement instructions to a Fund for Portfolio shares via the NSCC's DCC&S
platform the following shall apply to this Section:
Each Fund and the Underwriter agree to redeem for cash, upon the Company's
request, any full or fractional shares of the Fund held by the Company on behalf
of a Separate Account, executing such requests on a daily basis at the net asset
value next computed after receipt and acceptance by the Fund or its designee of
the request for redemption. For purposes of this Section, the Company shall be
the designee of the Funds for receipt of requests for redemption from each
Separate Account and receipt by such designee shall constitute receipt by the
Fund; provided (i) the Company receives such orders in good order on a Business
Day; and (ii) the Funds or the Underwriter receives notice of such request for
redemption by 10:00 a.m. Eastern Time on the next following Business Day.
Payment shall be in federal funds transmitted by wire to the Separate Account as
designated by the Company, on the same Business Day the Funds or the Underwriter
receives notice of the redemption order from the Company provided that the Funds
or the Underwriter receives notice by 10:00 a.m. Eastern Time on such Business
Day.
1.4 The Company agrees to purchase and redeem the shares of the Portfolios
named in Schedule A offered by the then current prospectus of the respective
Funds in accordance with the provisions of the applicable prospectus. The
Company further agrees that orders to purchase or redeem shares transmitted to a
Fund via NSCC on a Business Day will have been received in good order by the
Company on the immediately preceding Business Day prior to the time the net
asset value of each Portfolio is priced in accordance with its prospectus
(currently 4:00 p.m. Eastern Standard Time.)
1.5 The Company will place separate orders to purchase or redeem shares of
each Portfolio.
1.6 Issuance and transfer of a Fund's shares will be by book entry only.
Share certificates will not be issued to the Company or any Separate Account.
Purchase and redemption orders for Fund shares will be recorded in an
appropriate title for each Separate Account or the appropriate subaccount of
each Separate Account.
1.7 The Company hereby elects to receive all dividends and distributions as
are payable on a Portfolio's shares in the form of additional shares of that
Portfolio. The Underwriter or the Fund shall promptly notify the Company of the
daily dividend rate, long term capital gain distribution rate and the short term
capital gain distribution rate declared as payment of such dividends and
distributions, which notice shall be no later than 6:30 p.m. on the declaration
date. The Company
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reserves the right to revoke this election and to receive in cash all such
dividends and distributions declared after receipt of notice of revocation by
the Fund.
1.8 The Underwriter shall make the net asset value per share for each
Portfolio available to the Company on a daily basis as soon as reasonably
practical after the close of trading each Business Day, and shall use its best
efforts to make such net asset value available by 6:30 p.m. but in no event
later than 6:45 p.m. Eastern Time on such Business Day.
1.9 If the Underwriter or a Fund provides materially incorrect share net
asset value (as determined in accordance with the Pricing Error Policies adopted
by the Fund) per share, dividend or capital gain information through no fault of
the Company and such errors are not corrected by 4 p.m. Eastern Time the next
Business Day (by providing the incorrect and the correct net asset value for
each day that the error occurred), the Company shall be entitled to an
adjustment with respect to the Fund shares purchased or redeemed to reflect the
correct information. In addition, the Underwriter and/or Fund shall be liable
for the systems and out of pocket costs to make all corrections to all Contract
owner, participant, or beneficiary accounts with respect to the Fund shares
purchased or redeemed to reflect the correct net asset value per share, dividend
or capital gain information so that each participant under a Contract is made
whole. Any error in the calculation or reporting of net asset value per share,
dividend or capital gain information shall be reported promptly to the Company
upon discovery. Underwriter and/or Fund shall reimburse the Company for all out
of pocket expenses and employee time incurred for correcting such incorrect
information.
1.10 If the Company provides incorrect processing information through no
fault of a Fund or the Underwriter, the Fund shall be entitled to an adjustment
with respect to the Fund shares purchased or redeemed to reflect the correct
information. Any error in the information provided by the Company shall be
reported to the Fund and the Underwriter promptly upon discovery.
1.11 The Company recognizes and agrees that shares of each Fund are offered
and sold directly to members of the general public and will not be sold only to
insurance companies and their separate accounts and certain qualified retirement
plans in accordance with Section 817(h)(4) of the Internal Revenue Code of 1986,
as amended, and Treasury Regulation 1.817-5.
ARTICLE II. Representations and Warranties
2.1. The Company represents and warrants that the Contracts are or will be
registered unless exempt and that it will maintain such registration under the
1933 Act to the extent required by 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 and state laws. The Company
further represents and warrants that it is an insurance company duly organized
and in good standing under applicable law and that it has legally and validly
established each Separate Account prior to any issuance or sale of Contracts,
shares or other interests therein, as a segregated asset account under the
insurance laws of the State of Connecticut and has registered or, prior to any
issuance or sale of the Contracts, will register and will maintain the
registration of each Separate Account as a unit investment trust in accordance
with and to the extent required by the provisions of the 1940 Act, unless exempt
therefrom, to serve as a segregated investment account for the Contracts. Unless
exempt, the Company shall amend its registration statement for its Contracts
under the 1933 Act and the 1940 Act from time to time as required in order to
effect the continuous offering of its Contracts. The Company shall register and
qualify the Contracts for sale in accordance with securities laws of the various
states only if and to the extent deemed necessary by the Company in order to
comply with applicable laws.
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2.2 Each Fund and the Underwriter represent and warrant that (i) Fund
shares sold pursuant to this Agreement shall be registered under the 1933 Act
and duly authorized for issuance in accordance with applicable law and that the
Fund is and shall remain registered under the 1940 Act for as long as the Fund
shares are sold; (ii) 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 its shares; and (iii) the Fund shall
register and qualify its shares for sales in accordance with the laws of the
various states only if and to the extent deemed advisable by the Fund or the
Underwriter.
2.3 Each Fund represents that each Portfolio (a) is currently qualified as
a Regulated Investment Company under Subchapter M of the Code; (b) will use best
efforts to maintain such qualification (under Subchapter M or any successor or
similar provision); and (c) will notify the Company immediately upon having a
reasonable basis for believing that such Portfolio has ceased to so qualify or
might not so qualify in the future.
2.4 To the extent that a Fund finances distribution expenses pursuant to
Rule 12b-1 under the 1940 Act, the Fund represents that its Trustees or Board of
Directors, as applicable, including a majority of its Trustees/Directors who are
not interested persons of the Fund, have approved a plan under Rule 12b-1 to
finance distribution expenses.
2.5 Each Fund makes no representation as to whether any aspect of its
operations (including, but not limited to, fees and expenses and investment
policies) complies with the insurance laws or insurance regulations of the
various states. Each Fund and the Underwriter represent that their respective
operations are and shall at all times remain in material compliance with the
laws of the State of Connecticut to the extent required to perform this
Agreement.
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 Fund shares in
accordance in all material respects with all applicable federal and state
securities laws, including without limitation the 1933 Act, the 1934 Act, and
the 0000 Xxx.
2.7 Each Fund represents that it is lawfully organized and validly existing
under the laws of the State set forth next to its respective names on Exhibit B
and that it does and will comply in all material respects with applicable
provisions of the 1940 Act.
2.8 Each Fund represents and warrants that all of its Trustees/Directors,
officers, employees, and other individuals/entities having access to the funds
and/or securities of the Fund are and 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 by Rule 17g-1 under the
1940 Act or related provisions as may be promulgated from time to time. The
aforesaid Bond includes coverage for larceny and embezzlement and is 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/entities dealing
with the money and/or securities of the Fund are covered by a blanket fidelity
bond or similar coverage in an amount not less than $5 million. The aforesaid
includes coverage for larceny and embezzlement and is issued by a reputable
bonding company.
2.10 Xxxxxxxx Data Corp. represents that it is lawfully organized and
validly existing under the laws of the State of New York.
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2.11 The foregoing representations and warranties shall be made, by the
party hereto that makes the representation or warranty as of the date first
written above and at the time of each purchase and each sale of the Fund's
shares pursuant to this Agreement.
ARTICLE III. Prospectuses; Reports and Proxy Statements; Voting
3.1 The Underwriter shall provide the Company at no charge with as many
printed copies of each Fund's current prospectus and statement of additional
information as the Company may reasonably request. If requested by the Company,
in lieu of providing printed copies of a Fund's current prospectus and statement
of additional information, the Underwriter shall provide camera-ready film,
computer diskettes, e-mail transmissions or PDF files containing the Fund's
prospectus and statement of additional information, and such other assistance as
is reasonably necessary in order for the Company once each year (or more
frequently if the prospectus and/or statement of additional information for the
Fund are amended during the year) to have the prospectus for the Contracts (if
applicable) and the Fund's prospectus printed together in one document or
separately. The Company may elect to print the Fund's prospectus and/or its
statement of additional information in combination with other fund companies'
prospectuses and statements of additional information.
3.2(a). The Underwriter shall provide the Company at no charge with copies
of each Fund's proxy statements, Fund reports to shareholders, and other Fund
communications to shareholders in such quantity as the Company shall reasonably
require for distributing to Contract owners.
3.2(b). A Fund shall pay for the cost of typesetting, printing and
distributing its prospectuses, statements of additional information, Fund
reports to shareholders and other Fund communications ("Fund Documents") to
Contract owners whose Contracts are funded by the Fund's shares. The Underwriter
shall pay the cost of typesetting, printing and distributing all Fund Documents
to prospective Contract owners. The Fund shall pay for all costs for
typesetting, printing and distributing proxy materials. The Company assumes sole
responsibility for ensuring that all such materials are delivered to Contract
owners in accordance with applicable Federal and state securities laws, provided
that the Fund and/or the Underwriter, as the case may be, provides such
materials to the Company within a reasonable period of time.
3.3. Each Fund's statement of additional information shall be obtainable by
Contract owners from the Underwriter, the Company or such other person as the
Fund may designate.
3.4 So long as, and to the extent that, the SEC interprets the 1940 Act to
require pass-through voting privileges for variable annuity contract owners, the
Company shall distribute all proxy material furnished by a Fund to Contract
owners to whom voting privileges are required to be extended and shall:
A. solicit voting instructions from Contract owners;
B. vote the Fund shares held in the Separate Account in accordance
with instructions received from Contract owners; and
C. vote Fund shares held in the Separate Account for which no timely
instructions have been received in the same proportion as Fund
shares of such Portfolio for which instructions have been
received from the Company's Contract owners. The Company reserves
the right to vote Fund shares held in any segregated
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asset account for its own account, to the extent permitted by
law. Notwithstanding the foregoing, with respect to the Fund
shares held by unregistered Separate Accounts that issue
Contracts issued in connection with employee benefit plans
subject to the provisions of the Employee Retirement Income
Security Act of 1974, as amended, the Company shall vote such
Fund shares allocated to such Contracts only in accordance with
the Company's agreements with such Contract owners.
3.5 Subject to applicable law or regulation, the Company and its agents
will in no way recommend, oppose or interfere with the solicitation of proxies
for Fund shares held by Contract owners without the prior written consent of the
Fund, which consent may be withheld in the Fund's sole discretion.
3.6 Each Fund will comply with all provisions of the 1940 Act requiring
voting by shareholders. The Fund will not hold annual meetings but will hold
such special meetings as it determines may be necessary or appropriate from time
to time.
ARTICLE IV. Sales Material and Information
4.1 The Company shall furnish, or shall cause to be furnished, to each
Fund, the Underwriter or its respective designee, each piece of sales literature
or other promotional material prepared by the Company or any person contracting
with the Company in which the Fund, the Adviser or the Underwriter is described,
at least five calendar days prior to its use. No such literature or material
shall be used without prior approval from the Fund, the Underwriter or their
designee, however, the failure to object in writing within two Business days
will be deemed approval. Such approval process shall not apply to subsequent
usage of materials that are substantially similar to previously approved
materials.
4.2 Neither the Company nor any person contracting with the Company shall
give any information or make any representations or statements on behalf of a
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 for the Fund shares, as such registration statement and prospectus
may be amended or supplemented from time to time, or in reports to shareholders
or proxy statements for the Fund, or in sales literature or other promotional
material approved by the Fund or its designee, except as required by legal
process or regulatory authorities or with the permission of the Fund, the
Underwriter, Xxxxxxxx Data Corp. or their designees.
4.3 The Underwriter shall furnish, or shall cause to be furnished, to the
Company or its designee, each piece of sales literature or other promotional
material in which the Company or any Separate Account is named, at least five
calendar days prior to its use. No such literature or material shall be used
without prior approval from the Company or its designee, however, the failure to
object in writing within two Business Days will be deemed approval. Such
approval process shall not apply to subsequent usage of materials that are
substantially similar to previously approved materials.
4.4 Neither a Fund, the Underwriter or Xxxxxxxx Data Corp. shall give any
information or make any representations on behalf of the Company or concerning
the Company, each Separate Account, or the Contracts other than the information
or representations contained in the Contracts, a disclosure document,
registration statement or prospectus for the Contracts (if applicable), as such
registration statement and prospectus may be amended or supplemented from time
to time, or in published reports for each Separate Account which are in the
public domain or approved by the Company for distribution to Contract owners or
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participants, or in sales literature or other promotional material approved by
the Company, except as required by legal process or regulatory authorities or
with the permission of the Company.
4.5 The Underwriter will provide to the Company at least one complete copy
of all prospectuses, statements of additional information, reports to
shareholders, proxy statements, and all amendments to any of the above, that
relate to each Fund or its shares, promptly after the filing of such document
with the SEC or other regulatory authorities.
4.6. The Company will provide to the Underwriter at least one complete copy
of all prospectuses, statements of additional information, reports,
solicitations for voting instructions, and all amendments to any of the above,
if applicable to the investment in a Separate Account or Contract, promptly
after the filing of such document with the SEC or other regulatory authorities.
4.7 For purposes of this Article IV, the phrase "sales literature or other
promotional material" includes, but is not limited to, advertisements (such as
material published, or designed for use in, a newspaper, magazine, or other
periodical, radio, television, telephone or tape recording, videotape display,
signs or billboards, motion pictures, Internet, or other public media), sales
literature (i.e., any written communication distributed or made generally
available to customers or the public, including brochures, circulars, research
reports, market letters, form letters, electronic mail, 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 of the Company,
registration statements, disclosure documents, prospectuses, statements of
additional information, shareholder reports, and proxy materials distributed or
made generally available to customers or the public with regard to a Fund.
4.8 The Company agrees and acknowledges that the Company has no right,
title or interest in the names and marks of any Fund, the Underwriter, or J. &
X. Xxxxxxxx & Co. Incorporated (the "Advisor"), the manager of each Fund and the
sole owner of the name and xxxx "Xxxxxxxx", and that all use of any designation
comprised in whole or part of such names or marks under this Agreement shall
inure to the benefit of the Fund, the Underwriter or the Advisor. Except as
provided in Section 4.1, the Company shall not use any such names or marks on
its own behalf or on behalf of a Separate Account in connection with marketing
the Contracts without prior written consent of the Fund, the Underwriter or the
Advisor. Upon termination of this Agreement for any reason, the Company shall
cease all use of any such names or marks.
4.9 Each Fund, the Underwriter and Xxxxxxxx Data Corp. agree and
acknowledge that each has no right, title or interest in the names and marks of
the Company, and that all use of any designation comprised in whole or part or
such names or marks under this Agreement shall inure to the benefit of the
Company. Except as provided in Section 4.3, the Fund, the Underwriter and
Xxxxxxxx Data Corp. shall not use any such names or marks on its own behalf or
on behalf of a Fund in connection with marketing the Fund without prior written
consent of the Company. Upon termination of this Agreement for any reason, the
Fund, the Underwriter and Xxxxxxxx Data Corp. shall cease all use of any such
names or marks.
ARTICLE V. Fees and Expenses
5.1 Xxxxxxxx Data Corp. shall pay the fees and expenses provided for in the
attached Schedule B.
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ARTICLE VI. Indemnification
6.1 Indemnification By The Company
(a) The Company agrees to indemnify and hold harmless each Fund, the
Underwriter and Xxxxxxxx Data Corp. and each of their respective trustees,
directors, officers, employees or agents and each person, if any, who controls
the Fund, the Underwriter or Xxxxxxxx Data Corp. within the meaning of section
15 of the 1933 Act (collectively, the "Indemnified Parties" for purposes of this
Section 6.1) against any and all losses, claims, damages, liabilities (including
amounts paid in settlement with the written consent of the Company) or
litigation (including reasonable legal and other expenses), to which the
Indemnified Parties may become subject under any statute, regulation, at common
law or otherwise, insofar as such losses, claims, damages, liabilities or
expenses (or actions in respect thereof) or settlements are related to the sale
or acquisition of the Fund's shares or the Contracts and:
(i) arise out of or are based upon any untrue statement or
alleged untrue statement of any material fact contained in the disclosure
statement, registration statement, prospectus or statement of information for
the Contracts or contained in the Contracts or sales literature or other
promotional material 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 an Indemnified Party if such
statement or omission or such alleged statement or omission was made in reliance
upon and in conformity with information furnished by such Indemnified Party or
the Fund, the Underwriter or Xxxxxxxx Data Corp. to the Company on behalf of the
Fund, the Underwriter or Xxxxxxxx Data Corp. for use in the registration
statement, prospectus or statement of additional information 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 as a result of (a) statements or
representations by or on behalf of the Company (other than statements or
representations contained in the Fund registration statement, Fund prospectus or
sales literature or other promotional material of the Fund not supplied by the
Company, or persons under its control and other than statements or
representations authorized by the Fund, the Underwriter, Xxxxxxxx Data Corp. or
the Advisor); or (b) the willful misfeasance, bad faith, gross negligence or
reckless disregard of duty of the Company or persons under its control, with
respect to the sale or distribution of the Contracts or Fund shares; or
(iii) arise out of or as a result of any untrue statement or
alleged untrue statement of a material fact contained in the Fund registration
statement, Fund prospectus, statement of additional information or sales
literature or other promotional material 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 and in conformity with information furnished to the Fund, the Underwriter
or Xxxxxxxx Data Corp. by the Company or persons under its control; or
(iv) arise as a result of any material failure by the Company to
provide the services and furnish materials under the terms of this Agreement; or
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(v) 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 by the Company of this
Agreement; except to the extent provided in Sections 6.1(b) and 6.4 hereof.
(b) No party shall be entitled to indemnification to the extent that
such loss, claim, damage, liability or litigation is due to the willful
misfeasance, bad faith, gross negligence or reckless disregard of duty by the
party seeking indemnification.
(c) In accordance with Section 6.4 hereof, 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.
6.2 Indemnification By the Underwriter
(a) The Underwriter agrees, with respect to each Portfolio that it
distributes, to indemnify and hold harmless the Company and each of its
directors, officers, employees or agents and each person, if any, who controls
the Company within the meaning of section 15 of the 1933 Act (collectively, the
"Indemnified Parties" for purposes of this Section 6.2) against any and all
losses, claims, damages, liabilities (including amounts paid in settlement with
the written consent of the Underwriter) or litigation (including reasonable
legal and other expenses) to which the Indemnified Parties may become subject
under any statute, regulation, at common law or otherwise, insofar as such
losses, claims, damages, liabilities or expenses (or actions in respect thereof)
or settlements are related to the sale or acquisition of the shares of the
Portfolios that it distributes or the Contracts and:
(i) arise out of or are based upon any untrue statement or
alleged untrue statement of any material fact contained in the registration
statement, prospectus or statement of additional information for the Fund or
sales literature or other promotional material of a 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 by such
Indemnified Party or the Company to the Fund, the Underwriter or Xxxxxxxx Data
Corp. on behalf of the Company for use in the registration statement, prospectus
or statement of additional information for the Fund or in sales literature of
the Fund (or any amendment or supplement thereto) or otherwise for use in
connection with the sale of the Contracts or the Portfolio shares; or
(ii) arise out of or as a result of (a) statements or
representations (other than statements or representations contained in the
registration statement, prospectus or sales literature for the Contracts not
supplied by the Fund, the Underwriter, Xxxxxxxx Data Corp., or persons under
their respective control and other than statements or representations authorized
by the Company); or (b) the willful misfeasance, bad faith, gross negligence or
reckless disregard of duty of the Underwriter or persons under the control of
the Underwriter with respect to the sale or distribution of the Contracts or
Portfolio shares; or
(iii) arise out of any untrue statement or alleged untrue
statement of a material fact contained in a registration statement, prospectus,
statement of additional information or sales literature or other promotional
material with respect to 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
10
made in reliance upon and in conformity with information furnished to the
Company by the Underwriter or persons under the control of the Underwriter or
(iv) arise as a result of any material failure by the Underwriter
to provide the services and furnish the materials under the terms of this
Agreement; or
(v) arise out of or result from any material breach of any
representation and/or warranty made by the Underwriter in this Agreement or
arise out of or result from any other material breach of this Agreement by the
Underwriter; except to the extent provided in Sections 6.2(b) and 6.4 hereof.
(b) No party shall be entitled to indemnification to the extent that
such loss, claim, damage, liability or litigation is due to the willful
misfeasance, bad faith, gross negligence or reckless disregard of duty by the
party seeking indemnification.
(c) In accordance with Section 6.4 hereof, the Indemnified Parties
will promptly notify the Underwriter 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 Separate Accounts.
6.3 Indemnification by the Funds
(a) Each Fund agrees, severally and not jointly, to indemnify and hold
harmless the Company and each of its directors, officers, employees or agents
and each person, if any, who controls the Company within the meaning of section
15 of the 1933 Act (collectively, the "Indemnified Parties" for purposes of this
Section 6.3) against any and all losses, claims, damages, liabilities (including
amounts paid in settlement with the written consent of the Fund) or litigation
(including reasonable legal and other expenses) to which the Indemnified Parties
may become subject under any statute, regulation, at common law or otherwise,
insofar as such losses, claims, damages, liabilities or expenses (or actions in
respect thereof) or settlements are related to the sale or acquisition of the
shares of the Portfolios or the Contracts and:
(i) arise out of or are based upon any untrue statement or
alleged untrue statement of any material fact contained in the registration
statement, prospectus or statement of additional information for 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
by such Indemnified Party or the Company to the Fund, the Underwriter or
Xxxxxxxx Data Corp. on behalf of the Company for use in the registration
statement, prospectus or statement of additional information for the Fund (or
any amendment or supplement thereto) or otherwise for use in connection with the
sale of the Contracts or the Portfolio shares; or
(ii) arise out of or as a result of (a) statements or
representations (other than statements or representations contained in the
registration statement, prospectus or sales literature for the Contracts not
supplied by the Fund, the Underwriter, Xxxxxxxx Data Corp., or persons under
their respective control and other than statements or representations authorized
by the Company); or (b) the willful misfeasance, bad faith, gross negligence or
reckless disregard of duty of the Fund or persons under the control of the Fund
with respect to the sale or distribution of the Contracts or Portfolio shares;
or
11
(iii) arise out of any untrue statement or alleged untrue
statement of a material fact contained in a registration statement, prospectus
or statement of additional information with respect to 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 and in conformity with information furnished
to the Company by the Fund or persons under the control of the Fund; or
(iv) arise as a result of any material failure by the Fund to
provide the services and furnish the materials under the terms of this
Agreement; or
(v) arise out of or result from any material breach of any
representation and/or warranty made by the Fund in this Agreement or arise out
of or result from any other material breach of this Agreement by the Fund;
except to the extent provided in Sections 6.3(b) and 6.4 hereof.
(b) No party shall be entitled to indemnification to the extent that
such loss, claim, damage, liability or litigation is due to the willful
misfeasance, bad faith, gross negligence or reckless disregard of duty by the
party seeking indemnification.
(c) In accordance with Section 6.4 hereof, the Indemnified Parties
will promptly notify the Fund 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 Separate Accounts.
6.4. Indemnification Procedure
(a) Any person obligated to provide indemnification under this Article
VI ("Indemnifying Party" for the purpose of this Section 6.4) shall not be
liable under the indemnification provisions of this Article VI with respect to
any claim made against a party entitled to indemnification under this Article VI
("Indemnified Party" for the purpose of this Section 6.4) unless such
Indemnified Party shall have notified the Indemnifying Party 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 party shall have received notice of such
service on any designated agent), but failure to notify the Indemnifying Party
of any such claim shall not relieve the Indemnifying Party from any liability
which it may have to the Indemnified Party against whom such action is brought
otherwise than on account of the indemnification provision of this Article VI.
In case any such action is brought against the Indemnified Party, the
Indemnifying Party will be entitled to participate, at its own expense, in the
defense thereof. The Indemnifying Party also shall be entitled to assume the
defense thereof, with counsel satisfactory to the party named in the action.
After notice from the Indemnifying Party to the Indemnified Party of the
Indemnifying Party's election to assume the defense thereof, the Indemnified
Party shall bear the fees and expenses of any additional counsel retained by the
Indemnified Party, and the Indemnifying Party 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, unless:
(i) the Indemnifying Party and the Indemnified Party shall have
mutually agreed to the retention of such counsel or
(ii) the named parties to any such proceeding (including any
impleaded parties) include both the Indemnifying Party and the Indemnified Party
and representation of both parties by the same counsel would be inappropriate
due to actual or potential differing interests between them.
12
A successor by law of the parties to this Agreement shall be entitled to the
benefits of the indemnification contained in this Article VI. The
indemnification provisions contained in this Article VI shall survive any
termination of this Agreement.
ARTICLE VII. Applicable Law
7.1 This Agreement shall be construed and the provisions hereof interpreted
under and in accordance with the laws of the State of Connecticut.
7.2 This Agreement shall be subject to the provisions of the 1933, 1934 and
1940 Acts, and the rules and regulations and rulings thereunder, including such
exemptions from those statutes, rules and regulations as the SEC may grant and
the terms hereof shall be interpreted and construed in accordance therewith.
ARTICLE VIII. Termination
8.1 This Agreement shall terminate:
(a) at the option of any party upon six months' advance written notice
to the other parties unless otherwise agreed in a separate written agreement
among the parties; or
(b) at the option of a Fund, the Underwriter or Xxxxxxxx Data Corp.
(each Fund, the Underwriter and Xxxxxxxx Data Corp., a "Xxxxxxxx Party") upon
institution of formal proceedings against the Company by the NASD, NASD
Regulation, Inc. ("NASDR"), the SEC, or any state securities or insurance
department or any other regulatory body regarding the Company's duties under
this Agreement or related to the sale of the Contracts, the administration of
the Contracts, the operation of the Separate Accounts, or the purchase of the
Fund shares, which in the judgment of the Fund, the Underwriter or Xxxxxxxx Data
Corp. are reasonably likely to have a material adverse effect on the Company's
ability to perform its obligations under this Agreement; or
(c) at the option of the Company upon institution of formal
proceedings against a Fund, the Underwriter or Xxxxxxxx Data Corp. by the NASD,
NASDR, the SEC, or any state securities or insurance department or any other
regulatory body, related to the purchase or sale of the Fund shares or the
operation of the Fund which in the judgment of the Company are reasonably likely
to have a material adverse effect on the Underwriter's, the Fund's or Xxxxxxxx
Data Corp.'s ability to perform its obligations under this Agreement; or
(d) at the option of the Company if a Portfolio delineated in Schedule
A ceases to qualify as a Regulated Investment Company under Subchapter M of the
Code (a "RIC"), or under any successor or similar provision, and the
disqualification is not cured within the period permitted for such cure, or if
the Company reasonably believes that any such Portfolio may fail to so qualify
and be unable to cure such disqualification within the period permitted for such
cure; or
(e) at the option of any party to this Agreement, upon another party's
material breach of any provision of this Agreement; provided that the party not
in breach shall give the party in breach notice of the breach and the party in
breach does not cure such breach within 30 days of receipt of such notice of
breach; or
13
(f) at the option of the Company, if the Company determines in its
sole judgment exercised in good faith, that either a Fund, the Underwriter or
Xxxxxxxx Data Corp. has suffered a material adverse change in its business,
operations or financial condition since the date of this Agreement or is the
subject of material adverse publicity which is likely to have a material adverse
impact upon the business and operations of the Company; or
(g) at the option of a Xxxxxxxx Party if the Xxxxxxxx Party shall
determine in its sole judgment exercised in good faith, that the Company has
suffered a material adverse change in its business, operations or financial
condition since the date of this Agreement or is the subject of material adverse
publicity which is likely to have a material adverse impact upon the business
and operations of a Xxxxxxxx Party.
8.2 Notice Requirement
(a) In the event that any termination of this Agreement is based upon
the provisions of Sections 8.1(b), 8.1(c) or 8.1(d), prompt written notice of
the election to terminate this Agreement for cause shall be furnished by the
party terminating the Agreement to the non-terminating parties, with said
termination to be effective upon receipt of such notice by the non-terminating
parties; provided that for any termination of this Agreement based on the
provisions of Section 8.1(d), said termination shall be effective upon the
Portfolio's failure to qualify as a RIC and to cure such disqualification within
the period permitted for such cure.
(b) In the event that any termination of this Agreement is based upon
the provisions of Sections 8.1(f) or 8.1(g), prior written notice of the
election to terminate this Agreement for cause shall be furnished by the party
terminating this Agreement to the non-terminating parties. Such prior written
notice shall be given by the party terminating this Agreement to the
non-terminating parties at least 60 days before the effective date of
termination.
8.3 It is understood and agreed that the right to terminate this Agreement
pursuant to Section 8.1(a) may be exercised for any reason or for no reason.
8.4 Effect of Termination
(a) Notwithstanding any termination of this Agreement pursuant to
Section 8.1(a) through 8.1(g) of this Agreement and subject to Section 1.2 of
this Agreement, the Company may require the Funds and the Underwriter to
continue to make available additional shares of the Fund for so long after the
termination of this Agreement as the Company desires pursuant to the terms and
conditions of this Agreement as provided in paragraph (b) below, for all
Contracts in effect on the effective date of termination of this Agreement
(hereinafter referred to as "Existing Contracts") provided that the Company
continues to provide the services to the Accounts related to the Existing
Contracts, unless such further sale of Fund shares is proscribed by law,
regulation or an applicable regulatory body. Specifically, without limitation,
the owners of the Existing Contracts shall be permitted to direct reallocation
of investments in the Fund, redeem investments in the Fund and/or invest in the
Fund upon the making of additional purchase payments under the Existing
Contracts unless such further sale of Fund shares is proscribed by law,
regulation or an applicable regulatory body.
(b) Xxxxxxxx Data Corp. shall remain obligated to pay Company the fee
in effect as of the date of termination for so long as (i) shares are held by
the Contracts and (ii) Company continues to provide
14
services to the Contracts. Such fee shall apply to shares purchased both prior
to and subsequent to the date of termination. This Agreement, or any provision
thereof, shall survive the termination to the extent necessary for each party to
perform its obligations with respect to shares for which a fee continues to be
due subsequent to such termination.
ARTICLE IX. Notices
9.1 (a) Any notice shall be deemed duly given only if sent by hand or
overnight express delivery, evidenced by written receipt or by certified mail,
return receipt requested, 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. All notices shall be deemed given the date
received or rejected by the addressee.
If to the Company:
Hartford Life Insurance Company
000 Xxxxxxxxx Xxxxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
Attention: Vice President, Investment Products Division
with a copy to:
General Counsel
Hartford Life Insurance Company
000 Xxxxxxxxx Xxxxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
If to a Fund:
[Name of the Fund]
x/x X. & X. Xxxxxxxx & Xx. Xxxxxxxxxxxx
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: General Counsel
If to the Underwriter:
Xxxxxxxx Advisors, Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxxx Xxxxx
ARTICLE X Miscellaneous
10.1 Subject to law and regulatory authority, each party hereto shall treat
as confidential the names and addresses of the owners of the Contracts and all
other information reasonably identified as such in writing by any other party
hereto, and, except as contemplated by this Agreement, shall not disclose,
disseminate or utilize such confidential information without the express prior
written consent of the affected
15
party until such time as it may come into the public domain. In addition, the
parties hereby represent that they will use and disclose Personal Information
(as defined below) only to carry out the purposes for which it was disclosed to
them and will not use or disclose Personal information if prohibited by
applicable law, including, without limitation, statutes and regulations enacted
pursuant to the Xxxxx-Xxxxx-Xxxxxx Act (Public Law 106-102). "Personal
Information" means financial and medical information that identifies an
individual personally and is not available to the public, including, but not
limited to, credit history, income, financial benefits, policy or claim
information and medical records. If either party outsources services to a third
party, such third party will agree in writing to maintain the security and
confidentiality of any information shared with them.
10.2 The captions in this Agreement are included for convenience of
reference only and in no way define or delineate any of the provisions hereof or
otherwise affect their construction or effect.
10.3 This Agreement may be executed simultaneously in two or more
counterparts, each of which taken together shall constitute one and the same
instrument.
10.4 If any provision of this Agreement shall be held or made invalid by a
court decision, statute, rule or otherwise, the remainder of the Agreement shall
not be affected thereby.
10.5 This Agreement shall not be assigned by any party hereto without the
prior written consent of all the parties.
10.6 Each party hereto shall cooperate with each other party and all
appropriate governmental authorities (including without limitation the SEC, the
NASD, NASDR and state insurance regulators) and shall permit each other and such
authorities (and the parties hereto) 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 foregoing, each party
hereto further agrees to furnish the California Insurance Commissioner with any
information or reports in connection with services provided under this Agreement
which such Commissioner may request in order to ascertain whether the insurance
operations of the Company are being conducted in a manner consistent with the
California laws and regulations. The Company agrees to pay the reasonable costs
and expenses incurred by the Fund or the Underwriter in connection with
responding to such a request.
10.7 The Company acknowledges and agrees that all liabilities of a Fund
arising, directly or indirectly, under this Agreement, of any and every nature
whatsoever, shall be satisfied solely out of assets of the Fund and that no
Director, officer, agent or holder of shares of the Fund shall be personally
liable for any such liabilities.
10.8 Each party represents that (a) the execution and delivery of this
Agreement and the consummation of the transactions contemplated herein have been
duly authorized by all necessary corporate or trust action, as applicable, by
such party and when so executed and delivered this Agreement will be the valid
and binding obligation of such party enforceable in accordance with its terms
subject to bankruptcy, insolvency, reorganization, moratorium and similar laws
of general applicability relating to or affecting creditors' rights and to
general equity principles; (b) the party has obtained, and during the term of
this Agreement will maintain, all authorizations, licenses, qualifications or
registrations required to be maintained in connection with the performance of
its duties under this Agreement; and (c) the party will provide the services
required by it by, and perform its obligations under, this Agreement in
compliance in all material respects with all applicable laws, rules and
regulations.
16
10.9 The parties to this Agreement may amend by written agreement the
Schedules to this Agreement from time to time to reflect changes in or relating
to the Contracts, the Separate Accounts, the Funds or the Portfolios of a Fund.
17
IN WITNESS WHEREOF, each of the parties hereto has caused this Agreement to
be executed in its name and behalf by its duly authorized representative as of
the date first written above.
HARTFORD LIFE INSURANCE COMPANY XXXXXXXX ADVISORS, INC.
By By
-------------------------- ----------------------------
Name: Name:
----------------------- -------------------------
Title: Title:
---------------------- ------------------------
Each Fund in the Xxxxxxxx Group XXXXXXXX DATA CORP.
By: By:
------------------------- ---------------------------
Name: Name:
----------------------- -------------------------
Title: Title:
---------------------- ------------------------
18
Schedule A
-------------------------------------------------------------------------------
Separate Accounts
-------------------------------------------------------------------------------
Each Separate Account established by resolution of the Board of Directors of the
Company under the insurance laws of the State of Connecticut to set aside and
invest assets attributable to the Contracts. Currently, those Separate Accounts
are as follows:
401 Market
----------
K, K1, K2, K3, K4
TK, TK1, TK2, TK3, TK4
VK, VK1, VK2, VK3, VK4
UK, XX0, XX0, XX0, XX0
403 and 457 Markets
-------------------
DCI, DCII, DCIII, DCIV, DCV,
DCVI, 457, 403, UFC, Eleven
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
Portfolios
-------------------------------------------------------------------------------
19
-----------------------------------------------------------------
Xxxxxxxx Capital Fund, Inc (Maryland)
Xxxxxxxx Common Stock Fund, Inc. (Maryland)
Xxxxxxxx Growth Fund, Inc. (Maryland)
Xxxxxxxx Frontier Fund, Inc. (Maryland)
Xxxxxxxx Income Fund, Inc. (Maryland)
Xxxxxxxx Large-Cap Value Fund (Maryland)
Xxxxxxxx Small-Cap Value Fund (Maryland)
Xxxxxxxx Cash Management Fund, Inc. (Maryland)
Xxxxxxxx Communications & Information Fund, Inc. (Maryland)
Xxxxxxxx Global Smaller Co. Fund (Maryland)
Xxxxxxxx International Growth Fund (Maryland)
Xxxxxxxx Global Technology Fund (Maryland)
Xxxxxxxx Global Growth Fund (Maryland)
Xxxxxxxx Emerging Markets Fund (Maryland)
Xxxxxxxx High Income Fund Series: (Maryland)
U.S. Government Securities Fund
High-Yield Bond Fund
-----------------------------------------------------------------
20
Schedule B
In consideration of the services provided by the Company, Xxxxxxxx Data Corp.
agrees to pay the Company an amount equal to the following basis points per
annum on the average aggregate amount invested by the Company's Separate
Account(s) in each Portfolio under the Fund Participation Agreement, such
amounts to be paid within 30 days of the end of each calendar quarter.
21
