EX-99.B(h)(5)(i)
PARTICIPATION AGREEMENT
By and Among
XXXXX FARGO VARIABLE TRUST
And
FORTIS BENEFITS INSURANCE COMPANY
And
XXXXXXXX INC.
THIS AGREEMENT, made and entered into this 17th day of November, 1999, by
and among Fortis Benefits Insurance Company, a Minnesota corporation (the
"Company"), on its own behalf and on behalf of each separate account of the
Company named in Exhibit A to this Agreement, as may be amended from time to
time (each separate account, a "Separate Account"), and Xxxxx Fargo Variable
Trust, an open-end diversified management investment company organized under the
laws of the State of Delaware (the "Trust"), and Xxxxxxxx Inc., an Arkansas
corporation (the "Underwriter").
WHEREAS, the Trust engages in business as an open-end diversified,
management investment company and was established for the purpose of serving as
the investment vehicle for separate accounts established for variable life
insurance contracts and variable annuity contracts to be offered by insurance
companies which have entered into participation agreements substantially similar
to this Agreement ("Participating Insurance Companies"); and
WHEREAS, beneficial interests in the Trust are divided into several series
of shares, each representing the interest in a particular managed portfolio of
securities and other assets (each, a "Fund"); and
WHEREAS, an order from the U.S. Securities and Exchange Commission (the
"SEC" or "Commission"), dated September 28, 1998 (File No. 812-11158), grants
Participating Insurance Companies and variable annuity separate accounts and
variable life insurance separate accounts relief 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 6e-3(T)(b)(15) thereunder, to the
extent necessary to permit shares of the Trust to be sold to and held by
variable annuity separate accounts and variable life insurance separate accounts
of both affiliated and unaffiliated Participating Insurance Companies and
qualified pension and retirement plans ("Mixed and Shared Funding Order"), and
WHEREAS, the Trust is registered as an open-end management investment
company under the 1940 Act and its shares are registered under the Securities
Act of 1933, as amended (the "1933 Act"); and
WHEREAS, the Company has registered or will register certain variable
annuity and variable life insurance contracts under the 1933 Act and named in
Exhibit A to this Agreement, as it may be amended from time to time (the
"Contracts"); and
WHEREAS, the Separate Accounts are duly organized, validly existing
segregated asset accounts, established by resolution of the Board of Directors
of the Company under the insurance laws of the State of Minnesota, to set aside
and invest assets attributable to the Contracts; and
-2-
WHEREAS, the Company has registered the Separate Accounts as unit
investment trusts under the 1940 Act; and
WHEREAS, the Underwriter is registered as a broker-dealer with 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");
WHEREAS, to the extent permitted by applicable insurance laws and
regulations, the Company intends to purchase shares in the Funds named in
Exhibit B on behalf of the Separate Accounts 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
Trust, and the Underwriter agree as follows:
ARTICLE 1 Sale of Trust Shares
--------------------
1.1. The Underwriter agrees to sell to the Company those shares of the Trust
which the Company orders on behalf of the Separate Accounts, executing such
orders on a daily basis at the net asset value next computed after receipt
and acceptance by the Trust or its designee of the order for the shares of
the Trust. For purposes of this Section 1.1, the Company shall be the
designee of the Trust for receipt of such orders from each Separate Account
and receipt by such designee shall constitute receipt by the Trust;
provided that the Trust receives notice of such order by 9:30 a.m. Eastern
Time on the next following Business Day. "Business Day" shall mean any day
on which the New York Stock Exchange is open for trading and on which the
relevant Fund calculates its net asset value.
-3-
1.2. The Trust agrees to make its shares available indefinitely for purchase at
the applicable net asset value per share by Participating Insurance
Companies and their separate accounts on those days on which the Trust
calculates its net asset value pursuant to rules of the SEC; provided,
however, that the Board of Trustees of the Trust (hereinafter the
"Trustees") may refuse to sell shares of any Fund to any person, or suspend
or terminate the offering of shares of any Fund, if such action is required
by law or by regulatory authorities having jurisdiction, or is, in the sole
discretion of the Trustees, acting in good faith and in light of their
fiduciary duties under federal and any applicable state laws, necessary in
the best interests of the shareholders of any Fund.
1.3. The Trust and the Underwriter agree that shares of the Trust will be sold
only to Participating Insurance Companies and their separate accounts, and
to qualified pension and retirement plans. No shares of the Trust will be
sold to the general public.
1.4. The Trust and the Underwriter will not sell Trust shares to any insurance
company or separate account unless an agreement containing provisions
substantially the same as Articles I, III, V, VII, and Section 2.8 of
Article II of this Agreement are in effect to govern such sales.
1.5. The Trust will not accept a purchase order from qualified pension or
retirement plan if such purchase would make the plan shareholder an owner
of 10 percent or more of the assets of a Fund unless such plan executes an
agreement with the Trust governing participation in such Fund that includes
the conditions set forth herein to the extent applicable. A qualified
pension or retirement plan will execute an application containing
-4-
an acknowledgment of this condition at the time of its initial purchase of
shares of any Fund.
1.6. The Trust agrees to redeem for cash, upon the Company's request, any full
or fractional shares of the Trust held by the Company, executing such
requests on a daily basis at the net asset value next computed after
receipt and acceptance by the Trust or its designee of the request for
redemption. For purposes of this Section 1.6, the Company shall be the
designee of the Trust for receipt of requests for redemption from each
Separate Account and receipt by such designee shall constitute receipt by
the Trust; provided the Trust receives notice of request for redemption by
9:30 a.m. Eastern Time on the next following Business Day. Payment shall
be in federal funds transmitted by wire to the Company's account as
designated by the Company in writing from time to time.
1.7. Each purchase, redemption, and exchange order placed by the Company shall
be placed separately for each Fund and shall not be netted with respect to
any Fund. However, with respect to payment of the purchase price by the
Company and of redemption proceeds by the Trust, the Company and the Trust
shall net purchase and redemption orders with respect to each Fund and
shall transmit one net payment for all Funds in accordance with Section
1.8.
1.8. The Company agrees that purchases and redemptions of Fund shares offered
by the then current prospectus of the Fund shall be made in accordance
with the provisions of such prospectus. The Company agrees that all net
amounts available under the variable life insurance contracts with the
form number(s) which are listed on Schedule A attached hereto and
incorporated herein by this reference, as such Schedule A may be amended
-5-
from time to time hereafter by mutual written agreement of all the parties
hereto (the "Contracts") shall be invested in the Funds, in such other
Funds managed by Xxxxx Fargo Bank as may be mutually agreed to in writing
by the parties hereto, or in the Company's general account, provided that
such amounts may also be invested in an investment company other than the
Trust if (a) such other investment company, or series thereof, has
investment objectives or policies that are substantially different from
the investment objectives and policies of all the Funds of the Trust which
are actually used by the Company to fund the Contracts; or (b) the Company
gives the Fund and the Underwriter 45 days written notice of its intention
to make such other investment company available as a funding vehicle for
the Contacts; or (c) such other investment company was available as a
funding vehicle for the Contracts prior to the date of this Agreement and
the Company so informs the Fund and Underwriter prior to their signing
this Agreement (a list of such funds appearing on Schedule C to this
Agreement); or (d) the Fund or Underwriter consents to the use of such
other investment company.
1.9. In the event of net purchase, the Company shall pay for shares by 2:00
p.m. Eastern Time on the next Business Day after an order to purchase the
Shares is deemed to be received in accordance with the provisions of
Section 1.1 hereof. In the event of net redemptions, the Trust shall pay
the redemption proceeds in accordance with the terms of the then-current
prospectus for the Trust. All such payments shall be in federal funds
transmitted by wire. For purposes of Section 2.4 and Section 2.11, upon
receipt by the Trust of the federal funds so wired, such funds shall cease
to be the responsibility of the Company and shall become the
responsibility of the Fund.
-6-
1.10. Issuance and transfer of the Trust's shares will be by book entry only.
Stock certificates will not be issued to the Company or any Separate
Account. Purchase and redemption orders for Trust shares will be recorded
in an appropriate title for each Separate Account or the appropriate
subaccount of each Separate Account.
1.11. The Trust shall furnish notice as soon as reasonably practicable to the
Company of any income, dividends, or capital gain distributions payable on
the Trust's shares. The Company hereby elects to receive all such
dividends and distributions as are payable on the Fund shares in the form
of additional shares of that Fund. The Company reserves the right to
revoke this election and to receive all such dividends and distributions
in cash. The Trust shall notify the Company of the number of shares so
issued as payment of such dividends and distributions.
1.12. The Trust shall make the net asset value per share for each Fund available
to the Company on a daily basis. The Trust shall use reasonable efforts to
make such net asset value per share available by 3:30 p.m. Pacific Time
each business day, but in any event, shall make such net asset value per
share available by no later than 4:30 p.m. Pacific Time each business day.
ARTICLE 2 Representations and Warranties
------------------------------
2.1. The Company represents and warrants that the Contracts are or will be
registered under the 1933 Act, unless exempt therefrom, and that the
Contracts will be issued and sold in compliance with all applicable
federal and state laws and that the sale of the Contracts shall comply in
all material respects with state insurance suitability requirements. The
Company further represents and warrants that: (i) it is an insurance
company duly
-7-
organized and in good standing under applicable law; (ii) it has legally
and validly established each Separate Account as a segregated asset
account under applicable state law and has registered each Separate
Account as a unit investment trust in accordance with the provisions of
the 1940 Act, unless exempt therefrom, to serve as segregated investment
accounts for the Contracts; (iii) it will maintain such registration, if
required, for so long as any Contracts are outstanding; (iv) the
Contracts' 1933 Act registration statement, together with any amendments
thereto, will at all times comply in all material respects with the
requirements of the 1933 Act and rules thereunder; and (v) the Contract
prospectus will at all times comply in all material respects with the
requirements of the 1933 Act and the rules thereunder. The Company shall
amend any registration statement under the 1933 Act for the Contracts and
any registration statement under the 1940 Act for the Separate Accounts
from time to time as required in order to effect the continuous offering
of the Contracts or as may otherwise be required by applicable law. The
Company shall register and qualify the Contracts for sale in accordance
with the securities laws of the various states only if, and to the extent,
deemed necessary by the Company.
2.2. Subject to Article VI hereof, the Company represents that the Contracts
are currently and at the time of issuance will be treated as life
insurance, endowment, or annuity contracts under applicable provisions of
the Internal Revenue Code and that it will maintain such treatment and
that it will notify the Trust and the Underwriter immediately upon having
a reasonable basis for believing that the Contracts have ceased to be so
treated or that they might not be so treated in the future.
-8-
2.3. The Company represents that any prospectus offering a Contract that is a
life insurance contract where it is reasonably probable that such Contract
would be a "modified endowment contract," as that term is defined in
Section 7702A of the Internal Revenue Code will identify such Contract as
a modified endowment contract (or policy).
2.4. 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 Trust 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. The Company agrees that any amounts
received under such bond in connection with claims that derive from
arrangements described in this Agreement will be held by the Company for
the benefit of the Trust. The Company agrees to see that this bond or
another bond containing these provisions is always in effect, and agrees
to notify the Trust and the Underwriter in the event that such coverage no
longer applies.
2.5. Company, Trust and Underwriter represent and warrant to the other that, by
December 31, 1999, all Company-owned systems and Trust and Underwriter-
owned systems (the "Systems") which are material to the services, products
or deliverables which are the subject of this Agreement (collectively, the
"Deliverables") will be capable of processing all dates before, on and
after January 1, 2000 in a manner which will allow for performance by the
Company, Trust and Underwriter as contemplated under this Agreement and
that the Deliverables that depend on the Systems will correctly reflect
dates occurring before, on and after January 1, 2000. As the sole and
exclusive remedy
-9-
for breach of this warranty, the breaching party shall (a) exercise
commercially reasonable efforts to correct any material noncompliance and
(b) provide to the non-breaching party new Deliverables that are in
compliance with this warranty at no cost or expense to the non-breaching
party. In no event shall the breaching party be liable for indirect,
incidental, consequential, reliance, or special damages that the non-
breaching party may incur as a result of breach of this warranty. Each
party agrees to look solely to the others for any recovery of damages
incurred due to a breach of this warranty. Neither party shall be liable
for any damages resulting from the failure of any third party's computer
systems not being able to process or reflect dates before, on and after
January 1, 2000; however, each party agrees that it shall be liable for
Systems failures which are solely attributable to a failure of its
individually-owned systems to process and reflect dates before, on and
after January 1, 2000.
2.6. The Trust represents and warrants that Trust 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 Trust is and
shall remain registered under the 1940 Act for as long as the Trust shares
are sold. The Trust shall amend the registration statement for its shares
under the 1933 and the 1940 Acts from time to time as required in order to
effect the continuous offering of its shares. The Trust and Underwriter
further represent and warrant that: (i) the Trust does and will comply in
all material respects with the requirements of the 1940 Act and rules
thereunder, (ii) the Trust's 1933 Act registration statement, together
with any amendments thereto, will at all times comply in all material
respects with the requirements of the 1933 Act and rules thereunder, and
(iii) the Trust
-10-
prospectus will at all times comply in all material respects with the
requirements of the 1933 Act and the rules thereunder. The Trust shall
register and qualify the shares for sale in accordance with the laws of
the various states only if, and to the extent, deemed advisable by the
Trust or the Underwriter.
2.7. The Trust represents that it is currently qualified as a Regulated
Investment Company under Subchapter M of the Internal Revenue Code, and
that it will make every effort to maintain such qualification (under
Subchapter M or any successor or similar provision).
2.8. The Trust 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 Trust represents that it is and shall at
all times remain in compliance with the laws of the state of Delaware to
the extent required to perform this Agreement.
2.9. The Trust represents and warrants that to the extent that it decides to
finance distribution expenses pursuant to Rule 12b-1 under the 1940 Act,
the Trust undertakes to have its Board of Trustees, a majority of whom are
not interested persons of the Trust, formulate and approve any plan under
Rule 12b-1 ("Rule 12b-1 Plan") to finance distribution expenses. The Trust
shall notify the Company immediately upon determining to finance
distribution expenses pursuant to Rule 12b-1.
2.10. The Trust represents that it is lawfully organized and validly existing
under the laws of Delaware and that it does and will comply with
applicable provisions of the 0000 Xxx.
2.11. The Trust represents and warrants that it and all of its trustees,
officers, employees and other individuals/entities having access to the
funds and/or securities of the Trust are and
-11-
continue to be at all times covered by a blanket fidelity bond or similar
coverage for the benefit of the Trust in an amount not less than the
minimal coverage as required currently by Rule 17g-1 of 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.
2.12. 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
Trust's shares in accordance with all applicable federal and state
securities laws, including without limitation the 1933 Act, the 1934 Act,
and the 0000 Xxx.
2.13. The Underwriter represents and warrants that the Trust's investment
manager, Xxxxx Fargo Bank, is exempt from registration as an investment
adviser under all applicable federal and state securities laws and that
the investment manager will perform its obligations to the Trust in
accordance with any applicable state and federal securities laws.
ARTICLE 3 Prospectuses and Proxy Statements; Voting
-----------------------------------------
3.1. The Underwriter shall provide the Company, at the expense of the Company
or another entity as may be agreed upon with such other entity by separate
agreement, with as many copies of the Trust's current prospectus as the
Company may reasonably request. If requested by the Company in lieu
thereof, the Trust shall provide such documentation including a final copy
of a current prospectus set in type at the Trust's expense and other
assistance as is reasonably necessary in order for the Company at least
annually (or more
-12-
frequently if the Trust's prospectus is amended more frequently) to have
the new prospectus for the Contracts and the Trust's new prospectus printed
together in one document; in such case at the expense of the Company or
another entity as may be agreed upon with such other entity by separate
agreement.
3.2. The Trust's prospectus shall state that the statement of additional
information for the Trust is available from the Underwriter (or, in the
Trust's discretion, the Prospectus shall state that such statement is
available from the Trust).
3.3. The Trust, at its expense, shall provide the Company with copies of its
proxy material, if any, reports to shareholders and other communications to
shareholders in such quantity as the Company shall reasonably require and
the Company shall bear the costs of distributing them to existing Contract
owners or participants.
3.4. The Trust hereby notifies the Company that it is appropriate to include in
the prospectuses pursuant to which the Contracts are offered disclosure
regarding the potential risks of mixed and shared funding.
3.5. To the extent required by law the Company shall:
(1) solicit voting instructions from Contract owners or
participants;
(2) vote the Trust shares held in each Separate Account in
accordance with instructions received from Contract owners or
participants; and
(3) vote Trust shares held in each Separate Account for which no
timely instructions have been received, in the same proportion
as Trust shares of such Fund for which instructions have been
received from the Company's Contract owners or participants;
-13-
for so long as and to the extent that the 1940 Act requires pass-through
voting privileges for variable contract owners. The Company reserves the
right to vote Trust shares held in any segregated asset account in its own
right, to the extent permitted by law. Participating Insurance Companies
shall be responsible for assuring that each of their separate accounts
participating in the Trust calculates voting privileges in a manner
consistent with other Participating Insurance Companies and as required by
the Mixed and Shared Funding Order. The Trust will notify the Company of
any changes of interpretation or amendment to the Mixed and Shared Funding
Order.
3.6. The Trust will comply with all provisions of the 1940 Act requiring voting
by shareholders, and in particular, the Trust will either provide for
annual meetings (except to the extent that the Commission may interpret
Section 16 of the 1940 Act not to require such meetings) or comply with
Section 16(c) of the 1940 Act (although the Trust is not one of the trusts
described in Section 16(c) of that Act) as well as with Sections 16(a) and,
if and when applicable, 16(b) of the 1940 Act. Further, the Trust will act
in accordance with the Commission's interpretation of the requirements of
Section 16(a) with respect to periodic elections of Trustees and with
whatever rules the Commission may promulgate with respect thereto.
ARTICLE 4 Sales Material and Information
------------------------------
4.1. The Company shall furnish, or shall cause to be furnished, to the Trust or
the Underwriter, each piece of sales literature or other promotional
material prepared by the Company or one of its affiliates or agents in
which the Trust or the Trust's investment manager, sub-advisers or
Underwriter is named, at least five business days prior to its use.
-14-
No such material shall be used if the Trust or the Underwriter reasonably
objects in writing to such use within five business days after receipt of
such material.
4.2. The Company represents and agrees that sales literature for the Contracts
prepared by the Company or its affiliates will be consistent with every
law, rule, and regulation of any regulatory agency or self-regulatory
agency that applies to the Contracts or to the sale of the Contracts,
including, but not limited to, NASD Conduct Rule 2210 and IM-2210-2
thereunder.
4.3. The Company shall not give any information or make any representations or
statements on behalf of the Trust or concerning the Trust in connection
with any sales activities by the Company or any of its affiliates or agents
with regard to the Contracts other than the information or representations
contained in the registration statement or prospectus for the Trust shares
as such registration statement and prospectus may be amended or
supplemented from time to time, or in reports or proxy statements for the
Trust, or in sales literature or other promotional material approved by the
Trust or by the Underwriter, except with the permission of the Trust or the
Underwriter. The Trust and the Underwriter agree to respond to any request
for approval on a prompt and timely basis. The Company shall adopt and
implement procedures reasonably designed to ensure that information
concerning the Trust, the Underwriter, or any of their affiliates which is
intended for use by brokers or agents selling the Contracts (i.e.,
information that is not intended for distribution to Contract owners or
prospective Contract owners) is so used, and neither the Trust, the
Underwriter, nor any of their affiliates shall be liable for any losses,
damages, or expenses relating to the improper use of such broker only
materials by
-15-
agents of the Company or its affiliates who are unaffiliated with the Trust
or the Underwriter. The parties hereto agree that this Section 4.3 is not
intended to designate nor otherwise imply that the Company is an
underwriter or distributor of the Trust's shares.
4.4. The Trust or 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, its Separate Account, or the
Contracts are named, at least five business days prior to its use. No such
material shall be used if the Company reasonably objects in writing to such
use within five business days after receipt of such material.
4.5. The Trust represents and agrees that sales literature for the Trust
prepared by the Trust or its affiliates in connection with the sale of the
Contracts will be consistent with every law, rule, and Regulation of any
regulatory agency or self regulatory agency that applies to the Trust or to
the sale of Trust shares, including, but not limited to, NASD Conduct Rule
2210 and IM-2210-2 thereunder.
4.6. The Trust and the Underwriter shall not 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 a registration statement or prospectus for the
Contracts, 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 participants, or in sales literature or
other promotional material approved by the Company, except with the
permission of the Company. The
-16-
Company agrees to respond to any request for approval on a prompt and
timely basis. The Trust and the Underwriter shall xxxx information produced
by or on behalf of the Trust "FOR BROKER USE ONLY" which is intended for
use by brokers or agents selling the Contracts (i.e., information that is
not intended for distribution to Contract owners or prospective Contract
owners) is so used, and neither the Company nor any of its affiliates shall
be liable for any losses, damages, or expenses arising on account of the
use by brokers of such information with third parties in the event that is
not so marked.
4.7. If requested by the Company, the Trust will provide to the Company at least
one complete copy of all registration statements, prospectuses, statements
of additional information, reports, proxy statements, sales literature and
other promotional materials, applications for exemptions, requests for no-
action letters, and all amendments to any of the above, that relate to the
Trust or its shares, contemporaneously with the filing of such document
with the SEC or other regulatory authorities.
4.8. If requested by the Trust, the Company will provide to the Trust at least
one complete copy of all registration statements, prospectuses, statements
of additional information, reports, solicitations for voting instructions,
sales literature and other promotional materials, applications for
exemptions, requests for no action letters, and all amendments to any of
the above, that relate to the Contracts or each Separate Account,
contemporaneously with the filing of such document with the SEC or other
regulatory authorities. The Company shall promptly inform the Trust of the
results of any examination by the SEC (or other regulatory authorities)
that relates to the Contracts, and
-17-
the Company shall provide the Trust with a copy of relevant portions of
any "deficiency letter" or other correspondence or written report
regarding any such examination.
4.9. 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, 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, seminar texts, reprints or excerpts of any other advertisement,
sales literature, or published article), educational or training
materials or other communications distributed or made generally available
to some or all agents or employees, registration statements,
prospectuses, statements of additional information, shareholder reports,
and proxy materials and any other material constituting sales literature
or advertising under NASD Conduct Rules, the 1940 Act or the 0000 Xxx.
4.10. Underwriter or the Trust shall immediately notify the Company of (i) the
issuance by any court or regulatory body of any stop order, cease and
desist order, or other similar order with respect to the Trust's
registration statement under the 1933 Act or the Trust prospectus, (ii)
any request by the SEC for any post-effective amendment to such
registration statement or Trust prospectus, (iii) the initiation of any
proceedings for any other purpose relating to the registration or
offering of the Trust's shares, or (iv) any other action or circumstances
that may prevent the lawful offer or sale of Trust shares in any state or
jurisdiction, including, without limitation, any circumstances in which
(x) the
-18-
Trust's shares are not registered and, in all material respects, issued
and sold in accordance with applicable state and federal law or (y) such
law precludes the use of such shares as an underlying investment medium
of the Contracts issued or to be issued by the Company. Underwriter and
the Trust will make every reasonable effort to prevent the issuance of
any such stop order, cease and desist order or similar order and, if any
such order is issued, to obtain the lifting thereof at the earliest
possible time.
4.11. The Company shall immediately notify the Trust and the Underwriter of (i)
the issuance by any court or regulatory body of any stop order, cease and
desist order, or other similar order with respect to the Separate
Account's registration statement under the 1933 Act relating to the
Contracts or the Separate Account prospectus relating to the Contracts,
(ii) any request by the SEC for any post-effective amendment to such
registration statement or Separate Account prospectus, (iii) the
initiation of any proceedings for any other purpose relating to the
registration or offering of the Separate Account interests pursuant to
the Contracts, or (iv) any other action or circumstances that may prevent
the lawful offer or sale of said interests in any state or jurisdiction,
including, without limitation, any circumstances in which said interests
are not registered and, in all material respects, issued and sold in
accordance with applicable state and federal law. The Company will make
every reasonable effort to prevent the issuance of any such stop order,
cease and desist order or similar order and, if any such order is issued,
to obtain the lifting thereof at the earliest possible time.
-19-
ARTICLE 5 Fees and Expenses
-----------------
5.1. The Trust and Underwriter shall pay no fee or other compensation to the
Company under this Agreement, except subject to a Rule 12b-1 Plan to
finance distribution expenses, in which case, subject to obtaining any
required exemptive orders or other regulatory approvals, the Underwriter
may make payments to the Company or to the underwriter for the Contracts if
and in amounts agreed to by the Underwriter in writing. Each party,
however, shall, in accordance with the allocation of expenses specified in
this Agreement, reimburse other parties for expenses initially paid by one
party but allocated to another party. In addition, nothing herein shall
prevent the parties hereto from otherwise agreeing to perform, and
arranging for appropriate compensation for, other services relating to the
Trust and/or to the Separate Accounts.
5.2. All Trust shares will be duly authorized for issuance and registered in
accordance with applicable federal law and to the extent deemed advisable
by the Trust, in accordance with applicable state law, prior to sale. The
Trust shall bear the expenses for the cost of registration and
qualification of the Trust's shares, preparation and filing of the Trust's
prospectus and registration statement, Trust proxy materials and reports,
printing proxy materials and annual reports for existing Contract owners,
setting in type the Trust's prospectuses, the preparation of all statements
and notices required by any federal or state law, all taxes on the issuance
or transfer of the Trust's shares, and any expenses permitted to be paid or
assumed by the Trust pursuant to any Rule 12b-1 Plan under the 1940 Act
duly adopted by the Trust.
-20-
5.3. The Company, or another entity as may be agreed upon with such other entity
by separate agreement, shall bear the expenses of printing and distributing
the Trust prospectuses and proxy statements and shareholder reports. The
Company shall bear all expenses associated with the registration,
qualification, and filing of the Contracts under applicable federal
securities and state insurance laws; the cost of preparing, printing, and
distributing the Contracts' prospectuses and statements of additional
information; and the cost of printing and distributing annual individual
account statements for Contract owners as required by state insurance laws.
ARTICLE 6 Diversification
---------------
6.1. The Trust will at all times invest money from the Contracts in such a
manner as to ensure that the Contracts will be treated as variable
contracts under the Internal Revenue Code and the regulations issued
thereunder. Without limiting the scope of the foregoing, the Trust will
comply with Section 817(h) of the Internal Revenue Code and Treasury
Regulation 1. 817-5, relating to the diversification requirements for
variable annuity, endowment, or life insurance contracts and any amendments
or other modifications to such Section or Regulations or successors
thereto. The Trust or Underwriter will notify the Company immediately upon
having a reasonable basis for believing that a Fund has ceased to so comply
or that a Fund might not so comply in the future.
ARTICLE 7 Potential Conflicts
-------------------
7.1. If and to the extent that the Trust engages in mixed and shared funding as
contemplated by exemptive relief provided by the SEC and applicable to the
Trust, this Article VII shall apply.
-21-
7.2. The Board of Trustees of the Trust (the "Trust Board") will monitor the
Trust for the existence of any material irreconcilable conflict among the
interests of the Contract owners of all separate accounts investing in the
Trust. A material irreconcilable conflict may arise for a variety of
reasons, including: (a) an action by any state insurance regulatory
authority; (b) a change in applicable federal or state insurance, tax, or
securities laws or regulations, or a public ruling, private letter ruling,
no-action or interpretative letter, or any similar action by insurance,
tax, or securities regulatory authorities; (c) an administrative or
judicial decision in any relevant proceeding; (d) the manner in which the
investments of any Fund are being managed; (e) a difference in voting
instructions given by variable annuity contract owners, variable life
insurance contract owners, and trustees of qualified pension or retirement
plans; (f) a decision by a Participating Insurance Company to disregard the
voting instructions of Contract owners; or (g) if applicable, a decision by
a qualified pension or retirement plan to disregard the voting instructions
of plan participants. The Trust Board shall promptly inform the Company if
it determines that a material irreconcilable conflict exists and the
implications thereof. A majority of the Trust Board shall consist of
Trustees who are not "interested persons" of the Trust.
7.3. The Company has reviewed a copy of the Mixed and Shared Funding Order,
and in particular, has reviewed the conditions to the requested relief set
forth therein. The Company agrees to assist the Trust Board in carrying
out its responsibilities under the Mixed and Shared Funding Order, by
providing the Trust Board with all information reasonably necessary for the
Trust Board to consider any issues raised. This includes, but
-22-
is not limited to, an obligation by the Company to inform the Trust Board
whenever Contract owner voting instructions are disregarded. The Trust
Board shall record in its minutes or other appropriate records, all reports
received by it and all action with regard to a conflict.
7.4. If it is determined by a majority of the Trust Board, or a majority of its
disinterested Trustees, that a material irreconcilable conflict exists, the
Company shall, at its expense and to the extent reasonably practicable (as
determined by a majority of the disinterested Trustees), take whatever
steps are necessary to remedy or eliminate the material irreconcilable
conflict, up to and including: (a) withdrawing the assets allocable to some
or all of the Separate Accounts from the relevant Fund and reinvesting such
assets in a different investment medium, including another Fund, or in the
case of insurance company participants submitting the question as to
whether such segregation should be implemented by a vote of all affected
Contract owners and, as appropriate, segregating the assets of any
appropriate group (i.e., annuity Contract owners or life insurance 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 (b) establishing a new registered
management investment company or managed separate account.
7.5. If the Company's disregard of voting instructions could conflict with the
majority of Contract owner voting instructions, and the Company's judgment
represents a minority position or would preclude a majority vote, the
Company may be required, at the Trust's election, to withdraw the Separate
Account's investment in the Trust and terminate this
-23-
Agreement with respect to such Separate Account, and no charge or penalty
will be imposed as a result of such withdrawal. Any such withdrawal and
termination shall take place within 30 days after written notice is given
that this provision is being implemented, subject to applicable law but in
any event consistent with the terms of the Mixed and Shared Funding Order.
Until such withdrawal and termination is implemented, the Underwriter and
the Trust shall continue to accept and implement orders by the Company for
the purchase and redemption of shares of the Trust. Such withdrawal and
termination shall be limited to the extent required by the foregoing
material irreconcilable conflict as determined by a majority of
disinterested Trustees.
7.6. If a particular state insurance regulator's decision applicable to the
Company conflicts with the majority of other state insurance regulators,
then the Company will withdraw the Separate Account's investment in the
Trust and terminate this Agreement with respect to such Separate Account
within 30 days after the Trust informs the Company of a material
irreconcilable conflict, subject to applicable law but in any event
consistent with the terms of the Mixed and Shared Funding Order. Until such
withdrawal and termination is implemented, the Underwriter and the Trust
shall continue to accept and implement orders by the Company for the
purchase and redemption of shares of the Trust. Such withdrawal and
termination shall be limited to the extent required by the foregoing
material irreconcilable conflict as determined by a majority of
disinterested Trustees.
7.7. For purposes of Sections 7.3 through 7.6 of this Agreement, a majority of
the disinterested members of the Trust Board shall determine whether any
proposed action adequately remedies any material irreconcilable conflict,
but in no event will the Trust or
-24-
the Underwriter 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 Contracts if an offer to do so has been
declined by vote of a majority of Contract owners materially adversely
affected by the material irreconcilable conflict.
7.8. The Trust Board's determination of the existence of a material
irreconcilable conflict and its implication will be made known in writing
to the Company.
7.9. The Company shall at least annually submit to the Trust Board such
reports, materials, or data as the Trust Board may reasonably request so
that the Trustees may fully carry out the duties imposed upon the Trust
Board by the Mixed and Shared Funding Order, and said reports, materials
and data shall be submitted more frequently if deemed appropriate by the
Trust Board.
7.10. If and to the extent that Rule 6e-2 and Rule 6e-3(T) are amended, or Rule
6e-3(T) 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 Order) on terms
and conditions materially different from those contained in the Mixed and
Shared Funding Order, the Trust and/or the Company, as appropriate, shall
take such steps as may be necessary to comply with Rules 6e-2 and 6e-3(T),
as amended, and Rule 6e-3, as adopted, to the extent such rules are
applicable.
ARTICLE 8 Indemnification
---------------
8.1. Indemnification By The Company
------------------------------
(a) The Company agrees to indemnify and hold harmless the Trust,
the Underwriter, and each of the Trust's or the Underwriter's directors,
officers, employees,
-25-
or agents and each person, if any, who controls the Trust or the
Underwriter within the meaning of such terms under the federal securities
laws (collectively, the "indemnified parties" for purposes of this Section
8.1) against any and all losses, claims, damages, liabilities and income
taxes and related penalties (including amounts paid in settlement with the
written consent of the Company, which consent shall not be unreasonably
withheld), 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 Trust's shares or
the Contracts and:
(1) arise out of or are based upon any untrue statements or
alleged untrue statements of any material fact
contained in the registration statements, prospectuses
or statements of additional information for the
Contracts or contained in the Contracts, or sales
literature or other promotional material for the
Contracts which is prepared by the Company or any of
its affiliates or agents (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 in light of the circumstances in which they
were made; 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 Company by or on
behalf of the Trust for use in the registration
statement, prospectus or statement of 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 Trust
shares; or
(2) arise out of or as a result of statements or
representations by or on behalf of the Company (other
than statements or representations contained in the
Trust registration statement, Trust prospectus or
-26-
sales literature or other promotional material of the
Trust not supplied by the Company or persons under its
control) or wrongful conduct of the Company or persons
under its control, with respect to any sale or
distribution of the Contracts or Trust shares; or
(3) arise out of any untrue statement or alleged untrue
statement of a material fact contained in the Trust's
registration statement, prospectus, statement of
additional information, or sales literature or other
promotional material of the Trust 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 in light of the
circumstances in which they were made, if such a
statement or omission was made in reliance upon and in
conformity with information furnished to the Trust by
or on behalf of the Company or persons under its
control; or
(4) arise as a result of any failure by the Company to
provide the services and furnish the materials or to
make any payments under the terms of this Agreement; or
(5) arise out of 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 8.1(b) and 8.4 hereof. This
indemnification shall be in addition to any liability which the Company may
otherwise have.
(b) No party shall be entitled to indemnification by the
Company if 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) 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 Trust shares or the Contracts
or the operation of the Trust.
8.2. Indemnification By the Underwriter
----------------------------------
-27-
(a) The Underwriter agrees 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 such terms
under the federal securities laws (collectively, the "indemnified parties"
for purposes of this Section 8.2) against any and all losses, claims,
damages, liabilities and income taxes and related penalties (including
amounts paid in settlement with the written consent of the Underwriter,
which consent shall not be unreasonably withheld), 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 Trust's shares or the Contracts and:
(1) arise out of or are based upon any untrue statement or
alleged untrue statement of any material fact contained in
the registration statement, prospectus, or statement of
additional information for the Trust, or sales literature or
other promotional material of the Trust or related to the
sale and distribution of the Contracts if prepared by the
Underwriter or any of its affiliates or agents (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 in light of the circumstances in which they
were made; 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 the Trust by or on behalf of the
Company for use in the registration statement, prospectus,
or statement of additional information for the Trust or in
sales literature of the Trust (or any amendment or
supplement thereto) or otherwise for use in connection with
the sale of the Contracts or Trust shares; or
-28-
(2) arise out of or as a result of statements or representations
(other than statements or representations contained in the
Contracts or in the Contract or Trust registration
statement, the Contract or Trust prospectus, statement of
additional information, or sales literature or other
promotional material for the Contracts or of the Trust not
supplied by the Underwriter or persons under the control of
the Underwriter) or wrongful conduct of the Underwriter or
persons under the control of the Underwriter, with respect
to the sale or distribution of the Contracts or Trust
shares; or
(3) 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 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 in light of the circumstances in which they were
made, if such statement or omission was made in reliance
upon and in conformity with information furnished to the
Company by or on behalf of the Underwriter or the Trust; or
(4) arise as a result of any failure by the Underwriter 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 requirements and procedures related
thereto specified in Article VI of this Agreement); or
(5) 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 8.2(b) and 8.4 hereof. This
indemnification shall be in addition to any liability which the Underwriter
may otherwise have.
(b) No party shall be entitled to indemnification by the
Underwriter if 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.
-29-
(c) 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 Contracts or the operation of
each Separate Account.
8.3. Indemnification By the Trust
----------------------------
(a) The Trust agrees 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 such terms under the
federal securities laws (collectively, the "indemnified parties" for
purposes of this Section 8.3) against any and all losses, claims, damages,
liabilities (including amounts paid in settlement with the written consent
of the Trust, which consent shall not be unreasonably withheld), 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 operations of the Trust and:
(1) arise as a result of any failure by the Trust 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
requirements and procedures related thereto specified in
Article VI of this Agreement); or
(2) arise out of or result from any material breach of any
representation and/or warranty made by the Trust in this
Agreement or arise out of or result from any other material
breach of this Agreement by the Trust;
except to the extent provided in Sections 8.3(b) and 8.4 hereof. This
indemnification shall be in addition to any liability which the Trust may
otherwise have.
-30-
(b) No party shall be entitled to indemnification by the Trust if
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) The indemnified parties will promptly notify the Trust of the
commencement of any litigation or proceedings against it in connection with
the issuance or sale of the Contracts or the operation of each Separate
Account.
8.4. Indemnification Procedure
-------------------------
Any person obligated to provide indemnification under this Article VIII
("indemnifying party" for the purpose of this Section 8.4) shall not be
liable under the indemnification provisions of this Article VIII with
respect to any claim made against a party entitled to indemnification under
this Article VIII ("indemnified party" for the purpose of this Section 8.4)
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 under the indemnification provision of this
Article VIII, except to the extent that the failure to notify results in
the failure of actual notice to the indemnifying party and such
indemnifying party is damaged solely as a result of failure to give such
notice. In case any such action is brought against the indemnified party,
the
-31-
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 it, 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. The indemnifying party shall not be liable for any
settlement of any proceeding effected without its written consent (which
consent shall not be unreasonably withheld) but if settled with such
consent or if there be a final judgment for the plaintiff, the indemnifying
party agrees to indemnify the indemnified party from and against any loss
or liability by reason of such settlement or judgment.
A successor by law of the parties to this Agreement shall be entitled
to the benefits of the indemnification contained in this Article VIII. The
indemnification provisions contained in this Article VIII shall survive any
termination of this Agreement.
ARTICLE 9 Miscellaneous Provisions
------------------------
-32-
9.1 Exchange
--------
(a) In the absence of the consent of the Underwriter or its
designee, neither the Company nor any of their affiliates or agents will at
any time before or after termination of this Agreement seek to cause or
facilitate the exchange by any Contract owner into another annuity
contract.
(b) Neither the Underwriter nor the Trust, nor any of their
agents or affiliates, will at any time before or after termination of this
Agreement engage in a systematic program which seeks to cause the exchange
of issued Contracts for other forms of annuity contracts. This does not
preclude isolated incidental exchanges of issued Contracts for other
annuity contracts that occur in the ordinary course of business.
9.2 Proprietary Information
-----------------------
Contract owners will be considered customers of the Underwriter or the
Trust's affiliates and will not be solicited, or caused to be solicited, by
the Company or any of its affiliates on a group marketing basis.
Information regarding Contract owners will remain proprietary to the
Underwriter and/or the Trust's affiliates and will not be sold or used for
any other marketing purposes by the Company.
9.3 Contract Owner Communications
-----------------------------
All correspondence directed generally to all Contract owners will be
subject to advance approval by the Underwriter or its designee, to the
extent consistent with applicable law.
9.4 Reimbursements Related to Xxxxxxx Agreements
--------------------------------------------
The Company has been required to undertake to make expense reimbursements
to the Xxxxxxx Variable Life Investment Fund (the "Xxxxxxx Fund") under the
terms of a
-33-
Participation Agreement between it and the Xxxxxxx Fund associated with the
use of shares of a portfolio of the Xxxxxxx Fund as an underlying
investment media for the Contracts. The Underwriter does hereby agree that
it or its designee will reimburse the Company for any such expense
reimbursements which the Company is required to make under the terms of
such Participation Agreement.
9.5 Termination of Trust Investment Options
---------------------------------------
The Company will not terminate an investment option under the Contracts
without consulting with the Underwriter and will not terminate an
investment option without the consent of the Underwriter unless it is
necessary in the best interest of Contract owners. The Company will take
whatever reasonable and lawful steps may be required to terminate the
availability of any investment option under the Contracts if requested to
do so by the Underwriter. If the Underwriter makes such a request, or if
the Trust or the principal underwriter of a portfolio of another mutual
fund that is not affiliated with the Company and is available under the
Contract on the date this Agreement is signed ("Additional Fund") ceases to
make its shares available for the Contracts, or if the shares cease to be
an appropriate investment for the Separate Account by reason of the events
enumerated in:
. Section 11.1(a) with regard to the Trust or an Additional Fund;
. Sections 11.1(b) and 11.1(d) with respect to proceedings against
the Trust or the Underwriter, an Additional Fund, or the
investment adviser or principal underwriter of an Additional
Fund;
-34-
. Sections 11.1(g) and 11.1(h) both as to failures by the Trust or
an Additional Fund;
. Section 11.1(i) as to failures by the Trust or the Underwriter;
and
. Section 11.1(j) both as to the Trust or Underwriter and as to
Additional Funds;
then the Underwriter or its designee will reimburse the Company for its
reasonable costs and expenses in combining the affected Separate Account
subaccount with another subaccount, substituting other fund shares for those of
the affected portfolio, or otherwise terminating the participation of the
Contracts in such portfolio. The Underwriter or its designee is not obligated
to make any such reimbursement to the extent that the Company is otherwise
entitled to reimbursement from affiliates of such other portfolio by reason of
the provisions of separate agreements with affiliates of that portfolio.
ARTICLE 10 Applicable Law
--------------
10.1. This Agreement shall be construed and the provisions hereof interpreted
under and in accordance with the laws of the State of Delaware without
giving effect to conflicts of laws provisions thereof.
10.2. This Agreement shall be subject to the provisions of the 1933, 1934, and
1940 Acts, and the rules, regulations, and rulings thereunder, including
such exemptions from those statutes, rules and regulations as the SEC may
grant (including, but not limited to, the Mixed and Shared Funding Order)
and the terms hereof shall be interpreted and construed in accordance
therewith.
-35-
ARTICLE 11 Termination
-----------
11.1. This Agreement shall terminate automatically in the event of its
assignment, unless made with written consent of each party; or:
(a) at the option of any party upon six months advance written
notice to the other parties; or
(b) at the option of the Company if shares of the Funds
delineated in Exhibit B are not reasonably available to meet the
requirements of the Contracts as determined by the Company; or
(c) at the option of the Trust upon institution of formal
proceedings against the Company by the NASD, the SEC, the insurance
commission of any state or any other regulatory body, which would have a
material adverse effect on the Company's ability to perform its
obligations under this Agreement; or
(d) at the option of the Company upon institution of formal
proceedings against the Trust or the Underwriter by the NASD, the SEC,
or any state securities or insurance department or any other regulatory
body, which would have a material adverse effect on the Underwriter's or
the Trust's ability to perform its obligations under this Agreement; or
(e) at the option of the Trust or the Underwriter by written
notice to the Company, if the Company gives the Trust and the
Underwriter the written notice specified in Section 1.8(b) hereof and at
the time such notice was given there was no notice of termination
outstanding under any other provision of this Agreement; provided,
-36-
however, any termination under this Section 10.1(e) shall be effective
sixty (60) days after the notice specified in Section 1.8(b) was given; or
(f) at the option of the Company or the Trust upon a
determination by a majority of the Trust Board, or a majority of the
disinterested Trustees, that a material irreconcilable conflict exists
among the interests of (i) all contract owners of variable insurance
products of all separate accounts, or (ii) the interests of the
Participating Insurance Companies investing in the Trust as delineated in
Article VII of this Agreement; or
(g) at the option of the Company if the Trust ceases to qualify
as a Regulated Investment Company under Subchapter M of the Internal
Revenue Code, or under any successor or similar provision, or if the
Company reasonably believes that the Trust may fail to so qualify; or
(h) at the option of the Company if the Trust fails to meet the
diversification requirements specified in Article VI hereof or if the
Company reasonably believes that the Trust will fail to meet such
requirements; or
(i) at the option of any party to this Agreement, upon another
party's material breach of any provision of this Agreement; or
(j) at the option of the Company, if the Company determines in
its sole judgment exercised in good faith, that either the Trust or the
Underwriter 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
-37-
have a material adverse impact upon the business and operations of the
Company or the Contracts (including the sale thereof); or
(k) at the option of the Trust or Underwriter, if the Trust or
Underwriter respectively, 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 the
Trust or Underwriter; or
(l) subject to the Trust's compliance with Article VI hereof, at
the option of the Trust in the event any of the Contracts are not issued
or sold in accordance with applicable requirements of federal and/or
state law. Termination shall be effective immediately upon such
occurrence without notice.
11.2. Notice Requirement
------------------
(a) In the event that any termination of this Agreement is based
upon the provisions of Article VII, such prior written notice shall be
given in advance of the effective date of termination as required by such
provisions.
(b) In the event that any termination of this Agreement is based
upon the provisions of Sections 11.l(b) - (d) or 11.1(g) - (i), 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.
-38-
(c) In the event that any termination of this Agreement is based
upon the provisions of Sections 11.1(j) or 11. l(k), 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 30 days before the
effective date of termination.
11.3. It is understood and agreed that the right to terminate this Agreement
pursuant to Section 10.1(a) may be exercised for any reason or for no
reason.
11.4. Effect of Termination
---------------------
(a) Notwithstanding any termination of this Agreement pursuant
to Section 11.1 of this Agreement and subject to Section 1.3 of this
Agreement, the Company may require the Trust and the Underwriter to
continue to make available additional shares of the Trust 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").
Specifically, without limitation, the owners of the Existing Contracts
shall be permitted to reallocate investments in the Trust, redeem
investments in the Trust and/or invest in the Trust upon the making of
additional purchase payments under the Existing Contracts. The parties
agree that this Section 11.4 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.
-39-
(b) If shares of the Trust continue to be made available after
termination of this Agreement pursuant to this Section 11.4, the provisions
of this Agreement shall remain in effect except for Section 11.l(a) and
thereafter the Trust, the Underwriter, or the Company may terminate the
Agreement, as so continued pursuant to this Section 11.4, upon written
notice to the other party, such notice to be for a period that is
reasonable under the circumstances but need not be for more than 90 days.
11.5 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, or (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"). Upon request,
the Company will promptly furnish to the Trust and the Underwriter the
opinion of counsel for the Company (which counsel shall be reasonably
satisfactory to the Trust and the Underwriter) to the effect that any
redemption pursuant to clause (ii) above is a Legally Required Redemption.
Furthermore, except in cases where permitted under the terms of the
Contracts, the Company shall not prevent Contract Owners from allocating
payments to a Fund that was otherwise available under the Contracts without
first giving the Trust or the Underwriter 90 days notice of its intention
to do so.
ARTICLE 12 Notices
-------
Any notice shall be deemed duly given only if sent by hand, 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
-40-
writing to the other party. All notices shall be deemed given three
business days after the date received or rejected by the addressee.
If to the Trust: Xxxxx Fargo Variable Trust
000 Xxxxxx Xxxxxx
Xxxxxx Xxxx, XX 00000
Attention: Xxxxxxx X. Xxxxx, Secretary
Copy: C. Xxxxx Xxxxxxx, Esq.
Vice President & Senior Counsel
Xxxxx Fargo Bank
Legal Department
000 Xxxxxx Xxxxxx - 0xx Xxxxx
Xxx Xxxxxxxxx, XX 00000-0000
If to the Company: Fortis Benefits Insurance Company
000 Xxxxxxxxxx Xx.
Xxxxxxxx, XX 00000
Attention: General Counsel
If to the Underwriter: Xxxxxxxx Inc.
000 Xxxxxx Xxxxxx
Xxxxxx Xxxx, XX 00000
Attention: Xxxxxxx X. Xxxxx, Vice President
ARTICLE XIII Miscellaneous
-------------
13.1 All persons dealing with the Trust must look solely to the property of the
Trust for the enforcement of any claims against the Trust as neither the
Trustees, officers, agents or shareholders assume any personal liability
for obligations entered into on behalf of the Trust.
13.2 Subject to law and regulatory authority, each party hereto shall treat as
confidential all information reasonably identified as such in writing by
any other party hereto (including
-41-
without limitation the names and addresses of the owners of the Contracts)
and, except as contemplated by this Agreement, shall not disclose,
disseminate, or utilize such confidential information until such time as
it may come into the public domain without the express prior written
consent of the affected party.
13.3 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.
13.4 This Agreement may be executed simultaneously in two or more counterparts,
each of which taken together shall constitute one and the same instrument.
13.5 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.
13.6 This Agreement shall not be assigned by any party hereto without the prior
written consent of all the parties.
13.7 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 each other
and 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.
13.8 Each party represents that 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
-42-
delivered this Agreement will be the valid and binding obligation of such
party enforceable in accordance with its terms.
13.9 The parties to this Agreement may amend the schedules to this Agreement
from time to time to reflect changes in or relating to the Contracts, the
Separate Accounts or the Funds of the Trust.
13.10 The Trust has filed a Certificate of Trust with the Secretary of State of
The State of Delaware. The Company acknowledges that the obligations of
or arising out of the Trust's Declaration of Trust are not binding upon
any of the Trust's Trustees, officers, employees, agents or shareholders
individually, but are binding solely upon the assets and property of the
Trust in accordance with its proportionate interest hereunder. The
Company further acknowledges that the assets and liabilities of each Fund
are separate and distinct and that the obligations of or arising out of
this instrument are binding solely upon the assets or property of the
Fund on whose behalf the Trust has executed this instrument. The Company
also agrees that the obligations of each Fund hereunder shall be several
and not joint, in accordance with its proportionate interest hereunder,
and the Company agrees not to proceed against any Fund for the
obligations of another Fund.
13.11 Except as otherwise expressly provided in this Agreement, neither the
Trust nor the underwriter nor any affiliate thereof shall use any
trademark, trade name, service xxxx or logo of the Company or any of its
affiliates, or any variation of any such trademark, trade name service
xxxx or logo, without the Company's prior consent, the granting of which
shall be at the Company's sole option. Except as otherwise expressly
provided in this Agreement, neither the Company nor any affiliate thereof
shall use any trademark, trade
-43-
name, service xxxx or logo of the Trust or of the Underwriter, or any
variation of any such trademark, trade name, service xxxx or logo,
without the prior consent of either the Trust or of the Underwriter, as
appropriate, the granting of which shall be at the sole option of the
Trust or of the Underwriter, as applicable.
-44-
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above written.
Xxxxx Fargo Variable Trust
By: /s/ Xxxxxxx X. Xxxxx, Xx.
------------------------------------
Name: Xxxxxxx X. Xxxxx, Xx.
Title: Secretary
Fortis Benefits Insurance Company
By: /s/ Xxx X. Xxxxxxxxx
------------------------------------
Name: Xxx X. Xxxxxxxxx
Title: Senior Vice President
Xxxxxxxx Inc.
By: /s/ Xxxxxxx X. Xxxxx, Xx.
------------------------------------
Name: Xxxxxxx X. Xxxxx, Xx.
Title: Vice President
-45-
EXHIBIT A
Separate Accounts and Contracts
Subject to the Participation Agreement
--------------------------------------
Separate Account D
-46-
EXHIBIT B
Funds Subject to the Participation Agreement
--------------------------------------------
Corporate Bond Fund
Asset Allocation Fund
Equity Value Fund
Equity Income Fund
Growth Fund
Large Company Growth Fund
Small Cap Growth Fund
International Equity Fund
-47-
