25
Exhibit 23(h)(viii) on Form N-1A
Exhibit 10 under Item 601/Reg. S-K
PARTICIPATION AGREEMENT
Among
HUNTINGTON VA FUNDS,
EDGEWOOD SERVICES, INC.,
HUNTINGTON ASSET ADVISORS, INC.,
and
TRANSAMERICA LIFE INSURANCE COMPANY
THIS AGREEMENT, made and entered into as of the 1st day of
December, 2003, by and among TRANSAMERICA LIFE INSURANCE
COMPANY, an Iowa corporation (the "Company"), on its own behalf
and on behalf of each segregated asset account of the Company
set forth on Schedule A hereto as may be amended from time to
time (each such account hereinafter referred to as an
"Account"); HUNTINGTON VA FUNDS, a Massachusetts business trust
(the "Trust"), on its behalf and on behalf of each of its
series set forth in Schedule A; EDGEWOOD SERVICES, INC., a New
York corporation (the "Distributor"); and HUNTINGTON ASSET
ADVISORS, INC., a registered investment advisor (the "Advisor").
WHEREAS, the Trust engages in business as an open-end,
management investment company and is available to act as the
investment vehicle for separate accounts established for
variable life insurance policies and variable annuity contracts
(collectively, the "Variable Insurance Products") to be issued
by the Company; and
WHEREAS, the beneficial interest in the Trust is divided
into several series of shares, each representing the interest
in a particular managed portfolio of securities and other
assets, any one or more of which may be made available under
this Agreement, as set forth on Schedule A hereto and as may be
amended from time to time by mutual agreement of the parties
hereto (each such series hereinafter referred to as a "Fund");
and
WHEREAS, the Trust is registered as an open-end,
management investment company under the Investment Company Act
of 1940, as amended (the "1940 Act") and its shares are
registered under the Securities Act of 1933, as amended (the
"1933 Act"); and
WHEREAS, the Trust has engaged the Advisor, an investment
adviser registered under the federal Investment Advisers Act of
1940 (the "Advisers Act") and any applicable state securities
law, to provide investment advisory services, including
managing the Funds pursuant to applicable diversification
requirements of the Internal Revenue Code of 1986 (the "Code");
and
WHEREAS, the Company has registered or will register the
variable life insurance and variable annuity contracts listed
on Schedule A, as it maybe amended from time to time (the
"Contracts") under the 1933 Act or will not register the
contracts in proper reliance on an exemption from registration
under the 1933 Act and the 1940 Act; and
WHEREAS, each Account is a duly organized, validly
existing segregated asset account, established by resolution of
the Board of Directors of the Company, on the date shown for
such Account on Schedule A hereto, to set aside and invest
assets attributable to the aforesaid variable annuity
contracts; and
WHEREAS, the Company has registered or will register each
Account as a unit investment trust under the 1940 Act; and
WHEREAS, the Distributor is registered as a broker dealer
with the Securities and Exchange Commission ("SEC") under the
Securities Exchange Act of 1934, as amended, (the "1934 Act"),
and is a member in good standing of the National Association of
Securities Dealers, Inc. (the "NASD"); and
WHEREAS, the Trust has obtained an order from the SEC
granting participating insurance companies and their separate
accounts exemptions under Section 6(c) of the 1940 Act from the
provisions of Sections 9(a), 13(a), 15(a), and 15(b) of 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 and variable life
insurance separate accounts of both affiliated and
nonaffiliated life insurance companies and certain qualified
pension and retirement plans (the "Shared Exemptive Order");
and
WHEREAS, to the extent permitted by applicable insurance
laws and regulations, the Company intends to purchase shares in
the Funds on behalf of each Account to fund certain of the
aforesaid variable life and variable annuity contracts and the
Distributor is authorized to sell such shares to unit
investment trusts such as each Account at net asset value;
NOW, THEREFORE, in consideration of the foregoing and the
mutual promises and covenants hereinafter set forth, the
Company, the Trust, and the Advisor and the Distributor agree
as follows:
ARTICLE I. Sale of Trust Shares
1.1. The Distributor agrees to sell to the Company those
shares of the Funds which each Account orders, and agrees to
execute such orders on each day on which the New York Stock
Exchange is open for trading and the Funds calculate their net
asset value pursuant to rules of the SEC, all as described in
the Funds' registration statement (a "Business Day") 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
Funds. For purposes of this Section 1.1, the Company shall be
the designee of the Trust for receipt of such orders from each
Account and receipt by such designee shall constitute receipt
by the Trust; provided that the Trust receives notice of such
order in accordance with the requirements set forth in Schedule
B.
1.2. The Trust agrees to make its shares available for
purchase at the applicable net asset value per share by the
Company and its Accounts on each Business Day. Notwithstanding
the foregoing, the Board of Trustees of the Trust (the "Board")
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 Board 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 such Fund.
1.3. The Trust and the Distributor agree that shares of
the Funds will be sold only to the Company and its Accounts or
to other life insurance companies that offer variable annuity
and/or variable life insurance contracts to the public and
which have entered into an agreement with the Trust, and to
other persons not inconsistent with each Fund being adequately
diversified pursuant to Section 817(h) of the Code, and the
regulations thereunder. No shares of any Fund will be sold to
the general public to the extent inconsistent with such Fund
being adequately diversified pursuant to Section 817(b) of the
Code, and the regulations thereunder.
1.4. Upon receipt of a request for redemption in proper
form from the Company, the Trust agrees to redeem directly any
full or fractional shares of the Fund held by the Company,
ordinarily executing such requests on each Business Day at the
net asset value next computed after receipt and acceptance by
the Trust or its designee of the request for redemption except
that the Trust reserves the right to suspend the right of
redemption, consistent with Section 22(e) of the 1940 Act and
any rules thereunder. Such redemption shall be paid consistent
with applicable rules of the SEC and procedures and policies of
the Trust as described in the current registration statement.
For purposes of this Section 1.4, the Company shall be the
designee of the Trust for the limited purpose of receiving and
accepting purchase and redemption orders from each Account and
receipt by such designee shall constitute receipt by the Trust;
provided that the Trust receives notice of such request for
redemption in accordance with the requirements set forth in
Schedule B. The Company agrees to submit such orders
electronically through secured trading systems as described on
Schedule B to this Agreement or, if it is unable to submit
orders electronically, the Company shall submit such orders
through manual transmissions using the procedures described in
Schedule B to this Agreement.
1.5. The Company agrees that purchases and redemptions of
Fund shares offered by the then current prospectus of the Trust
shall be made in accordance with the provisions of such
prospectus.
1.6. Unless otherwise specified in Schedule B, the
Company shall pay for Trust shares on the next Business Day
after an order to purchase Trust shares is made in accordance
with the provisions of Section 1.1 hereof. Payment shall be in
federal funds transmitted by wire. For purpose of Section 2.10
and 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 Trust.
1.7. Issuance and transfer of Fund shares will be by book
entry only. Stock certificates will not be issued to the
Company or any Account. Shares ordered from the Funds will be
recorded in an appropriate title for each Account or the
appropriate subaccount of each Account. The Trust shall
furnish to the Company the CUSIP number assigned to each Fund
identified in Schedule A attached, as may be amended from time
to time.
1.8. Unless otherwise specified in Schedule B, the Trust
shall furnish same day notice (by wire or telephone, followed
by written confirmation) to the Company of any income,
dividends or capital gain distributions payable on the Fund's
shares. The Company hereby elects to receive all such income
dividends and capital gain distributions as are payable on the
Fund shares in additional shares of that Fund. The Company
reserves the right to revoke this election in writing and to
receive all such income dividends and capital gain
distributions in cash. The Trust or its agent shall notify the
Company of the number of shares so issued as payment of such
dividends and distributions.
1.9. Unless otherwise specified in Schedule B, the Trust
shall make the net asset value per share for each Fund
available to the Company on each Business Day as soon as
reasonably practical after the net asset value per share is
calculated and shall use its best efforts to make such net
asset value per share available by 6:00 p.m. Central Time.
A. If the Trust or its agent provides materially
incorrect share net asset value information through no fault of
the Company, the Accounts shall be entitled to an adjustment
with respect to the Fund shares purchased or redeemed to
reflect the correct net asset value per share.
B. The determination of the materiality of any net asset
value pricing error and its correction shall be based on the
SEC's recommended guidelines regarding these errors. Any
material 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. The Trust
and/or its agents shall indemnify and hold harmless the Company
against any amount the Company is legally required to pay
qualified plans ("Plans") or Contract owners, and which amount
is due to the Trust's or its agents' material miscalculation
and/or incorrect reporting of the daily net asset value,
dividend rate or capital gains distribution rate. The Company
shall submit an invoice to the Trust or its agents for such
losses incurred as a result of the above which shall be payable
within sixty (60) days of receipt. Should a material
miscalculation by the Trust or its agents result in a gain to
the Company, the Company shall immediately reimburse the Trust
or its agents for any amount lost by the Trust or its agents as
a result of the incorrect calculation. Should a material
miscalculation by the Trust or its agents result in a gain to
the Plans or Contract owners, the Company will consult with the
Trust or its designee as to what reasonable efforts shall be
made to recover the money and repay the Trust or its agents.
The Company shall then make such reasonable effort, at the
expense of the Trust or its agents, to recover the money and
repay the Trust or its agents; but the Company shall not be
obligated to take legal action against the Plans or Contract
owners.
With respect to the material errors or omissions relating
to net asset value pricing, this section shall control over
other indemnification provisions in this Agreement.
1.10. The Parties hereto acknowledge that the arrangement
contemplated by this Agreement is not exclusive; the Trust's
shares may be sold to other insurance companies (subject to
Section 1.3 and Article VI hereof) and the cash value of the
Contracts may be invested in other investment companies.
ARTICLE IB. General Duties
1.11. The Company shall take all such actions as are
necessary under applicable federal and state law to permit the
sale of the Contracts issued by the Company, including
registering each Account as an investment company to the extent
required under the 1940 Act, and registering the Contracts or
interests in the Accounts under the Contracts to the extent
required under the 1933 Act, and obtaining all necessary
approvals to offer the Contracts from state insurance
commissioners.
1.12. The Company shall make every effort to maintain the
treatment of the Contracts issued by the Company as annuity
contracts or life insurance policies, whichever is appropriate,
under the applicable provisions of the Code, and shall notify
the Trust and the Distributor immediately upon having a
reasonable basis for believing that such Contracts have ceased
to be so treated or that they might not be so treated in the
future. In that regard, the Company shall make every effort to
remedy any Contract's failure to be treated as annuity
contracts or life insurance policies, as appropriate, under
applicable provisions of the Code, including Section 72 and
regulations thereunder within the required time frames.
1.13. The Company or its agents shall offer and sell the
Contracts in accordance with applicable provisions of the 1933
Act, the 1934 Act, the 1940 Act, the NASD Rules of Fair
Practice, and state insurance law respecting the offering of
variable life insurance policies and variable annuity contracts.
1.14. The Distributor shall sell and distribute the
shares of the Funds in accordance with the applicable
provisions of the 1933 Act, the 1934 Act, the 1940 Act, the
NASD Rules of Fair Practice, and state law.
1.15. During such time as the Trust engages in activities
that require a Shared Exemptive Order, a majority of the
Trust's Board shall consist of persons who are not "interested
persons" of the Trust, as defined by Section 2(a)(19) of the
1940 Act and the rules thereunder, and as modified by any
applicable orders of the SEC ("Disinterested Trustees"), except
that if this provision is not met by reason of the death,
disqualification, or bona fide resignation of any Trustee or
Trustees, then the operation of this provision shall be
suspended (a) for a period of 45 days if the vacancy or
vacancies may be filled by the Trust's Board; (b) for a period
of 60 days if a vote of shareholders is required to fill the
vacancy or vacancies; or (c) for such longer period as the SEC
may prescribe by rule or order upon application.
ARTICLE II. Representations and Warranties
2.1. The Company represents and warrants that the
Contracts are or will be registered under the 1933 Act; or that
the Contracts are not registered in proper reliance on an
exemption from registration under the 1933 Act; that the
Contracts will be issued and sold in compliance in all material
respects with applicable provisions of the 1933 Act, the 1934
Act, the 1940 Act, the NASD Rules of Fair Practice, and state
insurance law respecting the offering of variable life
insurance policies and variable annuity contracts and that the
sale of the Contracts shall comply in all material respects
with state insurance suitability requirements. The Company
further represents and warrants that it is an insurance company
duly organized and in good standing under applicable law, that
it is taxed as an insurance company under Subchapter L of the
Code and that it has legally and validly established each
Account prior to any issuance or sale thereof as a segregated
asset account under Section 508A.1 of the Iowa Insurance Code
and has registered or, prior to any issuance or sale of the
Contracts, will register each Account as a unit investment
trust in accordance with the provisions of the 1940 Act to
serve as a segregated investment account for the Contracts, or
that the Company will not register the Account in proper
reliance upon an exclusion from registration under the1940 Act.
2.2. The Trust represents and warrants that Fund shares
sold pursuant to this Agreement shall be registered under the
1933 Act, duly authorized for issuance and sold in compliance
with applicable federal and state securities laws and that the
Trust is and shall remain registered under the 1940 Act. The
Trust 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. The Trust shall register and qualify the Fund 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
Distributor.
2.3. The Trust and the Advisor represent that each Fund
intends to qualify as a Regulated Investment Company under
Subchapter M of the Code and that the Trust and the Advisor
will make every effort to maintain such qualification (under
Subchapter M or any successor or similar provision) and that
the Trust and the Advisor will notify the Company immediately
upon having a reasonable basis for believing that a Fund has
ceased to so qualify or that it might not so qualify in the
future.
2.4. The Company represents that the Contracts are
currently treated as endowment or annuity insurance contracts,
under applicable provisions of the Code and that it will make
every effort to maintain such treatment and that it will notify
the Trust and the Distributor 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. In that regard, the Company shall make every effort to
remedy any variable contract's failure to be treated as annuity
contracts or life insurance policies, as appropriate, under
applicable provisions of the Code, including Section 72 and
regulations thereunder within the required time frames.
2.5. The Trust represents and warrants that should it
ever desire to make any payments to finance distribution
expenses pursuant to Rule 12b-1 under the 1940 Act, the
Trustees, including a majority who are Disinterested Trustees,
will formulate and approve any plan under Rule 12b-1 to finance
distribution expenses. To the extent that any Class of the Fund
may finance its distribution expenses pursuant to a Plan
adopted under Rule 12b-1, the Fund undertakes to comply with
any then current SEC and SEC staff interpretations concerning
Rule 12b-1 or any successor provisions.
2.6. The Trust 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 regulations of the various states except that
the Trust represents that the Trust's investment policies, fees
and expenses are and shall at all times remain in compliance
with the laws of the Commonwealth of Massachusetts and the
Trust and the Distributor represent that their respective
operations are and shall at all times remain in material
compliance with the laws of the Commonwealth of Massachusetts
to the extent required to perform this Agreement.
2.7. The Distributor represents and warrants that it is a
member in good standing of the NASD and is registered as a
broker-dealer with the SEC. The Distributor further represents
that it will sell and distribute the Trust shares in accordance
with all applicable state and federal securities laws,
including without limitation the 1933 Act, the 1934 Act, and
the 1940 Act, and the NASD Rules of Fair Practice.
2.8. The Trust represents that it is lawfully organized
and validly existing under the laws of Commonwealth of
Massachusetts and that it does and will comply in all material
respects with the 1940 Act.
2.9. The Advisor represents and warrants that it is and
shall remain duly registered as an investment adviser in all
material respects under all applicable federal and state
securities laws and that the Advisor shall perform its
obligations for the Trust in compliance in all material
respects with any applicable state and federal securities laws.
2.10. The Trust represents and warrants that all of its
trustees, officers, employees, investment advisers, and other
individuals/entities dealing with the money and/or securities
of the Trust are and shall 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) under the 1940 Act or
related provisions as may be promulgated from time to time.
The aforesaid Bond shall include coverage for larceny and
embezzlement and shall be issued by a reputable bonding company.
2.11. 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 for the benefit of the Trust, and that said bond is
issued by a reputable bonding company, includes coverage for
larceny and embezzlement, and is in an amount not less than $5
million. The Company agrees to make all reasonable efforts to
see that this bond or another bond containing these provisions
is always in effect, and agrees to notify the Trust and the
Distributor in the event that such coverage no longer applies.
2.12. Provided it is consistent with their fiduciaries
duties, the Company and its agents will not in any way
recommend any proposal in opposition to, or oppose or interfere
with, any proposal submitted by the Fund at a meeting of owners
of Contracts or shareholders of the Fund, and will in no way
recommend any proposal in opposition to, or oppose or interfere
with, the solicitation of proxies by the Fund of shares held by
Contract owners, without the prior written consent of the Fund.
2.13. Each party hereto shall cooperate with each other
party and all appropriate governmental authorities having
jurisdiction (including, without limitation, the SEC, the NASD,
and state insurance regulators) and shall permit such
authorities reasonable access to its books and records in
connection with any investigation or inquiry relating to this
Agreement or the transactions contemplated hereby.
ARTICLE III. Prospectuses and Proxy Statements; Voting
3.1. The Distributor shall provide the Company with as
many printed copies of the Trust's current prospectus and
Statement of Additional Information (describing only the
designated Funds listed on Schedule A) or, to the extent
existing, the Trust's profiles as the Company may reasonably
request. If requested by the Company in lieu thereof, the
Trust shall provide camera-ready film or an electronic file in
a format acceptable to the Company containing the Trust'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 Trust is
amended during the year) to have the prospectus for the
Contracts and the Trust's prospectus printed together in one
document, and to have the Statement of Additional Information
for the Trust and the Statement of Additional Information for
the Contracts printed together in one document. Alternatively,
the Company may print the Trust's prospectus and/or its
Statement of Additional Information in combination with other
fund companies' prospectuses and statements of additional
information. In such event, the Trust shall bear its pro rata
share of printing expenses based on the number of combined
printed pages. All such documents shall be provided to the
Company within time reasonably required to allow for printing
and delivery to Contract owners, but no later than five
business days prior to the date the documents are required
under then-current regulations to be sent to Contract owners.
Except as provided in the following three sentences, all
expenses of printing and distributing Trust prospectuses and
Statements of Additional Information shall be the expense of
the Company. For prospectuses and Statements of Additional
Information provided by the Company to its existing owners of
Contracts in order to update disclosure annually as required by
the 1933 Act and/or the 1940 Act, the cost of printing shall be
borne by the Trust. If the Company chooses to receive
camera-ready film or an electronic file in lieu of receiving
printed copies of the Trust's prospectus, the Trust will
reimburse the Company in an amount equal to the product of A
and B where A is the number of such prospectuses distributed to
owners of the Contracts, and B is the Trust's per unit cost of
typesetting and printing the Trust's prospectus. The same
procedures shall be followed with respect to the Trust's
Statement of Additional Information.
The Company agrees to provide the Trust or its designee
with such information as may be reasonably requested by the
Trust to assure that the Trust's expenses do not include the
cost of printing any prospectuses or Statements of Additional
Information other than those actually distributed to existing
owners of the Contracts.
3.2. The Trust's prospectus shall state that the
Statement of Additional Information for the Trust is available
from the Distributor or the Company (or in the Trust's
discretion, the Prospectus shall state that such Statement is
available from the Trust).
3.3. At its expense, the Trust shall provide the Company
with copies of the Trust's proxy statements, reports to
shareholders, and other required shareholder communications
(except for prospectuses and Statements of Additional
Information, which are covered in Section 3.1) to shareholders
in such quantity as the Company shall reasonably require for
distributing to Contract owners.
3.4. If and to the extent required by law the Company
shall:
(i) solicit voting instructions from Contract owners;
(ii) vote the Trust shares in accordance with instructions
received from Contract owners; and
(iii) vote Trust shares for which no instructions have been
received in a particular separate account in the same
proportion as Trust shares of such Fund for which
instructions have been received in that separate
account, so long as and to the extent that the SEC
continues to interpret the 1940 Act to require
pass-through voting privileges for variable contract
owners. 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.
3.5. The Company shall be responsible for assuring that
each of its separate accounts participating in the Trust
calculates voting privileges as required by the Shared
Exemptive Order and consistent with any reasonable standards
the Trust may adopt.
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 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). Further, the Trust will act in accordance with the
SEC'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.
3.7. If and during the time as the Trust engages in
activities that require a Shared Exemptive Order, the Trust
shall disclose in its prospectus or Statement of Additional
Information that (1) the Funds are intended to be funding
vehicles for variable annuity and variable life insurance
contracts offered by various insurance companies, (2) material
irreconcilable conflicts possibly may arise, and (3) the Board
will monitor events in order to identify the existence of any
material irreconcilable conflicts and to determine what action,
if any, should be taken in response to any such conflict. The
Trust hereby notifies the Company that prospectus or Statement
of Additional Information disclosure may be appropriate
regarding potential risks of offering shares of the Funds to
separate accounts funding Contracts of unaffiliated life
insurance companies.
ARTICLE IV. Sales Material and Information
4.1. The Company shall furnish, or shall cause to be
furnished, to the Trust or its designee, each piece of sales
literature or other promotional material in which the Trust,
the Advisor or the Distributor is named, at least fifteen
Business Days prior to its use. No such material shall be used
if the Trust or its designee reasonably objects to such use
within fifteen Business Days after receipt of such material.
4.2. 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 the sale of 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 its designee or
by the Distributor, except with the permission of the Trust or
the Distributor or the designee of either.
4.3. The Trust, the Advisor, the Distributor, or its
designee 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 and/or its
separate account(s), is named at least fifteen Business Days
prior to its use. No such material shall be used if the
Company or its designee reasonably objects to such use within
fifteen Business Days after receipt of such material.
4.4. The Trust, the Advisor, and the Distributor shall
not give any information or make any representations on behalf
of the Company or concerning the Company, each 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 Account which are in the public domain or
approved by the Company for distribution to Contract owners, or
in sales literature or other promotional material approved by
the Company or its designee, except with the permission of the
Company.
4.5. The 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, promptly after the filing of such document
with the SEC or other regulatory authorities.
4.6. 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 Account, 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, any of the following that refer to the Trust or any
affiliate of the Trust: 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, and registration
statements, prospectuses, Statements of Additional Information,
shareholder reports, and proxy materials.
ARTICLE V. Fees and Expenses
5.1. The Distributor shall pay no fee or other
compensation to the Company under this agreement, except that
if the Trust or any Fund adopts and implements a plan pursuant
to Rule 12b-1 to finance distribution expenses, then the Trust
or Distributor may make payments to the Company or to the
underwriter for the Contracts if and in amounts agreed to by
the Distributor in writing and such payments will be made out
of existing fees otherwise payable to the Distributor, past
profits of the Distributor or other resources available to the
Distributor. However, the parties reserve the right to agree
to compensate the Company in return for services it provides by
executing a Schedule to this Agreement or a separate agreement
for services.
5.2. All expenses incident to performance by the Trust
under this Agreement shall be paid by the Trust. The Trust
shall see to it that all its shares are registered and
authorized for issuance in accordance with applicable federal
law and, if and to the extent deemed advisable by the Trust, in
accordance with applicable state laws prior to their 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, proxy
materials and reports, setting the prospectus in type, setting
in type and printing the proxy materials and reports to
shareholders (including the costs of printing a prospectus that
constitutes an annual report), the preparation of all
statements and notices required by any federal or state law,
and all taxes on the issuance or transfer of the Trust's shares.
5.3. The Company shall bear the expenses of distributing
the Trust's prospectus, proxy materials and reports to owners
of Contracts issued by the Company.
ARTICLE VI. Diversification
6.1. The Trust and the Advisor represent and warrant that
the Funds currently comply, and will continue to comply, with
the diversification provisions of Section 817(h) of the 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. In the event of
a breach of this Article VI by the Advisor or the Trust, each
will take all reasonable steps (a) to notify the Company of
such breach and (b) to adequately diversify the Trust so as to
achieve compliance within the grace period afforded by
Regulation 1.817-5.
ARTICLE VII. Potential Conflicts
7.1. If the Trust determines to offer Fund shares to any
other insurance company, separate account or to a qualified
plan, then the Trust shall furnish the Company with a copy of
its application for an order of the SEC under Section 6(c) of
the 1940 Act for mixed and shared funding relief, and the
notice of such application and order when issued by the SEC.
The Company agrees to comply with the conditions on which such
order is issued, including reporting any potential or existing
conflicts promptly to the Board of Trustees of the Trust
("Board"), and in particular whenever contract owner voting
instructions are disregarded, to the extent such conditions are
not materially different from the conditions of the mixed and
shared funding relief that the Company has agreed to be bound
by in similar participation agreements with other fund
providers, and recognizes that it shall be responsible for
assisting the Board in carrying out is responsibilities in
connection with such order. The Company agrees to carry out
such responsibilities with a view to the interests of existing
contract owners. If and during the time that the Trust engages
in activities that require a Shared Exemptive Order, the
parties shall comply with this Article VII.
7.2 The Board will monitor the Trust for the existence of
any material irreconcilable conflict between the interests of
the contract owners of all separate accounts investing in the
Trust. An irreconcilable material conflict may arise for a
variety of reasons, including: (a) an action by any state
insurance regulatory authority; (b) a change in applicable
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 and variable life insurance contract
owners or trustees of qualified pension or retirement plans; or
(f) a decision by an insurer to disregard the voting
instructions of contract owners or if applicable, a decision by
a qualified pension or retirement plan to disregard the voting
instructions of its participants. The Board shall promptly
inform the Company if it determines that an irreconcilable
material conflict exists and the implications thereof.
7.3. The Company will report any potential or existing
conflicts of which it is aware to the Board. The Company will
assist the Board in carrying out its responsibilities under the
Shared Exemptive Order by providing the Board with all
information reasonably necessary for the Board to consider any
issues raised. This includes, but is not limited to, an
obligation by the Company to inform the Board whenever contract
owner voting instructions are disregarded. The Company shall
carry out its responsibilities under this Section 7.3 with a
view only to the interests of the contract owners.
7.4. If it is determined by a majority of the 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 irreconcilable
material conflict, up to and including: (1) withdrawing the
assets allocable to some or all of the separate accounts from
the Trust or any Fund and reinvesting such assets in a
different investment medium, including (but not limited to)
another Fund of the Trust, or submitting the question whether
such segregation should be implemented to a vote of all
affected Contract owners and, as appropriate, segregating the
assets of any appropriate group (i.e., annuity contract owners,
life insurance contract owners, or variable contract owners of
the Company) that votes in favor of such segregation, or
offering to the affected contract owners the option of making
such a change; and (2) establishing a new registered management
investment company or managed separate account.
7.5. If a material irreconcilable conflict arises because
of a decision by the Company to disregard contract owner voting
instructions and that decision represents a minority position
or would preclude a majority vote, the Company shall be
required, at the Trust's election, to withdraw the affected
Account's investment in the Trust and terminate this Agreement
with respect to such Account; provided, however that such
withdrawal and termination shall be limited to the extent
required by the foregoing material irreconcilable conflict as
determined by a majority of the Disinterested Trustees of the
Board. Any such withdrawal and termination must take place
within six (6) months after the Trust gives written notice that
this provision is being implemented, and until the end of that
six month period the Distributor and Trust shall continue to
accept and implement orders by the Company for the purchase
(and redemption) of shares of the Trust.
7.6. If a material irreconcilable conflict arises because
a particular state insurance regulator's decision applicable to
the Company conflicts with the majority of other state
regulators, then the Company will withdraw the affected
Account's investment in the Trust and terminate this Agreement
with respect to such Account within six months after the Board
informs the Company in writing that it has determined that such
decision has created an irreconcilable material conflict;
provided, however, that such withdrawal and termination shall
be limited to the extent required by the foregoing material
irreconcilable conflict as determined by a majority of the
Disinterested Trustees of the Board. Until the end of the
foregoing six month period, the Distributor and Trust shall
continue to accept and implement orders by the Company for the
purchase (and redemption) of shares of the Trust.
7.7. For purposes of Sections 7.4 through 7.7 of this
Agreement, a majority of the Disinterested Trustees of the
Board shall determine whether any proposed action adequately
remedies any irreconcilable material conflict, but in no event
will the Trust be required to establish a new funding medium
for the Contracts. The Company shall not be required by
Section 7.4 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
irreconcilable material conflict. In the event that the Board
determines that any proposed action does not adequately remedy
any irreconcilable material conflict, then the Company will
withdraw the Account's investment in the Trust and terminate
this Agreement within six (6) months after the Board informs
the Company in writing of the foregoing determination,
provided, however, that such withdrawal and termination shall
be limited to the extent required by any such material
irreconcilable conflict as determined by a majority of the
Disinterested Trustees of the Board.
7.8. If and to the extent that Rule 6e-2 and Rule 6e-3(T)
are amended, or Rule 6e-3 is adopted, to provide exemptive
relief from any provision of the 1940 Act or the rules
promulgated thereunder with respect to mixed or shared funding
(as defined in the Shared Exemptive Order) on terms and
conditions materially different from those contained in the
Shared Exemptive Order, then 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.
7.9. The Company, at least annually, shall submit to the
Board such reports, materials, or data as the Board reasonably
may request so that the Trustees may fully carry out the
obligations imposed upon the Board by the conditions contained
in the application for the Shared Exemptive Order and said
reports, materials, and data shall be submitted more frequently
if deemed appropriate by the Board.
7.10 All reports of potential or existing conflicts
received by the Board and all Board action with regard to
determining the existence of a conflict, notifying
participating insurance companies of a conflict, and
determining whether any proposed action adequately remedies a
conflict, shall be properly recorded in the minutes of the
Board or other appropriate records, and such minutes or other
records shall be made available to the SEC upon request.
ARTICLE VIII. Indemnification
8.1. Indemnification By The Company
8.1(a). The Company agrees to indemnify and hold harmless
the Distributor, the Advisor and the Trust and each trustee of
the Board and officer, employees and agents and any "affiliated
person" (as defined in Section 2(a)(3) of the 0000 Xxx) of the
Trust, Distributor or Advisor (collectively, the "Indemnified
Parties" for purposes of this Section 8.1) against any and all
losses, claims, damages, liabilities (including amounts paid in
settlement with the written consent of the Company) or
litigation (including legal and other expenses), to which the
Indemnified Parties may become subject under any statute,
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:
(i) arise out of or are based upon any untrue
statements or alleged untrue statements of any material fact
contained in the registration statement or prospectus (which
shall include the portions of an offering memorandum that
contain information regarding the Trust, Distributor or
Advisor) for the Contracts or contained in the Contracts or
sales literature for the Contracts (or any amendment or
supplement to any of the foregoing), or arise out of or are
based upon the omission or the alleged omission to state
therein a material fact required to be stated therein or
necessary to make the statements therein not misleading,
provided that this agreement to indemnify shall not apply as to
any Indemnified Party if such statement or omission or such
alleged statement or omission was made in reliance upon and in
conformity with information furnished to the Company by or on
behalf of the Indemnified Parties for use in the Registration
Statement or prospectus 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
(ii) arise out of or as a result of statements or
representations (other than statements or representations
contained in the Registration Statement, prospectus or sales
literature 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 the sale or
distribution of the Contracts or Trust shares; or
(iii) arise out of any untrue statement or alleged
untrue statement of a material fact contained in the Trust's
registration statement, prospectus, or sales literature or any
amendment thereof or supplement thereto or the omission or
alleged omission to state therein a material fact required to
be stated therein or necessary to make the statements therein
not misleading if such a statement or omission was made in
reliance upon information furnished by or on behalf of the
Company; or
(iv) arise as a result of any material failure of
this Agreement by the Company; or
(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 of this Agreement by the Company;
as limited by and in accordance with the provisions of Sections
8.1(b) and 8.1(c) hereof.
8.1(b). The Company shall not be liable under this
indemnification provision with respect to any losses, claims,
damages, liabilities or litigation incurred or assessed against
an Indemnified Party as such may arise from such Indemnified
Party's willful misfeasance, bad faith, or gross negligence in
the performance of such Indemnified Party's duties or by reason
of such Indemnified Party's reckless disregard of obligations
or duties under this Agreement or to the Trust or the
Contracts, whichever is applicable.
8.1(c). The Company shall not be liable under this
indemnification provision with respect to any claim made
against an Indemnified Party unless such Indemnified Party
shall have notified the Company in writing within a reasonable
time after the summons or other first legal process giving
information of the nature of the claim shall have been served
upon such Indemnified Party (or after such Indemnified Party
shall have received notice of such service on any designated
agent), but failure to notify the Company of any such claim
shall not relieve the Company from any liability which it may
have to the Indemnified Party against whom such action is
brought otherwise than on account of this indemnification
provision. In case any such action is brought against the
Indemnified Parties, the Company shall be entitled to
participate, at its own expense, in the defense of such
action. The Company also shall be entitled to assume the
defense thereof, with counsel satisfactory to the party named
in the action. After notice from the Company to such party of
the Company's election to assume the defense thereof, the
Indemnified Party shall bear the fees and expenses of any
additional counsel retained by it, and the Company will not be
liable to such party under this Agreement for any legal or
other expenses subsequently incurred by such party
independently in connection with the defense thereof other than
reasonable costs of investigation. If the Company assumes the
defense or representation of an Indemnified Party, the Company
shall not consent or agree to any settlement without the prior
approval of the Indemnified Party.
8.1(d). An Indemnified Party will promptly notify the
Company of the commencement of any litigation or proceedings
against it 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 Distributor
8.2(a). The Distributor agrees to indemnify and hold
harmless the Trust, the Advisor and the Company and each of
their directors, trustees, officers, employees and agents and
any affiliated person (as defined in Section 2(a)(3) of the
0000 Xxx) of the Trust, the Advisor or the Company
(collectively, the "Indemnified Parties" for purposes of this
Section 8.2) against any and all losses, claims, damages,
liabilities (including amounts paid in settlement with the
written consent of the Distributor) or litigation (including
legal and other expenses) to which the Indemnified Parties may
become subject under any statute, 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:
(i) arise out of or are based upon any untrue
statement or alleged untrue statement of any material fact
contained in the registration statement or sales literature of
the Trust (or any amendment or supplement to any of the
foregoing), or arise out of or are based upon the omission or
the alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements
therein not misleading, provided that this agreement to
indemnify shall not apply as to any Indemnified Party if such
statement or omission or such alleged statement or omission was
made in reliance upon and in conformity with information
furnished to the Distributor by or on behalf of the Indemnified
Parties for use in the registration statement or prospectus for
the Trust or in sales literature (or any amendment or
supplement) or otherwise for use in connection with the sale of
the Contracts or Trust shares; or
(ii) arise out of or as a result of statements or
representations (other than statements or representations
contained in the registration statement, prospectus or sales
literature for the Trust or the Contracts not supplied by the
Distributor or persons under its control) or wrongful conduct
of the Distributor or persons under its control, with respect
to the sale or distribution of the Contracts or Trust shares; or
(iii) arise out of any untrue statement or alleged
untrue statement of a material fact contained in the Trust's
registration statement, prospectus, or sales literature, or any
amendment thereof or supplement thereto, or the omission or
alleged omission to state therein a material fact required to
be stated therein or necessary to make the statement or
statements therein not misleading, if such statement or
omission was made in reliance upon information furnished by or
on behalf of the Distributor; or
(iv) arise as a result of any material failure by
the Distributor 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 Distributor
in this Agreement or arise out of or result from any other
material breach of this Agreement by the Distributor;
as limited by and in accordance with the provisions of Sections
8.2(b) and 8.2(c) hereof.
8.2(b). The Distributor shall not be liable under this
indemnification provision with respect to any losses, claims,
damages, liabilities or litigation to which an Indemnified
Party would otherwise be subject by reason of such Indemnified
Party's willful misfeasance, bad faith, or gross negligence in
the performance of such Indemnified Party's duties or by reason
of such Indemnified Party's reckless disregard of obligations
and duties under this Agreement, or to the Company, the Trust
or the Contracts, whichever is applicable.
8.2(c). The Distributor shall not be liable under this
indemnification provision with respect to any claim made
against an Indemnified Party unless such Indemnified Party
shall have notified the Distributor in writing within a
reasonable time after the summons or other first legal process
giving information of the nature of the claim shall have been
served upon such Indemnified Party (or after such Indemnified
Party shall have received notice of such service on any
designated agent), but failure to notify the Distributor of any
such claim shall not relieve the Distributor from any liability
which it may have to the Indemnified Party against whom such
action is brought otherwise than on account of this
indemnification provision. In case any such action is brought
against the Indemnified Parties, the Distributor will be
entitled to participate, at its own expense, in the defense
thereof. The Distributor also shall be entitled to assume the
defense thereof, with counsel satisfactory to the party named
in the action. After notice from the Distributor to such party
of the Distributor's selection to assume the defense thereof,
the Indemnified Party shall bear the fees and expenses of any
additional counsel retained by it, and the Distributor 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. If the Distributor assumes
the defense or representation of any Indemnified Party, the
Distributor shall not consent or agree to any settlement
without the prior approval of the Indemnified Party.
8.2(d). An Indemnified Party agrees promptly to notify
the Distributor of the commencement of any litigation or
proceedings against it or any of its officers or directors in
connection with the issuance or sale of the Contracts or the
operation of each Account.
8.3. Indemnification By the Trust
8.3(a). The Trust agrees to indemnify and hold harmless
the Company, the Distributor and the Advisor and each of their
directors, officers, employees and agents and any affiliated
person (as defined in Section 2(a)(3) of the 0000 Xxx) of the
Company, the Distributor or the Advisor (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) or litigation (including legal and other expenses) to
which the Indemnified Parties may become subject under any
statute, 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:
(i) arise out of or are based upon any untrue
statement or alleged untrue statement of any material fact
contained in the registration statement or sales literature of
the Trust (or any amendment or supplement to any of the
foregoing), or arise out of or are based upon the omission or
the alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements
therein not misleading, provided that this agreement to
indemnify shall not apply as to any Indemnified Party if such
statement or omission or such alleged statement or omission was
made in reliance upon and in conformity with information
furnished to the Distributor or Trust by or on behalf of the
Indemnified Parties for use in the registration statement or
prospectus for the Trust or in sales literature (or any
amendment or supplement) or otherwise for use in connection
with the sale of the Contracts or Trust shares; or
(ii) arise out of or as a result of statements or
representations (other than statements or representations
contained in the registration statement, prospectus or sales
literature for the Trust or the Contracts not supplied by the
Distributor or persons under its control) or wrongful conduct
of the Trust or persons under its control, with respect to the
sale or distribution of the Contracts or Trust shares; or
(iii) arise out of any untrue statement or alleged
untrue statement of a material fact contained in Trust's
registration statement, prospectus, or sales literature, or any
amendment thereof or supplement thereto, or the omission or
alleged omission to state therein a material fact required to
be stated therein or necessary to make the statement or
statements therein not misleading, if such statement or
omission was made in reliance upon information furnished by or
on behalf of the Distributor; or
(iv) arise as a result of any material failure by
the Trust 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 Trust in this
Agreement or arise out of or result from any other material
breach of this Agreement by the Trust;
as limited by and in accordance with the provisions of Sections
8.3(b) and 8.3(c) hereof.
8.3(b). The Trust shall not be liable under this
indemnification provision with respect to any losses, claims,
damages, liabilities or litigation incurred or assessed against
an Indemnified Party as such may arise from such Indemnified
Party's willful misfeasance, bad faith, or gross negligence in
the performance of such Indemnified Party's duties or by reason
of such Indemnified Party's reckless disregard of obligations
and duties under this Agreement or to the Company or the
Contracts, whichever is applicable.
8.3(c). The Trust shall not be liable under this
indemnification provision with respect to any claim made
against an Indemnified Party unless such Indemnified Party
shall have notified the Trust in writing within a reasonable
time after the summons or other first legal process giving
information of the nature of the claim shall have been served
upon such Indemnified Party (or after such Indemnified Party
shall have received notice of such service on any designated
agent), but failure to notify the Trust of any such claim shall
not relieve the Trust from any liability which it may have to
the Indemnified Party against whom such action is brought
otherwise than on account of this indemnification provision.
In case any such action is brought against the Indemnified
Parties, the Trust will be entitled to participate, at its own
expense, in the defense thereof. The Trust also shall be
entitled to assume the defense thereof, with counsel
satisfactory to the party named in the action. After notice
from the Trust to such party of the Trust'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
Trust 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. If the Trust assumes the
defense or representation of any Indemnified Party, the Trust
shall not consent or agree to any settlement without the prior
approval of the Indemnified Party.
8.3(d). An Indemnified Party agrees promptly to notify
the Trust of the commencement of any litigation or proceedings
against it or any of its respective officers, trustees or
directors in connection with this Agreement, the issuance or
sale of the Contracts, with respect to the operation of either
Account, or the sale or acquisition of shares of the Trust.
8.4 Indemnification By the Advisor
8.4(a). The Advisor agrees to indemnify and hold harmless
the Trust, the Distributor and the Company and each of their
trustees, directors, officers, employees, and agents, and any
affiliated person (as defined in Section 2(a)(3) of the 0000
Xxx) of the Trust, the Distributor or the Company
(collectively, the "Indemnified Parties" for purposes of this
Section 8.4) against any and all losses, claims, damages,
liabilities (including amounts paid in settlement with the
written consent of the Advisor) or litigation expenses
(including reasonable legal and other expenses) to which the
Indemnified Parties may become subject under any statute or
regulation, at common law or otherwise, insofar as such losses,
claims, damages, liabilities or litigation expenses are related
to the sale or acquisition of the Trust'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
provided by the Advisor and contained in the registration
statement or prospectus or sales literature or other
promotional material of the Trust (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 about the Advisor required to be stated
therein or necessary to make the statements therein not
misleading, provided that this agreement to indemnify shall not
apply as to any Indemnified Party if such statement or omission
or such alleged statement or omission was made in reliance upon
and in conformity with information furnished to the Advisor by
or on behalf of the Indemnified Parties for use in the
registration statement or prospectus for the Trust or in sales
literature or other promotional material (or any amendment or
supplement) or otherwise for use in connection with the sale of
the Contracts or Trust shares; or
(ii) arise out of or as a result of any statement or
representations (other than statements or representations
contained in the registration statement, prospectus or sales
literature or other promotional material for the Trust or the
Contracts not supplied by the Advisor or any employees or
agents thereof) or wrongful conduct of the Advisor, or the
affiliates, employees, or agents of the Advisor with respect to
the sale or distribution of the Contracts or Trust shares; or
(iii) arise out of any untrue statement or alleged
untrue statement of a material fact contained in the Trust's
registration statement, prospectus, or sales literature, or any
amendment thereof or supplement thereto, or the omission or
alleged omission to state therein a material fact required to
be stated therein or necessary to make the statement or
statements therein not misleading, if such statement or
omission was made in reliance upon information furnished by or
on behalf of the Advisor; or
(iv) arise as a result of any material failure by
the Advisor 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 specified in Article VI of this
Agreement); or
(v) arise out of or result from any material breach
of any representation and/or warranty made by the Advisor in
this Agreement or arise out of or result from any other
material breach of this Agreement by the Advisor;
as limited by and in accordance with the provisions of
Sections 8.4(b) and 8.4(c) hereof.
8.4(b). The Advisor shall not be liable under this
indemnification provision with respect to any losses, claims,
damages, liabilities or litigation expenses to which an
Indemnified Party would otherwise be subject by reason of
willful misfeasance, bad faith, or gross negligence in the
performance of such Indemnified Party's duties or by reason of
the Indemnified Party's reckless disregard of obligations or
duties under this Agreement or to the Trust, the Contracts or
the Company, whichever is applicable.
8.4(c). The Advisor shall not be liable under this
indemnification provision with respect to any claim made
against an Indemnified Party unless such Indemnified Party
shall have notified the Advisor in writing within a reasonable
time after the summons or other first legal process giving
information of the nature of the claim shall have been served
upon such Indemnified Party (or after such Indemnified Party
shall have received notice of such service on any designated
agent), but failure to notify the Advisor of any such claim
shall not relieve the Advisor from any liability which it may
have to the Indemnified Party against whom such action is
brought otherwise than on account of this indemnification
provision. In case any such action is brought against the
Indemnified Parties, the Advisor will be entitled to
participate, at is own expense, in the defense thereof. The
Advisor also shall be entitled to assume the defense thereof,
with counsel satisfactory to the party named in the action.
After notice from the Advisor to such party of the Advisor'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 Advisor will not be liable to such
party under this Agreement for any legal or other expense
subsequently incurred by such party independently in connection
with the defense thereof other than reasonable costs of
investigation. If the Advisor assumes the defense or
representation of an Indemnified Party, the Advisor shall not
consent or agree to any settlement without the prior approval
of the Indemnified Party.
8.4(d). An Indemnified Party agrees promptly to notify
the Advisor of the commencement of any litigation or
proceedings against it or any of its respective officers,
trustees or directors in connection with this Agreement, the
issuance or sale of the Contracts, with respect to the
operation of either Account, or the sale or acquisition of
shares of the Trust.
8.5(d). Indemnification Disputes. The parties shall use
good faith efforts to resolve any dispute concerning the
indemnification obligations in this Article VIII. Should those
efforts fail to resolve the dispute, the ultimate resolution
shall be determined in a de novo proceeding, separate and apart
from the underlying matter complained of, before a court of
competent jurisdiction. Either party may initiate such
proceedings with a court of competent jurisdiction at any time
following the termination of the efforts by such parties to
resolve the dispute (termination of such efforts shall be
deemed to have occurred thirty (30) days from the commencement
of the same unless such time period is extended by the written
agreement of the parties). The prevailing party in such a
proceeding shall be entitled to recover reasonable attorneys'
fees, costs, and expenses.
ARTICLE IX. Applicable Law
9.1. This Agreement shall be construed and the provisions
hereof interpreted under and in accordance with the laws of the
State of New York.
9.2. 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 (including
any Shared Exemptive Order) and the terms hereof shall be
interpreted and construed in accordance therewith.
ARTICLE X. Termination
10.1. This Agreement shall continue in full force and
effect until the first to occur of:
(a) termination by any party for any reason by one
hundred and eighty (180) days advance written notice delivered
to the other parties; or
(b) termination by the Company by prompt written
notice to the other parties with respect to any Fund based upon
the Company's determination that shares of such Fund are not
reasonably available to meet the requirements of the Contracts;
or
(c) termination by the Company by written notice to
the Trust and the Distributor with respect to any Fund in the
event any of the Fund's shares are not registered, issued or
sold in accordance with applicable state and/or federal law or
such law precludes the use of such shares as the underlying
investment media of the Contracts issued or to be issued by the
Company; or
(d) termination by the Company by written notice to
the Trust and the Distributor with respect to any Fund in the
event that such Fund ceases to qualify as a Regulated
Investment Company under Subchapter M of the Code or under any
successor or similar provision, or if the Company reasonably
believes that the Trust may fail to so qualify; or
(e) termination by the Company by written notice to
the Trust and the Distributor with respect to any Fund in the
event that such Fund fails to meet the diversification
requirements specified in Article VI hereof; or
(f) termination by either the Trust, the Advisor or
the Distributor by written notice to the Company, if (1) any of
the Trust, the Advisor or the Distributor, respectively, shall
determine, in their sole judgment reasonably exercised in good
faith, that the Company has suffered a material adverse change
in its business or financial condition or is the subject of
material adverse publicity and such material adverse change or
material adverse publicity will have a material adverse impact
upon the business and operations of either the Trust, the
Advisor or the Distributor, (2) the Trust, the Advisor or the
Distributor shall notify the Company in writing of such
determination and its intent to terminate this Agreement, and
(3) after considering the actions taken by the Company and any
other changes in circumstances since the giving of such notice,
such determination of the Trust, the Advisor or Distributor
shall continue to apply on the sixtieth (60th) day following
the giving of such notice, which sixtieth day shall be the
effective date of termination; or
(g) termination by the Company by written notice to
the Trust, the Advisor and the Distributor, if (1) the Company
shall determine, in its sole judgment reasonably exercised in
good faith, that either the Trust, the Advisor or the
Distributor has suffered a material adverse change in its
business or financial condition or is the subject of material
adverse publicity and such material adverse change or material
adverse publicity will have a material adverse impact upon the
business and operations of the Company, (2) the Company shall
notify the Trust, the Advisor and the Distributor in writing of
such determination and its intent to terminate the Agreement,
and (3) after considering the actions taken by the Trust, the
Distributor and/or the Advisor and any other changes in
circumstances since the giving of such notice, such
determination of the Company shall continue to apply on the
sixtieth (60th) day following the giving of such notice, which
sixtieth day shall be the effective date of termination; or
(h) By any party upon institution of formal
proceedings against the Company, the Trust, the Advisor or the
Distributor by the NASD, the SEC, or any state securities or
insurance department or any other regulatory body regarding a
party's duties under this Agreement or related to the sale of
the Contracts issued by the Company, the operation of the
Accounts, or the purchase of shares of the Funds;; or
(i) By the Distributor, the Advisor or the Trust
upon written notice to the Company with respect to any Account
in the event that such Account ceases to be qualified as a
segregated asset account under the Iowa insurance laws; or
(j) By the Distributor, the Advisor or the Trust
upon written notice with respect to any Account in the event
that effective registration as a unit investment trust under
the 1940 Act for such Separate is not maintained; or
(k) By the Distributor, the Advisor or the Trust in
the event that the Contracts cease to be treated as annuity
contracts under the applicable provisions of the Code; or
(l) By the Distributor, the Advisor or the Trust in
the event that effective registration or exemption from
registration under the 1933 Act of the Contracts is not
maintained; or
(m) By any party to the Agreement upon a
determination by a majority of the Board, or a majority of its
Disinterested Trustees, that a material irreconcilable
conflict, as described in Article VII hereof, exists; or
(n) By any party to the Agreement upon requisite
vote of the Contract owners having an interest in the Separate
Accounts (or any subaccounts thereof) to substitute the shares
of another investment company for the corresponding shares of a
Fund in accordance with the terms of the Contracts for which
those shares had been selected or serve as the underlying
investment media; or
(o) By either the Advisor or the Distributor in the
event of a termination of either of their contracts with the
Trust, but each shall use their best efforts to substitute
themselves under this Agreement with any successor investment
adviser or distributor to the Trust.
Each party to this Agreement shall promptly notify the
other parties to the Agreement of the institution against such
party of any such formal proceedings as described in Article
10.1(h) hereof. The Company shall give 60 days prior written
notice to the Trust of the date of any proposed vote of
Contract owners to replace the Fund's shares as described in
Article 10.1(n) hereof.
10.2. Effect of Termination. Notwithstanding any
termination of this Agreement, the Trust, the Advisor and the
Distributor shall at the option of the Company, continue to
make available additional shares of the Trust pursuant to the
terms and conditions of this Agreement, for all Contracts in
effect on the effective date of termination of this Agreement
(hereinafter referred to as "Existing Contracts").
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 10.2
shall not apply to any terminations under Article VII and the
effect of such Article VII terminations shall be governed by
Article VII of this Agreement.
10.3. The Company shall not redeem Trust shares
attributable to the Contracts (as opposed to Trust 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") or (iii) as permitted by an
order of the SEC pursuant to Section 26(b) of the 1940 Act.
Upon request, the Company will promptly furnish to the Trust
and the Distributor the opinion of counsel for the Company
(which counsel shall be reasonably satisfactory to the Trust
and the Distributor) 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
Distributor 90 days notice of its intention to do so.
ARTICLE XI. Notices
Any notice shall be sufficiently given when sent by
registered or certified mail to another party at the address of
such party set forth below or at such other address as such
party may from time to time specify in writing to the other
party.
If to the Trust: With a copy to:
Huntington VA Funds Xxxxxx Xxxxxxxxxx, Esq.
c/o The Huntington Ropes & Xxxx
National Bank One Metro Center
00 Xxxxx Xxxx Xxxxxx 000 00xx Xx., XX, Xxxxx 000
Xxxxxxxx, Xxxx 00000 Xxxxxxxxxx, XX 00000
Attention: President (000) 000-0000 PHONE
(000) 000-0000 FAX
If to the Company
Transamerica Life
Insurance Company
000 Xxxxxxxx Xxxxxxx
Xx. Xxxxxxxxxx, Xxxxxxx
00000
If to the Distributor
Edgewood Services, Inc.
0000 Xxxxxxxxx Xxxxx
Xxxxxxxxxx, XX
00000-0000
Attn: Secretary
If to the Advisor: With a copy to:
Huntington Asset Xxxxxx Xxxxxxxxxx, Esq.
Advisors, Inc. Ropes & Xxxx
00 Xxxxx Xxxx Xxxxxx Xxx Xxxxx Xxxxxx
Xxxxxxxx, Xxxx 00000 000 00xx Xx., XX, Xxxxx 000
Xxxx: Chief Investment Xxxxxxxxxx, XX 00000
Officer (000) 000-0000 PHONE
(000) 000-0000 FAX
ARTICLE XII. Miscellaneous
12.1 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 Board, officers, agents or
shareholders assume any personal liability for obligations
entered into on behalf of the Trust.
12.2 Subject to the requirements of legal process and
regulatory authority, each party hereto shall treat as
confidential the names and addresses of the owners of the
Contracts and all information reasonably identified as
confidential in writing by any other party hereto and, except
as permitted by this Agreement, shall not disclose, disseminate
or utilize such names and addresses and other confidential
information until such time as it may come into the public
domain without the express written consent of the affected
party. Each party further agrees to use and disclose Personal
Information, as defined herein, 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).
For purposes of this Agreement, "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 outsource services to a third-party, such third party
will agree in writing to maintain the security and
confidentiality of any information shared with them.
12.3 The captions in this Agreement are included for
convenience of reference only and in no way define or delineate
any of the provisions hereof or otherwise affect their
construction or effect.
12.4 This Agreement may be executed simultaneously in two
or more counterparts, each of which taken together shall
constitute one and the same instrument.
12.5 If any provision of this Agreement shall be held or
made invalid by a court decision, statute, rule or otherwise,
the remainder of the Agreement shall not be affected thereby.
12.6 Each party hereto shall cooperate with each other
party and all appropriate governmental authorities (including
without limitation the SEC, the NASD and state insurance
regulators) and shall permit such authorities reasonable access
to its books and records in connection with any investigation
or inquiry relating to this Agreement or the transactions
contemplated hereby. Notwithstanding the generality of the
foregoing, each party hereto further agrees to furnish the Iowa
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 Iowa Insurance Regulations and any
other applicable law or regulations.
12.7 The rights, remedies and obligations contained in
this Agreement are cumulative and are in addition to any and
all rights, remedies and obligations, at law or in equity,
which the parties hereto are entitled to under state and
federal laws.
12.8. This Agreement or any of the rights and obligations
hereunder may not be assigned by any party without the prior
written consent of all parties hereto; provided, however, that
the Distributor may assign this Agreement or any rights or
obligations hereunder to any affiliate of or company under
common control with the Distributor, if such assignee is duly
licensed and registered to perform the obligations of the
Distributor under this Agreement. The Company shall promptly
notify the Trust, the Advisor, and the Distributor of any
change in control of the Company.
12.9. The Company shall furnish, or shall cause to be
furnished, to the Trust, the Advisor or their designee copies
of the following reports:
(a) the Company's annual statement (prepared under
statutory accounting principles) and annual report (prepared
under generally accepted accounting principles ("GAAP"), if
any), as soon as practical and in any event within 90 days
after the end of each fiscal year;
(b) the Company's quarterly statements (statutory)
(and GAAP, if any), as soon as practical and in any event
within 45 days after the end of each quarterly period:
(c) any financial statement, proxy statement, notice
or report of the Company sent to stockholders and/or
policyholders, as soon as practical after the delivery thereof
to stockholders;
(d) any registration statement (without exhibits)
and financial reports of the Company filed with the SEC or any
state insurance regulator, as soon as practical after the
filing thereof;
(e) any other report submitted to the Company by
independent accountants in connection with any annual, interim
or special audit made by them of the books of the Company, as
soon as practical after the receipt thereof.
IN WITNESS WHEREOF, each of the parties hereto has caused
this Agreement to be executed in its name and on its behalf by
its duly authorized representative and its seal to be hereunder
affixed hereto as of the date specified below.
Company:
[SEAL] TRANSAMERICA LIFE INSURANCE
COMPANY,
On its behalf and on behalf of
each Separate Account named in
Schedule A, as may be amended
from time to time.
By its authorized officer,
By: /s/ Xxxx X. Xxxxxx
Name: Xxxx X. Xxxxxx
Title: Assistant Secretary
Date: 2/1/2004
Trust:
[SEAL] HUNTINGTON VA FUNDS,
On its behalf and on behalf of
each Fund named in Schedule A,
as may be amended from time to
time.
By its authorized officer,
By: /s/ Xxxxxx X. Xxxxxxx
Name: Xxxxxx X. Xxxxxxx
Title: Vice President
Date: 2/9/2004
Distributor:
[SEAL] EDGEWOOD SERVICES, INC.
By its authorized officer,
By: /s/ Xxxxxxx X. Xxxxx,. Jr.
Name: Xxxxxxx X. Xxxxx, Xx.
Title: Vice President
Date: 2/9/2004
Advisor:
[SEAL] HUNTINGTON ASSET ADVISORS, INC.
By its authorized officer,
By: /s/ B. R. Xxxxxxx
Name: B. R. Xxxxxxx
Title: President
Date: 2/24/2004
SCHEDULE A
SEPARATE ACCOUNTS, ASSOCIATED CONTRACTS, AND FUNDS
Name of Separate Account and Date Name of Contract Funded by
Established by the Board of Separate Account and Policy Form
Trustees Numbers of Contracts Funded
Separate Account VA S Flexible Premium Variable
November 26, 2001 Annuity - D
Transamerica Life Insurance
Company
Separate Account VA Q Form No. AV865 101 167 103
November 26, 2001
Flexible Premium Variable
Annuity - B
Transamerica Life Insurance
Company
Form No. AV864 101 165 103
Applicable Fund CUSIP
Huntington VA Income Equity Fund 446771107
Huntington VA Growth Fund 446771206
Huntington VA Dividend Capture Fund 446771305
Huntington VA Mid Corp America 446771503
Huntington VA New Economy Fund 446771602
Huntington VA Rotating Markets Fund 446771701
IN WITNESS WHEREOF, each of the parties has caused this
Schedule A to be executed in its name and on its behalf by its
duly authorized representative as of December 1, 2003.
TRANSAMERICA LIFE INSURANCE EDGEWOOD SERVICES, INC.
COMPANY,
on its behalf and on behalf of
each Separate Account named in
this Schedule A, as may be amended
from time to time By: /s/ Xxxxxxx X. Xxxxx, Xx.
By: /s/ Xxxx X. Xxxxxx Its: Vice President
Its: Assistant Secretary
HUNTINGTON VA FUNDS, HUNTINGTON ASSET ADVISORS, INC.
on its behalf and on behalf of
each Fund named in this Schedule
A, as may be amended from time to
time By: /s/ B. R. Xxxxxxx
By: /s/ Xxxxxx X. Xxxxxxx Its: President
Its: Vice President
SCHEDULE B
Subject to the terms and conditions of this Agreement, the
Company shall be appointed to, and agrees to act, as a limited
agent of the Trust for the sole purpose of receiving
instructions from authorized parties as defined by the
Contracts for the purchase and redemption of Fund shares prior
to the "Close of Trading," which is defined as the close of
regular trading on the New York Stock Exchange ("NYSE") each
Business Day. A "Business Day" is defined in Article 1.1 of
the Agreement. Except as particularly stated in this
paragraph, the Company shall have no authority to act on behalf
of the Trust or to incur any cost or liability on its behalf.
Trust will use its best efforts to provide to the Company or
its designated agent closing net asset value, change in net
asset value, dividend or daily accrual rate information and
capital gain information by 6:00 p.m. Central Time each
Business Day. The Company or its agent shall use this data to
calculate unit values. Unit values shall be used to process
the same Business Day's contract transactions. When the
Company is able to utilize the National Securities Clearing
Corporation ("NSCC") Defined Contribution Clearing and
Settlement ("DCC&S") Fund/SERV system, orders to purchase and
redeem shares of the Funds received by the Company prior to the
close of trading on the New York Stock Exchange (the "NYSE")
(typically, 4:00 p.m. Eastern Time) on any day that the NYSE is
open for business ("Day 1") will be transmitted via the NSCC's
Fund/SERV system for receipt by the Funds or the Unified Fund
Services, Inc. (the "Transfer Agent" for the Funds) by no later
than 6:30 a.m. Eastern Time (cycle 8) on the next day that the
Funds are open for business ("Day 2") (such purchases and
redemptions are referred to as "Day 1 Trades"). Until the
Company achieves Fund/SERV utility, or if for any other reason
any Day 1 Trades are not received by the Transfer Agent via the
NSCC's Fund/SERV system prior to 7:00 a.m. Eastern Time on Day
2, such Day 1 Trades shall be received by the Transfer Agent
via fax no later than 9:00 a.m. Eastern Time on Day 2. Such
purchase and redemption orders shall be transmitted without
modification (except for netting or aggregating such orders).
Trust will not accept any order made on a conditional basis or
subject to any delay or contingency.
When operating outside of the DCC&S Fund/SERV system, each
party shall, as soon as practicable after transmittal of an
instruction or confirmation, verify the other party's receipt
of such instruction or confirmation, and in the absence of such
verification such a party to whom an instruction or
confirmation is sent shall not be liable for any failure to act
in accordance with such instruction or confirmation, and the
sending party may not claim that such an instruction or
confirmation was received by the other. Each party shall
notify the other of any errors, omissions or interruptions in,
or delay or unavailability as promptly as possible.
a) For those purchase orders not transmitted via the
DCC&S Fund/SERV system, the Company shall complete payment
to the Trust or its designated agent in federal funds no
later than 2:00 p.m. Central Time on the Business Day
following the day on which the instructions are treated as
having been received by the Trust pursuant to this
Agreement.
b) For those redemption orders not transmitted via the DCC&S
Fund/SERV system, the Trust or its designated agent shall
initiate payment in federal funds no later than 2:00 p.m.
Central Time on the Business Day following the day on
which the instructions are treated as having been received
by the Trust pursuant to this Agreement.
c) With respect to purchase and redemption orders received by
the Trust through the DCC&S Fund/SERV system on any
Business Day for any Fund, within the time limits set
forth in this Agreement, settlement shall occur consistent
with the requirements of DCC&S Fund/SERV system.
At such time as the Trust and the Company are able to transmit
information via the DCC&S Fund/SERV system: the Trust or its
designated agent shall send to the Company, via the DCC&S
Fund/SERV system, verification of net purchase or redemption
orders or notification of the rejection of such orders
("Confirmations ") on each Business Day for which the Company
has transmitted such orders. Such confirmations shall include
the total number of shares of each Fund held by the Company
following such net purchase or redemption. The Trust, or its
designated agent, shall submit in a timely manner, such
confirmations to the DCC&S Fund/SERV system in order for the
Company to receive such confirmations no later than 10:00 a.m.
Central Time the next Business Day. The Trust or its
designated agent will transmit to the Company via DCC&S
NETWORKING system those Networking activity files reflecting
account activity. In addition, within five (5) Business Days
after the end of each month, the Trust or its affiliate will
send the Company a statement of account which shall confirm all
transactions made during that particular month in the account.
Documents Provided by the Company
The Company agrees to provide Trust, upon written request, any
reports indicating the number of shareholders that hold
interests in the Funds and such other information (including
books and records) that Trust may reasonably request. The
Company agrees to provide Trust, upon written request, such
other information (including books and records) as may be
necessary or advisable to enable it to comply with any law,
regulation or order.
Documents Provided by Trust
Within five (5) Business Days after the end of each calendar
month, Trust, Distributor, or Advisor shall provide the
Company, or its designee, a monthly statement of account, which
shall confirm all transactions made during that particular
month.
IN WITNESS WHEREOF, each of the parties has caused this
Schedule B to be executed in its name and on its behalf by its
duly authorized representative as of December 1, 2003.
TRANSAMERICA LIFE INSURANCE EDGEWOOD SERVICES, INC.
COMPANY,
on its behalf and on behalf of
each Separate Account named in
this Schedule A, as may be amended
from time to time By: /s/ Xxxxxxx X. Xxxxx, Xx.
By: /s/ Xxxx X. Xxxxxx Its: Vice President
Its: Assistant Secretary
HUNTINGTON VA FUNDS, HUNTINGTON ASSET ADVISORS, INC.
on its behalf and on behalf of
each Fund named in this Schedule
A, as may be amended from time to
time By: /s/ B. R. Xxxxxxx
By: /s/ Xxxxxx X. Xxxxxxx Its: President
Its: Vice President
SCHEDULE C
Services Provided by the Company
Pursuant to Article V of the Agreement, the Company shall
perform all administrative and shareholder services with
respect to the Contracts and plans, including but not limited
to, the following:
1. Maintaining separate records for each Contract owner and
each plan, which shall reflect the Fund shares purchased and
redeemed and Fund share balances of such Contract owners and
plans. The Company will maintain accounts with each Fund on
behalf of Contract owners and plans, and such account shall
be in the name of the Company (or its nominee) as the record
owner of shares owned by such Contract owners and plans.
2. Disbursing or crediting to contract owners and plans all
proceeds of redemptions of shares of the Funds and all
dividends and other distributions not reinvested in shares
of the Funds.
3. Preparing and transmitting to Contract owners and plans,
as required by law, periodic statements showing the total
number of shares owned as of the statement closing date,
purchases and redemptions of Fund shares during the period
covered by the statement and the dividends and other
distributions paid during the statement period (whether paid
in cash or reinvested in Fund shares), and such other
information as may be required, from time to time, by
Contract owners and plans.
4. Providing communication support services including
providing information about the Funds and answering
questions concerning the Funds (including questions
respecting Contract owners' interests in one or more Funds).
5. Maintaining and preserving all records required by law to
be maintained and preserved in connection with providing the
services for Contract owners and plans.
6. Generating written confirmations and quarterly statements
to Contract owners and plan participants.
7. Distributing to Contract owners and plans, to the extent
required by applicable law, Funds' prospectuses, proxy
materials, periodic fund reports to shareholders, notices
and other materials that the Funds are required by law or
otherwise to provide to their shareholders or prospective
shareholders.
8. Transmitting purchase and redemption orders to the Trust
on behalf of the Contract owners and plans.
9. Providing teleservicing support in connection with the
Trust.
10. Facilitating the tabulation of Contract owners' votes in
the event of a meeting of Fund shareholders; providing
information relating to the Contacts and share balances
under such Contracts to the Trust as may be reasonably
requested.
11. Administering fund transfers, dollar cost averaging, asset
allocation, portfolio rebalancing, earnings sweep, and
pre-authorized deposits and withdrawals involving the Funds.
12. Providing other services as may be agreed upon from time
to time.
In consideration for the Company providing these services,
the Trust and/or the Advisor agree to pay the Company in an
amount equal to the following annual fee, based on the average
daily net assets of the Funds held by the Accounts underlying
the Contracts listed below, such amounts to be paid within 30
days of the end of each month.
For purposes of computing the payment to the Company, the
Company shall compute the average daily net assets of Shares
held in the Accounts over a monthly period by totaling such
Accounts' aggregate investment (Share net asset value
multiplied by total number of Shares held by such Accounts) on
each Business Day during the calendar month, and dividing by
the total number of Business Days during such month. The
payment to the Company shall be calculated by the Company and
communicated to the Trust and Advisor at the end of each
calendar month and will be paid to the Company within 30 days
thereafter.
-------------------------------------------------------------------
Contract Annual Fee
-------------------------------------------------------------------
Flexible Premium Variable Annuity - 0.25%
D
Transamerica Life Insurance Company
Form No. AV865 101 167 103
Flexible Premium Variable Annuity - 0.25%
B
Transamerica Life Insurance Company
Form No. AV864 101 165 103
IN WITNESS WHEREOF, each of the parties has caused this
Schedule C to be executed in its name and on its behalf by its
duly authorized representative as of December 1, 2003.
TRANSAMERICA LIFE INSURANCE EDGEWOOD SERVICES, INC.
COMPANY,
on its behalf and on behalf of
each Separate Account named in
this Schedule A, as may be amended
from time to time By: /s/ Xxxxxxx X. Xxxxx, Xx.
By: /s/ Xxxx X. Xxxxxx Its: Vice President
Its: Assistant Secretary
HUNTINGTON VA FUNDS, HUNTINGTON ASSET ADVISORS, INC.
on its behalf and on behalf of
each Fund named in this Schedule
A, as may be amended from time to
time By: /s/ B. R. Xxxxxxx
By: /s/ Xxxxxx X. Xxxxxxx Its: President
Its: Vice President
