RETAIL FUND PARTICIPATION AGREEMENT
THIS AGREEMENT, made and entered into this of , 2005, by
and among HARTFORD LIFE INSURANCE COMPANY, a stock life insurance company
organized under the laws of Connecticut (hereinafter the "COMPANY"), on its own
behalf and on behalf of each separate account of the Company set forth in
SCHEDULE A hereto, as may be amended from time to time (each such account
hereinafter referred to as a "SEPARATE ACCOUNT"), RS INVESTMENT TRUST, an
open-end management investment company organized as a business trust under the
laws of Massachusetts (hereinafter the "FUND"), and PFPC Distributors, Inc., a
Delaware corporation (hereinafter the "UNDERWRITER") exclusively for the payment
of fees as stated in section 5.1 of Article V, "Fees and Expenses" and for the
approval of sales material as stated in Article IV, "Sales Material and
Information".
WITNESSETH:
WHEREAS, beneficial interests in the Fund are divided into several series of
shares, each representing the interest in a particular managed portfolio of
securities and other assets, each listed in Schedule A and B hereto (the
"PORTFOLIOS"); and
WHEREAS, the Fund is registered as an open-end management investment company
under the Investment Company Act of 1940, as amended (hereinafter the "1940
ACT"), and its shares are registered under the Securities Act of 1933, as
amended (hereinafter the "1933 ACT"); and
WHEREAS, the Company issues certain group variable annuity contracts and group
funding agreements (the "CONTRACTS") in connection with retirement plans
intended to meet the qualification requirements of Sections 401, 403(b) or 457
of the Internal Revenue Code of 1986, as amended (the "CODE"); and
WHEREAS, each Separate Account is a duly organized, validly existing segregated
asset account, established by resolution of the Board of Directors of the
Company under the insurance laws of the State of Connecticut to set aside and
invest assets attributable to the Contracts; and
WHEREAS, RS Investment Management, L.P. (the "ADVISER") is the investment
adviser of the series of the Fund and is duly registered as an investment
adviser under the Investment Advisers Act of 1940, as amended (the "ADVISERS
ACT"), and any applicable state securities laws; and
WHEREAS, the Underwriter is the principal underwriter for the Fund and is
registered as a broker-dealer with the Securities and Exchange Commission
(hereinafter the "SEC") under the Securities Exchange Act of 1934, as amended
(hereinafter the "1934 ACT"), and is a member in good standing of the National
Association of Securities Dealers, Inc. (hereinafter "NASD");and
WHEREAS, to the extent permitted by applicable insurance laws and regulations,
the Company intends to purchase shares in the Portfolios set forth in SCHEDULE A
on behalf of each corresponding Separate Account set forth on such SCHEDULE A to
fund the Contracts and the Company is authorized to sell such shares to unit
investment trusts such as the Separate Accounts at net asset value.
NOW, THEREFORE, in consideration of their mutual promises, the Company, the Fund
and the Underwriter, the latter exclusively for the payment of fees as stated in
section 5.1 of Article V, "Fees and
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Expenses" and for the approval of sales material as stated in Article IV, "Sales
Material and Information" agree as follows:
ARTICLE I. Purchase and Redemption of Fund Shares.
1.1 The Fund agrees to sell to the Company those shares of the Portfolios which
the Company orders on behalf of any Separate Account, executing such orders on a
daily basis at the net asset value next computed after receipt and acceptance by
the Fund or its designee of such order. For purposes of this Section, the
Company shall be the designee of the Fund for receipt of such orders from each
Separate Account. Receipt by such designee shall constitute receipt by the Fund;
provided that the Fund receives notice of such order via the National Securities
Clearing Corporation (the "NSCC") by 10:00 a.m. Eastern Time on the next
following Business Day. The Fund will receive all orders to purchase Portfolio
shares using the NSCC's Defined Contribution Clearance & Settlement ("DCC&S")
platform. The Fund will also provide the Company with account positions and
activity data using the NSCC's Networking platform. The Company shall pay for
Portfolio shares by the scheduled close of federal funds transmissions on the
same Business Day it places an order to purchase Portfolio shares in accordance
with this section using the NSCC's Fund/SERV System. Payment shall be in federal
funds transmitted by wire from the Fund's designated Settling Bank to the NSCC.
"BUSINESS DAY" shall mean any day on which the New York Stock Exchange is open
for trading and on which the Fund calculates its net asset value pursuant to the
rules of the SEC. "NETWORKING" shall mean the NSCC's product that allows the
Fund and Company to exchange account level information electronically. "SETTLING
BANK" shall mean the entity appointed by the Fund to perform such settlement
services on behalf of the Fund and agrees to abide by the NSCC's Rules and
Procedures insofar as they relate to the same day funds settlement.
If the Company is somehow prohibited from submitting purchase and settlement
instructions to the Fund for Portfolio shares via the NSCC's DCC&S platform the
following shall apply to this Section:
The Fund agrees to sell the Company those shares of the Portfolios which the
Company orders on behalf of any Separate Account, executing such orders on a
daily basis at the net asset value next computed after receipt and acceptance by
the Fund or its designee of such order. For purposes of this Section, the
Company shall be the designee of the Fund for the receipt of such orders from
the Separate Account and receipt by such designee shall constitute receipt by
the Fund; provided that the Fund receives notice of such order by 10:00 a.m.
Eastern Time on the next following Business Day. The Company shall pay for
Portfolio shares by the scheduled close of federal funds transmissions on the
same Business Day it places an order to purchase Portfolio shares in accordance
with this section. Payment shall be in federal funds transmitted by wire to the
Fund's designated custodian. "BUSINESS DAY" shall mean any day on which the New
York Stock Exchange is open for trading and on which the Fund calculates its net
asset value pursuant to the rules of the SEC.
1.2 The Fund agrees to make shares of the Portfolios available indefinitely for
purchase at the applicable net asset value per share by the Company on Business
Days; provided, however, that the officers or Board of Trustees, as applicable,
of the Fund (hereinafter the "TRUSTEES/DIRECTORS") may refuse to sell shares of
any Portfolio to any person, or suspend or terminate the offering of shares of
any Portfolio if such action is required by law or by regulatory authorities
having jurisdiction or is, in the sole discretion of the Trustees/Directors,
acting in good faith and in compliance with their fiduciary duties under federal
and any applicable state laws, in the best interests of the shareholders of any
Portfolio.
1.3 The Fund agrees to redeem for cash, upon the Company's request, any full or
fractional shares of the Fund held by the Company on behalf of a Separate
Account, executing such requests on a
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daily basis at the net asset value next computed after receipt and acceptance by
the Fund or its designee of the request for redemption. For purposes of this
Section, the Company shall be the designee of the Fund for receipt of requests
for redemption from each Separate Account and receipt by such designee shall
constitute receipt by the Fund; provided the Fund receives notice of such
request for redemption via the NSCC by 10:00 a.m. Eastern Time on the next
following Business Day. The Fund will receive all orders to redeem Portfolio
shares using the NSCC's DCC&S platform. The Fund will also provide the Company
with account positions and activity data using the NSCC's Networking platform.
Payment for Fund shares redeemed shall be made in accordance with this section
using the NSCC's Fund/SERV System. Payment shall be in federal funds transmitted
by the NSCC to the Separate Account's Settling Bank as designated by the
Company, on the same Business Day the Fund receives notice of the redemption
order from the Company provided that the Fund receives notice by 10:00 a.m.
Eastern Time on such Business Day.
If the Company is somehow prohibited from submitting redemption and settlement
instructions to the Fund for Portfolio shares via the NSCC's DCC&S platform,
then the following shall apply to this Section:
The Fund agrees to redeem for cash, upon the Company's request, any full or
fractional shares of the Fund held by the Company on behalf of a Separate
Account, executing such requests on a daily basis at the net asset value next
computed after receipt and acceptance by the Fund or its designee of the request
for redemption. For purposes of this Section, the Company shall be the designee
of the Fund for receipt of requests for redemption from each Separate Account
and receipt by such designee shall constitute receipt by the Fund; provided the
Fund receives notice of such request for redemption by 10:00 a.m. Eastern Time
on the next following Business Day. Payment shall be in federal funds
transmitted by wire to the Separate Account as designated by the Company, on the
same Business Day the Fund receives notice of the redemption order from the
Company provided that the Fund receives notice by 10:00 a.m. Eastern Time on
such Business Day.
1.4 The Company will place separate orders to purchase or redeem shares of each
Portfolio.
1.5 Issuance and transfer of the Fund's shares will be by book entry only.
Share certificates will not be issued to the Company or any Separate Account.
Purchase and redemption orders for Fund shares will be recorded in an
appropriate title for each Separate Account or the appropriate subaccount of
each Separate Account.
1.6 The Fund shall furnish prior day and same day notice 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 dividends and distributions as are
payable on a Portfolio's shares in the form of additional shares of that
Portfolio. The Fund shall notify the Company of the number of shares so issued
as payment of such dividends and distributions no later than one Business Day
after issuance. The Company reserves the right to revoke this election and to
receive in cash all such dividends and distributions declared after receipt of
notice of revocation by the Fund.
1.7 The Fund shall make the net asset value per share of each Series available
to the Company on a daily basis as soon as reasonably practical after the close
of trading each Business Day. The Fund shall make its best effort to make the
net asset value per share available by 6:45 p.m. Eastern time on such Business
Day.
1.8(a) If the Fund provides materially incorrect share net asset value
information through no fault of the Company, the Separate Accounts shall be
entitled to an adjustment with respect to the Series
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shares purchased or redeemed to reflect the correct net asset value per share.
1.8(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 Fund shall indemnify and
hold harmless the Company against any amount the Company is legally required to
pay Contract Owners, participants or beneficiaries that have selected a
Portfolio as an investment option ("Contract owners"), and which amount is due
to the Fund's or its agents' material miscalculation and/or incorrect reporting
of or failure to report 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 Fund
or its agents result in a gain to the Company, the Company shall immediately
reimburse the Fund, the applicable Portfolios or its agents for any material
losses incurred by the Fund, the applicable Portfolios or its agents as a result
of the incorrect calculation. Should a material miscalculation by the Fund or
its agents result in a gain to Contract owners, the Company will consult with
the Fund or its designee as to what reasonable efforts shall be made to recover
the money and repay the Fund, the applicable Portfolio or its agents. The
Company shall then make such reasonable effort, at the expense of the Fund or
its agents, to recover the money and repay the Fund, the applicable Portfolios
or its agents; but the Company shall not be obligated to take legal action
against Contract owners.
With respect to the material errors or omissions described above, this section
shall control over other indemnification provisions in this Agreement.
ARTICLE II. Representations and Warranties
2.1 The Company represents and warrants that the Contracts are or will be
registered unless exempt and that it will make every effort to maintain such
registration under the 1933 Act to the extent required by the 1933 Act; that the
Contracts are intended to be issued and sold in compliance in all material
respects with all applicable federal and state laws. The Company further
represents and warrants that it is an insurance company duly organized and in
good standing under applicable law and that it has legally and validly
established each Separate Account prior to any issuance or sale of Contracts,
shares or other interests therein, as a segregated asset account under the
insurance laws of the State of Connecticut and has registered or, prior to any
issuance or sale of the Contracts, will register and will maintain the
registration of each Separate Account as a unit investment trust in accordance
with and to the extent required by the provisions of the 1940 Act, unless exempt
therefrom, to serve as a segregated investment account for the Contracts. Unless
exempt, the Company shall amend its registration statement for its Contracts
under the 1933 Act and the 1940 Act from time to time as required in order to
effect the continuous offering of its Contracts. The Company shall register and
qualify the Contracts for sale in accordance with securities laws of the various
states only if and to the extent deemed necessary by the Company.
2.2 The Fund represents and warrants that (i) Fund shares sold pursuant to this
Agreement shall be registered under the 1933 Act and duly authorized for
issuance in accordance with applicable law and that the Fund is and shall remain
registered under the 1940 Act for as long as the Fund shares are sold; (ii) the
Fund shall amend the registration statement for its shares under the 1933 Act
and the 1940 Act from time to time as required in order to effect the continuous
offering of its shares; and (iii) the Fund shall register and qualify its shares
for sales in accordance with the laws of the various states only if and to the
extent deemed advisable by the Fund.
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2.3 The Fund represents that each Portfolio (a) is currently qualified as a
Regulated Investment Company under Subchapter M of the Code (a "RIC"); (b) will
make every effort to maintain such qualification (under Subchapter M or any
successor or similar provision); and (c) will notify the Company immediately
upon having a reasonable basis for believing that such Portfolio has ceased to
so qualify or might not so qualify in the future.
2.4 To the extent that the Fund finances distribution expenses pursuant to Rule
12b-1 under the 1940 Act, the Fund represents that its Board of Trustees or
Directors, as applicable, including a majority of its Trustees/Directors who are
not interested persons of the Fund, have formulated and approved a plan under
Rule 12b-1 to finance distribution expenses.
2.5 The Fund makes no representation as to whether any aspect of its operations
(including, but not limited to, fees and expenses and investment policies)
complies with the insurance laws or insurance regulations of the various states
except that the Fund represents that the Fund's investment policies, fees and
expenses are and shall at all times remain in compliance with any applicable
laws of the States of Connecticut and California. The Fund represent that their
respective operations are and shall at all times remain in material compliance
with any applicable laws of the State of Massachusetts to the extent required to
perform this Agreement
2.6 The Underwriter represents and warrants that it is a member in good
standing of the NASD and is registered as a broker-dealer with the SEC.
2.7 The Fund represents that it is lawfully organized and validly existing
under the laws of the State of Massachusetts and that it does and will comply in
all material respects with applicable provisions of the 0000 Xxx.
2.8 The Fund represents and warrants that all of its Trustees/Directors,
officers, employees, investment advisers, and other individuals/entities having
access to the funds and/or securities of the Fund are and continue to be at all
times covered by a blanket fidelity bond or similar coverage for the benefit of
the Fund in an amount not less than the minimal coverage as required by Rule
17g-1 under the 1940 Act or related provisions as may be promulgated from time
to time. The aforesaid Bond includes coverage for larceny and embezzlement and
is issued by a reputable bonding company.
2.9 The Company represents and warrants that all of its directors, officers,
employees, investment advisers, and other individuals/entities dealing with the
money and/or securities of the Fund are covered by a blanket fidelity bond or
similar coverage in an amount not less than $5 million. The aforesaid includes
coverage for larceny and embezzlement and is issued by a reputable bonding
company.
2.10 The foregoing representations and warranties shall be made, by the party
hereto that makes the representation or warranty as of the date first written
above and at the time of each purchase and each sale of the Fund's shares
pursuant to this Agreement.
ARTICLE III. Prospectuses; Reports and Proxy Statements; Voting
3.1 The Fund shall provide the Company at no charge with as many printed copies
of the Fund's current prospectus and statement of additional information as the
Company may reasonably request. If requested by the Company, in lieu of
providing printed copies of the Fund's current prospectus and statement of
additional information, the Fund shall provide camera-ready film, computer
diskettes, e-mail transmissions or PDF files containing the Fund's prospectus
and statement of additional information, and such other assistance as is
reasonably necessary in order for the Company once each year (or more
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frequently if the prospectus and/or statement of additional information for the
Fund are amended during the year) to have the prospectus for the Contracts (if
applicable) and the Fund's prospectus printed together in one document or
separately. The Company may elect to print the Fund's prospectus and/or its
statement of additional information in combination with other fund companies'
prospectuses and statements of additional information.
3.2(a) The Fund shall provide the Company at no charge with copies of the
Fund's proxy statements, Fund reports to shareholders, and other Fund
communications to shareholders in such quantity as the Company shall reasonably
require for distributing to Contract owners.
3.2(b) The Fund shall pay for the cost of typesetting, printing and
distributing all Fund prospectuses, statements of additional information, Fund
reports to shareholders and other Fund communications to Contract owners and
prospective Contract owners. The Fund shall pay for all costs for typesetting,
printing and distributing proxy materials.
3.3. The Fund's statement of additional information shall be obtainable by
Contract owners from the Fund and the Company or such other person as the Fund
may designate.
3.4 If and to the extent required by law, the Company shall distribute all
proxy material furnished by the Fund to Contract owners to whom voting
privileges are required to be extended and shall:
A. solicit voting instructions from Contract owners;
B. vote the Fund shares held in the Separate Account in accordance with
instructions received from Contract owners; and
C. so long as and to the extent that the SEC continues to interpret the 1940
Act to require pass through voting privileges for variable annuity contract
owners, vote Fund shares held in the Separate Account for which no timely
instructions have been received, in the same proportion as Fund shares of such
Portfolio for which instructions have been received from the Company's Contract
owners. The Company reserves the right to vote Fund shares held in any
segregated asset account for its own account, to the extent permitted by law.
Notwithstanding the foregoing, with respect to the Fund shares held by
unregistered Separate Accounts that issue Contracts issued in connection with
employee benefit plans subject to the provisions of the Employee Retirement
Income Security Act of 1974, as amended, the Company shall vote such Fund shares
allocated to such Contracts only in accordance with the Company's agreements
with such Contract owners.
3.5 The Fund will comply with all provisions of the 1940 Act requiring voting
by shareholders. The Fund will not hold annual meetings but will hold such
special meetings as may be necessary from time to time. Further, the Fund will
act in accordance with the SEC interpretation of the requirements of Section
16(a) with respect to periodic elections of directors or trustees and with
whatever rules the SEC may promulgate with respect thereto.
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ARTICLE IV. Sales Material and Information
4.1 The Company shall furnish, or shall cause to be furnished, to the Fund, the
Underwriter or their designee, each piece of sales literature or other
promotional material prepared by the Company or any person contracting with the
Company in which the Fund, the Adviser or the Underwriter is described, at least
five calendar days prior to its use. No such literature or material shall be
used without prior approval from the Fund, the Underwriter or their designee,
however, the failure to object in writing within two Business days will be
deemed approval. Such approval process shall not apply to subsequent usage of
materials that are substantially similar to prior approved materials.
4.2 Neither the Company nor any person contracting with the Company shall give
any information or make any representations or statements on behalf of the Fund
or concerning the Fund in connection with the sale of the Contracts other than
the information or representations contained in the registration statement or
prospectus for the Fund shares, as such registration statement and prospectus
may be amended or supplemented from time to time, or in reports to shareholders
or proxy statements for the Fund, or in sales literature or other promotional
material approved by the Fund or its designee, except with the permission of the
Fund or its designee.
4.3 The Fund shall furnish, or shall cause to be furnished, to the Company or
its designee, each piece of sales literature or other promotional material in
which the Company or any Separate Account is named, at least five calendar days
prior to its use. No such literature or material shall be used without prior
approval from the Company or its designee, however, the failure to object in
writing within two Business Days will be deemed approval. Such approval process
shall not apply to subsequent usage of materials that are substantially similar
to prior approved materials.
4.4 Neither the Fund nor the Underwriter shall give any information or make any
representations on behalf of the Company or concerning the Company, each
Separate Account, or the Contracts other than the information or representations
contained in the Contracts, a disclosure document, registration statement or
prospectus for the Contracts (if applicable), as such registration statement and
prospectus may be amended or supplemented from time to time, or in published
reports for each Separate Account which are in the public domain or approved by
the Company for distribution to Contract owners or participants, or in sales
literature or other promotional material approved by the Company, except with
the permission of the Company.
4.5 The Fund will provide to the Company at least one complete copy of all
prospectuses, statements of additional information, reports to shareholders,
proxy statements, and all amendments to any of the above, that relate to the
Fund or its shares, promptly after the filing of such document with the SEC or
other regulatory authorities.
4.6. The Company will provide to the Fund at least one complete copy of all
prospectuses, statements of additional information, reports, solicitations for
voting instructions, and all amendments to any of the above, if applicable to
the investment in a Separate Account or Contract, promptly after the filing of
such document with the SEC or other regulatory authorities.
4.7 For purposes of this Article IV, the phrase "sales literature or other
promotional material" includes, but is not limited to, advertisements (such as
material published, or designed for use in, a newspaper, magazine, or other
periodical, radio, television, telephone or tape recording, videotape display,
signs or billboards, motion pictures, Internet, or other public media), sales
literature (i.e., any written communication distributed or made generally
available to customers or the public, including brochures, circulars, research
reports, market letters, form letters, electronic mail, seminar texts, reprints
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or excerpts of any other advertisement, sales literature, or published article),
educational or training materials or other communications distributed or made
generally available to some or all agents or employees, registration statements,
disclosure documents, prospectuses, statements of additional information,
shareholder reports, and proxy materials.
4.8 The Company agrees and acknowledges that the Company has no right, title or
interest in the names and marks of the Fund and that all use of any designation
comprised in whole or part or such names or marks under this Agreement shall
inure to the benefit of the Fund and the Underwriter. Except as provided in
Section 4.1, the Company shall not use any such names or marks on its own behalf
or on behalf of a Separate Account in connection with marketing the Contracts
without prior written consent of the Fund or the Underwriter. Upon termination
of this Agreement for any reason, the Company shall cease all use of any such
names or marks.
4.9 The Fund and Underwriter agree and acknowledge that each has no right,
title or interest in the names and marks of the Company, and that all use of any
designation comprised in whole or part or such names or marks under this
Agreement shall inure to the benefit of the Company. Except as provided in
Section 4.3, the Fund and Underwriter shall not use any such names or marks on
its own behalf or on behalf of a Fund in connection with marketing the Fund
without prior written consent of the Company. Upon termination of this Agreement
for any reason, the Fund and Underwriter shall cease all use of any such names
or marks.
ARTICLE V. Fees and Expenses
5.1 The Fund shall pay the fees and expenses provided for in the attached
SCHEDULE B.
ARTICLE VI. Indemnification
6.1 Indemnification by the Company
(a) The Company agrees to indemnify and hold harmless the Fund and each of
their respective trustees, directors, officers, employees or agents and each
person, if any, who controls the Fund within the meaning of section 15 of the
1933 Act (collectively, the "INDEMNIFIED PARTIES" for purposes of this Section
6.1) against any and all losses, claims, damages, liabilities (including amounts
paid in settlement with the written consent of the Company) or litigation
(including reasonable legal and other expenses), to which the Indemnified
Parties may become subject under any statute, regulation, at common law or
otherwise, insofar as such losses, claims, damages, liabilities or expenses (or
actions in respect thereof) or settlements are related to the sale or
acquisition of the Fund's shares or the Contracts and:
(i) arise out of or are based upon any untrue statement or alleged
untrue statement of any material fact contained in the disclosure
statement, registration statement, prospectus or statement of
information for the Contracts or contained in the Contracts or sales
literature or other promotional material for the Contracts (or any
amendment or supplement to any of the foregoing), or arise out of or
are based upon the omission or the alleged omission to state therein
a material fact required to be stated therein or necessary to make
the statements therein not misleading; provided that this agreement
to indemnify shall not apply as to an Indemnified Party if such
statement or omission or such alleged statement or omission was made
in reliance upon and in conformity with information furnished by
such Indemnified Party or the Fund to the Company on behalf of the
Fund for use in the registration statement, prospectus or statement
of additional information for the Contracts or in the Contracts or
sales literature (or any
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amendment or supplement) or otherwise for use in connection with the
sale of the Contracts or Fund shares; or
(ii) arise out of or as a result of (a) statements or representations by
or on behalf of the Company (other than statements or
representations contained in the Fund registration statement, Fund
prospectus or sales literature or other promotional material of the
Fund not supplied by the Company, or persons under its control and
other than statements or representations authorized by the Fund or
the Adviser); or (b) the willful misfeasance, bad faith, gross
negligence or reckless disregard of duty of the Company or persons
under its control, with respect to the sale or distribution of the
Contracts or Fund shares; or
(iii) arise out of or as a result of any untrue statement or alleged
untrue statement of a material fact contained in the Fund
registration statement, Fund prospectus, statement of additional
information or sales literature or other promotional material of
the Fund (or any amendment thereof or supplement thereto) or the
omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements
therein not misleading, if such a statement or omission was made in
reliance upon and in conformity with information furnished to the
Fund by the Company or persons under its control; or
(iv) arise as a result of any material failure by the Company to provide
the services and furnish 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 Company in this Agreement
or arise out of or result from any other material breach by the
Company of this Agreement; except to the extent provided in Sections
6.1(b) and 6.4 hereof.
(b) No party shall be entitled to indemnification to the extent that such loss,
claim, damage, liability or litigation is due to the willful misfeasance, bad
faith, gross negligence or reckless disregard of duty by the party seeking
indemnification.
(c) In accordance with Section 6.4 hereof, the Indemnified Parties will
promptly notify the Company of the commencement of any litigation or proceedings
against them in connection with the issuance or sale of the Fund shares or the
Contracts or the operation of the Fund.
6.2 [LEFT BLANK DELIBERATELY].
6.3 Indemnification by the Fund
(a) The Fund agrees to indemnify and hold harmless the Company and each of its
directors, officers, employees or agents and each person, if any, who controls
the Company within the meaning of section 15 of the 1933 Act (collectively, the
"INDEMNIFIED PARTIES" for purposes of this Section 6.3) against any and all
losses, claims, damages, liabilities (including amounts paid in settlement with
the written consent of the Fund) or litigation (including reasonable legal and
other expenses) to which the Indemnified Parties may become subject under any
statute, regulation, at common law or otherwise, insofar as such losses, claims,
damages, liabilities or expenses (or actions in respect thereof) or settlements
are related to the sale or acquisition of the shares of the Portfolios or the
Contracts and:
(i) arise out of or are based upon any untrue statement or alleged
untrue statement of any material fact contained in the registration
statement, prospectus or statement of
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additional information for the Fund or sales literature or other
promotional material of the Fund (or any amendment or supplement to
any of the foregoing), or arise out of or are based upon the omission
or the alleged omission to state therein a material fact required to
be stated therein or necessary to make the statements therein not
misleading; provided that this agreement to indemnify shall not apply
as to any Indemnified Party if such statement or omission or such
alleged statement or omission was made in reliance upon and in
conformity with information furnished by such Indemnified Party or the
Company to the Fund on behalf of the Company for use in the
registration statement, prospectus or statement of additional
information for the Fund or in sales literature of the Fund (or any
amendment or supplement thereto) or otherwise for use in connection
with the sale of the Contracts or the Portfolio shares; or
(ii) arise out of or as a result of (a) statements or representations
(other than statements or representations contained in the
registration statement, prospectus or sales literature for the
Contracts not supplied by the Fund or persons under their respective
control and other than statements or representations authorized by
the Company) with respect to the sale or distribution of the
Contracts or Portfolio shares: or (b) the willful misfeasance, bad
faith, gross negligence or reckless disregard of duty of the Fund or
persons under the control of the Fund, with respect to the sale or
distribution of the Contracts or Portfolio shares; or
(iii) arise out of any untrue statement or alleged untrue statement of a
material fact contained in a registration statement, prospectus,
statement of additional information or sales literature or other
promotional material with respect to the Contracts (or any
amendment thereof or supplement thereto), or the omission or
alleged omission to state therein a material fact required to be
stated therein or necessary to make the statement or statements
therein not misleading, if such statement or omission was made in
reliance upon and in conformity with information furnished to the
Company by the Fund or persons under the control of the Fund,
respectively; or
(iv) arise as a result of any material failure by the Fund to provide the
services and furnish the materials under the terms of this
Agreement; or
(v) arise out of or result from any material breach of any
representation and/or warranty made by the Fund in this Agreement or
arise out of or result from any other material breach of this
Agreement by the Fund; except to the extent provided in Sections
6.3(b) and 6.4 hereof.
(b) No party shall be entitled to indemnification to the extent that such loss,
claim, damage, liability or litigation is due to the willful misfeasance, bad
faith, gross negligence or reckless disregard of duty by the party seeking
indemnification.
(c) In accordance with Section 6.4 hereof, the Indemnified Parties will
promptly notify the Fund of the commencement of any litigation or proceedings
against them in connection with the issuance or sale of the Fund shares or the
Contracts or the operation of the Separate Accounts.
6.4 Indemnification Procedure
(a) Any person obligated to provide indemnification under this Article VI
("INDEMNIFYING PARTY" for the purpose of this Section 6.4) shall not be liable
under the indemnification provisions of this Article VI with respect to any
claim made against a party entitled to indemnification under this Article VI
("INDEMNIFIED PARTY" for the purpose of this Section 6.4) unless such
Indemnified
10
Party shall have notified the Indemnifying Party in writing within a reasonable
time after the summons or other first legal process giving information of the
nature of the claim shall have been served upon such Indemnified Party (or after
such party shall have received notice of such service on any designated agent),
but failure to notify the Indemnifying Party of any such claim shall not relieve
the Indemnifying Party from any liability which it may have to the Indemnified
Party against whom such action is brought otherwise than on account of the
indemnification provision of this Article VI. In case any such action is brought
against the Indemnified Party, the Indemnifying Party will be entitled to
participate, at its own expense, in the defense thereof. The Indemnifying Party
also shall be entitled to assume the defense thereof, with counsel satisfactory
to the party named in the action. After notice from the Indemnifying Party to
the Indemnified Party of the Indemnifying Party's election to assume the defense
thereof, the Indemnified Party shall bear the fees and expenses of any
additional counsel retained by the Indemnified Party, and the Indemnifying Party
will not be liable to such party under this Agreement for any legal or other
expenses subsequently incurred by such party independently in connection with
the defense thereof other than reasonable costs of investigation, unless:
(i) the Indemnifying Party and the Indemnified Party shall have mutually
agreed to the retention of such counsel or
(ii) the named parties to any such proceeding (including any impleaded
parties) include both the Indemnifying Party and the Indemnified
Party and representation of both parties by the same counsel would
be inappropriate due to actual or potential differing interests
between them.
A successor by law of the parties to this Agreement shall be entitled to the
benefits of the indemnification contained in this Article VI. The
indemnification provisions contained in this Article VI shall survive any
termination of this Agreement.
ARTICLE VII. Applicable Law
7.1 This Agreement shall be construed and the provisions hereof interpreted
under and in accordance with the laws of the State of Massachusetts.
7.2 This Agreement shall be subject to the provisions of the 1933, 1934 and
1940 Acts, and the rules and regulations and rulings thereunder, including such
exemptions from those statutes, rules and regulations as the SEC may grant and
the terms hereof shall be interpreted and construed in accordance therewith.
ARTICLE VIII. Termination
8.1 This Agreement shall terminate:
(a) at the option of any party upon six months' advance written notice to the
other parties unless otherwise agreed in a separate written agreement among the
parties; or
(b) at the option of the Fund or the Adviser upon institution of formal
proceedings against the Company by the NASD, NASD Regulation, Inc. ("NASDR"),
the SEC, the insurance commission of any state or any other regulatory body
regarding the Company's duties under this Agreement or related to the sale of
the Contracts, the administration of the Contracts, the operation of the
Separate Accounts, or the purchase of the Fund shares, which in the judgment of
the Fund or the Adviser
11
are reasonably likely to have a material adverse effect on the Company's ability
to perform its obligations under this Agreement; or
(c) at the option of the Company upon institution of formal proceedings against
the Fund, the Adviser by the NASD, NASDR, the SEC, or any state securities or
insurance department or any other regulatory body, related to the purchase or
sale of the Fund shares or the operation of the Fund which in the judgment of
the Company are reasonably likely to have a material adverse effect on the
Fund's or the Adviser's ability to perform its obligations under this Agreement;
or
(d) at the option of the Company if a Portfolio delineated in SCHEDULE A ceases
to qualify as a RIC, or under any successor or similar provision, and the
disqualification is not cured within the period permitted for such cure, or if
the Company reasonably believes that any such Portfolio may fail to so qualify
and be unable to cure such disqualification within the period permitted for such
cure; or
(e) at the option of any party to this Agreement, upon another party's material
breach of any provision of this Agreement; provided that the party not in breach
shall give the party in breach notice of the breach and the party in breach does
not cure such breach within 30 days of receipt of such notice of breach; or
(f) at the option of the Company, if the Company determines in its sole
judgment exercised in good faith, that the Fund or the Adviser has suffered a
material adverse change in its business, operations or financial condition since
the date of this Agreement or is the subject of material adverse publicity which
is likely to have a material adverse impact upon the business and operations of
the Company; or
(g) at the option of the Fund, the Adviser if the Fund or the Adviser
respectively, shall determine in its sole judgment exercised in good faith, that
the Company has suffered a material adverse change in its business, operations
or financial condition since the date of this Agreement or is the subject of
material adverse publicity which is likely to have a material adverse impact
upon the business and operations of the Fund.
8.2 Notice Requirement
(a) In the event that any termination of this Agreement is based upon the
provisions of Sections 8.1(b), 8.1(c) or 8.1(d), prompt written notice of the
election to terminate this Agreement for cause shall be furnished by the party
terminating the Agreement to the non-terminating parties, with said termination
to be effective upon receipt of such notice by the non-terminating parties;
provided that for any termination of this Agreement based on the provisions of
Section 8.1(d), said termination shall be effective upon the Portfolio's failure
to qualify as a RIC and to cure such disqualification within the period
permitted for such cure.
(b) In the event that any termination of this Agreement is based upon the
provisions of Sections 8.1(f) or 8.1(g), prior written notice of the election to
terminate this Agreement for cause shall be furnished by the party terminating
this Agreement to the non-terminating parties. Such prior written notice shall
be given by the party terminating this Agreement to the non-terminating parties
at least 60 days before the effective date of termination.
8.3 It is understood and agreed that the right to terminate this Agreement
pursuant to Section 8.1(a) may be exercised for any reason or for no reason.
12
8.4 Effect of Termination
(a) Notwithstanding any termination of this Agreement pursuant to Section
8.1(a) through 8.1(g) of this Agreement and subject to Section 1.2 of this
Agreement, the Company may require the Fund to continue to make available
additional shares of the Fund for so long after the termination of this
Agreement as the Company desires pursuant to the terms and conditions of this
Agreement as provided in paragraph (b) below, for all Contracts in effect on the
effective date of termination of this Agreement (hereinafter referred to as
"Existing Contracts"), unless such further sale of Fund shares is proscribed by
law, regulation or an applicable regulatory body. Specifically, without
limitation, the owners of the Existing Contracts shall be permitted to direct
reallocation of investments in the Fund, redeem investments in the Fund and/or
invest in the Fund upon the making of additional purchase payments under the
Existing Contracts unless such further sale of Fund shares is proscribed by law,
regulation or an applicable regulatory body.
(b) Fund shall remain obligated to pay Company the fee in effect as of the date
of termination for so long as shares are held by the Accounts and Company
continues to provide services to the Accounts. Such fee shall apply to shares
purchased both prior to and subsequent to the date of termination. This
Agreement, or any provision thereof, shall survive the termination to the extent
necessary for each party to perform its obligations with respect to shares for
which a fee continues to be due subsequent to such termination.
ARTICLE IX. Notices
9.1 (a) Any notice shall be deemed duly given only if sent by hand or
overnight express delivery, evidenced by written receipt or by certified mail,
return receipt requested, to the other party at the address of such party set
forth below or at such other address as such party may from time to time specify
in writing to the other party. All notices shall be deemed given the date
received or rejected by the addressee.
If to the Company:
Hartford Life Insurance Company
000 Xxxxxxxxx Xxxxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
Attention: Vice President, Investment
Products Division
with a copy to:
General Counsel
Hartford Life Insurance Company
000 Xxxxxxxxx Xxxxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
If to the Fund or the Adviser:
RS Investments
000 Xxxxxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000
Attention: Chief Operating Officer
13
with a copy to:
RS Investments
000 Xxxxxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000
Attention: General Counsel
If to the Underwriter:
PFPC Distributors, Inc.
000 Xxxxx Xxxx
Xxxx xx Xxxxxxx, XX 00000
Attention: Vice President
ARTICLE X Miscellaneous
10.1 Subject to law and regulatory authority, each party hereto shall treat as
confidential the names and addresses of the owners of the Contracts and all
other information reasonably identified as such in writing by any other party
hereto, and, except as contemplated by this Agreement, shall not disclose,
disseminate or utilize such confidential information without the express prior
written consent of the affected party until such time as it may come into the
public domain. In addition, the parties hereby represent that they will use and
disclose Personal Information (as defined below) only to carry out the purposes
for which it was disclosed to them and will not use or disclose Personal
information if prohibited by applicable law, including, without limitation,
statutes and regulations enacted pursuant to the Xxxxx-Xxxxx-Xxxxxx Act (Public
Law 106-102). "PERSONAL INFORMATION" means financial and medical information
that identifies an individual personally and is not available to the public,
including, but not limited to, credit history, income, financial benefits,
policy or claim information and medical records. If either party outsources
services to a third party, such third party will agree in writing to maintain
the security and confidentiality of any information shared with them.
10.2 The captions in this Agreement are included for convenience of reference
only and in no way define or delineate any of the provisions hereof or otherwise
affect their construction or effect.
10.3 This Agreement may be executed simultaneously in two or more counterparts,
each of which taken together shall constitute one and the same instrument.
10.4 If any provision of this Agreement shall be held or made invalid by a
court decision, statute, rule or otherwise, the remainder of the Agreement shall
not be affected thereby.
10.5 This Agreement shall not be assigned by any party hereto without the prior
written consent of all the parties.
10.6 Each party hereto shall cooperate with each other party and all
appropriate governmental authorities (including without limitation the SEC, the
NASD, NASDR and state insurance regulators) and shall permit each other and such
authorities (and the parties hereto) reasonable access to its books and records
in connection with any investigation or inquiry relating to this Agreement or
the transactions contemplated hereby. Notwithstanding the foregoing, each party
hereto further agrees to furnish the California Insurance Commissioner with any
information or reports in connection with services provided under this Agreement
which such Commissioner may request in order to ascertain whether the insurance
operations of the Company are being conducted in a manner consistent with the
California laws and regulations.
14
10.7 Each party represents that (a) the execution and delivery of this
Agreement and the consummation of the transactions contemplated herein have been
duly authorized by all necessary corporate or trust action, as applicable, by
such party and when so executed and delivered this Agreement will be the valid
and binding obligation of such party enforceable in accordance with its terms
subject to bankruptcy, insolvency, reorganization, moratorium and similar laws
of general applicability relating to or affecting creditors' rights and to
general equity principles; (b) the party has obtained, and during the term of
this Agreement will maintain, all authorizations, licenses, qualifications or
registrations required to be maintained in connection with the performance of
its duties under this Agreement; and (c) the party will comply in all material
respects with all applicable laws, rules and regulations.
10.8 The parties to this Agreement may amend by written agreement the Schedules
to this Agreement from time to time to reflect changes in or relating to the
Contracts, the Separate Accounts or the Portfolios of the Fund.
15
IN WITNESS WHEREOF, each of the parties hereto has caused this Agreement to be
executed in its name and behalf by its duly authorized representative as of the
date first written above.
HARTFORD LIFE INSURANCE COMPANY RS INVESMENT TRUST
By: /s/ Xxxxx Xxxxx By: /s/ Xxxxx X. Xxxxx
------------------------------ ------------------------------
Name: Name: Xxxxx X. Xxxxx
Title: Title: President / Principal
Executive Officer
PFPC DISTRIBUTORS, INC.*
By: /s/ Xxxxx XxXxxxxxx
------------------------------
Name: Xxxxx XxXxxxxxx
Title: Vice President
* EXCLUSIVELY FOR THE PAYMENT OF FEES AS STATED IN SECTION 5.1 OF ARTICLE V,
"FEES AND EXPENSES" AND FOR THE APPROVAL OF SALES MATERIAL AS STATED IN
ARTICLE IV, "SALES MATERIAL AND INFORMATION".
16
SCHEDULE A
SEPARATE ACCOUNTS
Each Separate Account established by resolution of the Board of Directors of the
Company under the insurance laws of the State of Connecticut to set aside and
invest assets attributable to the Contracts. Currently, those Separate Accounts
are as follows:
401 MARKET
K, K1, K2, K3, K4
TK, TK1, TK2, TK3, TK4
VK, VK1, VK2, VK3, VK4
UK, XX0, XX0, XX0, XX0
403 AND 457 MARKETS
DCI, DCII, DCIII, DCIV, DCV, DCVI, 457, 403, UFC,
Eleven
PORTFOLIOS
RS Value Fund
RS Partners Fund
RS Global Natural Resources Fund
RS Smaller Company Growth Fund
RS Diversified Growth Fund
RS Emerging Growth Fund
XX Xxxxxx Opportunities Fund
RS Growth Fund
The Information Age Fund
RS Internet Age Fund
17
SCHEDULE B
In consideration of the services provided by the Company, the Underwriter, on
behalf of the Fund, agrees to pay the Company an amount equal to the following
basis points per annum on the average aggregate amount invested by the Company's
Separate Account(s) in each Portfolio under the Fund Participation Agreement,
such amounts to be paid within 30 days of the end of each calendar quarter.
SERVICE
PORTFOLIO FEES 12B-1 FEES
--------------------------------------------------------------------------------
RS Value Fund 15 basis points 25 basis points
RS Partners Fund 15 basis points 25 basis points
RS Global Natural Resources Fund 15 basis points 25 basis points
RS Smaller Company Growth Fund 15 basis points 25 basis points
RS Diversified Growth Fund 15 basis points 25 basis points
RS Emerging Growth Fund 15 basis points 25 basis points
XX Xxxxxx Opportunities Fund 15 basis points 25 basis points
RS Growth Fund 15 basis points 25 basis points
RS Information Age Fund 15 basis points 25 basis points
RS Internet Age Fund 15 basis points 25 basis points
18
PFPC DISTRIBUTORS, INC.
KNOW YOUR CUSTOMER QUESTIONNAIRE FOR INTERMEDIARIES
In response to the requirements of The USA PATRIOT Act, PFPC Distributors, Inc.
is required to "Know Our Customers." We request your cooperation with compliance
and ask you to complete in total the information below and return to PFPC with
the executed agreement.
Thank you,
PFPC Distributors, Inc.
Hartford Life Insurance Company
--------------------------------------------------------------
Name of Institution
00-0000000
--------------------------------------------------------------
Taxpayer Identification Number
Insurance Writing Company
--------------------------------------------------------------
Type of Business
CT
--------------------------------------------------------------
State in Which Corporation is Domiciled
02/16/78
--------------------------------------------------------------
Date of Incorporation
The CT Department of Insurance
--------------------------------------------------------------
Regulatory Body with Oversight Authority
--------------------------------------------------------------
Other Information (or attachments noted)
19
CERTIFICATION
TO: PFPC DISTRIBUTORS, INC.
000 Xxxxx Xxxx
Xxxx xx Xxxxxxx, XX 00000
FROM:
--------------------------------------------------------------
Name of Financial Institution
--------------------------------------------------------------
Address of Principal Office
--------------------------------------------------------------
City, State, Zip Code
RE: The RS INVESTMENT TRUST Funds
Ladies and Gentlemen:
The undersigned company ("we") hereby certifies to PFPC Distributors, Inc. and
the RS Investment Trust Funds (the "Fund") that with respect to the sale and/or
servicing of shares of the Fund:
At all times during which we sell and/or service shares of the Fund, we will
remain in compliance with all regulations to which we are subject issued under
the USA PATRIOT Act, and NASD Rules and/or NYSE Rules (as applicable) relating
thereto, including without limitation rules requiring us to implement an
Anti-money Laundering Program and a Customer Identification Program ("CIP"). We
will, upon your reasonable request, not more than once each year, certify to you
that we remain in compliance with such rules; specifically, that we (i) provide
notice of our CIP to all new customers, (ii) obtain required identifying data
elements for each customer, (iii) reasonably verify the identity of each new
customer (using the data elements), (iv) take appropriate action with respect to
persons the identities of whom we can't verify, and (v) retain all records for
required time periods, each at least to an extent required by relevant USA
PATRIOT Act regulation and NASD Rules and/or NYSE Rules, as applicable.
Any terms used but not defined herein shall have the meaning ascribed to them in
the Agreement.
/s/ X. Xxxxx
----------------------------------------
[Signature]
Vice President
----------------------------------------
[Title]
20
CERTIFICATION
PFPC Distributors, Inc.
000 Xxxxx Xxxx
Xxxx xx Xxxxxxx, Xxxxxxxxxxxx 00000
Re: Order Handling for RS Investment Trust Funds
Our firm, from time to time, may place orders to purchase or redeem shares of RS
Investment Trust Funds, a registered investment company (the "Fund").
In that connection, at your request, we hereby certify that to the best of our
knowledge after reasonable inquiry, our firm is following all applicable
requirements, rules, regulations and laws in connection with our handling of
orders for transactions in the Fund, including:
- Rule 22c-1(a) under the Investment Company Act of 1940, as amended,
as required by NASD Rules 2110 and 2120;
- The provisions of our firm's agreement with you or your affiliates
that relate to offering Fund shares in accordance with prospectus
requirements and the placement of orders with you or the Fund's
transfer agent for purchases or redemptions of Fund shares; and
- Our firm's internal policies and procedures which we believe to be
appropriate and sufficient for the handling of Fund orders on a
timely basis and consistent with all applicable laws, rules and
regulations.
In addition, we understand that the Fund's prospectus provisions regarding the
purchase and redemption of Fund shares and market timing policies may be
different from our firm's internal policies and procedures. In the event the
Fund or the Advisor becomes concerned with trading activity in the Fund, our
firm will make reasonable efforts to assist the Fund or the Adviser in
investigating these matters.
Sincerely,
Hartford Life Insurance Company, Inc.
By: /s/ Xxxxx Xxxxx
--------------------------------
Date:
21
THE RS INVESTMENT TRUST FUNDS
FORM OF ADDENDUM
This addendum shall become part of the Dealer's Agreement between PFPC
Distributors, Inc. ("PFPCD") and ("we" or "us") (the "Agreement")
relating to the sale of units of beneficial interest (the "Shares") of any and
all of the investment portfolios (the "Funds") of The RS Investment Trust Funds
(the "Trust").
The Agreement is amended to include the following provisions. Capitalized terms
used and not otherwise defined in this Addendum shall have the meaning ascribed
to them in the Agreement.
1. We have policies and procedures in place in order to comply with our
obligations under the provisions the USA PATRIOT Act and any other anti-money
laundering law, rule or regulation applicable to us as a financial institution
under the Bank Secrecy Act, or otherwise. Subject to legal restrictions, we
will, upon your request, promptly provide to you evidence of those policies and
procedures and our compliance therewith and/or evidence establishing the
identities and sources of funds for each purchase of Shares of the Funds.
2. Notwithstanding anything in the Agreement to the contrary, each party agrees
that any Nonpublic Personal Information, as defined under Section 248.3(t) of
Regulation S-P ("Regulation S-P"), promulgated under the Xxxxx-Xxxxx-Xxxxxx Act
(the "Act"), disclosed under the Agreement is for the specific purpose of
permitting the other party to perform the services set forth in the Agreement.
Each party agrees that, with respect to such information, it will comply with
Regulation S-P and the Act and that it will not disclose any Nonpublic Personal
Information received in connection with this Agreement, to any other party,
except to the extent as necessary to carry out the services set forth in the
Agreement or as otherwise permitted by Regulation S-P or the Act.
3. We acknowledge that any compensation paid to us is subject to the terms of
the Rule 12b-1 Plan adopted by the Funds, Rule 12b-1 promulgated pursuant to the
Investment Company Act and the Conduct Rules of the NASD. We agree to waive
payment of any such fee until you have received payment of the fee from the
Funds.
PFPC DISTRIBUTORS, INC.
--------------------------------------
(Firm Name)
By: /s/ Xxxxx XxXxxxxxx By: /s/ Xxxxx X. Xxxxx
-------------------------------- --------------------------------
Name: Xxxxx XxXxxxxxx Name: Xxxxx X. Xxxxx
Title: Vice President Title: Vice President
Date: 10/5/05 Date: 11-2-05
PFPC DISTRIBUTORS, INC.
000 Xxxxx Xxxx . Xxxx xx Xxxxxxx, XX 00000
22
