FUND PARTICIPATION AGREEMENT
Among
[FUND],
[ADVISER],
[DISTRIBUTOR],
And
HARTFORD LIFE INSURANCE COMPANY
TABLE OF CONTENTS
Page
ARTICLE I. Fund Shares
ARTICLE II. Representations and Warranties
ARTICLE III. Prospectuses, Reports to Shareholders and Proxy
Statements; Voting
ARTICLE IV. Sales Material and Information
ARTICLE V. Diversification
ARTICLE VI. Potential Conflicts
ARTICLE VII. Indemnification
ARTICLE VIII. Applicable Law
ARTICLE IX. Termination
ARTICLE X. Notices
ARTICLE XI. Miscellaneous
SCHEDULE A Separate Accounts and Contracts
SCHEDULE B Participating Life Investment Trust Funds
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FUND PARTICIPATION AGREEMENT
THIS AGREEMENT, made as of this ___ day of ____________, 1999 by and
among Hartford Life Insurance Company ("Hartford"); a Connecticut
corporation, on its behalf and on behalf of each separate account set forth
on SCHEDULE A attached as it may be amended from time to time (the "Separate
Accounts"); [Fund], a __________ corporation (the "Fund"); [Distributor], a
_______________ corporation (the "Distributor") and [Adviser], a ___________
corporation (the "Adviser").
WHEREAS, the Fund engages in business as an open-end management
investment company and is available to act as the investment vehicle for
separate accounts established by insurance companies for life insurance
policies and annuity contracts; and
WHEREAS, the Distributor is registered as a broker/dealer under the
Securities Exchange Act of 1934, as amended (the "1934 Act"), is a member in
good standing of the National Association of Securities Dealers, Inc. (the
"NASD") and serves as principal underwriter of the shares of the Fund; and
WHEREAS, the Adviser is registered as an investment adviser under
the Investment Advisers Act of 1940, as amended, and any applicable state
securities laws and serves as the investment advisor to the Fund; and
WHEREAS, the Fund intends to make available shares of the Fund set
forth on SCHEDULE B, as it may be amended from time to time by mutual
agreement of the parties, to the Separate Accounts of Hartford; and
WHEREAS, Hartford is an insurance company which has registered or
will register the variable annuities and/or variable life insurance policies
listed in Schedule A under the Securities Act of 1933 (the "1933 Act") and
the Investment Company Act of 1940 (the "1940 Act") to be issued by them for
distribution (the "Contracts"); and
NOW, THEREFORE, in consideration of their mutual promises, Hartford,
the Fund, the Distributor and the Adviser agree as follows:
ARTICLE I. FUND SHARES
1.1 The Fund and the Distributor agree to make shares of the Fund available
for purchase on each Business Day by the Separate Accounts. The Fund will
execute orders placed for each Separate Account on a daily basis at the net
asset value next computed after receipt by the Fund or its designee of such
order.
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A. For purposes of this Agreement, Hartford shall be the designee of
the Fund and Distributor for receipt of orders from each Separate Account and
receipt by Hartford constitutes receipt by the Fund, provided that the Fund
receives notice of orders by 9:30 a.m. (Eastern time) on the next following
Business Day.
B. For purposes of this Agreement, "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 Securities
and Exchange Commission ("SEC"), as set forth in the Fund's prospectus.
1.2 The Board of Trustees of the Fund (the "Board"), acting in good faith and
in the exercise of its fiduciary responsibilities, may refuse to permit the
Fund 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 over the sale of shares.
1.3 The Fund and the Distributor agree that shares of the Fund will be sold
only to insurance companies for use in conjunction with variable life
insurance policies or variable annuities. No shares of the Fund will be sold
to the general public.
1.4 The Fund and the Distributor agree to redeem for cash, at Hartford's
request, any full or fractional shares of the Fund held by the Separate
Accounts, on a daily basis at the net asset value next computed after receipt
by the Fund or its designee of the request for redemption.
A. For the purposes of this Agreement, Hartford shall be the
designee of the Fund for receipt of redemption requests from each Separate
Account and receipt by Hartford constitutes receipt by the Fund, provided
that the Distributor receives notice of the redemption request by 9:30 a.m.
(Eastern time) on the next following Business Day.
1.5 Hartford agrees that purchases and redemptions of Fund shares offered by
the then current prospectus of the Fund shall be made in accordance with the
provisions of the prospectus.
A. Hartford will place separate orders to purchase or redeem shares
of each Fund. Each order shall describe the net amount of shares and dollar
amount of each Fund to be purchase or redeemed.
B. In the event of net purchases, Hartford will pay for shares
before 3:00 p.m. (Eastern time) on the next Business Day after receipt of an
order to purchase shares.
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C. In the event of net redemptions, the Fund shall pay the
redemption proceeds in federal funds transmitted by wire before 3:00 p.m.
(Eastern time) on the next Business Day after an order to redeem Fund shares
is made.
1.6 Issuance and transfer of the Fund's shares will be by book entry only.
Share certificates will not be issued to Hartford or any Separate Account.
Shares purchased will be recorded in an appropriate title for each Separate
Account or the appropriate sub-account of each Separate Account. The Fund
shall furnish to Hartford the CUSIP number assigned to each portfolio of the
Fund identified in Schedule B attached as may be amended from time to time.
1.7 The Distributor shall notify Hartford in advance of any dividends or
capital gain distributions payable on the Fund's shares, but by no later than
same day notice by 6:00 p.m. Eastern time (by wire or telephone, followed by
written confirmation). Hartford elects to receive all such dividends and
capital gain distributions in additional shares of that Fund. The Fund shall
notify Hartford of the number of shares issued as payment of dividends and
distributions. Hartford reserves the right to revoke this election and to
receive all such dividends and capital gain distributions in cash.
1.8 The Distributor shall make the net asset value per share of each Fund
available to Hartford on a daily basis as soon as reasonably practical after
the net asset value per share is calculated. The Fund shall use its best
efforts to make such net asset value per share available by 6:00 p.m. Eastern
time.
A. If the Distributor provides materially incorrect share net asset
value information through no fault of Hartford, the Separate 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 Hartford upon discovery. The Fund and/or its
agents shall indemnify and hold harmless Hartford against any amount Hartford
is legally required to pay qualified plans ("Plans") or Contract owners, and
which amount is due to the Fund's or its agents' material miscalculation
and/or incorrect reporting of the daily net asset value, dividend rate or
capital gains distribution rate. Hartford shall submit an invoice to the Fund
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 miscalculation by the
Fund or its agents result in a gain to Hartford, Hartford shall immediately
reimburse the Fund or its agents for any material
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losses incurred by the Fund 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 the Plans or Contract owners, Hartford will consult with
the Fund or its designee as to what reasonable efforts shall be made to
recover the money and repay the Fund or its agents. Hartford shall then make
such reasonable effort, at the expense of the Fund or its agents, to recover
the money and repay the Fund or its agents; but Hartford shall not be
obligated to take legal action against the Plans or 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 Hartford represents and warrants that:
A. The Contracts are or will be registered under the 1933 Act unless
exempt and that the registrations will be maintained to the extent required
by law;
B. The Contracts will be issued in compliance with all applicable
federal and state laws and regulations.
C. Hartford is duly organized and in good standing under applicable
law.
D. Hartford has legally and validly established each Separate
Account prior to any issuance or sale as a segregated asset account under the
Connecticut Insurance Code 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 the 0000
Xxx.
2.2 The Fund and the Distributor represent and warrant that:
A. Fund shares sold pursuant to this Agreement shall be registered
under the 1933 Act and the regulations thereunder to the extent required.
B. Fund shares shall be duly authorized for issuance in accordance
with the laws of each jurisdiction in which shares will be offered.
C. Fund shares shall be sold in compliance with all applicable
federal and state securities laws and regulations.
D. The Fund is and shall remain registered under the 1940 Act and
the regulations thereunder to the extent required.
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E. The Fund shall amend the registration statement for Fund 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.
2.3 The Fund and the Adviser represent and warrant that:
A. The Fund is currently qualified as a Regulated Investment Company
under Subchapter M of the Internal Revenue Code of 1986, as amended (the
"Code"). The Fund and Adviser will make every effort to maintain such
qualification and that both will notify Hartford immediately in writing upon
having a reasonable basis for believing that the Fund has ceased to qualify
or that the Fund might not qualify in the future.
B. The Fund is duly organized and validly existing under the laws
of the state of its incorporation.
C. The Fund does and will comply in all material respects with the
1940 Act.
D. If the Fund determines that it is necessary, the Fund has
obtained or will obtain prior to sale or issuance of the Contracts, an order
from the SEC, granting participating insurance companies and variable
insurance product separate accounts exemptions from the provisions of the
1940 Act, as amended, and the rules thereunder, to the extent necessary to
permit shares of the Fund to be sold to and held by variable insurance
product separate accounts of both affiliated and unaffiliated life insurance
companies.
2.4 The Distributor represents and warrants that:
A. It is and shall remain duly registered under all applicable
federal and state laws and regulations and that it will perform its
obligations for the Fund and Hartford in compliance with the laws and
regulations and any applicable state and federal laws and regulations.
ARTICLE III. PROSPECTUSES; REPORTS TO SHAREHOLDERS AND PROXY
STATEMENTS; VOTING
3.1 The Fund, at its expense, will print and provide Hartford with as many
copies of the Fund's current prospectus and statement of additional
information as Hartford may reasonably request to deliver to existing
Contract owners. At Hartford's request, the Fund will provide, in lieu of the
printed prospectuses, camera-ready film or computer diskettes containing the
Fund's prospectus and statement of additional information for printing by
Hartford at the Fund's expense. Hartford will deliver, at the Fund's expense,
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the Fund prospectus and statement of additional information to existing
Contract owners.
A. Hartford 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 Hartford, at its expense, will print the Contract prospectus for use with
prospective owners of Contracts. However, if Hartford chooses to receive
camera-ready film or computer diskettes in lieu of receiving printed copies
of the Fund's prospectus and statement of additional information, the Fund
shall bear the cost of providing the information in that format.
3.3 The Fund, at its expense, will provide Hartford with copies of its
reports to shareholders, and other communications to shareholders in such
quantity as Hartford shall reasonably require for distributing, at the Fund's
expense, to Contract owners.
3.4 The Fund will provide Hartford with copies of its proxy solicitations.
Hartford, at the Fund's expense, will, to the extent required by law, (a)
distribute proxy materials to eligible Contract owners, (b) solicit voting
instructions from eligible Contract owners, (c) vote the Fund shares in
accordance with instructions received from Contract owners; and (d) if
required by law, vote Fund shares for which no instructions have been
received in the same proportion as shares of the Fund for which instructions
have been received.
A. To the extent permitted by applicable laws, Hartford reserves the
right to vote Fund shares held in any Separate Account in its own right.
3.5 Unregistered separate accounts subject to the Employee Retirement Income
Security Act of 1974 ("ERISA") will refrain from voting shares for which no
instructions are received if such shares are held subject to the provisions
of ERISA.
3.6 The Fund will comply with all provisions of the 1940 Act and the rules
thereunder requiring voting by shareholders.
ARTICLE IV. SALES MATERIAL AND INFORMATION
4.1 Hartford shall furnish, or shall cause to be furnished, to the Fund prior
to use, each piece of sales literature or advertising prepared by Hartford in
which the Fund, the Adviser or the Distributor is described. No sales
literature or advertising will be used if the Fund, the Adviser, or the
Distributor reasonably objects to its use within ten (10) Business Days.
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4.2 Hartford will not, without the permission of the Fund, make any
representations or statements on behalf of the Fund or concerning the Fund in
connection with the advertising or sale of the Contracts, other than
information or representations contained in: (a) the registration statement
or Fund prospectus, (b) reports to shareholders, (c) proxy statements for the
Fund, or, (d) sales literature or other promotional material approved by the
Fund.
4.3 The Fund shall furnish, or shall cause to be furnished, to Hartford or
its designee, each piece of sales literature or advertising prepared by the
Fund in which Hartford, the Contracts or Separate Accounts, are described. No
sales literature or advertising will be used if Hartford reasonably objects
to its use within ten (10) Business Days.
4.4 Neither the Fund nor the Distributor will, without the permission of
Hartford, make any representations or statements on behalf of Hartford, the
Contracts, or the Separate Accounts or concerning Hartford, the Contracts or
the Separate Account, in connection with the advertising or sale of the
Contracts, other than the information or representations contained in: (a)
the registration statement or prospectus for the Contracts, (b) reports to
shareholders, (c) in sales literature or other promotional material approved
by Hartford.
4.5. The Fund will provide to Hartford at least one complete copy of all
registration statements, prospectuses, statements of additional information,
reports to shareholders, proxy statements, solicitations for voting
instructions, sales literature and other promotional materials, applications
for exemptions and requests for no-action letters, and all amendments, that
relate to the Fund or its shares.
4.6 Hartford will provide to the Fund, upon the Fund's request, 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, and
requests for no action letters, and all amendments, that relate to the
Contracts.
ARTICLE V. DIVERSIFICATION
5.1 The Fund and the Adviser represent and warrant that, at all times, the
Fund will comply with Section 817 of the Code, the regulations promulgated
thereunder, and any Internal Revenue Service guidance relating to the
diversification requirements for variable annuity, endowment, or life
insurance contracts and any amendments or other modifications to such
statutory, regulatory, or administrative authority. In the event the Fund
ceases to so qualify, it will immediately take all steps necessary (a) to
notify Hartford of such event and (b) to adequately diversify the Fund so as
to achieve compliance within the period afforded by Treasury Regulation 817-5.
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ARTICLE VI. POTENTIAL CONFLICTS
6.1 The Board will monitor the Fund for the existence of any material
irreconcilable conflict between the interests of the contract owners of all
separate accounts investing in the Fund.
A. The Board shall promptly inform Hartford if it determines that an
irreconcilable material conflict exists and the implications thereof.
6.2 Hartford will report any potential or existing material irreconcilable
conflict of which it is aware to the Board. This includes, but is not limited
to, an obligation by Hartford to inform the Board whenever Contract owner
voting instructions are disregarded.
6.3 If it is determined by a majority of the Board, or a majority of its
disinterested trustees, that a material irreconcilable conflict exists due to
issues relating to the Contracts, Hartford will, at its expense and to the
extent reasonably practicable, take whatever steps it can which are necessary
to remedy or eliminate the irreconcilable material conflict, including,
without limitation, withdrawal of the affected Separate Account's investment
in the Fund. No charge or penalty will be imposed as a result of such
withdrawal.
6.4 Hartford, at the request of the Adviser will, at least annually, submit
to the Board such reports, materials or data as the Board may reasonably
request so that the Board may fully carry out the obligations imposed upon
them. All reports received by the Board of potential or existing conflicts,
and all Board action with regard to determining the existence 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
Securities and Exchange Commission upon request.
ARTICLE VII. INDEMNIFICATION
7.1 Indemnification by Hartford
A. Hartford agrees to indemnify and hold harmless the Distributor,
the Adviser, the Fund and each of its officers, employees and agents and each
person, if any, who controls the Fund within the meaning of Section 15 of the
1933 Act (collectively, the "Indemnified Parties" and individually, the
"Indemnified Party" for purposes of this Section 7.1) against any and all
losses, claims, damages, liabilities
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(including amounts paid in settlement with the written consent of Hartford,
which consent shall not be unreasonably withheld) or expenses (including the
reasonable costs of investigating or defending any alleged loss, claim,
damage, liability or expense and reasonable legal counsel fees incurred in
connection therewith) (collectively, "Losses"), to which the Indemnified
Parties may become subject under any statute or regulation, or at common law
or otherwise, insofar as such Losses are related to the sale or acquisition
of Fund shares or the Contracts and:
1. Arise out of or are based upon any untrue statements or
alleged untrue statements of any material fact contained in a disclosure
document for the Contracts or in the Contracts themselves or in sales
literature generated or approved by Hartford on behalf of the Contracts or
Separate Accounts (or any amendment or supplement to any of the foregoing)
(collectively, "Company Documents" for the purposes of this Section 7.1), 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 indemnity 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 was accurately
derived from written information furnished to Hartford by or on behalf of the
Fund for use in Company Documents or otherwise for use in connection with the
sale of the Contracts or Fund shares; or
2. Arise out of or result from statements or
representations (other than statements or representations contained in and
accurately derived from Fund Documents as defined in Section 7.2 (A)(1)) or
wrongful conduct of Hartford or persons under its control, with respect to
the sale or acquisition of the Contracts or Fund shares; or
3. Arise out of or result from any untrue statement or
alleged untrue statement of a material fact contained in Fund Documents as
defined in Section 7.2(A)(1) 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 statement or omission was made
in reliance upon and accurately derived from written information furnished to
the Fund by or on behalf of Hartford; or
4. Arise out of or result from any failure by Hartford to
provide the services or furnish the materials required under the terms of
this Agreement; or
5. Arise out of or result from any material breach of any
representation and/or warranty made by Hartford in this Agreement or arise
out of or result from any other material breach of this Agreement by Hartford.
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B. Hartford shall not be liable under this indemnification provision
with respect to any Losses 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 Fund or Distributor, whichever is
applicable.
C. Hartford 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 Hartford 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 Hartford of any such claim shall
not relieve Hartford 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, Hartford shall be entitled to participate, at its own
expense, in the defense of such action. Hartford also shall be entitled to
assume the defense thereof, with counsel satisfactory to the party named in
the action. After notice from Hartford to such party of Hartford's election
to assume the defense thereof, the Indemnified Party shall bear the fees and
expenses of any additional counsel retained by it, and Hartford will not be
liable to such party under this Agreement for any legal or other expenses
subsequently incurred by such party independently in connection with the
defense thereof other than reasonable costs of investigation.
D. The Indemnified Parties will promptly notify Hartford 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.
7.2 Indemnification by the Distributor, the Adviser, and the Fund
A. The Distributor, the Adviser, and the Fund agree to indemnify and
hold harmless Hartford and each of its directors, officers, employees and
agents and each person, if any, who controls Hartford within the meaning of
Section 15 of the 1933 Act (collectively, the "Indemnified Parties" and
individually, an "Indemnified Party" for purposes of this Section 7.2)
against any and all losses, claims, damages, liabilities (including amounts
paid in settlement with the written consent of the Distributor, the Adviser,
and the Fund, which consent shall not be unreasonably withheld) or expenses
(including the reasonable costs of investigating or defending any losses,
claims, damages, liabilities or expenses and reasonable legal counsel fees
incurred in connection therewith (collectively, "Losses") to which the
Indemnified Parties may become subject under any statute or regulation, at
common law or otherwise, insofar
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as such Losses are related to the sale or acquisition of the Fund's shares
or the Contracts and:
1. Arise out of or are based upon any untrue statement or
alleged untrue statement of any material fact contained in the Registration
Statement, prospectus or sales literature of the Fund (or any amendment or
supplement to any of the foregoing) (collectively, the "Fund Documents") 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 of such alleged statement or omission was made in reliance upon and
in conformity with information furnished to the Distributor, the Adviser, or
Fund by or on behalf of Hartford for use in the Registration Statement or
prospectus for the Fund or in sales literature (or any amendment or
supplement) or otherwise for use in connection with the sale of the Contracts
or Fund shares; or
2. Arise out of or as a result of statements or
representations (other than statements or representations contained in the
disclosure documents or sales literature for the Contracts not supplied by
the Distributor, the Adviser, or the Fund or persons under their control) or
wrongful conduct of the Fund, Adviser or Distributor or persons under their
control, with respect to the sale or distribution of the Contracts or Fund
shares; or
3. Arise out of any untrue statement or alleged untrue
statement of a material fact contained in a disclosure document, or sales
literature covering the Contracts, or any amendment thereof or supplement
thereto, or the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statement or
statements therein not misleading, if such statement or omission was made in
reliance upon information furnished to Hartford by or on behalf of the
Distributor, the Adviser, or the Fund; or
4. Arise as a result of any failure by the Distributor, the
Adviser, or the Fund to provide the services and furnish the materials under
the terms of this Agreement; or
5. Arise out of or result from any material breach of any
representation and/or warranty made by the Distributor, the Adviser, or the
Fund in this Agreement or arise out of or result from any other material
breach of this Agreement by the Distributor, the Adviser, or the Fund; as
limited by and in accordance with the provisions of Sections 7.2(B) and
7.2(C) hereof.
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B. The Distributor, the Adviser, or the Fund shall not be liable
under this indemnification provision with respect to any Losses 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 each Company or the Separate Account, whichever is applicable.
C. The Distributor, the Adviser, or the Fund shall not be liable
under this indemnification provision with respect to any claim made against
an Indemnified Party unless such Indemnified Party shall have notified the
Distributor, the Adviser, or the Fund, as applicable, 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, the Adviser, or the Fund of any such claim shall not relieve the
Distributor, the Adviser, or the Fund from any liability which they 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, the Adviser, or the
Fund will be entitled to participate, at their own expense, in the defense
thereof. The Distributor, the Adviser, and the Fund also shall be entitled to
assume the defense thereof, with counsel satisfactory to the party named in
the action. After notice from the Distributor, the Adviser, and the Fund to
such party of their election to assume the defense thereof, the Indemnified
Party shall bear the expenses of any additional counsel retained by it, and
the Distributor, the Adviser, and the Fund will not be liable to such party
under this Agreement for any legal or other expenses subsequently incurred by
such party independently in connection with the defense thereof other than
reasonable costs of investigation.
D. Hartford agrees promptly to notify the Distributor, the Adviser,
and the Fund 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 Separate Account.
7.3 Any party seeking indemnification (the "Potential Indemnitee") will
promptly notify any party from whom they intend to seek indemnification (each
a "Potential Indemnitor") of all demands made and/or actions commenced
against the Potential Indemnitee which may require a Potential Indemnitor to
provide such indemnification. At its option and expense, a Potential
Indemnitor may retain counsel and control any litigation for which it may be
responsible to indemnify a Potential Indemnitee under this Agreement.
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7.4 With respect to any claim, the parties each shall give the other
reasonable access during normal business hours to its books, records, and
employees and those books, records, and employees within its control
pertaining to such claim, and shall otherwise cooperate with one another in
the defense of any claim. Regardless of which party defends a particular
claim, the defending party shall give the other parties written notice of any
significant development in the case as soon as practicable, and such other
party, at all times, shall have the right to intervene in the defense of the
case.
7.5 If a party is defending a claim and indemnifying the other party hereto,
and: (i) a settlement proposal is made by the claimant, or (ii) the defending
party desires to present a settlement proposal to the claimant, then the
defending party promptly shall notify the other party hereto of such
settlement proposal together with its counsel's recommendation. If the
defending party desires to enter into the settlement and the other party
fails to consent within five (5) business days (unless such period is
extended, in writing, by mutual agreement of the parties hereto), then the
other party, from the time it fails to consent forward, shall defend the
claim and shall further indemnify the defending party for all costs
associated with the claim which are in excess of the proposed settlement
amount.
Regardless of which party is defending the claim: (i) if a settlement
requires an admission of liability by the non-defending party or would
require the non-defending party to either take action (other than purely
ministerial action) or refrain from taking action (due to an injunction or
otherwise) (a "Specific Performance Settlement"), the defending party may
agree to such settlement only after obtaining the express, written consent of
the non-defending party. If a non-defending party fails to consent to a
Specific Performance Settlement, the consequences described in the last
sentence of the first paragraph of this Section 7.5 shall NOT apply.
7.6 The parties shall use good faith efforts to resolve any dispute
concerning this indemnification obligation. 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 VIII. APPLICABLE LAW
8.1 This Agreement shall be construed and the provisions hereof interpreted
under and in accordance with the laws of the State of Connecticut.
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8.2 This Agreement, its terms and definitions, 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 Securities and Exchange Commission may grant.
ARTICLE XI. TERMINATION
9.1 This Agreement shall continue in full force and effect until the first to
occur of:
A. Termination by any party for any reason upon six-months advance
written notice delivered to the other parties, it being understood that no
party may give notice under this provision until July 1, 2004; or
B. Termination by Hartford by written notice to the Fund, the
Adviser or 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 medium of the Contracts issued or to be
issued by Hartford; or,
C. Termination by Hartford upon written notice to the Fund 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
D. Termination by Hartford upon written notice to the Fund and the
Distributor with respect to any Fund in the event that such Fund fails to
meet the diversification requirements specified in this Agreement.
9.2 Effect of Termination.
A. Notwithstanding any termination of this Agreement, the Fund shall
at the option of Hartford, continue to make available additional shares of
the Fund pursuant to the terms and conditions of this Agreement, for all
Contracts in effect on the effective date of termination of this Agreement
(the "Existing Contracts") unless such further sale of Fund shares is
proscribed by law, regulation or applicable regulatory body. Specifically,
without limitation, the owners of the Existing Contracts will be permitted to
direct allocation and reallocation of investments in the Fund, redeem
investments in the Fund and invest in the Fund through additional purchase
payments.
B. Hartford agrees not to redeem Fund shares attributable to the
Contracts except (i) as necessary to implement Contract owner initiated or
approved transactions,
16
or (ii) as required by state and/or federal laws or regulations or judicial
or other legal precedent of general application or (iii) as permitted by an
order of the SEC. Upon request, Hartford will promptly furnish to the Fund
the opinion of counsel for Hartford to the effect that any redemption
pursuant to clause (ii) above is a legally required redemption.
C. In addition to the foregoing, Article VII Indemnification shall
survive any termination of this Agreement.
ARTICLE X. NOTICES
10.1 Any notice shall be sufficiently given when sent by registered or
certified mail to the other party at the address of such party set forth
below or at such other address as such party may from time to time specify in
writing to the other party.
If to the Fund:
____________________________
____________________________
____________________________
If to the Distributor:
____________________________
____________________________
____________________________
If to the Adviser:
____________________________
____________________________
____________________________
If to Hartford: With a copy to:
Hartford Life Insurance Co. Hartford Life Insurance Co.
000 Xxxxxxxxx Xxxxxx 000 Xxxxxxxxx Xxxxxx
Xxxxxxxx, Xxxxxxxxxxx 00000 Xxxxxxxx, Xxxxxxxxxxx 00000
Attn: Xxxxxx X. Xxxxx Attn: Xxxxx Xxxxxx, General Counsel
17
ARTICLE XI. MISCELLANEOUS
11.1 Subject to the requirements of legal process and regulatory authority,
each party will 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 parties 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.
11.2 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.
11.3 This Agreement may be executed simultaneously in two or more
counterparts, each of which taken together shall constitute one and the same
instrument.
11.4 If any provision of this Agreement shall be held or made invalid by a
court decision, statute, rule or otherwise, the remainder of this Agreement
shall not be affected thereby.
11.5 Each party 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 (and other
parties) reasonable access to its books and records in connection with any
investigation or inquiry relating to this Agreement or the transactions
contemplated hereby.
11.6 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.
11.7 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.
IN WITNESS WHEREOF, each of the parties has caused this Agreement to be
executed in as name and on its behalf by its duly authorized representative
as of the date specified above.
Hartford Life Insurance Company
On its behalf and each Separate Account named in
Schedule A, as may be amended from time to time
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By:
----------------------------------------
Xxxxx Xxxxxxx
Its Senior Vice President
FUND
By:
----------------------------------------
Its
DISTRIBUTOR
By:
----------------------------------------
Its
ADVISER
By:
----------------------------------------
Its
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SCHEDULE A
SEPARATE ACCOUNTS AND CONTRACTS
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NAME OF SEPARATE ACCOUNT AND DATE CONTRACT FORM NUMBERS
ESTABLISHED
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SCHEDULE B
PARTICIPATING FUNDS
