FUND PARTICIPATION AGREEMENT
AMONG
HUNTINGTON VA FUNDS,
THE HUNTINGTON NATIONAL BANK,
SEI INVESTMENTS DISTRIBUTION CO.,
AND
HARTFORD LIFE INSURANCE COMPANY
TABLE OF CONTENTS
PAGE
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ARTICLE I. FUND SHARES 1
ARTICLE II. SEED MONEY 4
ARTICLE III. REPRESENTATIONS AND WARRANTIES 4
ARTICLE IV. PROSPECTUSES; REPORTS TO SHAREHOLDERS AND PROXY STATEMENTS;
VOTING 6
ARTICLE V. SALES MATERIAL AND INFORMATION 7
ARTICLE VI. DIVERSIFICATION 8
ARTICLE VII. POTENTIAL CONFLICTS 8
ARTICLE VIII. INDEMNIFICATION 9
ARTICLE IX. APPLICABLE LAW 13
ARTICLE X. TERMINATION 13
ARTICLE XI. NOTICES 14
ARTICLE XII. MISCELLANEOUS 15
I
FUND PARTICIPATION AGREEMENT
THIS AGREEMENT, made as of this 15th day of October, 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"); Huntington VA Funds
(the "Trust"), a Massachusetts business trust, on its behalf and on behalf of
each of its series set forth on Schedule B attached as it may be amended from
time to time (the "Funds"); SEI Investments Distribution Co. (the
"Distributor"), a Pennsylvania corporation and The Huntington National Bank (the
"Adviser" and the "Administrator"), a national banking association.
WHEREAS, the Trust engages in business as an open-end management investment
company and is available to act as the investment vehicle for separate accounts
established 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 Trust; and
WHEREAS, the Adviser is a national banking association exempt from registration
as an investment adviser under the Investment Advisers Act of 1940, as amended,
and serves as the investment advisor to the Trust; and
WHEREAS, the Trust intends to make available shares of the Funds 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 attached as may be amended from time to time 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 Trust,
the Distributor and the Adviser agree as follows:
ARTICLE I. FUND SHARES
1.1 The Trust and the Distributor agree to make shares of the Funds available
for purchase on each Business Day by the Separate Accounts. Each Fund will
execute orders placed for each Separate Account on a daily basis at the net
asset value next computed after receipt by the Trust or its designee of such
order.
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A. For purposes of this Agreement, Hartford shall be the designee of the
Trust for receipt of orders from each Separate Account and receipt by
Hartford constitutes receipt by the Trust, provided that the Trust
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
each Fund calculates net asset value pursuant to the rules of the
Securities and Exchange Commission ("SEC"), as set forth in the
Trust's registration statement on Form N-1A (the "Registration
Statement").
1.2 The Board of Trustees of the Trust (the "Board"), acting in good faith and
in the exercise of its fiduciary responsibilities, may refuse to permit the
Trust 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 Trust agrees that shares of the Funds will be sold only to insurance
companies for use in conjunction with variable life insurance policies or
variable annuities. No shares of the Funds will be sold to the general public.
1.4 The Trust agrees to redeem for cash, at Hartford's request, any full or
fractional shares of the Funds held by the Separate Accounts at the net asset
value next computed after receipt by the Trust or its designee of the request
for redemption, except that the Trust reserves the right to suspend redemptions
temporarily to the extent permitted under the 1940 Act.
A. For purposes of this Agreement, Hartford shall be the designee of the
Trust for receipt of redemption requests from each Separate Account
and receipt by Hartford constitutes receipt by the Trust, 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 prospectuses of the Funds shall be made in accordance with the
provisions of the Trust's Registration Statement.
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 purchased 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 Hartford's
receipt of an order to purchase a Fund's shares.
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C. In the event of net redemptions, a 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 Hartford's receipt of an order to
redeem shares.
1.6 Issuance and transfer of a 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 Trust shall furnish to
Hartford the CUSIP number assigned to each Fund identified in Schedule B
attached as may be amended from time to time.
1.7 The Administrator shall notify Hartford in advance of any dividends or
capital gain distributions payable on a 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 the paying Fund. The Trust 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 Administrator 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 Trust shall use its best
commercially reasonable efforts to make such net asset value per share available
by 6:00 p.m. Eastern time.
A. If the Administrator 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 Trust 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 Trust'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 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 miscalculation by the Trust or its agents result in a gain
to Hartford, Hartford shall immediately reimburse the Trust or its
agents for any material losses incurred by the Trust or its agents as
a result of the incorrect calculation. Should a material
miscalculation by the Trust or its agents result in a gain to the
Plans or Contract owners, Hartford will consult with the Trust or its
designee as to what reasonable efforts shall be made to recover the
money and repay the Trust or its agents. Hartford shall then make
such reasonable effort, at the expense of the Trust
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or its agents, to recover the money and repay the Trust 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 relating to net asset
value pricing, this section shall control over other indemnification
provisions in this Agreement.
ARTICLE II. SEED MONEY
2.1 Hartford agrees that it shall invest $1,000,000 (One Million Dollars) in
the Huntington VA Income Equity Fund upon the effectiveness of the Trust's
Registration Statement for the purpose of, among other things, satisfying the
requirements of Section 14(a) of the 1940 Act. Hartford further agrees it will
reinvest all dividends and capital gain distributions received on such
investment in additional shares of the Huntington VA Income Equity Fund.
2.2 Hartford agrees that it will not redeem any part of the investment made
pursuant to Section 2.1 within one year of making such investments.
ARTICLE III. REPRESENTATIONS AND WARRANTIES
3.1 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 a life insurance company duly organized and in good
standing under
Connecticut 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 1940 Act.
E. The Contracts are treated as annuity contracts under applicable
provisions of the Internal Revenue Code of 1986, as amended (the
"Code"). Hartford will make every effort to maintain such treatment
and will notify the Trust and the Adviser immediately in writing upon
having a reasonable basis for believing that the Contracts have
ceased to be treated as such or might not be treated as such in the
future.
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3.2 The Trust 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 offered in compliance with all applicable
federal and state securities laws and regulations.
D. The Trust is or will be registered under the 1940 Act and the
regulations thereunder to the extent required.
E. The Trust 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.
3.3 The Trust, the Adviser and the Administrator represent and warrant that
each Fund will qualify as a Regulated Investment Company under Subchapter M of
the Code. The Trust 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 Trust has ceased to qualify or
that the Trust might not qualify in the future. In the event the Trust ceases to
so qualify, it will immediately take all steps necessary (a) to notify Hartford
of such event and (b) where available, achieve compliance within any grace
period afforded under the Code.
3.4 The Trust represents and warrants that:
A. The Trust is duly organized and validly existing under the laws of
the state of Massachusetts.
B. The Trust does and will comply in all material respects with the 1940
Act.
C. If the Trust determines that it is necessary, the Trust 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 Trust to be sold to and held by variable
insurance product separate accounts of both affiliated and
unaffiliated life insurance companies.
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3.5 The Distributor and Administrator represent and warrant that:
A. It is and shall remain duly registered under all applicable federal
and state laws and regulations necessary for the performance of its
obligations to the Trust and Hartford and that it will perform its
obligations to the Trust and Hartford in compliance with the laws and
regulations and any applicable state and federal laws and
regulations.
ARTICLE IV. PROSPECTUSES; REPORTS TO SHAREHOLDERS
AND PROXY STATEMENTS; VOTING
4.1 The Trust, at its expense, will print and provide Hartford with as many
copies of each Fund's current prospectus and statement of additional information
as Hartford may reasonably request to deliver to existing Contract owners. At
Hartford's request, each Fund will provide, in lieu of the printed prospectuses,
camera-ready film or computer diskettes containing a Fund's prospectus and
statement of additional information for printing by Hartford at the Trust's
expense. If Hartford chooses to receive camera-ready film or computer diskettes
in lieu of receiving printed copies of a Fund's prospectus and statement of
additional information, the Trust shall bear the cost of providing the
information in that format. Hartford will deliver, at the Trust's expense, each
Fund prospectus and statement of additional information to existing Contract
owners.
A. Hartford may elect to print a Fund's prospectus and/or its statement
of additional information in combination with the prospectuses and
statements of additional information of other registered investment
companies. In such event, the Trust shall bear its pro rata share of
printing expenses based on the number of combined printed pages.
4.2 Hartford, at its expense, will print the Contract prospectus for use with
prospective owners of Contracts.
4.3 The Trust, 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 Trust's expense, to
Contract owners.
4.4 The Trust will provide Hartford with copies of its proxy solicitations.
Hartford, at its own 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.
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4.5 The Trust will comply with all provisions and interpretations of the 1940
Act and the rules thereunder requiring voting by shareholders.
ARTICLE V. SALES MATERIAL AND INFORMATION
5.1 Hartford shall furnish, or shall cause to be furnished, to the Trust and
the Adviser at least ten (10) Business Days prior to its use, each piece of
sales literature or advertising prepared by Hartford in which the Trust, the
Adviser or the Distributor is described. No sales literature or advertising will
be used if the Trust, the Adviser, or the Distributor reasonably objects to its
use within ten (10) Business Days after receipt by the Trust or the Adviser.
5.2 Hartford will not, without the permission of the Trust, make any
representations or statements on behalf of the Trust or concerning the Funds in
connection with the advertising or sale of the Contracts, other than information
or representations contained in: (a) the Trust's Registration Statement or any
Fund prospectus, (b) reports to shareholders, (c) proxy statements for the
Funds, or, (d) sales literature or other promotional material approved by the
Trust.
5.3 The Adviser shall furnish, or shall cause to be furnished, to Hartford or
its designee at least ten (10) Business Days prior to its use, each piece of
sales literature or advertising prepared by the Trust 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 after receipt by Hartford.
5.4 Neither the Trust, the Adviser, the Administrator 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.
5.5 The Trust 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 Trust or its shares.
5.6 With respect to the Contracts listed on Schedule A attached as may be
amended from time to time, Hartford will provide to the Trust upon request all
registration statements, prospectuses, statements of additional information and
amendments and supplements thereto which are filed withthe SEC on or after the
date of this Agreement, all reports, solicitations for voting instructions,
sales literature and other promotional materials, applications for exemptions,
and requests for no action letters, and all amendments thereto.
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ARTICLE VI. DIVERSIFICATION
6.1 The Trust and the Adviser represent and warrant that, at all times, the
Trust 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 Trust ceases to so
qualify, it will immediately take all steps necessary (a) to notify Hartford of
such event and (b) to adequately diversify the Trust so as to achieve compliance
within the period afforded by Treasury Regulation 817-5.
ARTICLE VII. POTENTIAL CONFLICTS
7.1 The Board of Trustees of the Trust will monitor the Trust for the existence
of any material irreconcilable conflict between the interests of the contract
owners of all Separate Accounts investing in the Funds.
A. The Board shall promptly inform Hartford if it determines that an
irreconcilable material conflict exists and the implications thereof.
7.2 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.
7.3 If it is determined by a majority of the Board, or a majority of its
trustees, who are not interested persons (as defined in the 0000 Xxx) of the
Trust or Hartford, 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
Funds. No charge or penalty will be imposed as a result of such withdrawal.
7.4 Hartford, and 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 SEC upon request.
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ARTICLE VIII. INDEMNIFICATION
8.1 Indemnification by Hartford
A. Hartford agrees to indemnify and hold harmless the Distributor, the
Adviser, the Administrator, the Trust and each of its trustees,
officers, employees and agents and each person, if any, who controls
the Trust within the meaning of Section 15 of the 1933 Act
(collectively, the "Indemnified Parties" and individually, the
"Indemnified Party" for purposes of this Section 8.1) against any and
all losses, claims, damages, liabilities (including amounts paid in
settlement with the written consent of 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 offer, sale or acquisition of Fund shares or the
Contracts or to the operation of the Separate Accounts and:
1. Arise out of or are based upon any untrue statements or alleged
untrue statements of any material fact contained in a registration
statement, prospectus or other 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"), 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 information
furnished to Hartford by or on behalf of the Trust for use in
Company Documents or otherwise for use in connection with the
offer or 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 8.2(A)(1) not
supplied by Hartford) or wrongful conduct of Hartford or persons
under its control, with respect to the offer, 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 8.2(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 information furnished to the Trust 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
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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, as limited by and in accordance with the
provisions of Sections 8.1(B) and 8.3 hereof.
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 Adviser, the Trust or the Distributor, whichever
is applicable.
8.2 Indemnification by the Distributor, the Adviser, the Administrator and the
Trust
A. The Distributor, the Adviser, the Administrator and the Trust 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 8.2) against any and
all losses, claims, damages, liabilities (including amounts paid in
settlement with written consent from the appropriate party from whom
indemnification is sought, 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 as such Losses are related to the sale or
acquisition of the Fund's shares or the Contracts or to the operation
of Funds and:
1. Arise out of or are based upon any untrue statement or alleged
untrue statement of any material fact contained in a registration
statement, prospectus or sales literature of the Trust (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 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
in conformity with information furnished to the Distributor, the
Adviser, the Administrator or Trust by or on behalf of Hartford
for use in Fund Documents or otherwise for use in connection with
the offer or 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 Company Documents
not supplied by the Distributor, the Adviser, the Administrator or
the Trust or persons under their control) or wrongful conduct of
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the Trust, Adviser, the Administrator or Distributor or persons
under their control, with respect to the offer, sale or
distribution 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 Company
Documents, 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, the Administrator or the Trust; or
4. Arise out of or result from any failure by the Distributor, the
Adviser, the Administrator, or the Trust 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, the Administrator, or the Trust in this Agreement
or arise out of or result from any other material breach of
this Agreement by the Distributor, the Adviser, the
Administrator, or the Trust; as limited by and in accordance
with the provisions of Sections 8.2(B) and 8.3 hereof.
B. The Distributor, the Adviser, the Administrator or the Trust 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 Hartford or the
Separate Account, whichever is applicable.
8.3 Notice of Indemnification; Retention of Counsel
A. Any party seeking indemnification (each a "Potential Indemnitee")
shall promptly notify any party from whom it intends 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. A
Potential Indemnitor shall not be liable under this indemnification
provision with respect to any claim made against a Potential
Indemnitee unless such Potential Indemnitee shall have notified the
Potential Indemnitor 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 Potential Indemnitee (or
after such Potential Indemnitee shall have received notice of such
service on any designated agent), but failure to notify the Potential
Indemnitor of any such claim shall not relieve the Potential
Indemnitor from any liability which it may have to the Potential
Indemnitee against whom such action is brought otherwise than on
account of this indemnification provision.
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B. In case any such action is brought against a Potential Indemnitee, the
Potential Indemnitor shall be entitled to participate, at its own
expense, in the defense of such action. The Potential Indemnitor also
shall be entitled to assume the defense thereof, with counsel
satisfactory to the party named in the action. After notice from the
Potential Indemnitor to such party of the Potential Indemnitor's
election to assume the defense thereof, the Potential Indemnitee shall
bear the fees and expenses of any additional counsel retained by it, and
the Potential Indemnitor 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.
8.4 With respect to any claim for indemnification made under this Agreement,
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.
8.5 If a party is defending a claim and indemnifying one or more parties to
this Agreement, 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 or parties to
this Agreement being indemnified of such settlement proposal together with its
counsel's recommendation. If the defending party desires to enter into the
settlement and any of the other parties fails to consent within five (5)
Business Days (unless such period is extended, in writing, by mutual agreement
of the parties hereto), then each such other party withholding consent, from the
time it fails to consent forward, shall defend the claim and shall further
indemnify the defending party and other remaining parties subject to this
Agreement, if any, 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 8.5 shall NOT apply.
8.6 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
12
efforts by such parties to resolve the dispute (termination of such efforts
shall be deemed to have occurred thirty (30) days from the commencement of the
same unless such time period is extended by the written agreement of the
parties). The prevailing party in such a proceeding shall be entitled to recover
reasonable attorneys' fees, costs, and expenses.
ARTICLE IX. APPLICABLE LAW
9.1 This Agreement shall be construed and the provisions hereof interpreted
under and in accordance with the laws of the State of
Connecticut.
9.2 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 SEC may grant.
ARTICLE X. TERMINATION
10.1 This Agreement may be terminated without penalty:
A. By any party for any reason upon six months' advance written notice
delivered to all of the other parties, it being understood that no
party may give notice under this provision until five (5) years from
the effective date of this Agreement; or
B. By Hartford by written notice to the Trust, the Adviser, the
Administrator and the Distributor with respect to any Fund in the
event any of the Fund's shares are not registered, issued or sold in
accordance with applicable state and/or federal law, or such law
precludes the use of such shares as the underlying investment vehicle
of the Contracts issued or to be issued by Hartford; or
C. By Hartford upon written notice to the Trust 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. By Hartford upon written notice to the Trust and the Distributor with
respect to any Fund in the event that such Fund fails to meet the
diversification requirements specified in this Agreement; or
E. By the Distributor, the Adviser or the Trust upon written notice to
Hartford with respect to any Separate Account in the event that such
Separate Account ceases to be qualified as a segregated asset account
under the
Connecticut Insurance Code; or
F. By the Distributor, the Adviser or the Trust upon written notice
with respect to any Separate Account in the event that effective
registration as a unit investment trust under the 1940 Act for such
Separate Account is not maintained; or
13
G. By the Distributor, the Adviser or the Trust in the event that the
Contracts cease to be treated as annuity contracts under the
applicable provisions of the Code; or
H. By the Distributor, the Adviser or the Trust in the event that
effective registration or exemption from registration under the 1933
Act of the Contracts is not maintained; or
I. By the Adviser or the Trust in the event that Hartford redeems
shares purchased in accordance with Article II of this Agreement
within one year of the purchase of such shares.
10.2 Effect of Termination.
A. Notwithstanding any termination of this Agreement, the Trust shall at
the option of Hartford, continue to make available additional shares
of the Funds 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 Funds, redeem investments in the Funds and invest
in the Funds 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, 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 pursuant to Section 26(h) of the 1940 Act. Upon request,
Hartford will promptly furnish to the Trust 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 VIII Indemnification shall
survive any termination of this Agreement.
ARTICLE XI. NOTICES
11.1 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 Trust: With a copy to:
The Huntington VA Funds Xxxxxx Xxxxxxxx, Esq.
c/o The Huntington National Bank Ropes & Xxxx
00 Xxxxx Xxxx Xxxxxx Xxxxx 000 Xxxx
Xxxxxxxx, Xxxx 00000 0000 X Xxxxxx, XX
Attn: Huntington VA Funds Product Xxxxxxxxxx, XX 00000-0000
Manager
14
If to the Distributor:
SEI Investments Distribution Co.
Xxx Xxxxxxx Xxxxxx Xxxx
Xxxx, Xxxxxxxxxxxx 00000
Attn: Legal Department
If to the Adviser or Administrator: With a copy to:
The Huntington National Bank Xxxxxxx Xxxx West, Esq.
00 Xxxxx Xxxx Xxxxxx Xxxxxx Xxxxxxx PLLC
Xxxxxxxx, Xxxx 00000 Suite 300
Attn: Huntington VA Funds Product 0000 Xxxxx Xxxxxxxx Xxxxxx
Xxxxxxx Xxxxxxxxxx Xxxxx, Xxxxxxxx 00000-0000
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
ARTICLE XII. MISCELLANEOUS
12.1 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.
12.2 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.
12.3 This Agreement may be executed simultaneously in two or more counterparts,
each of which taken together shall constitute one and the same instrument.
12.4 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.
15
12.5 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.
12.6 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.
12.7 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.
16
IN WITNESS WHEREOF, each of the parties has caused this Agreement to be executed
in its name and on its behalf by its duly authorized representative as of the
date specified above.
HARTFORD LIFE INSURANCE COMPANY,
ON ITS BEHALF AND ON BEHALF OF EACH SEPARATE
ACCOUNT NAMED IN SCHEDULE A, AS MAY BE
AMENDED FROM TIME TO TIME
By: /s/ Xxxxx Xxxxxxx
----------------------------------------
Xxxxx Xxxxxxx
Its: Senior Vice President
HUNTINGTON VA FUNDS, ON ITS BEHALF AND
ON BEHALF OF EACH FUND NAMED IN SCHEDULE B, AS
MAY BE AMENDED FROM TIME TO TIME
By: /s/ Xxxx Xxxxx
----------------------------------------
Xxxx Xxxxx
Its: President
SEI INVESTMENTS DISTRIBUTION CO.
By: /s/ Xxxx Xxxxxxxxx
----------------------------------------
Xxxx Xxxxxxxxx
Its: Vice President
THE HUNTINGTON NATIONAL BANK
By: /s/ Xxxxxxx Xxxxxxxx
----------------------------------------
Xxxxxxx Xxxxxxxx
Its: Senior Vice President
17
SCHEDULE A
SEPARATE ACCOUNTS AND CONTRACTS
NAME OF SEPARATE ACCOUNT AND DATE ESTABLISHED CONTRACT FORM NUMBERS
Hartford Life Insurance Company Separate Account HL-VA99
Two
HARTFORD LIFE INSURANCE COMPANY, SEI INVESTMENTS DISTRIBUTION CO.
ON ITS BEHALF AND ON BEHALF
OF EACH SEPARATE ACCOUNT NAMED IN
SCHEDULE A, AS MAY BE AMENDED FROM
TIME TO TIME
By: /s/ Xxxxx Xxxxxxx By: /s/ Xxxx Xxxxxxxxx
----------------------------- -------------------------------
Xxxxx Xxxxxxx Name Xxxx Xxxxxxxxx
Its: Senior Vice President Its: Vice President
HUNTINGTON VA FUNDS, ON ITS THE HUNTINGTON NATIONAL BANK
BEHALF AND ON BEHALF OF EACH FUND
NAMED IN SCHEDULE B, AS MAY BE
AMENDED FROM TIME TO TIME
By: /s/ Xxxx Xxxxx By: /s/ Xxxxxxx Xxxxxxxx
----------------------------- -------------------------------
Xxxx Xxxxx Xxxxxxx Xxxxxxxx
Its: President Its: Senior Vice President
SCHEDULE B
PARTICIPATING FUNDS CUSIP NUMBER
--------------------------------------------------------------------
Huntington VA Income Equity Fund 446771107
Huntington VA Growth Fund 446771206
HARTFORD LIFE INSURANCE SEI INVESTMENTS DISTRIBUTION CO.
COMPANY, ON ITS BEHALF AND ON BEHALF
OF EACH SEPARATE ACCOUNT NAMED IN
SCHEDULE A, AS MAY BE AMENDED FROM
TIME TO TIME
By: /s/ Xxxxx Xxxxxxx By: /s/ Xxxx Xxxxxxxxx
----------------------------- -------------------------------
Xxxxx Xxxxxxx Name: Xxxx Xxxxxxxxx
Its: Senior Vice President Its: Vice President
HUNTINGTON VA FUNDS, ON ITS THE HUNTINGTON NATIONAL BANK
BEHALF AND ON BEHALF OF EACH FUND
NAMED IN SCHEDULE B, AS MAY BE
AMENDED FROM TIME TO TIME
By: /s/ Xxxx Xxxxx By: /s/ Xxxxxxx Xxxxxxxx
----------------------------- -------------------------------
Xxxx Xxxxx Xxxxxxx Xxxxxxxx
Its: President Its: Senior Vice President
FUND PARTICIPATION AGREEMENT
AMONG
HUNTINGTON VA FUNDS,
HUNTINGTON ASSET ADVISORS, INC.,
EDGEWOOD SERVICES, INC.
AND
HARTFORD LIFE INSURANCE COMPANY
TABLE OF CONTENTS
ARTICLE I. FUND SHARES 2
ARTICLE II. GENERAL DUTIES 4
ARTICLE III. REPRESENTATIONS AND WARRANTIES 5
ARTICLE IV. PROSPECTUSES; REPORTS TO SHAREHOLDERS AND PROXY STATEMENTS; VOTING 7
ARTICLE V. SALES MATERIAL AND INFORMATION 8
ARTICLE VI. DIVERSIFICATION 10
ARTICLE VII. POTENTIAL CONFLICTS 10
ARTICLE VIII. INDEMNIFICATION 12
ARTICLE IX. APPLICABLE LAW 18
ARTICLE X. TERMINATION 18
ARTICLE XI. NOTICES 20
ARTICLE XII. MISCELLANEOUS 21
FUND PARTICIPATION AGREEMENT
THIS AGREEMENT, made as of the 1st day of November, 2003 by and among Hartford
Life Insurance Company, a
Connecticut corporation ("Hartford"), 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"); Huntington VA Funds,
a Massachusetts business trust (the "Trust"), on its behalf and on behalf of
each of its series set forth on Schedule B attached as it may be amended from
time to time (the "Funds"); Edgewood Services, Inc., a New York corporation (the
"Distributor") and Huntington Asset Advisors, Inc., a registered investment
adviser (the "Adviser")
WHEREAS, the Trust engages in business as an open-end management investment
company and is available to act as the investment vehicle for separate accounts
established 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 Trust; and
WHEREAS, the Adviser is registered as an investment adviser under the Investment
Advisers Act of 1940, as amended, and serves as the investment adviser to the
Trust; and
WHEREAS, Hartford is an insurance company which has registered or will register
the variable annuities and/or variable life insurance policies listed on
Schedule A attached as may be amended from time to time under the Securities Act
of 1933 (the "1933 Act") and the Investment Company Act of 1940 (the "1940 Act")
to be issued by it for distribution (the "Contracts"); and
WHEREAS, the Trust intends to make available shares of the Funds to the Separate
Accounts of Hartford; and
WHEREAS, to the extent permitted by applicable insurance laws and regulations,
the Separate Accounts wish to purchase shares of the Funds to serve as an
investment medium for the Contracts funded by the Separate Accounts, and the
Distributor is authorized to sell shares of the Funds; and
WHEREAS, the Fund shares may be made available to separate accounts of one or
more insurance companies that fund variable annuity contracts or variable life
insurance policies, subject to receipt of any required relief pursuant to an
exemptive order from the Securities and Exchange Commission ("SEC"), granting
exemptions from the provisions of various sections of the 1940 Act and Rules
thereunder, to the extent necessary to permit shares of the Funds to be sold to
and held by variable annuity and variable life insurance separate accounts of
life insurance companies that may or may
not be affiliated with one another (hereinafter the "Mixed and Shared Funding
Exemptive Order");
NOW, THEREFORE, in consideration of their mutual promises, Hartford, the Trust,
the Distributor and the Adviser agree as follows:
ARTICLE I. FUND SHARES
1.1 The Trust and the Distributor agree to make shares of the Funds available
for purchase on each Business Day (as defined below) by the Separate Accounts.
Each Fund will execute orders placed for each Separate Account on a daily basis
at the net asset value next computed after receipt and acceptance by the Trust
or its designee of such order.
A. For purposes of this Agreement, Hartford shall be the designee of the
Trust for receipt of orders from each Separate Account and receipt by
Hartford constitutes receipt by the Trust, provided that the
Distributor receives notice of orders by 8:30 a.m. (Eastern time) on
the next following Business Day.
B. For purposes of this Agreement, "Business Day" shall mean each day on
which the New York Stock Exchange is open for trading and on which
each Fund calculates its net asset value pursuant to the rules of the
Securities and Exchange Commission ("SEC") as set forth in the
Trust's registration statement on Form N-1A (the "Registration
Statement").
1.2 The Trust agrees to make available on each Business Day shares of the Funds
for purchase at the applicable net asset value per share by the Separate
Accounts; provided, however, that the Board of Trustees of the Trust (the
"Board"), acting in good faith and in the exercise of its fiduciary
responsibilities, may refuse to permit the Trust 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 or if the Board determines that such action is necessary in
the best interests of the shareholders of any Fund.
1.3 The Trust and Distributor agree that shares of the Funds will be sold only
to insurance companies, for use in conjunction with variable life insurance
policies or variable annuities to separate accounts of insurance companies, and
to other persons consistent with the diversification rules under Section 817(h)
of the Internal Revenue Code of 1986, as amended (the "Code"), and the
regulations thereunder. No shares of the Funds will be sold to the general
public unless otherwise permitted by the Mixed and Shared Funding Exemptive
Order and any applicable provisions of the Code.
1.4 The Trust agrees to redeem for cash, upon receipt of a request for
redemption that is complete and meets all applicable legal requirements from
Hartford on any Business Day, any full or fractional shares of the Funds held by
the Separate Accounts at the net asset value next computed after receipt by the
Trust or its designee of the
2
request for redemption, except that the Trust reserves the right to suspend
redemptions temporarily to the extent permitted under the 1940 Act.
A. For purposes of this Agreement, Hartford shall be the designee of the
Trust for receipt of redemption requests from each Separate Account
and receipt by Hartford constitutes receipt by the Trust, provided
that the Distributor receives notice of the redemption request by
8:00 a.m. (Eastern time) on the next following Business Day. Hartford
agrees to submit such orders electronically through secured trading
systems as described on Schedule C to this Agreement or, if it is
unable to submit orders electronically, Hartford shall submit such
orders through manual transmissions using the procedures described in
Schedule C to this Agreement.
1.5 Hartford agrees that purchases and redemptions of Fund shares shall be made
in accordance with the provisions of the then current prospectuses of the Funds.
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 purchased or redeemed.
B. Unless otherwise specified in Schedule C, Hartford shall pay for
shares of the Funds on the next Business Day after Hartford's receipt
of an order to purchase shares of a Fund, and payment shall be in
federal funds transmitted by wire.
C. In the event of net redemptions, a Fund shall pay the redemption
proceeds in federal funds transmitted by wire on the next Business
Day after Hartford's receipt of an order to redeem shares.
1.6 Issuance and transfer of a 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 Trust shall furnish to
Hartford the CUSIP number assigned to each Fund identified in Schedule B
attached as may be amended from time to time.
1.7 The Trust or its designee shall notify Hartford in advance of any dividends
or capital gain distributions payable on a 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 the paying Fund. The Trust or its
agent 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 Unless otherwise specified in Schedule C, the Trust or its agent shall
advise Hartford on each Business Day of the net asset value per share for each
Fund as soon
3
as reasonably practical after the net asset value per share is calculated and
shall use its best efforts to make such net asset value per share available by
6:30 p.m. Eastern time.
A. If the Trust or its agent 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 Trust 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 Trust'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 Trust or its agents for such losses incurred as a result of the
above which shall be payable within sixty (60) days of receipt.
Should a material miscalculation by the Trust or its agents result in
a gain to Hartford. Hartford shall immediately reimburse the Trust or
its agents for any amount lost by the Trust or its agents as a result
of the incorrect calculation. Should a material miscalculation by the
Trust or its agents result in a gain to the Plans or Contract owners.
Hartford will consult with the Trust or its designee as to what
reasonable efforts shall be made to recover the money and repay the
Trust or its agents. Hartford shall then make such reasonable effort,
at the expense of the Trust or its agents, to recover the money and
repay the Trust or its agents; but Hartford shall not be obligated to
take legal action against the Plans or Contract owners.
With respect to the material errors or omissions relating to net asset value
pricing, this section shall control over other indemnification provisions in
this Agreement.
ARTICLE II. GENERAL DUTIES
2.1 Hartford shall take all such actions as are necessary under applicable
federal and state law to permit the sale of the Contracts issued by Hartford,
including registering each Separate Account as an investment company to the
extent required under the 1940 Act, and registering the Contracts or interests
in the Separate Accounts under the Contracts to the extent required under the
1933 Act, and obtaining all necessary approvals to offer the Contracts from
state insurance commissioners.
2.2 Hartford shall make every effort to maintain the treatment of the Contracts
issued by Hartford as annuity contracts or life insurance policies, whichever is
appropriate, under the applicable provisions of the Code, and shall notify the
Trust and the Distributor immediately upon having a reasonable basis for
believing that such Contracts have ceased to be so treated or that they might
not be so treated in the future. In that regard, Hartford shall make every
effort to remedy any Contract's failure
4
to be treated as annuity contracts or life insurance policies, as appropriate,
under applicable provisions of the Code, including Section 72 and regulations
thereunder within the required time frames.
2.3 Hartford or its agents shall offer and sell the Contracts in accordance
with applicable provisions of the 1933 Act, the 1934 Act, the 1940 Act, the NASD
Rules of Fair Practice, and state insurance law respecting the offering of
variable life insurance policies and variable annuity contracts.
2.4 The Distributor shall sell and distribute the shares of the Funds in
accordance with the applicable provisions of the 1933 Act, the 1934 Act, the
1940 Act, the NASD Rules of Fair Practice, and state law.
2.5 During such time as the Trust engages in activities that require a Mixed
and Shared Funding Exemptive Order, a majority of the Trust's Board shall
consist of persons who are not "interested persons" of the Trust ("Independent
Trustees"), as defined by Section 2(a)(19) of the 1940 Act and the rules
thereunder, and as modified by any applicable orders of the SEC, except that if
this provision of this Article 2.5 is not met by reason of the death,
disqualification, or bona fide resignation of any Trustee or Trustees, then the
operation of this provision shall be suspended (a) for a period of 45 days if
the vacancy or vacancies may be filled by the Trust's Board; (b) for a period of
60 days if a vote or shareholders is required to fill the vacancy or vacancies;
or (c) for such longer period as the SEC may prescribe by rule or order upon
application.
2.6 As long as pass through voting is required by the SEC, and provided it is
consistent with their fiduciary duties, Hartford and its agents will not in any
way recommend any proposal in opposition to, or oppose or interfere with, any
proposal submitted by the Trust at a meeting of owners of Contracts or
shareholders of the Funds, and will in no way recommend any proposal in
opposition to, or oppose or interfere with, the solicitation of proxies by the
Trust of shares held by Contract owners, without the prior written consent of
the Trust.
2.7 Each party hereto shall cooperate with each other party and all appropriate
governmental authorities having jurisdiction (including, without limitation, the
SEC, the NASD, and state insurance regulators) and shall permit such authorities
reasonable access to its books and records in connection with any investigation
or inquiry relating to this Agreement or the transactions contemplated hereby.
ARTICLE III. REPRESENTATIONS AND WARRANTIES
3.1 Hartford represents and warrants that:
A. The Contracts or the interests in the Separate Accounts under such
Contracts are or prior to issuance will be registered as securities
under the 1933 Act
5
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 a life insurance company duly organized and in good
standing under
Connecticut law and that it is taxed as an insurance
company under applicable provisions of the Code.
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 1940 Act, and each of the Separate Accounts is
a validly existing separate account under the applicable federal and
state Law.
E. The Contracts are treated as annuity contracts under applicable
provisions of the Code. Hartford will make every effort to maintain
such treatment and will notify the Trust and the Adviser immediately
in writing upon having a reasonable basis for believing that the
Contracts have ceased to be treated as such or might not be treated
as such in the future.
3.2 The Trust 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 offered in compliance with all applicable
federal and state securities laws and regulations.
D. The Trust is or will be registered under the 1940 Act and the
regulations thereunder to the extent required.
E. The Trust 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.
3.3 The Trust and the Adviser represent and warrant that each Fund will qualify
as a Regulated Investment Company under Subchapter M of the Code. The Trust 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 Trust has ceased to qualify or that the Trust might not
qualify in the future. In the event
6
the Trust ceases to so qualify, it will immediately take all steps necessary (a)
to notify Hartford of such event and (b) where available, achieve compliance
within any grace period afforded under the Code.
3.4 The Trust represents and warrants that:
A. The Trust is duly organized and validly existing under the laws of
the Commonwealth of Massachusetts.
B. The Trust does and will comply in all material respects with the 1940
Act.
C. If the Trust determines that it is necessary, the Trust 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 Trust to be sold to and held by variable
insurance product separate accounts of both affiliated and
unaffiliated life insurance companies.
3.5 The Distributor represents and warrants that:
A. It is and shall remain duly registered under all applicable federal
and state laws and regulations necessary for the performance of its
obligations to the Trust and Hartford and that it will perform its
obligations to the Trust and Hartford in compliance with the laws and
regulations and any applicable state and federal laws and
regulations.
ARTICLE IV. PROSPECTUSES; REPORTS TO SHAREHOLDERS
AND PROXY STATEMENTS; VOTING
4.1 The Trust, at its expense, will print and provide Hartford with as many
copies of each 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 Trust will provide, in lieu of the printed prospectuses,
camera-ready film or computer diskettes containing a Fund's prospectus and
statement of additional information or electronic files of the same for printing
by Hartford at the Trust's expense. If Hartford chooses to receive camera-ready
film, computer diskettes or electronic files in lieu of receiving printed copies
of a Fund's prospectus and statement of additional information, the Trust shall
bear the cost of providing the information in that format. Hartford will
deliver, at the Trust's expense, such prospectuses, and statements of additional
information to existing Contract owners as required under applicable law.
A. Hartford may elect to print a Fund's prospectus and/or its statement
of additional information in combination with the prospectuses and
statements of additional information of other registered investment
companies. In such event, the Trust shall bear its pro rata share of
printing expenses based on the number of combined printed pages.
7
4.2 Hartford, at its expense, will print the Contract prospectus for use with
prospective owners of Contracts.
4.3 The Trust, at its expense, will provide Hartford with printed or electronic
copies of its reports to shareholders, and other communications to shareholders
in such quantity as Hartford shall reasonably require for distributing, at the
Trust's expense, to Contract owners.
4.4 The Trust will provide Hartford with copies of its proxy solicitations.
Hartford, at its own 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 and subject to Article
2.6, Hartford reserves the right to vote Fund shares held in any
Separate Account in its own right.
4.5 The Trust will comply with all provisions and interpretations of the 1940
Act and the rules thereunder requiring voting by shareholders.
4.6 If and during the time as the Trust engages in activities that require a
Mixed and Shared Funding Exemptive Order, the Trust shall disclose in its
prospectus that (1) the Funds are intended to be a funding vehicle for variable
annuity and variable life insurance contracts offered by various insurance
companies, (2) material irreconcilable conflicts possibly may arise, and (3) the
Board will monitor events in order to identify the existence of any material
irreconcilable conflicts and to determine what action, if any, should be taken
in response to any such conflict. The Trust hereby notifies Hartford that
prospectus disclosure may be appropriate regarding potential risks of offering
shares of the Funds to separate accounts funding both variable annuity contracts
and variable life insurance policies and to separate accounts funding Contracts
of unaffiliated life insurance companies.
ARTICLE V. SALES MATERIAL AND INFORMATION
5.1 Hartford shall furnish, or shall cause to be furnished, to the Trust and
the Adviser at least ten (10) Business Days prior it is use, each piece of sales
literature or other promotional material prepared by Hartford in which the Trust
(or any Fund in the Trust), the Adviser or the Distributor is described. No
sales literature or other promotional material will be used if the Trust, the
Adviser, or the Distributor reasonably objects to its use within ten (10)
Business Days after receipt by the Trust or the Adviser.
8
5.2 Hartford and its affiliates and agents will not, without the permission of
the Trust, give any information or make any representations or statements on
behalf of the Trust or Adviser or concerning the Funds, the Trust or the
Adviser, in connection with the advertising or sale of the Contracts, other than
information or representations contained in: (a) the Trust's Registration
Statement or any Fund prospectus, (b) reports to shareholders, (c) proxy
statements for the Funds, or, (d) sales literature or other promotional material
approved by the Trust.
5.3 The Trust or Adviser shall furnish, or shall cause to be furnished, to
Hartford or its designee at least ten (10) Business Days prior to its use, each
piece of sales literature of other promotional material prepared by the Trust or
the Adviser in which Hartford, the Contracts or Separate Accounts, are
described. No sales literature or other promotional material will be used if
Hartford reasonably objects to its use within ten (10) Business Days after
receipt by Hartford.
5.4 Neither the Trust, the Adviser nor the Distributor will, without the
permission of Hartford, give any information or make any representations or
statements on behalf of Hartford, the Contracts, or the Separate Accounts or
concerning Hartford, the Contracts or the Separate Accounts, 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.
5.5 The Trust 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 or other promotional materials, applications for
exemptions and requests for no-action letters, and all amendments, that relate
to the Trust or its shares, promptly after the filing of such document with the
SEC or other regulatory authority.
5.6 With respect to the Contracts listed on Schedule A attached as may be
amended from time to time. Hartford will provide to the Trust upon request all
registration statements, prospectuses, statements of additional information and
amendments and supplements thereto which are filed with the SEC on or after the
date of this Agreement, all reports, solicitations for voting instructions,
sales literature or other promotional materials, applications for exemptions,
and requests for no action letters, and all amendments thereto.
5.7 For purposes of this Agreement, 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, computerized media, Web site or other
public media), sales literature or other promotional material (i.e. any written
communication distributed or made generally available to customers or the
public, including brochures, circulars, information provided on a Web site,
research reports, market letters, form letters, seminar texts, reprints or
9
excerpts of any other advertisement, sales literature or other promotional
material, or published article), educational or training materials or other
communications distributed or made generally available to some or all agents or
employees (but not including materials exclusively used internally by licensed
representatives).
ARTICLE VI. DIVERSIFICATION
6.1 The Trust and the Adviser represent and warrant that, at all times, they
will comply with Section 817(h) 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 a Fund ceases to so
qualify, the Trust and the Adviser 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.
ARTICLE VII. POTENTIAL CONFLICTS
If and during the time that the Trust engages in activities that require a Mixed
and Shared Funding Exemptive Order, the parties shall comply with the conditions
in this Article VII.
7.1 The Board will monitor the Trust for the existence of any material
irreconcilable conflict (1) between the interests of owners of variable annuity
contracts and variable life insurance policies, and (2) between the interests of
owners of Contracts issued by different participating life insurance companies
that invest in the Trust.
A. The Board shall promptly inform Hartford if it determines that a
material irreconcilable conflict exists and the implications thereof.
A material irreconcilable conflict may arise for a variety of
reasons, including: (a) an action by any state insurance regulatory
authority; (b) a change in applicable federal or state insurance,
tax, or securities laws or regulations, or a public ruling, private
letter ruling, no-action or interpretive letter, or any similar
action by insurance, tax, or securities regulatory authorities; (c)
an administrative or judicial decision in any relevant proceeding;
(d) the manner in which the investments of any Fund are being
managed; (e) a difference in voting instructions given by variable
annuity and variable life insurance Contract owners; or (f) disregard
of a Contract owner's voting instructions.
7.2 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. Hartford will be responsible for assisting the
Board in carrying out its responsibilities under any Mixed and Shared Funding
Exemptive Order, or, if the Trust is engaged in mixed funding or shared funding
in reliance on Rule 6e-2, 6e-3(T), or any other regulation under the 1940 Act.
Hartford will be responsible for assisting the Board in carrying out its
responsibilities under such regulation, by providing the Board with
10
access to all information reasonably necessary for the Board to consider any
issues raised. Hartford shall carry out its responsibility under this Article
7.2 with a view only to the interests of the Contract owners.
7.3 If it is determined by a majority of the Trust's Board, or a majority of
its Independent 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 material irreconcilable conflict, including, without
limitation, withdrawal of the affected Separate Account's investment in the
Funds. No charge or penalty will be imposed as a result of such withdrawal.
7.4 Hartford and the Adviser, at least annually, will 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 SEC upon request.
11
ARTICLE VIII. INDEMNIFICATION
8.1 Indemnification by Hartford
A. Hartford agrees to indemnify and hold harmless the Distributor, the
Adviser, the Trust and each of its directors, trustees, officers,
employees and agents and each person, if any, who controls the Trust
within the meaning of Section 15 of the 1933 Act (collectively, the
"Indemnified Parties" and individually, the "Indemnified Party" for
purposes of this Article 8.1) against any and all losses, claims,
damages, liabilities (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 offer, sale
or acquisition of Fund shares or the Contracts or to the operation of
the Separate Accounts and:
1. Arise out of or are based upon any untrue statements or alleged
untrue statements of any material fact contained in a registration
statement, prospectus or other 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"), 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 information
furnished to Hartford by or on behalf of the Trust for use in
Company Documents or otherwise for use in connection with the
offer or 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 Article 8.2(A)(1) not
supplied by Hartford or persons under its control) or wrongful
conduct of Hartford or persons under its control, with respect to
the offer, sale, acquisition or distribution 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 Article 8.2(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 information furnished by or on behalf of Hartford; or
12
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, as limited by and in accordance with the
provisions of Articles 8.1(B) and 8.5 hereof.
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, of 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 Adviser, the Trust or the Distributor, whichever
is applicable.
8.2 Indemnification by the Distributor
A. The Distributor agrees to indemnify and hold harmless the Trust, the
Adviser and Hartford and each of their respective trustees,
directors, officers, employees and agents and each person, if any,
who controls the Trust, the Adviser or Hartford, respectively, within
the meaning of Section 15 of the 1933 Act (collectively, the
"Indemnified Parties" and individually, an "Indemnified Party" for
purposes of this Article 8.2) against any and all losses, claims,
damages, liabilities (including amounts paid in settlement with
written consent from the Distributor, 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 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 a registration
statement, prospectus or sales literature of the Trust (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 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
in conformity with information furnished to the Distributor or
Trust or the designee of either by or on behalf of the Indemnified
Party for use in Fund Documents or otherwise for use in connection
with the offer or 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 Company Documents
not supplied by the Distributor or persons under its control) or
wrongful conduct of the Distributor or persons
13
under its control, with respect to the offer, sale or
distribution 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 Company Documents, 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; or
4. Arise out of or result from any failure by the Distributor 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 in this
Agreement or arise out of or result from any other material breach
of this Agreement by the Distributor as limited by and in
accordance with the provisions of Articles 8.2(B) and 8.5 hereof.
B. The Distributor 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 Hartford or the Separate Account,
whichever is applicable.
8.3 Indemnification by the Trust
A. The Trust agrees to indemnify and hold harmless Hartford and each of
its trustees, 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 Article
8.3) against any and all losses, claims, damages, liabilities
(including amounts paid in settlement with written consent from the
Trust, 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 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 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 indemnity shall not apply as to any
Indemnified Party if such statement or omission or such alleged
statement or omission was made in reliance
14
upon and in conformity with information furnished to the
Distributor or Trust or designee of either by or on behalf of
Hartford for use in Fund 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 Company Documents
not supplied by the Distributor or persons under its control) or
wrongful conduct of the Trust, or persons under its control, with
respect to the sale or distribution of the Contracts or Fund
shares; or
3. Arise out of or result from any untrue statement or alleged untrue
statement of a material fact contained in Company Documents, or
the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statement
or statements therein not misleading, if such statement or
omission was made in reliance upon information furnished by or on
behalf of the Trust; or
4. Arise out of or result from any failure by the Trust 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 Trust in this Agreement
or arise out of or result from any other material breach of this
Agreement by the Trust, as limited by and in accordance with the
provisions of Articles 8.3(B) and 8.5 hereof.
B. The Trust 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 Hartford or the Separate Accounts, whichever is
applicable.
8.4 Indemnification by the Adviser
A. The Adviser agrees to indemnify and hold harmless Hartford, the Trust
or the Distributor and each of their trustees, directors, officers,
employees and agents and each person, if any, who controls Hartford,
the Trust and the Distributor, respectively, within the meaning of
Section 15 of the 1933 Act (collectively, the "Indemnified Parties"
and individually, an "Indemnified Party" for purposes of this Article
8.4) against any and all losses, claims, damages, liabilities
(including amounts paid in settlement with written consent from the
Adviser, 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 as
15
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 or any material fact provided by the Adviser and
contained in a Fund Document or arise out of or are based upon the
omission or the alleged omission to state therein a material fact
about the Adviser 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 in conformity with information furnished
to the Adviser or Trust or the designee of either by or on behalf
of Hartford for use in Fund 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 Company Documents
not supplied by the Adviser or persons under its control) or
wrongful conduct of the Adviser or persons under its control, with
respect to the sale or distribution 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 Company Documents, or
the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statement
or statements therein not misleading, if such statement or
omission was made in reliance upon information furnished by or on
behalf of the Adviser; or
4. Arise out of or result from any failure by the Adviser 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 Adviser in this
Agreement or arise out of or result from any other material breach
of this Agreement by the Adviser, as limited by and in accordance
with the provisions of Articles 8.4(B) and 8.5 hereof.
B. The Adviser 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 Hartford or the Separate Accounts, whichever is
applicable.
8.5 Notice of Indemnification; Retention of Counsel
A. Any party seeking indemnification (each a "Potential Indemnitee")
shall promptly notify any party from whom it intends to seek
indemnification (each a "Potential
16
Indemnitor") of all demands made and/or actions commenced against the
Potential Indemnitee which may require a Potential Indemnitor to
provide such indemnification. A Potential Indemnitor shall not be
liable under this indemnification provision with respect to any claim
made against a Potential Indemnitee unless such Potential Indemnitee
shall have notified the Potential Indemnitor 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 Potential Indemnitee (or after such Potential Indemnitee shall
have received notice of such service on any designated agent), but
failure to notify the Potential Indemnitor of any such claim shall not
relieve the Potential Indemnitor from any liability which it may have
to the Potential Indemnitee against whom such action is brought
otherwise than on account of this indemnification provision.
B. In case any such action is brought against a Potential Indemnitee,
the Potential Indemnitor shall be entitled to participate, at its own
expense, in the defense of such action. The Potential Indemnitor also
shall be entitled to assume the defense thereof, with counsel
satisfactory to the party named in the action. After notice from the
Potential Indemnitor to such party of the Potential Indemnitor's
election to assume the defense thereof, the Potential Indemnitee
shall bear the fees and expenses of any additional counsel retained
by it, and the Potential Indemnitor 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.
8.6 With respect to any claim for indemnification made under this Agreement,
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.
8.7 If a party is defending a claim and indemnifying one or more parties to
this Agreement, 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 or parties to
this Agreement being indemnified of such settlement proposal together with its
counsel's recommendation. If the defending party desires to enter into the
settlement and any of the other parties fails to consent within five (5)
Business Days (unless such period is extended, in writing, by mutual agreement
of the parties hereto), then each such other party withholding consent, from the
time it fails to consent forward, shall defend the claim and shall further
indemnify the defending party and other remaining parties subject to this
Agreement, if any, 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
17
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
Article 8.7 shall NOT apply.
8.8 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 IX. APPLICABLE LAW
9.1 This Agreement shall be construed and the provisions hereof interpreted
under and in accordance with the laws of the State of
Connecticut.
9.2 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 SEC may grant.
ARTICLE X. TERMINATION
10.1 This Agreement may be terminated without penalty:
A. By any party for any reason upon six months' advance written notice
delivered to all of the other parties, it being understood that no
party may give notice under this provision until one (1) year from
the effective date of this Agreement; or
B. By Hartford by written notice to the Trust, the Adviser and the
Distributor with respect to any Fund in the event any of the Fund's
shares are not registered. Issued or sold in accordance with
applicable state and/or federal law, or such law precludes the use of
such shares as the underlying investment vehicle of the Contracts
issued or to be issued by Hartford; or
C. By Hartford upon written notice to the Trust with respect to any Fund
in the event that such Fund ceases to quality as a Regulated
Investment Company under Subchapter M of the Code or under any
successor or similar provision; or
18
D. By Hartford upon written notice to the Trust and the Distributor with
respect to any Fund in the event that such Fund fails to meet the
diversification requirements specified in this Agreement; or
E. By Hartford upon institution of formal proceedings against the Trust,
the Adviser or the Distributor by the NASD, the SEC, or any state
securities or insurance department or any other regulatory body; or
F. By the Distributor, the Adviser or the Trust upon written notice to
Hartford with respect to any Separate Account in the event that such
Separate Account ceases to be qualified as a segregated asset account
under the
Connecticut Insurance Code; or
G. By the Distributor, the Adviser or the Trust upon written notice with
respect to any Separate Account in the event that effective registration
as a unit investment trust under the 1940 Act for such Separate Account
is not maintained; or
H. By the Distributor, the Adviser or the Trust in the event that the
Contracts cease to be treated as annuity contracts under the applicable
provisions of the Code; or
I. By the Distributor, the Adviser or the Trust in the event that
effective registration or exemption from registration under the 1933
Act of the Contracts is not maintained; or
J. By the Distributor or the Trust upon institution of formal proceedings
against Hartford or its agent by the NASD, the SEC, or any state
securities or insurance department or any other regulatory body
regarding Hartford's duties under this Agreement or related to the sale
of the Contracts issued by Hartford, the operation of the Separate
Accounts, or the purchase of shares of the Funds; or
K. By any party to the Agreement upon a determination by a majority of the
Board, or a majority of its Independent Trustees, that a material
irreconcilable conflict, as described in Article VII hereof, exists; or
L. By any party to the Agreement upon requisite vote of the Contract owners
having an interest in the Separate Accounts (or any subaccounts thereof)
to substitute the shares of another investment company for the
corresponding shares of a Fund in accordance with the terms of the
Contracts for which those shares had been selected or serve as the
underlying investment media; or
M. By either the Adviser or the Distributor in the event of a termination
of either of their contracts with the Trust, but each shall use their
best efforts to substitute themselves under this Agreement with any
successor investment adviser or distributor to the Trust.
10.2 Each party to this Agreement shall promptly notify the other parties to
the Agreement of the institution against such party of any such formal
proceedings as
19
described in Articles 10.1(E) and (J) hereof. Hartford shall give 60 days prior
written notice to the Trust of the date of any proposed vote of Contract owners
to replace the Fund's shares as described in Article 10.1(M) hereof.
10.3 Effect of Termination
A. Notwithstanding any termination of this Agreement, the Trust and the
Distributor shall at the option of Hartford, continue to make
available additional shares of the Funds, for the limited purposes
set forth in this Section 10.3(A), 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
reinvest dividends in the Funds, direct allocation and reallocation
of investments in the Funds, redeem investments in the Funds and
invest in the Funds 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, 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 pursuant to Section 26(h) of the 1940 Act. Upon request,
Hartford will promptly furnish to the Trust 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 VIII Indemnification, Article
IX and Article 12.1 shall survive any termination of this Agreement.
10.4 Notwithstanding the termination of this Agreement, Huntington will
continue to pay service fees in accordance with Article 1.9 so long as net
assets of Hartford or a Separate Account remain in a Fund and Hartford continues
to provide services, provided such continued payment is in accordance with
applicable law and regulation.
ARTICLE XI. NOTICES
11.1 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 TRUST: With a copy to:
The Huntington-VA Funds Xxxxxx Xxxxxxxxxx, Esq.
c/o The Huntington National Bank Ropes & Xxxx
00 Xxxxx Xxxx Xxxxxx Xxxxx 000 Xxxx
Xxxxxxxx, Xxxx 00000 0000 X Xxxxxx, XX
Xxxx: Xxxxxxxxx Xxxxxxxxxx, XX 00000-0000
20
IF TO THE DISTRIBUTOR:
Edgewood Services, Inc.
0000 Xxxxxxxxx Xxxxx
Xxxxxxxxxx, XX 00000-0000
Attn: Secretary
IF TO THE ADVISER: With a copy to:
Huntington Asset Advisors, Inc. Xxxxxx Xxxxxxxxxx, Esq.
00 Xxxxx Xxxx Xxxxxx Xxxxx & Xxxx
Xxxxxxxx, Xxxx 00000 Suite 800 East
Attn: Chief Investment Officer 0000 X Xxxxxx, XX
Xxxxxxxxxx, XX 00000-0000
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: Xxxxxxxxx Xxxxxx, General Counsel
ARTICLE XII. MISCELLANEOUS
12.1 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 or as
required by any governmental agency, regulator or other authority, shall not
without the express written consent of the affected party disclose, disseminate
or utilize such names and addresses and other confidential information until
such time as it may come into the public domain. Each party further agrees to
use and disclose Personal Information, as defined herein, only to carry out the
purposes for which it was disclosed to them and will not use or disclose
Personal Information if prohibited by applicable law, including, without
limitation, statutes and regulations enacted pursuant to the Xxxxx-Xxxxx-Xxxxxx
Act (Public Law 106-102). For purposes of this Agreement, "Personal Information"
means financial and medical information that identifies an individual personally
and is not available to the public, including, but not limited to, credit
history, income, financial benefits, policy or claim information and medical
records. If either party outsource services to a third-party, such third party
will agree in writing to maintain the security and confidentiality of any
information shared with them.
12.2 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.
21
12.3 This Agreement may be executed simultaneously in two or more counterparts,
each of which taken together shall constitute one and the same instrument.
12.4 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.
12.5 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.
12.6 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.
12.7 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 its name and on its behalf by its duly authorized representative as of the
date specified above.
HARTFORD LIFE INSURANCE COMPANY, EDGEWOOD SERVICES, INC.
on its behalf and on behalf of each
Separate Account named in Schedule A,
as may be amended from time to time
By: [ILLEGIBLE] By: /s/ Xxxxxxx X. Xxxxx, Xx.
----------------------------- -----------------------------
Name: Name: Xxxxxxx X. Xxxxx, Xx.
Its: Its: Vice President
HUNTINGTON VA FUNDS, on its behalf and HUNTINGTON ASSET ADVISORS, INC.
on behalf of each Fund named in this
Schedule B, as may be amended from
time to time
By: /s/ Xxxxxx X. Xxxxxxx By: [ILLEGIBLE]
----------------------------- -----------------------------
Name: Xxxxxx X. Xxxxxxx Name: [ILLEGIBLE]
Its: Vice President Its: President
22
SCHEDULE A,
DATED AS OF NOVEMBER 1, 2003
SEPARATE ACCOUNTS AND CONTRACTS
NAME OF SEPARATE ACCOUNT CONTRACT FUNDED BY SEPARATE ACCOUNT
------------------------------------------------------------------------------------
HLIC Separate Account - The Huntington Director Variable Annuity (all series)
Two
- Huntington Director Outlook Variable Annuity (all
series)
HLIC Separate Account - Xxxxxxxxxx Xxxxxxxx Leaders Outlook Variable Annuity
Seven (all series)
IN WITNESS WHEREOF, each of the parties has caused this Schedule A to be
executed in its name and on its behalf by its duly authorized representative as
of the date specified above.
HARTFORD LIFE INSURANCE COMPANY, EDGEWOOD SERVICES, INC.
on its behalf and on behalf of each
Separate Account named in Schedule A,
as may be amended from time to time
By: [ILLEGIBLE] By: /s/ Xxxxxxx X. Xxxxx, Xx.
----------------------------- -----------------------------
Name: Name: Xxxxxxx X. Xxxxx, Xx.
Its: Its: Vice President
HUNTINGTON VA FUNDS, on its behalf and HUNTINGTON ASSET ADVISORS, INC.
on behalf of each Fund named in this
Schedule B, as may be amended from
time to time
By: /s/ Xxxxxx X. Xxxxxxx By: [ILLEGIBLE]
----------------------------- -----------------------------
Name: Xxxxxx X. Xxxxxxx Name: [ILLEGIBLE]
Its: Vice President Its: President
23
SCHEDULE B,
DATED AS OF NOVEMBER 1, 2003
PARTICIPATING FUNDS CUSIP NUMBER
------------------------------------------------------------------------
Huntington VA Income Equity Fund 446771107
Huntington VA Growth Fund 446771206
Huntington VA Dividend Capture Fund 446771305
Huntington VA Mid Corp America 446771503
Huntington VA New Economy Fund 446771602
Huntington VA Rotating Index Fund 446771701
IN WITNESS WHEREOF, each of the parties has caused this Schedule B to be
executed in its name and on its behalf by its duly authorized representative as
of the date specified above.
HARTFORD LIFE INSURANCE COMPANY, EDGEWOOD SERVICES, INC.
on its behalf and on behalf of each
Separate Account named in Schedule A,
as may be amended from time to time
By: [ILLEGIBLE] By: /s/ Xxxxxxx X. Xxxxx, Xx.
----------------------------- -----------------------------
Name: Name: Xxxxxxx X. Xxxxx, Xx.
Its: Its: Vice President
HUNTINGTON VA FUNDS, on its behalf and HUNTINGTON ASSET ADVISORS, INC.
on behalf of each Fund named in this
Schedule B, as may be amended from
time to time
By: /s/ Xxxxxx X. Xxxxxxx By: [ILLEGIBLE]
----------------------------- -----------------------------
Name: Xxxxxx X. Xxxxxxx Name: [ILLEGIBLE]
Its: Vice President Its: President
24
SCHEDULE C
Subject to the terms and conditions of this Agreement, Hartford shall be
appointed to, and agrees to act, as a limited agent of Trust for the sole
purpose of receiving instructions from authorized parties as defined by the
Contracts for the purchase and redemption of Fund shares prior to the close of
regular trading each Business Day. A "Business Day" is defined in Article 1.1(B)
of the Agreement. Except as particularly stated in this paragraph, Hartford
shall have no authority to act on behalf of Trust or to incur any cost or
liability on its behalf.
Until such time as Trust and Hartford are able to utilize the National
Securities Clearing Corporation ("NSCC") Defined Contribution Clearing and
Settlement ("DCC&S") Fund/SERV system: Trust will use its best efforts to
provide to Hartford or its designated agent closing net asset value, change in
net asset value, dividend or daily accrual rate information and capital gain
information by 6:30 p.m. Eastern Time each Business Day. Hartford or its agent
shall use this data to calculate unit values. Unit values shall be used to
process the same Business Day's contract transactions. Orders derived from, and
in amounts equal to, instructions received by Hartford prior to the Close of
Trading on the New York Stock Exchange on any Business Day ("Day 1") shall be
transmitted without modification (except for netting or aggregating such orders)
to Trust by 8:30 a.m. Eastern Time on the next Business Day. Such trades will be
effected at the net asset value of each Fund's shares calculated as of the Close
of Trading on Day 1. Trust will not accept any order made on a conditional basis
or subject to any delay or contingency.
Until such time as Trust and Hartford are able to utilize the DCC&S Fund/SERV
system, each party shall, as soon as practicable after transmittal of an
instruction or confirmation, verify the other party's receipt of such
instruction or confirmation, and in the absence of such verification such a
party to whom an instruction or confirmation is sent shall not be liable for any
failure to act in accordance with such instruction or confirmation, and the
sending party may not claim that such an instruction or confirmation was
received by the other. Each party shall notify the other of any errors,
omissions or interruptions in, or delay or unavailability as promptly as
possible.
a) For those purchase orders not transmitted via the DCC&S Fund/SERV
system, Hartford shall complete payment to Trust or its designated
agent in federal funds no later than 3:00 P.M. on the Business Day
following the day on which the instructions are treated as having
been received by Trust pursuant to this Agreement.
b) For those redemption orders not transmitted via the DCC&S Fund/SERV
system. Trust or its designated agent shall initiate payment in
federal funds no later than 3:00 P.M. on the Business Day following
the day on which the instructions are treated as having been received
by Trust pursuant to this Agreement.
25
At such time as Trust and Hartford are able to transmit information via the
NSCC's DCC&S Fund/SERV System:
a) Orders derived from, and in amounts equal to, instructions received
by Hartford prior to the Close of Trading on Day 1 shall be
transmitted without modification (except for netting and aggregation
of such orders) via the NSCC's DCC&S Fund/SERV system to Trust no
later than 5:00 a.m. Eastern Time on the Next Business Day. Such
trades will be effected at the net asset value of each Fund's shares
calculated as of the Close of Trading on Day 1.
b) Trust and Hartford shall mutually agree there may be instances when
orders shall be transmitted to Trust via facsimile no later than 8:30
a.m. rather than through the DCC&S Fund/SERV system. In such
instances, such orders shall be transmitted to Trust via facsimile no
later than 8:30 a.m. Eastern Time on the next Business Day.
c) With respect to purchase and redemption orders received by Trust on
any Business Day for any Fund, within the time limits set forth in
this Agreement, settlement shall occur consistent with the
requirements of DCC&S Fund/SERV system.
At such time as Trust and Hartford are able to transmit information via the
DCC&S Fund/SERV system: Trust or its designated agent shall send to Hartford,
via the DCC&S Fund/SERV system, verification of net purchase or redemption
orders or notification of the rejection of such orders ("Confirmations") on each
Business Day for which Hartford has transmitted such orders. Such confirmations
shall include the total number of shares of each Fund held by Hartford following
such net purchase or redemption. Trust, or its designated agent, shall submit in
a timely manner, such confirmations to the DCC&S Fund/SERV system in order for
Hartford to receive such confirmations no later than 11:00 a.m. Eastern Time the
next Business Day. Trust or its designated agent will transmit to Hartford via
DCC&S NETWORKING system those Networking activity files reflecting account
activity. In addition, within five (5) Business Days after the end of each
month. Trust or its affiliate will send Hartford a statement of account which
shall confirm all transactions made during that particular month in the account.
26
FIRST AMENDMENT TO THE
FUND PARTICIPATION AGREEMENT
Between
HUNTINGTON VA FUNDS, HUNTINGTON ASSET ADVISORS, INC., EDGEWOOD
SERVICES, INC.
And
HARTFORD LIFE INSURANCE COMPANY
THIS AMENDMENT IS MADE AND ENTERED INTO AS OF THE 9TH DAY OF AUGUST, 2004
BETWEEN HARTFORD LIFE INSURANCE COMPANY ("HARTFORD"), HUNTINGTON VA FUNDS (THE
"TRUST"), EDGEWOOD SERVICES, INC. (THE "DISTRIBUTOR"), AND HUNTINGTON ASSET
ADVISORS, INC. (THE "ADVISER").
WHEREAS, Hartford, Trust, Distributor, and Adviser have been doing business
pursuant to a November 2003
Fund Participation Agreement (the "Agreement); and
WHEREAS, the parties desire to amend the Agreement to allow for the addition of
a certain Funds;
NOW, THEREFORE, the parties agree that Schedule B shall be amended and restated
and replaced by the attached Schedule B.
IN WITNESS HEREOF, the parties hereto have executed and delivered this Amendment
effective as of the date first written above.
SCHEDULE B,
AMENDED AND RESTATED AS OF AUGUST 9, 2004
PARTICIPATING FUNDS CUSIP NUMBER
--------------------------------------------------------------------------------
Huntington VA Income Equity Fund 446771107
Huntington VA Growth Fund 446771206
Huntington VA Dividend Capture Fund 446771305
Huntington VA Mid Corp America Fund 446771503
Huntington VA New Economy Fund 446771602
Huntington VA Rotating Markets Fund 446771701
Huntington VA Macro 100 Fund 446771875
Huntington VA Situs Small Cap Fund 446771883
IN WITNESS WHEREOF, each of the parties has caused this Schedule B to be
executed in its name and on its behalf by its duly authorized representative as
of the date specified above.
HARTFORD LIFE INSURANCE COMPANY, EDGEWOOD SERVICES, INC.
on its behalf and on behalf of each
Separate Account named in Schedule A, as
may be amended from time to time
By: /s/ Xxxxx Xxxxxxxxx By: /s/ Xxxxxxx X. Xxxxx, Xx.
----------------------------------- -----------------------------------
Name: Xxxxx Xxxxxxxxx Name: Xxxxxxx X. Xxxxx, Xx.
Its: Vice President Its: President
HUNTINGTON VA FUNDS, on its behalf and HUNTINGTON ASSET ADVISORS, INC.
on behalf of each Fund named in this
Schedule B, as may be amended from time
to time
By: /s/ Xxxxxx X. Xxxxxxx By: /s/ B. Xxxxxxxx Xxxxxxx
----------------------------------- -----------------------------------
Name: Xxxxxx X. Xxxxxxx Name: B. Xxxxxxxx Xxxxxxx
Its: Vice President Its: President
AMENDMENT TO
FUND PARTICIPATION AGREEMENT
AMENDMENT, dated as of this 4th day of November, 2004 to the
Fund Participation
Agreement (the "Participation Agreement") among Hartford Life Insurance Company,
a Connecticut Corporation ("Hartford"), on its behalf and on behalf of each
separate account set forth on Schedule A to the Participation Agreement as it
may be amended from time to time (the "Separate Accounts"); Huntington VA Funds,
a Massachusetts business trust (the "Trust"), on its behalf and on behalf of
each of its series set forth on Schedule B to the Participation Agreement as it
may be amended from time to time (the "Funds"); Edgewood Services, Inc., a New
York corporation (the "Distributor") and Huntington Asset Advisors, Inc., a
registered investment adviser (the "Adviser").
* * * * *
WHEREAS, Hartford, the Trust, the Distributor and the Adviser have entered into
the Participation Agreement relating to the purchase by the Separate Accounts of
shares of the Funds to serve as an investment medium for variable annuities
and/or variable life insurance policies funded by the Separate Accounts;
WHEREAS, the parties wish to amend the Participation Agreement to address a
matter of mutual concern;
NOW, THEREFORE, based on the mutual covenants contained herein, and for other
good and valuable consideration, the sufficiency and receipt whereof is hereby
acknowledged, the parties hereto agree as follows:
1. ARTICLE 1.4 of the Participation Agreement is hereby deleted and is replaced
by a new Article 1.4, which reads in its entirety as follows:
"Upon receipt of a request for redemption in proper form from Hartford on
any Business Day, the Trust agrees to redeem any full or fractional shares
of the Funds held by the Separate Accounts at the net asset value next
computed after receipt and acceptance by the Trust or its designee of the
request for redemption, except that the Trust agrees to suspend redemptions
temporarily to the extent permitted under the 1940 Act. Such redemption
shall be paid consistent with applicable rules of the SEC and procedures
and policies of the Trust as described in the Trust's current registration
statement."
IN WITNESS WHEREOF, each of the parties has caused this to be executed in its
name and on its behalf by its duly authorized representative as of the date
specified above.
HARTFORD LIFE INSURANCE COMPANY, EDGEWOOD SERVICES, INC.
on its behalf and on behalf of each
Separate Account named in Schedule A, as
may be amended from time to time
By: /s/ Xxxxx X. Xxxxxx By: /s/ Xxxxxxx X. Xxxxx, Xx. [ILLEGIBLE]
--------------------------------- -------------------------
Name: Xxxxx X. Xxxxxx Name: Xxxxxxx X. Xxxxx, Xx.
Its: Senior Vice President Its: President
HUNTINGTON VA FUNDS, on its behalf and HUNTINGTON ASSET ADVISORS, INC.
on behalf of each Fund named in Schedule
B, as may be amended from time to time
By: /s/ Xxxxxx X. Xxxxxxx By: /s/ [ILLEGIBLE]
--------------------------------- -------------------------
Name: Xxxxxx X. Xxxxxxx Name: [ILLEGIBLE]
Its: Vice President Its: [ILLEGIBLE]
2
THIRD AMENDMENT TO THE
FUND PARTICIPATION AGREEMENT
BETWEEN
HUNTINGTON VA FUNDS, HUNTINGTON ASSET ADVISORS, INC., EDGEWOOD
SERVICES, INC.
AND
HARTFORD LIFE INSURANCE COMPANY
THIS AMENDMENT IS MADE AND ENTERED INTO AS OF THE 13TH DAY OF JUNE, 2005 BETWEEN
HARTFORD LIFE INSURANCE COMPANY ("HARTFORD"), HUNTINGTON VA FUNDS (THE "TRUST"),
EDGEWOOD SERVICES, INC. (THE "DISTRIBUTOR"), AND HUNTINGTON ASSET ADVISORS, INC.
(THE "ADVISER").
WHEREAS, Hartford, Trust, Distributor, and Adviser have been doing business
pursuant to a November 2003
Fund Participation Agreement (the "Agreement); and
WHEREAS, the parties desire to amend the Agreement to allow for the addition of
certain Funds;
NOW, THEREFORE, the parties agree that Schedule B shall be amended and restated
and replaced by the attached Schedule B.
SCHEDULE B,
AMENDED AND RESTATED AS OF JUNE 13, 2005
PARTICIPATING FUNDS CUSIP NUMBER
------------------------------------------------------------------------
Huntington VA Income Equity Fund 446771107
Huntington VA Growth Fund 446771206
Huntington VA Dividend Capture Fund 446771305
Huntington VA Mid Corp America Fund 446771503
Huntington VA New Economy Fund 446771602
Huntington VA Rotating Markets Fund 446771701
Huntington VA Macro 100 Fund 446771875
Huntington VA Situs Small Cap Fund 446771883
Huntington VA Mortgage Securities Fund 446771867
Huntington VA International Equity Fund 446771800
IN WITNESS WHEREOF, each of the parties has caused this Schedule B to be
executed in its name and on its behalf by its duly authorized representative as
of the date specified above.
HARTFORD LIFE INSURANCE COMPANY, EDGEWOOD SERVICES, INC.
on its behalf and on behalf of each Separate
Account named in Schedule A, as may be
amended from time to time
By: /s/ Xxxxxx Xxxxx By: /s/ Xxxxxxx X. Xxxxx, Xx.
---------------------------------------- -----------------------------------
Name: Xxxxxx Xxxxx Name: Xxxxxxx X. Xxxxx, Xx.
Its: Vice President Its: President
HUNTINGTON VA FUNDS, on its behalf and on HUNTINGTON ASSET ADVISORS, INC.
behalf of each Fund named in this Schedule B,
as may be amended from time to time
By: /s/ Xxxxxx X. Xxxxxxx By: /s/ B. Xxxxxxxx Xxxxxxx
---------------------------------------- -----------------------------------
Name: Xxxxxx X. Xxxxxxx Name: B. Xxxxxxxx Xxxxxxx
Its: Vice President Its: President
FUND PARTICIPATION AGREEMENT
AMONG
THE HUNTINGTON FUNDS,
HUNTINGTON ASSET ADVISORS, INC.,
EDGEWOOD SERVICES, INC.
AND
HARTFORD LIFE INSURANCE COMPANY
FUND PARTICIPATION AGREEMENT
THIS AGREEMENT, made as of the 23rd day of June, 2006 by and among Hartford Life
Insurance Company, a Connecticut corporation ("Hartford"), 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"); The Huntington Funds, a
Delaware statutory trust (the "Trust"), on its behalf and on behalf of each of
its series set forth on Schedule B attached as it may be amended from time to
time (the "Funds"); Edgewood Services, Inc., a New York corporation (the
"Distributor") and Huntington Asset Advisors, Inc., a registered investment
adviser (the "Adviser").
WHEREAS, the Trust engages in business as an open-end management investment
company and its Funds are 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 Trust; and
WHEREAS, the Adviser is registered as an investment adviser under the Investment
Advisers Act of 1940, as amended, and serves as the investment adviser to the
Trust; and
WHEREAS, Hartford is an insurance company which has registered or will register
the variable annuities and/or variable life insurance policies listed on
Schedule A attached as may be amended from time to time under the Securities Act
of 1933 (the "1933 Act") and the Investment Company Act of 1940 (the "1940 Act")
to be issued by it for distribution (the "Contracts"); and
WHEREAS, the Trust intends to make available shares of the Funds to the Separate
Accounts of Hartford; and
WHEREAS, to the extent permitted by applicable insurance laws and regulations,
the Separate Accounts wish to purchase shares of the Funds to serve as an
investment medium for the Contracts funded by the Separate Accounts, and the
Distributor is authorized to sell shares of the Funds; and
WHEREAS, the Fund shares may be made available to separate accounts of one or
more insurance companies that fund variable annuity contracts or variable life
insurance policies, subject to receipt of any required relief pursuant to an
exemptive order from the Securities and Exchange Commission ("SEC"), granting
exemptions from the provisions of various sections of the 1940 Act and Rules
thereunder, to the extent necessary to permit shares of the Funds to be sold to
and held by variable annuity and variable life insurance separate accounts of
life insurance companies that may or may not be affiliated with one another
(hereinafter the "Mixed and Shared Funding Exemptive Order");
NOW, THEREFORE, in consideration of their mutual promises, Hartford, the Trust,
the Distributor and the Adviser agree as follows:
1
ARTICLE I. FUND SHARES
1.5 The Trust and the Distributor agree to make shares of the Funds available
for purchase on each Business Day (as defined below) by the Separate Accounts.
Each Fund will execute orders placed for each Separate Account on a daily basis
at the net asset value next computed after receipt and acceptance by the Trust
or its designee of such order.
A. For purposes of this Agreement, Hartford shall be the designee of the
Trust for receipt of orders from each Separate Account and receipt by
Hartford constitutes receipt by the Trust, provided that the
Distributor receives notice of orders by 8:30 a.m. (Eastern time) on
the next following Business Day.
B. For purposes of this Agreement, "Business Day" shall mean each day on
which the New York Stock Exchange is open for trading and on which
each Fund calculates its net asset value pursuant to the rules of the
Securities and Exchange Commission ("SEC") as set forth in the
Trust's registration statement on Form N-1A (the "Registration
Statement").
1.1 The Trust agrees to make available on each Business Day shares of the Funds
for purchase at the applicable net asset value per share by the Separate
Accounts; provided, however, that the Board of Trustees of the Trust (the
"Board"), acting in good faith and in the exercise of its fiduciary
responsibilities, may refuse to permit the Trust 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 or if the Board determines that such action is necessary in
the best interests of the shareholders of any Fund.
1.2 The Trust and Distributor agree that shares of the Funds will be sold only
to insurance companies, for use in conjunction with variable life insurance
policies or variable annuities to separate accounts of insurance companies, and
to other persons consistent with the diversification rules under Section 817(h)
of the Internal Revenue Code of 1986, as amended (the "Code"), and the
regulations thereunder. No shares of the Funds will be sold to the general
public unless otherwise permitted by the Mixed and Shared Funding Exemptive
Order and any applicable provisions of the Code.
1.3 Upon receipt of a request for redemption in proper form from Hartford on
any Business Day, the Trust agrees to redeem any full or fractional shares of
the Funds held by the Separate Accounts at the net asset value next computed
after receipt and acceptance by the Trust or its designee of the request for
redemption, except that the Trust reserves the right to suspend redemptions
temporarily to the extent permitted under the 1940 Act. Such redemption shall be
paid consistent with applicable rules of the SEC and procedures and policies of
the Trust as described in the Trust's current registration statement.
A. For purposes of this Agreement, Hartford shall be the designee of the
Trust for receipt of redemption requests from each Separate Account
and receipt by Hartford constitutes receipt by the Trust, provided
that the Distributor receives notice of the redemption request by
8:00 a.m. (Eastern time) on the next following Business Day. Hartford
agrees to submit such orders electronically through secured trading
systems as described on Schedule C to this Agreement or, if it is
unable to submit orders electronically, Hartford shall submit such
orders through manual transmissions using the procedures described in
Schedule C to this Agreement.
2
1.4 Hartford agrees that purchases and redemptions of Fund shares shall be made
in accordance with the provisions of the then current prospectuses of the Funds.
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 purchased or redeemed.
B. Unless otherwise specified in Schedule C, Hartford shall pay for
shares of the Funds on the next Business Day after Hartford's receipt
of an order to purchase shares of a Fund, and payment shall be in
federal funds transmitted by wire.
C. In the event of net redemptions, a Fund shall pay the redemption
proceeds in federal funds transmitted by wire on the next Business
Day after Hartford's receipt of an order to redeem shares.
1.5 Issuance and transfer of a 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 Trust shall furnish to
Hartford the CUSIP number assigned to each Fund identified in Schedule B
attached as may be amended from time to time.
1.6 The Trust or its designee shall notify Hartford in advance of any dividends
or capital gain distributions payable on a 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 the paying Fund. The Trust or its
agent 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.
1.7 Unless otherwise specified in Schedule C, the Trust or its agent shall
advise Hartford on each Business Day of the net asset value per share for each
Fund as soon as reasonably practical after the net asset value per share is
calculated and shall use its best efforts to make such net asset value per share
available by 6:30 p.m. Eastern time.
A. If the Trust or its agent 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 Trust 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 Trust'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 Trust or its agents for such losses incurred as a result of the
above which shall be payable within sixty (60) days of receipt.
Should a material miscalculation by the Trust or its agents result in
a gain to Hartford, Hartford shall immediately reimburse the Trust or
its agents for any amount lost by the Trust or its agents as a result
of the incorrect calculation. Should a material miscalculation by the
Trust
3
or its agents result in a gain to the Plans or Contract owners,
Hartford will consult with the Trust or its designee as to what
reasonable efforts shall be made to recover the money and repay the
Trust or its agents. Hartford shall then make such reasonable effort,
at the expense of the Trust or its agents, to recover the money and
repay the Trust or its agents; but Hartford shall not be obligated to
take legal action against the Plans or Contract owners.
With respect to the material errors or omissions relating to net asset
value pricing, this section shall control over other indemnification
provisions in this Agreement.
ARTICLE II. GENERAL DUTIES
2.1 Hartford shall take all such actions as are necessary under applicable
federal and state law to permit the sale of the Contracts issued by Hartford,
including registering each Separate Account as an investment company to the
extent required under the 1940 Act, and registering the Contracts or interests
in the Separate Accounts under the Contracts to the extent required under the
1933 Act, and obtaining all necessary approvals to offer the Contracts from
state insurance commissioners.
2.2 Hartford shall make every effort to maintain the treatment of the Contracts
issued by Hartford as annuity contracts or life insurance policies, whichever is
appropriate, under the applicable provisions of the Code, and shall notify the
Trust and the Distributor immediately upon having a reasonable basis for
believing that such Contracts have ceased to be so treated or that they might
not be so treated in the future. In that regard, Hartford shall make every
effort to remedy any Contract's failure to be treated as annuity contracts or
life insurance policies, as appropriate, under applicable provisions of the
Code, including Section 72 and regulations thereunder within the required time
frames.
2.3 Hartford or its agents shall offer and sell the Contracts in accordance
with applicable provisions of the 1933 Act, the 1934 Act, the 1940 Act, the NASD
Rules of Fair Practice, and state insurance law respecting the offering of
variable life insurance policies and variable annuity contracts.
2.4 The Distributor shall sell and distribute the shares of the Funds in
accordance with the applicable provisions of the 1933 Act, the 1934 Act, the
1940 Act, the NASD Rules of Fair Practice, and state law.
2.5 During such time as the Trust engages in activities that require a Mixed
and Shared Funding Exemptive Order, a majority of the Trust's Board shall
consist of persons who are not "interested persons" of the Trust ("Independent
Trustees"), as defined by Section 2(a)(19) of the 1940 Act and the rules
thereunder, and as modified by any applicable orders of the SEC, except that if
this provision of this Article 2.5 is not met by reason of the death,
disqualification, or bona fide resignation of any Trustee or Trustees, then the
operation of this provision shall be suspended (a) for a period of 45 days if
the vacancy or vacancies may be filled by the Trust's Board; (b) for a period of
60 days if a vote of shareholders is required to fill the vacancy or vacancies;
or (c) for such longer period as the SEC may prescribe by rule or order upon
application.
2.6 As long as pass through voting is required by the SEC, and provided it is
consistent with their fiduciary duties, Hartford and its agents will not in any
way recommend any proposal in opposition to, or oppose or interfere with, any
proposal submitted by the Trust at a meeting of owners of Contracts or
shareholders of the Funds, and will in no way recommend any proposal
4
in opposition to, or oppose or interfere with, the solicitation of proxies by
the Trust of shares held by Contract owners, without the prior written consent
of the Trust.
2.7 Each party hereto shall cooperate with each other party and all appropriate
governmental authorities having jurisdiction (including, without limitation, the
SEC, the NASD, and state insurance regulators) and shall permit such authorities
reasonable access to its books and records in connection with any investigation
or inquiry relating to this Agreement or the transactions contemplated hereby.
ARTICLE III. REPRESENTATIONS AND WARRANTIES
3.1 Hartford represents and warrants that:
A. The Contracts or the interests in the Separate Accounts under such,
Contracts are or prior to issuance will be registered as securities
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 a life insurance company duly organized and in good
standing under Connecticut law and that it is taxed as an insurance
company under applicable provisions of the Code.
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 1940 Act, and each of the Separate Accounts is
a validly existing separate account under the applicable federal and
state law.
E. The Contracts are treated as annuity contracts under applicable
provisions of the Code. Hartford will make every effort to maintain
such treatment and will notify the Trust and the Adviser immediately
in writing upon having a reasonable basis for believing that the
Contracts have ceased to be treated as such or might not be treated
as such in the future.
3.2 The Trust 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 offered in compliance with all applicable
federal and state securities laws and regulations.
D. The Trust is or will be registered under the 1940 Act and the
regulations thereunder to the extent required.
5
E. The Trust 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.
3.3 The Trust and the Adviser represent and warrant that each Fund will qualify
as a Regulated Investment Company under Subchapter M of the Code. The Trust 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 Trust has ceased to qualify or that the Trust might not
qualify in the future. In the event the Trust ceases to so qualify, it will
immediately take all steps necessary (a) to notify Hartford of such event and
(b) where available, achieve compliance within any grace period afforded under
the Code.
3.4 The Trust represents and warrants that:
A. The Trust is duly organized and validly existing under the laws of
the State of Delaware.
B. The Trust does and will comply in all material respects with the 1940
Act.
C. If the Trust determines that it is necessary, the Trust 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 Trust to be sold to and held by variable
insurance product separate accounts of both affiliated and
unaffiliated life insurance companies.
3.5 The Distributor represents and warrants that:
A. It is and shall remain duly registered under all applicable federal
and state laws and regulations necessary for the performance of its
obligations to the Trust and Hartford and that it will perform its
obligations to the Trust and Hartford in compliance with the laws and
regulations and any applicable state and federal laws and
regulations.
ARTICLE IV. PROSPECTUSES; REPORTS TO SHAREHOLDERS
AND PROXY STATEMENTS; VOTING
4.1 The Trust, at its expense, will print and provide Hartford with as many
copies of each 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 Trust will provide, in lieu of the printed prospectuses,
camera-ready film or computer diskettes containing a Fund's prospectus and
statement of additional information or electronic files of the same for printing
by Hartford at the Trust's expense. If Hartford chooses to receive camera-ready
film, computer diskettes or electronic files in lieu of receiving printed copies
of a Fund's prospectus and statement of additional information, the Trust shall
bear the cost of providing the information in that format. Hartford will
deliver, at the Trust's expense, such prospectuses, and statements of additional
information to existing Contract owners as required under applicable law.
A. Hartford may elect to print a Fund's prospectus and/or its statement
of additional information in combination with the prospectuses and
statements of additional information of other registered investment
companies. In such event, the Trust shall bear its pro rata share of
printing expenses based on the number of combined printed pages.
6
4.2 Hartford, at its expense, will print the Contract prospectus for use with
prospective owners of Contracts.
4.3 The Trust, at its expense, will provide Hartford with printed or electronic
copies of its reports to shareholders, and other communications to shareholders
in such quantity as Hartford shall reasonably require for distributing, at the
Trust's expense, to Contract owners.
4.4 The Trust will provide Hartford with copies of its proxy solicitations.
Hartford, at its own 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 and subject to Article
2.6, Hartford reserves the right to vote Fund shares held in any
Separate Account in its own right.
4.5 The Trust will comply with all provisions and interpretations of the 1940
Act and the rules thereunder requiring voting by shareholders.
4.6 If and during the time as the Trust engages in activities that require a
Mixed and Shared Funding Exemptive Order, the Trust shall disclose in its
prospectus that (1) the Funds are intended to be a funding vehicle for variable
annuity and variable life insurance contracts offered by various insurance
companies, (2) material irreconcilable conflicts possibly may arise, and (3) the
Board will monitor events in order to identify the existence of any material
irreconcilable conflicts and to determine what action, if any, should be taken
in response to any such conflict. The Trust hereby notifies Hartford that
prospectus disclosure may be appropriate regarding potential risks of offering
shares of the Funds to separate accounts funding both variable annuity contracts
and variable life insurance policies and to separate accounts funding Contracts
of unaffiliated life insurance companies.
ARTICLE V. SALES MATERIAL AND INFORMATION
5.1 Hartford shall furnish, or shall cause to be furnished, to the Trust and
the Adviser at least ten (10) Business Days prior it is use, each piece of sales
literature or other promotional material prepared by Hartford in which the Trust
(or any Fund in the Trust), the Adviser or the Distributor is described. No
sales literature or other promotional material will be used if the Trust, the
Adviser, or the Distributor reasonably objects to its use within ten (10)
Business Days after receipt by the Trust or the Adviser.
5.2 Hartford and its affiliates and agents will not, without the permission of
the Trust, give any information or make any representations or statements on
behalf of the Trust or Adviser or concerning the Funds, the Trust or the
Adviser, in connection with the advertising or sale of the Contracts, other than
information or representations contained in: (a) the Trust's Registration
Statement or any Fund prospectus, (b) reports to shareholders, (c) proxy
statements for the Funds, or, (d) sales literature or other promotional material
approved by the Trust.
5.3 The Trust or Adviser shall furnish, or shall cause to be furnished, to
Hartford or its designee at least ten (10) Business Days prior to its use, each
piece of sales literature or other promotional material prepared by the Trust or
the Adviser in which Hartford, the Contracts or
7
Separate Accounts, are described. No sales literature or other promotional
material will be used if Hartford reasonably objects to its use within ten (10)
Business Days after receipt by Hartford.
5.4 Neither the Trust, the Adviser nor the Distributor will, without the
permission of Hartford, give any information or make any representations or
statements on behalf of Hartford, the Contracts, or the Separate Accounts or
concerning Hartford, the Contracts or the Separate Accounts, 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.
5.5 The Trust 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 or other promotional materials, applications for
exemptions and requests for no-action letters, and all amendments, that relate
to the Trust or its shares, promptly after the filing of such document with the
SEC or other regulatory authority.
5.6 With respect to the Contracts listed on Schedule A attached as may be
amended from time to time, Hartford will provide to the Trust upon request all
registration statements, prospectuses, statements of additional information and
amendments and supplements thereto which are filed with the SEC on or after the
date of this Agreement, all reports, solicitations for voting instructions,
sales literature or other promotional materials, applications for exemptions,
and requests for no action letters, and all amendments thereto.
5.7 For purposes of this Agreement, 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, computerized media, Web site or other
public media), sales literature or other promotional material (i.e. any written
communication distributed or made generally available to customers or the
public, including brochures, circulars, information provided on a Web site,
research reports, market letters, form letters, seminar texts, reprints or
excerpts of any other advertisement, sales literature or other promotional
material, or published article), educational or training materials or other
communications distributed or made generally available to some or all agents or
employees (but not including materials exclusively used internally by licensed
representatives).
ARTICLE VI. DIVERSIFICATION
6.1 The Trust and the Adviser represent and warrant that, at all times, they
will comply with Section 817(h) 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 a Fund ceases to so
qualify, the Trust and the Adviser 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.
8
ARTICLE VII. POTENTIAL CONFLICTS
If and during the time that the Trust engages in activities that require a Mixed
and Shared Funding Exemptive Order, the parties shall comply with the conditions
in this Article VII.
7.1 The Board will monitor the Trust for the existence of any material
irreconcilable conflict (1) between the interests of owners of variable annuity
contracts and variable life insurance policies, and (2) between the interests of
owners of Contracts issued by different participating life insurance companies
that invest in the Trust.
A. The Board shall promptly inform Hartford if it determines that a
material irreconcilable conflict exists and the implications thereof.
A material irreconcilable conflict may arise for a variety of
reasons, including: (a) an action by any state insurance regulatory
authority; (b) a change in applicable federal or state insurance,
tax, or securities laws or regulations, or a public ruling, private
letter ruling, no-action or interpretive letter, or any similar
action by insurance, tax, or securities regulatory authorities; (c)
an administrative or judicial decision in any relevant proceeding;
(d) the manner in which the investments of any Fund are being
managed; (e) a difference in voting instructions given by variable
annuity and variable life insurance Contract owners; or (f) disregard
of a Contract owner's voting instructions.
7.2 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. Hartford will be responsible for assisting the
Board in carrying out its responsibilities under any Mixed and Shared Funding
Exemptive Order, or, if the Trust is engaged in mixed funding or shared funding
in reliance on Rule 6e-2, 6e-3(T), or any other regulation under the 1940 Act,
Hartford will be responsible for assisting the Board in carrying out its
responsibilities under such regulation, by providing the Board with access to
all information reasonably necessary for the Board to consider any issues
raised. Hartford shall carry out its responsibility under this Article 7.2 with
a view only to the interests of the Contract owners.
7.3 If it is determined by a majority of the Trust's Board, or a majority of
its Independent 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 material irreconcilable conflict, including, without
limitation, withdrawal of the affected Separate Account's investment in the
Funds. No charge or penalty will be imposed as a result of such withdrawal.
7.4 Hartford and the Adviser, at least annually, will 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 SEC upon request.
9
ARTICLE VIII. INDEMNIFICATION
8.1 Indemnification by Hartford
A. Hartford agrees to indemnify and hold harmless the Distributor, the
Adviser, the Trust and each of its directors, trustees, officers,
employees and agents and each person, if any, who controls the Trust
within the meaning of Section 15 of the 1933 Act (collectively, the
"Indemnified Parties" and individually, the "Indemnified Party" for
purposes of this Article 8.1) against any and all losses, claims,
damages, liabilities (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 offer, sale
or acquisition of Fund shares or the Contracts or to the operation of
the Separate Accounts and:
1. Arise out of or are based upon any untrue statements or alleged
untrue statements of any material fact contained in a registration
statement, prospectus or other 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"), 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 information
furnished to Hartford by or on behalf of the Trust for use in
Company Documents or otherwise for use in connection with the
offer or 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 Article 8.2(A)(1) not
supplied by Hartford or persons under its control) or wrongful
conduct of Hartford or persons under its control, with respect to
the offer, sale, acquisition or distribution 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 Article 8.2(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 information furnished 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, as limited by and in accordance with the
provisions of Articles 8.1(B) and 8.5 hereof.
10
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 Adviser, the Trust or the Distributor, whichever
is applicable.
8.2 Indemnification by the Distributor
A. The Distributor agrees to indemnify and hold harmless the Trust, the
Adviser and Hartford and each of their respective trustees,
directors, officers, employees and agents and each person, if any,
who controls the Trust, the Adviser or Hartford, respectively, within
the meaning of Section 15 of the 1933 Act (collectively, the
"Indemnified Parties" and individually, an "Indemnified Party" for
purposes of this Article 8.2) against any and all losses, claims,
damages, liabilities (including amounts paid in settlement with
written consent from the Distributor, 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 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 a registration
statement, prospectus or sales literature of the Trust (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 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
in conformity with information furnished to the Distributor or
Trust or the designee of either by or on behalf of the Indemnified
Party for use in Fund Documents or otherwise for use in connection
with the offer or 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 Company Documents
not supplied by the Distributor or persons under its control) or
wrongful conduct of the Distributor or persons under its control,
with respect to the offer, sale or distribution 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 Company Documents, 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; or
4. Arise out of or result from any failure by the Distributor 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 in this
Agreement or arise out of or result from any other material breach
of this Agreement by the Distributor as limited by and in
accordance with the provisions of Articles 8.2(B) and 8.5 hereof.
11
B. The Distributor 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 Hartford
or the Separate Account, whichever is applicable.
8.3 Indemnification by the Trust
A. The Trust agrees to indemnify and hold harmless Hartford and each of
its trustees, 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 Article
8.3) against any and all losses, claims, damages, liabilities
(including amounts paid in settlement with written consent from the
Trust, 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 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 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 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 in conformity
with information furnished to the Distributor or Trust or designee
of either by or on behalf of Hartford for use in Fund 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 Company Documents
not supplied by the Distributor or persons under its control) or
wrongful conduct of the Trust, or persons under its control, with
respect to the sale or distribution of the Contracts or Fund
shares; or
3. Arise out of or result from any untrue statement or alleged untrue
statement of a material fact contained in Company Documents, or
the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statement
or statements therein not misleading, if such statement or
omission was made in reliance upon information furnished by or on
behalf of the Trust; or
4. Arise out of or result from any failure by the Trust 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 Trust in this Agreement
or arise out of or result from any other material breach of this
Agreement by the Trust, as limited by and in accordance with the
provisions of Articles 8.3(B) and 8.5 hereof.
12
B. The Trust 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 Hartford or the Separate Accounts, whichever is
applicable.
8.4 Indemnification by the Adviser
A. The Adviser agrees to indemnify and hold harmless Hartford, the Trust
or the Distributor and each of their trustees, directors, officers,
employees and agents and each person, if any, who controls Hartford,
the Trust and the Distributor, respectively, within the meaning of
Section 15 of the 1933 Act (collectively, the "Indemnified Parties"
and individually, an "Indemnified Party" for purposes of this Article
8.4) against any and all losses, claims, damages, liabilities
(including amounts paid in settlement with written consent from the
Adviser, 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 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 provided by the Adviser and
contained in a Fund Document or arise out of or are based upon the
omission or the alleged omission to state therein a material fact
about the Adviser 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 in conformity with information furnished
to the Adviser or Trust or the designee of either by or on behalf
of Hartford for use in Fund 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 Company Documents
not supplied by the Adviser or persons under its control) or
wrongful conduct of the Adviser or persons under its control, with
respect to the sale or distribution 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 Company Documents, or
the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statement
or statements therein not misleading, if such statement or
omission was made in reliance upon information furnished by or on
behalf of the Adviser; or
4. Arise out of or result from any failure by the Adviser 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 Adviser in this
Agreement or arise out of or result from any other material breach
of this Agreement by the Adviser, as limited by and in accordance
with the provisions of Articles 8.4(B) and 8.5 hereof.
13
B. The Adviser 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 Hartford or the Separate Accounts, whichever is
applicable.
8.5 Notice of Indemnification; Retention of Counsel
A. Any party seeking indemnification (each a "Potential Indemnitee")
shall promptly notify any party from whom it intends 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. A
Potential Indemnitor shall not be liable under this indemnification
provision with respect to any claim made against a Potential
Indemnitee unless such Potential Indemnitee shall have notified the
Potential Indemnitor 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 Potential Indemnitee
(or after such Potential Indemnitee shall have received notice of
such service on any designated agent), but failure to notify the
Potential Indemnitor of any such claim shall not relieve the
Potential Indemnitor from any liability which it may have to the
Potential Indemnitee against whom such action is brought otherwise
than on account of this indemnification provision.
B. In case any such action is brought against a Potential Indemnitee,
the Potential Indemnitor shall be entitled to participate, at its own
expense, in the defense of such action. The Potential Indemnitor also
shall be entitled to assume the defense thereof, with counsel
satisfactory to the party named in the action. After notice from the
Potential Indemnitor to such party of the Potential Indemnitor's
election to assume the defense thereof, the Potential Indemnitee
shall bear the fees and expenses of any additional counsel retained
by it, and the Potential Indemnitor 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.
8.6 With respect to any claim for indemnification made under this Agreement,
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.
8.7 If a party is defending a claim and indemnifying one or more parties to
this Agreement, 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 or parties to
this Agreement being indemnified of such settlement proposal together with its
counsel's recommendation. If the defending party desires to enter into the
settlement and any of the other parties fails to consent within five (5)
Business Days (unless such period is extended, in writing, by mutual agreement
of the parties hereto), then each such other party withholding consent, from the
time it fails to consent forward, shall defend the claim and shall further
indemnify the defending party and other remaining parties subject to this
Agreement, if any, for all costs associated with the claim which are in excess
of the proposed settlement amount.
14
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
Article 8.7 shall NOT apply.
8.8 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 IX. APPLICABLE LAW
9.1 This Agreement shall be construed and the provisions hereof interpreted
under and in accordance with the laws of the State of Connecticut.
9.2 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 SEC may grant.
ARTICLE X. TERMINATION
10.1 This Agreement may be terminated without penalty:
A. By any party for any reason upon six months' advance written notice
delivered to all of the other parties, it being understood that no
party may give notice under this provision until one (1) year from
the effective date of this Agreement; or
B. By Hartford by written notice to the Trust, the Adviser and the
Distributor with respect to any Fund in the event any of the Fund's
shares are not registered, issued or sold in accordance with
applicable state and/or federal law, or such law precludes the use of
such shares as the underlying investment vehicle of the Contracts
issued or to be issued by Hartford; or
C. By Hartford upon written notice to the Trust 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. By Hartford upon written notice to the Trust and the Distributor with
respect to any Fund in the event that such Fund fails to meet the
diversification requirements specified in this Agreement; or
15
E. By Hartford upon institution of formal proceedings against the Trust,
the Adviser or the Distributor by the NASD, the SEC, or any state
securities or insurance department or any other regulatory body; or
F. By the Distributor, the Adviser or the Trust upon written notice to
Hartford with respect to any Separate Account in the event that such
Separate Account ceases to be qualified as a segregated asset account
under the Connecticut Insurance Code; or
G. By the Distributor, the Adviser or the Trust upon written notice with
respect to any Separate Account in the event that effective registration
as a unit investment trust under the 1940 Act for such Separate Account
is not maintained; or
H. By the Distributor, the Adviser or the Trust in the event that the
Contracts cease to be treated as annuity contracts under the applicable
provisions of the Code; or
I. By the Distributor, the Adviser or the Trust in the event that
effective registration or exemption from registration under the 1933
Act of the Contracts is not maintained; or
J. By the Distributor or the Trust upon institution of formal proceedings
against Hartford or its agent by the NASD, the SEC, or any state
securities or insurance department or any other regulatory body
regarding Hartford's duties under this Agreement or related to the sale
of the Contracts issued by Hartford, the operation of the Separate
Accounts, or the purchase of shares of the Funds; or
K. By any party to the Agreement upon a determination by a majority of the
Board, or a majority of its Independent Trustees, that a material
irreconcilable conflict, as described in Article VII hereof, exists; or
L. By any party to the Agreement upon requisite vote of the Contract owners
having an interest in the Separate Accounts (or any subaccounts thereof)
to substitute the shares of another investment company for the
corresponding shares of a Fund in accordance with the terms of the
Contracts for which those shares had been selected or serve as the
underlying investment media; or
M. By either the Adviser or the Distributor in the event of a termination
of either of their contracts with the Trust, but each shall use their
best efforts to substitute themselves under this Agreement with any
successor investment adviser or distributor to the Trust.
10.2 Each party to this Agreement shall promptly notify the other parties to
the Agreement of the institution against such party of any such formal
proceedings as described in Articles 10.1(E) and (J) hereof. Hartford shall give
60 days prior written notice to the Trust of the date of any proposed vote of
Contract owners to replace the Fund's shares as described in Article 10.1(M)
hereof.
10.3 Effect of Termination
A. Notwithstanding any termination of this Agreement, the Trust and the
Distributor shall at the option of Hartford, continue to make
available additional shares of the Funds, for the limited purposes
set forth in this Section 10.3(A), 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
16
applicable regulatory body. Specifically, without limitation, the
owners of the Existing Contracts will be permitted to reinvest
dividends in the Funds, direct allocation and reallocation of
investments in the Funds, redeem investments in the Funds and invest
in the Funds 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, 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 pursuant to Section 26(h) of the 1940 Act. Upon request,
Hartford will promptly furnish to the Trust 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 VIII Indemnification, Article
IX and Article 12.1 shall survive any termination of this Agreement.
10.4 Notwithstanding the termination of this Agreement, Huntington will
continue to pay service fees in accordance with Article 1.9 so long as net
assets of Hartford or a Separate Account remain in a Fund and Hartford continues
to provide services, provided such continued payment is in accordance with
applicable law and regulation.
ARTICLE XI. NOTICES
11.1 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 TRUST: With a copy to:
The Huntington Funds Xxxxx Xxxxxxxx, Esq.
c/o The Huntington National Bank Xxxxxxxx & Worcester LLP
00 Xxxxx Xxxx Xxxxxx 0000 X Xxxxxx XX
Xxxxxxxx, Xxxx 00000 Xxxxxxxxxx, XX 00000
Attn: President
And
Xxxxxx X. Xxxxxxx, Secretary
Xxxx Xxxxx LLP
0000 Xxxxxxx Xxxxxx
00xx Xxxxx
Xxxxxxxxxx, XX 00000-0000
IF TO THE DISTRIBUTOR:
Edgewood Services, Inc.
0000 Xxxxxxxxx Xxxxx
Xxxxxxxxxx, XX 00000-0000
Attn: Secretary
17
IF TO THE ADVISER: With a copy to:
Huntington Asset Advisors, Inc. Xxxxx Xxxxxxxx, Esq.
00 Xxxxx Xxxx Xxxxxx Xxxxxxxx & Xxxxxxxxx XXX
Xxxxxxxx, Xxxx 00000 0000 X Xxxxxx XX
Attn: Chief Investment Officer Xxxxxxxxxx, XX 00000
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: Xxxxxxxxx Xxxxxx, General Counsel
ARTICLE XII. MISCELLANEOUS
12.1 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 or as
required by any governmental agency, regulator or other authority, shall not
without the express written consent of the affected party disclose, disseminate
or utilize such names and addresses and other confidential information until
such time as it may come into the public domain. Each party further agrees to
use and disclose Personal Information, as defined herein, only to carry out the
purposes for which it was disclosed to them and will not use or disclose
Personal Information if prohibited by applicable law, including, without
limitation, statutes and regulations enacted pursuant to the Xxxxx-Xxxxx-Xxxxxx
Act (Public Law 106-102). For purposes of this Agreement, "Personal Information"
means financial and medical information that identifies an individual personally
and is not available to the public, including, but not limited to, credit
history, income, financial benefits, policy or claim information and medical
records. If either party 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.
12.2 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.
12.3 This Agreement may be executed simultaneously in two or more counterparts,
each of which taken together shall constitute one and the same instrument.
12.4 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.
12.5 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.
12.6 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.
18
12.7 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 its name and on its behalf by its duly authorized representative as of the
date specified above.
HARTFORD LIFE INSURANCE COMPANY, EDGEWOOD SERVICES, INC.
on its behalf and on behalf of
each Separate Account named in
Schedule A, as may be amended
from time to time
By: /s/ Xxxxxx Xxxxx By: /s/ Xxxxxxx X. Xxxxx, Xx.
------------------------- -------------------------
Name: Xxxxxx Xxxxx Name: Xxxxxxx X. Xxxxx, Xx.
Its: Senior Vice President Its: President
THE HUNTINGTON FUNDS, on its HUNTINGTON ASSET ADVISORS, INC.
behalf and on behalf
of each Fund named in this
Schedule B, as may be amended
from time to time
By: /s/ Xxxxxx X. Xxxxxxx By: /s/ B. Xxxxxxxx Xxxxxxx
------------------------- -------------------------
Name: Xxxxxx X. Xxxxxxx Name: B. Xxxxxxxx Xxxxxxx
Its: Vice President Its: President
19
SCHEDULE A,
DATED AS OF JUNE 23, 2006
SEPARATE ACCOUNTS AND CONTRACTS
NAME OF SEPARATE ACCOUNT CONTRACT FUNDED BY SEPARATE ACCOUNT
----------------------------------------------------------------------
HLIC Separate Account Two - The Huntington Director Variable
Annuity (all series)
- Huntington Director Outlook Variable
Annuity (all series)
HLIC Separate Account Seven - Xxxxxxxxxx Xxxxxxxx Leaders Outlook
Variable Annuity (all series)
IN WITNESS WHEREOF, each of the parties has caused this Schedule A to be
executed in its name and on its behalf by its duly authorized representative as
of the date specified above.
HARTFORD LIFE INSURANCE COMPANY, EDGEWOOD SERVICES, INC.
on its behalf and on behalf of
each Separate Account named in
Schedule A, as may be amended
from time to time
By: /s/ Xxxxxx Xxxxx By: /s/ Xxxxxxx X. Xxxxx, Xx.
------------------------- -------------------------
Name: Xxxxxx Xxxxx Name: Xxxxxxx X. Xxxxx, Xx.
Its: Senior Vice President Its: President
THE HUNTINGTON FUNDS, on its HUNTINGTON ASSET ADVISORS, INC.
behalf and on behalf of each
Fund named in this Schedule B,
as may be amended from time to
time
By: /s/ Xxxxxx X. Xxxxxxx By: /s/ B. Xxxxxxxx Xxxxxxx
------------------------- -------------------------
Name: Xxxxxx X. Xxxxxxx Name: B. Xxxxxxxx Xxxxxxx
Its: Vice President Its: President
SCHEDULE B,
DATED JUNE 23, 2006
PARTICIPATING FUNDS CUSIP NUMBER
--------------------------------------------------------------------------------
Huntington VA Income Equity Fund 446771107
Huntington VA Growth Fund 446771206
Huntington VA Dividend Capture Fund 446771305
Huntington VA Mid Corp America Fund 446771503
Huntington VA New Economy Fund 446771602
Huntington VA Rotating Markets Fund 446771701
Huntington VA Macro 100 Fund 446771875
Huntington VA Situs Small Cap Fund 446771883
Huntington VA Mortgage Securities Fund 446771867
Huntington VA International Equity Fund 446771800
IN WITNESS WHEREOF, each of the parties has caused this Schedule B to be
executed in its name and on its behalf by its duly authorized representative as
of the date specified above.
HARTFORD LIFE INSURANCE COMPANY, EDGEWOOD SERVICES, INC.
on its behalf and on behalf of
each Separate Account named in
Schedule A, as may be amended
from time to time
By: /s/ Xxxxxx Xxxxx By: /s/ Xxxxxxx X. Xxxxx, Xx.
------------------------- -------------------------
Name: Xxxxxx Xxxxx Name: Xxxxxxx X. Xxxxx, Xx.
Its: Senior Vice President Its: President
THE HUNTINGTON FUNDS, on its HUNTINGTON ASSET ADVISORS, INC.
behalf and on behalf of each
Fund named in this Schedule B,
as may be amended from time to
time
By: /s/ Xxxxxx X. Xxxxxxx By: /s/ B. Xxxxxxxx Xxxxxxx
------------------------- -------------------------
Name: Xxxxxx X. Xxxxxxx Name: B. Xxxxxxxx Xxxxxxx
Its: Vice President Its: President
1
SCHEDULE C
Subject to the terms and conditions of this Agreement, Hartford shall be
appointed to, and agrees to act, as a limited agent of Trust for the sole
purpose of receiving instructions from authorized parties as defined by the
Contracts for the purchase and redemption of Fund shares prior to the close of
regular trading each Business Day. A "Business Day" is defined in Article 1.1(B)
of the Agreement. Except as particularly stated in this paragraph, Hartford
shall have no authority to act on behalf of Trust or to incur any cost or
liability on its behalf.
Until such time as Trust and Hartford are able to utilize the National
Securities Clearing Corporation ("NSCC") Defined Contribution Clearing and
Settlement ("DCC&S") Fund/SERV system: Trust will use its best efforts to
provide to Hartford or its designated agent closing net asset value, change in
net asset value, dividend or daily accrual rate information and capital gain
information by 6:30 p.m. Eastern Time each Business Day. Hartford or its agent
shall use this data to calculate unit values. Unit values shall be used to
process the same Business Day's contract transactions. Orders derived from, and
in amounts equal to, instructions received by Hartford prior to the Close of
Trading on the New York Stock Exchange on any Business Day ("Day 1") shall be
transmitted without modification (except for netting or aggregating such orders)
to Trust by 8:30 a.m. Eastern Time on the next Business Day. Such trades will be
effected at the net asset value of each Fund's shares calculated as of the Close
of Trading on Day 1. Trust will not accept any order made on a conditional basis
or subject to any delay or contingency.
Until such time as Trust and Hartford are able to utilize the DCC&S Fund/SERV
system, each party shall, as soon as practicable after transmittal of an
instruction or confirmation, verify the other party's receipt of such
instruction or confirmation, and in the absence of such verification such a
party to whom an instruction or confirmation is sent shall not be liable for any
failure to act in accordance with such instruction or confirmation, and the
sending party may not claim that such an instruction or confirmation was
received by the other. Each party shall notify the other of any errors,
omissions or interruptions in, or delay or unavailability as promptly as
possible.
a) For those purchase orders not transmitted via the DCC&S Fund/SERV
system, Hartford shall complete payment to Trust or its designated
agent in federal funds no later than 3:00 P.M. on the Business Day
following the day on which the instructions are treated as having
been received by Trust pursuant to this Agreement.
b) For those redemption orders not transmitted via the DCC&S Fund/SERV
system, Trust or its designated agent shall initiate payment in
federal funds no later than 3:00 P.M. on the Business Day following
the day on which the instructions are treated as having been received
by Trust pursuant to this Agreement.
At such time as Trust and Hartford are able to transmit information via the
NSCC's DCC&S Fund/SERV System:
a) Orders derived from, and in amounts equal to, instructions received
by Hartford prior to the Close of Trading on Day 1 shall be
transmitted without modification (except for netting and aggregation
of such orders) via the NSCC's DCC&S Fund/SERV system to Trust no
later than 5:00 a.m. Eastern Time on the Next Business Day. Such
trades will
1
be effected at the net asset value of each Fund's shares calculated as
of the Close of Trading on Day 1.
b) Trust and Hartford shall mutually agree there may be instances when
orders shall be transmitted to Trust via facsimile no later than 8:30
a.m. rather than through the DCC&S Fund/SERV system. In such
instances, such orders shall be transmitted to Trust via facsimile no
later than 8:30 a.m. Eastern Time on the next Business Day.
c) With respect to purchase and redemption orders received by Trust on
any Business Day for any Fund, within the time limits set forth in
this Agreement, settlement shall occur consistent with the
requirements of DCC&S Fund/SERV system.
At such time as Trust and Hartford are able to transmit information via the
DCC&S Fund/SERV system: Trust or its designated agent shall send to Hartford,
via the DCC&S Fund/SERV system, verification of net purchase or redemption
orders or notification of the rejection of such orders ("Confirmations ") on
each Business Day for which Hartford has transmitted such orders. Such
confirmations shall include the total number of shares of each Fund held by
Hartford following such net purchase or redemption. Trust, or its designated
agent, shall submit in a timely manner, such confirmations to the DCC&S
Fund/SERV system in order for Hartford to receive such confirmations no later
than 11:00 a.m. Eastern Time the next Business Day. Trust or its designated
agent will transmit to Hartford via DCC&S NETWORKING system those Networking
activity files reflecting account activity. In addition, within five (5)
Business Days after the end of each month, Trust or its affiliate will send
Hartford a statement of account which shall confirm all transactions made during
that particular month in the account.
DOCUMENTS AND OTHER MATERIALS
DOCUMENTS PROVIDED BY HARTFORD
Hartford agrees to provide Trust, upon written request, any reports indicating
the number of shareholders that hold interests in the Funds and such other
information (including books and records) that Trust may reasonably request.
Hartford agrees to provide Trust, upon written request, such other information
(including books and records) as may be necessary or advisable to enable it to
comply with any law, regulation or order.
DOCUMENTS PROVIDED BY TRUST
Within five (5) Business Days after the end of each calendar month, Trust,
Distributor, or Adviser shall provide Hartford, or its designee, a monthly
statement of account, which shall confirm all transactions made during that
particular month.
2
AMENDMENT NO. 1
PARTICIPATION AGREEMENT
The Fund Participation Agreement (the "Agreement"), dated June 23, 2006, by and
among Hartford Life Insurance Company ("HL"), Hartford Life and Annuity
Insurance Company ("HLA") (HL and HLA together with its insurance company
affiliates is hereafter collectively called the "Company"), The Huntington Funds
(the "Trust"), Edgewood Services, Inc. (the "Distributor") and Huntington Asset
Advisors, Inc. (the "Adviser") is hereby amended as follows:
1. HLA is hereby added as a party to the Agreement.
2. All references to Hartford throughout the agreement are hereby deleted and
replaced with the Company.
3. Article I of the Agreement is amended to include the following:
1.8 Notwithstanding anything possibly to the contrary in the Agreement or
any Rule 22c-2 Shareholder Information Agreement entered into by the
parties, the Trust hereby waives enforcement rights of fund policies
regarding market timing or frequent trading with respect to transfers of
assets into or from Company sponsored dynamic or static asset allocation
models.
4. SCHEDULE A TO THE AGREEMENT IS HEREBY DELETED IN ITS ENTIRETY AND REPLACED
WITH THE ATTACHED SCHEDULE A.
All other terms and provisions of the Agreement not amended herein shall remain
in full force and effect.
Effective date: May 1, 2008
HARTFORD LIFE INSURANCE COMPANY THE HUNTINGTON FUNDS
By its authorized officer, By its authorized officer,
By: /s/ Xxxxxx Xxxxx By: [ILLEGIBLE]
------------------------------- ------------------------
Name: Xxxxxx Xxxxx Name:
Its: Senior Vice President Its:
Date: 5/14/08 Date:
1
HARTFORD LIFE AND ANNUITY INSURANCE COMPANY EDGEWOOD SERVICES, INC.
By its authorized officer, By its authorized officer,
By: /s/ Xxxxxx Xxxxx By: [ILLEGIBLE]
------------------------------------- ------------------------
Name: Xxxxxx Xxxxx Name:
Its: Senior Vice President Its:
Date: 5/14/08 Date:
HUNTINGTON ASSET ADVISORS
By its authorized officer,
By: [ILLEGIBLE]
-------------------------------
Name: [ILLEGIBLE]
Its: President
Date: 5/8/08
2
SCHEDULE A
SEPARATE ACCOUNTS AND CONTRACTS
NAME OF SEPARATE ACCOUNT CONTRACTS FUNDED BY SEPARATE ACCOUNT
---------------------------------------------------------------------------------------------------------------------------------
Hartford Life Insurance Company Separate Account Two The Huntington Director Variable Annuity (all series)
Huntington Director Outlook Variable Annuity (all series)
Hartford Life Insurance Company Separate Account Seven Xxxxxxxxxx Xxxxxxxx Leaders Variable Annuity (all series)
Hartford Life and Annuity Insurance Company Separate Account Seven Xxxxxxxxxx Xxxxxxxx Leaders Variable Annuity (all series)
3
FUND PARTICIPATION AGREEMENT
AMONG
THE HUNTINGTON FUNDS,
HUNTINGTON ASSET ADVISORS, INC.,
UNIFIED FINANCIAL SECURITIES, INC.,
HARTFORD LIFE AND ANNUITY INSURANCE COMPANY
AND
HARTFORD LIFE INSURANCE COMPANY
FUND PARTICIPATION AGREEMENT
THIS AGREEMENT, made as of the 1st day of April, 2009 by and among Hartford Life
Insurance Company, Hartford Life and Annuity Insurance Company (Hartford Life
and Annuity Insurance Company and Hartford Life Insurance Company being
collectively referred to herein as "Hartford"), on Hartford's 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"); The Huntington Funds, a
Delaware statutory trust (the "Trust"), on its behalf and on behalf of each of
its series set forth on Schedule B attached as it may be amended from time to
time (the "Funds"); Unified Financial Securities, Inc., an Indiana corporation,
and Huntington Asset Advisors, Inc., a registered investment adviser (the
"Adviser").
WHEREAS, the Trust, the Adviser, Hartford and Edgewood Services, Inc.
("Edgewood") were parties to a Fund Participation Agreement dated as of June 23,
2006, as amended on May 1, 2008 (the "Original Agreement"); and
WHEREAS, Edgewood was terminated as the Trust's distributor, and replaced with
Unified Financial Securities, Inc. effective April 1, 2009; and
WHEREAS, the Original Agreement terminated upon Edgewood's termination as
referenced above, and thus the Trust, the Adviser, Hartford and Unified
Financial Securities, Inc. ("Distributor") now seek to enter into a new Fund
Participation Agreement, effective as of April 1, 2009; and
WHEREAS, the Trust engages in business as an open-end management investment
company and its Funds are 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 Trust; and
WHEREAS, the Adviser is registered as an investment adviser under the investment
Advisers Act of 1940, as amended, and serves as the investment adviser to the
Trust; and
WHEREAS, Hartford is an insurance company which has registered or will register
the variable annuities and/or variable life insurance policies listed on
Schedule A attached as may be amended from time to time under the Securities Act
of 1933 (the "1933 Act") and the Investment Company Act of 1940 (the "1940 Act")
to be issued by it for distribution (the "Contracts"); and
WHEREAS, the Trust intends to make available shares of the Funds to the Separate
Accounts of Hartford; and
WHEREAS, to the extent permitted by applicable insurance laws and regulations,
the Separate Accounts wish to purchase shares of the Funds to serve as an
investment medium for the Contracts funded by the Separate Accounts, and the
Distributor is authorized to sell shares of the Funds; and
1
WHEREAS, the Fund shares may be made available to separate accounts of one or
more insurance companies that fund variable annuity contracts or variable life
insurance policies, subject to receipt of any required relief pursuant to an
exemptive order from the Securities and Exchange Commission ("SEC"), granting
exemptions from the provisions of various sections of the 1940 Act and Rules
thereunder, to the extent necessary to permit shares of the Funds to be sold to
and held by variable annuity and variable life insurance separate accounts of
life insurance companies that may or may not be affiliated with one another
(hereinafter the "Mixed and Shared Funding Exemptive Order");
NOW, THEREFORE, in consideration of their mutual promises, Hartford, the Trust,
the Distributor and the Adviser agree as follows:
ARTICLE I. FUND SHARES
1.1 The Trust and the Distributor agree to make shares of the Funds available
for purchase on each Business Day (as defined below) by the Separate Accounts.
Each Fund will execute orders placed for each Separate Account on a daily basis
at the net asset value next computed after receipt and acceptance by the Trust
or its designee of such order.
A. For purposes of this Agreement, Hartford shall be the designee of the
Trust for receipt of orders from each Separate Account and receipt by
Hartford constitutes receipt by the Trust, provided that the
Distributor receives notice of orders by 8:30 a.m. (Eastern time) on
the next following Business Day.
B. For purposes of this Agreement, "Business Day" shall mean each day on
which the New York Stock Exchange is open for trading and on which
each Fund calculates its net asset value pursuant to the rules of the
Securities and Exchange Commission ("SEC") as set forth in the
Trust's registration statement on Form N-1A (the "Registration
Statement").
1.2 The Trust agrees to make available on each Business Day shares of the Funds
for purchase at the applicable net asset value per share by the Separate
Accounts; provided, however, that the Board of Trustees of the Trust (the
"Board"), acting in good faith and in the exercise of its fiduciary
responsibilities, may refuse to permit the Trust 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 or if the Board determines that such action is necessary in
the best interests of the shareholders of any Fund.
1.3 The Trust and Distributor agree that shares of the Funds will be sold only
to insurance companies, for use in conjunction with variable life insurance
policies or variable annuities to separate accounts of insurance companies, and
to other persons consistent with the diversification rules under Section 817(h)
of the Internal Revenue Code of 1986, as amended (the "Code"), and the
regulations thereunder. No shares of the Funds will be sold to the general
public unless otherwise permitted by the Mixed and Shared Funding Exemptive
Order and any applicable provisions of the Code.
1.4 Upon receipt of a request for redemption in proper form from Hartford on
any Business Day, the Trust agrees to redeem any full or fractional shares of
the Funds held by the Separate Accounts at the net asset value next computed
after receipt and acceptance by the Trust or its designee of the request for
redemption, except that the Trust reserves the right to suspend
2
redemptions temporarily to the extent permitted under the 1940 Act. Such
redemption shall be paid consistent with applicable rules of the SEC and
procedures and policies of the Trust as described in the Trust's current
registration statement.
A. For purposes of this Agreement, Hartford shall be the designee of the
Trust for receipt of redemption requests from each Separate Account
and receipt by Hartford constitutes receipt by the Trust, provided
that the Distributor receives notice of the redemption request by
8:00 a.m. (Eastern time) on the next following Business Day. Hartford
agrees to submit such orders electronically through secured trading
systems as described on Schedule C to this Agreement or, if it is
unable to submit orders electronically, Hartford shall submit such
orders through manual transmissions using the procedures described in
Schedule C to this Agreement.
1.5 Hartford agrees that purchases and redemptions of Fund shares shall be made
in accordance with the provisions of the then current prospectuses of the Funds.
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 purchased or redeemed.
B. Unless otherwise specified in Schedule C, Hartford shall pay for
shares of the Funds on the next Business Day after Hartford's receipt
of an order to purchase shares of a Fund, and payment shall be in
federal funds transmitted by wire.
C. In the event of net redemptions, a Fund shall pay the redemption
proceeds in federal funds transmitted by wire on the next Business
Day after Hartford's receipt of an order to redeem shares.
1.6 Issuance and transfer of a 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 Trust shall furnish to
Hartford the CUSIP number assigned to each Fund identified in Schedule B
attached as may be amended from time to time.
1.7 The Trust or its designee shall notify Hartford in advance of any dividends
or capital gain distributions payable on a 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 the paying Fund. The Trust or its
agent 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 Unless otherwise specified in Schedule C, the Trust or its agent shall
advise Hartford on each Business Day of the net asset value per share for each
Fund as soon as reasonably practical after the net asset value per share is
calculated and shall use its best efforts to make such net asset value per share
available by 6:30 p.m. Eastern time.
A. If the Trust or its agent 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.
3
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 Trust 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 Trust'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 Trust or its agents for such losses incurred as a result of the
above which shall be payable within sixty (60) days of receipt.
Should a material miscalculation by the Trust or its agents result in
a gain to Hartford, Hartford shall immediately reimburse the Trust or
its agents for any amount lost by the Trust or its agents as a result
of the incorrect calculation. Should a material miscalculation by the
Trust or its agents result in a gain to the Plans or Contract owners,
Hartford will consult with the Trust or its designee as to what
reasonable efforts shall be made to recover the money and repay the
Trust or its agents. Hartford shall then make such reasonable effort,
at the expense of the Trust or its agents, to recover the money and
repay the Trust or its agents; but Hartford shall not be obligated to
take legal action against the Plans or Contract owners.
With respect to the material errors or omissions relating to net asset
value pricing, this section shall control over other indemnification
provisions in this Agreement.
C. Notwithstanding anything possibly to the contrary in this Agreement
or any Rule 22c-2 Shareholder Information Agreement entered into by
the parties, the Trust hereby waives enforcement rights of fund
policies regarding market timing or frequent trading with respect to
transfers of assets into or from Hartford sponsored dynamic or static
asset allocation models.
ARTICLE II. GENERAL DUTIES
2.1 Hartford shall take all such actions as are necessary under applicable
federal and state law to permit the sale of the Contracts issued by Hartford,
including registering each Separate Account as an investment company to the
extent required under the 1940 Act, and registering the Contracts or interests
in the Separate Accounts under the Contracts to the extent required under the
1933 Act, and obtaining all necessary approvals to offer the Contracts from
state insurance commissioners.
2.2 Hartford shall make every effort to maintain the treatment of the Contracts
issued by Hartford as annuity contracts or life insurance policies, whichever is
appropriate, under the applicable provisions of the Code, and shall notify the
Trust and the Distributor immediately upon having a reasonable basis for
believing that such Contracts have ceased to be so treated or that they might
not be so treated in the future. In that regard, Hartford shall make every
effort to remedy any Contract's failure to be treated as annuity contracts or
life insurance policies, as appropriate, under applicable provisions of the
Code, including Section 72 and regulations thereunder within the required time
frames.
2.3 Hartford or its agents shall offer and sell the Contracts in accordance
with applicable provisions of the 1933 Act, the 1934 Act, the 1940 Act, the NASD
Rules of Fair Practice, and state insurance law respecting the offering of
variable life insurance policies and variable annuity contracts.
4
2.4 The Distributor shall sell and distribute the shares of the Funds in
accordance with the applicable provisions of the 1933 Act, the 1934 Act, the
1940 Act, the NASD Rules of Fair Practice, and state law.
2.5 During such time as the Trust engages in activities that require a Mixed
and Shared Funding Exemptive Order, a majority of the Trust's Board shall
consist of persons who are not "interested persons" of the Trust ("Independent
Trustees"), as defined by Section 2(a)(19) of the 1940 Act and the rules
thereunder, and as modified by any applicable orders of the SEC, except that if
this provision of this Article 2.5 is not met by reason of the death,
disqualification, or bonafide resignation of any Trustee or Trustees, then the
operation of this provision shall be suspended (a) for a period of 45 days if
the vacancy or vacancies may be filled by the Trust's Board; (b) for a period of
60 days if a vote of shareholders is required to fill the vacancy or vacancies;
or (c) for such longer period as the SEC may prescribe by rule or order upon
application.
2.6 As long as pass through voting is required by the SEC, and provided it is
consistent with their fiduciary duties, Hartford and its agents will not in any
way recommend any proposal in opposition to, or oppose or interfere with, any
proposal submitted by the Trust at a meeting of owners of Contracts or
shareholders of the Funds, and will in no way recommend any proposal in
opposition to, or oppose or interfere with, the solicitation of proxies by the
Trust of shares held by Contract owners, without the prior written consent of
the Trust.
2.7 Each party hereto shall cooperate with each other party and all appropriate
governmental authorities having jurisdiction (including, without limitation, the
SEC, the NASD, and state insurance regulators) and shall permit such authorities
reasonable access to its books and records in connection with any investigation
or inquiry relating to this Agreement or the transactions contemplated hereby.
ARTICLE III. REPRESENTATIONS AND WARRANTIES
3.1 Hartford represents and warrants that:
A. The Contracts or the interests in the Separate Accounts under such
Contracts are or prior to issuance will be registered as securities
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 a life insurance company duly organized and in good
standing under Connecticut law and that it is taxed as an insurance
company under applicable provisions of the Code.
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 1940 Act, and each of the Separate Accounts is
a validly existing separate account under the applicable federal and
state law.
5
E. The Contracts are treated as annuity contracts under applicable
provisions of the Code. Hartford will make every effort to maintain
such treatment and will notify the Trust and the Adviser immediately
in writing upon having a reasonable basis for believing that the
Contracts have ceased to be treated as such or might not be treated
as such in the future.
3.2 The Trust 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 offered in compliance with all applicable
federal and state securities laws and regulations.
D. The Trust is or will be registered under the 1940 Act and the
regulations thereunder to the extent required.
E. The Trust 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.
3.3 The Trust and the Adviser represent and warrant that each Fund will qualify
as a Regulated Investment Company under Subchapter M of the Code. The Trust 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 Trust has ceased to qualify or that the Trust might not
qualify in the future. In the event the Trust ceases to so qualify, it will
immediately take all steps necessary (a) to notify Hartford of such event and
(b) where available, achieve compliance within any grace period afforded under
the Code.
3.4 The Trust represents and warrants that:
A. The Trust is duly organized and validly existing under the laws of
the State of Delaware.
B. The Trust does and will comply in all material respects with the 1940
Act.
C. If the Trust determines that it is necessary, the Trust 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 Trust to be sold to and held by variable
insurance product separate accounts of both affiliated and
unaffiliated life insurance companies.
3.5 The Distributor represents and warrants that:
A. It is and shall remain duly registered under all applicable federal
and state laws and regulations necessary for the performance of its
obligations to the Trust and Hartford and that it will perform its
obligations to the Trust and Hartford in compliance with the laws and
regulations and any applicable state and federal laws and
regulations.
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ARTICLE IV. PROSPECTUSES; REPORTS TO SHAREHOLDERS
AND PROXY STATEMENTS; VOTING
4.1 The Trust, at its expense, will print and provide Hartford with as many
copies of each 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 Trust will provide, in lieu of the printed prospectuses,
camera-ready film or computer diskettes containing a Fund's prospectus and
statement of additional information or electronic files of the same for printing
by Hartford at the Trust's expense. If Hartford chooses to receive camera-ready
film, computer diskettes or electronic files in lieu of receiving printed copies
of a Fund's prospectus and statement of additional information, the Trust shall
bear the cost of providing the information in that format. Hartford will
deliver, at the Trust's expense, such prospectuses, and statements of additional
information to existing Contract owners as required under applicable law.
A. Hartford may elect to print a Fund's prospectus and/or its statement
of additional information in combination with the prospectuses and
statements of additional information of other registered investment
companies. In such event, the Trust shall bear its pro rata share of
printing expenses based on the number of combined printed pages.
4.2 Hartford, at its expense, will print the Contract prospectus for use with
prospective owners of Contracts.
4.3 The Trust, at its expense, will provide Hartford with printed or electronic
copies of its reports to shareholders, and other communications to shareholders
in such quantity as Hartford shall reasonably require for distributing, at the
Trust's expense, to Contract owners.
4.4 The Trust will provide Hartford with copies of its proxy solicitations.
Hartford, at its own 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 and subject to Article
2.6, Hartford reserves the right to vote Fund shares held in any
Separate Account in its own right.
4.5 The Trust will comply with all provisions and interpretations of the 1940
Act and the rules thereunder requiring voting by shareholders.
4.6 If and during the time as the Trust engages in activities that require a
Mixed and Shared Funding Exemptive Order, the Trust shall disclose in its
prospectus that (1) the Funds are intended to be a funding vehicle for variable
annuity and variable life insurance contracts offered by various insurance
companies, (2) material irreconcilable conflicts possibly may arise, and (3) the
Board will monitor events in order to identify the existence of any material
irreconcilable conflicts and to determine what action, if any, should be taken
in response to any such conflict. The Trust hereby notifies Hartford that
prospectus disclosure may be appropriate regarding potential risks of offering
shares of the Funds to separate accounts funding both variable annuity contracts
and variable life insurance policies and to separate accounts funding Contracts
of unaffiliated life insurance companies.
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ARTICLE V. SALES MATERIAL AND INFORMATION
5.1 Hartford shall furnish, or shall cause to be furnished, to the Trust and
the Adviser at least ten (10) Business Days prior it is use, each piece of sales
literature or other promotional material prepared by Hartford in which the Trust
(or any Fund in the Trust), the Adviser or the Distributor is described. No
sales literature or other promotional material will be used if the Trust, the
Adviser, or the Distributor reasonably objects to its use within ten (10)
Business Days after receipt by the Trust or the Adviser.
5.2 Hartford and its affiliates and agents will not, without the permission of
the Trust, give any information or make any representations or statements on
behalf of the Trust or Adviser or concerning the Funds, the Trust or the
Adviser, in connection with the advertising or sale of the Contracts, other than
information or representations contained in: (a) the Trust's Registration
Statement or any Fund prospectus, (b) reports to shareholders, (c) proxy
statements for the Funds, or, (d) sales literature or other promotional material
approved by the Trust.
5.3 The Trust or Adviser shall furnish, or shall cause to be furnished, to
Hartford or its designee at least ten (10) Business Days prior to its use, each
piece of sales literature or other promotional material prepared by the Trust or
the Adviser in which Hartford, the Contracts or Separate Accounts, are
described. No sales literature or other promotional material will be used if
Hartford reasonably objects to its use within ten (10) Business Days after
receipt by Hartford.
5.4 Neither the Trust, the Adviser nor the Distributor will, without the
permission of Hartford, give any information or make any representations or
statements on behalf of Hartford, the Contracts, or the Separate Accounts or
concerning Hartford, the Contracts or the Separate Accounts, 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.
5.5 The Trust 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 or other promotional materials, applications for
exemptions and requests for no-action letters, and all amendments, that relate
to the Trust or its shares, promptly after the filing of such document with the
SEC or other regulatory authority.
5.6 With respect to the Contracts listed on Schedule A attached as may be
amended from time to time, Hartford will provide to the Trust upon request all
registration statements, prospectuses, statements of additional information and
amendments and supplements thereto which are filed with the SEC on or after the
date of this Agreement, all reports, solicitations for voting instructions,
sales literature or other promotional materials, applications for exemptions,
and requests for no action letters, and all amendments thereto.
5.7 For purposes of this Agreement, 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, computerized media, Web site or other
public media), sales literature or other promotional material (i.e. any written
communication distributed or made generally available to customers or the
public, including brochures, circulars, information provided on a Web site,
research reports, market letters, form
8
letters, seminar texts, reprints or excerpts of any other advertisement, sales
literature or other promotional material, or published article), educational or
training materials or other communications distributed or made generally
available to some or all agents or employees (but not including materials
exclusively used internally by licensed representatives).
ARTICLE VI. DIVERSIFICATION
6.1 The Trust and the Adviser represent and warrant that, at all times, they
will comply with Section 817(h) 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 a Fund ceases to so
qualify, the Trust and the Adviser 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.
9
ARTICLE VII. POTENTIAL CONFLICTS
If and during the time that the Trust engages in activities that require a Mixed
and Shared Funding Exemptive Order, the parties shall comply with the conditions
in this Article VII.
7.1 The Board will monitor the Trust for the existence of any material
irreconcilable conflict (1) between the interests of owners of variable annuity
contracts and variable life insurance policies, and (2) between the interests of
owners of Contracts issued by different participating life insurance companies
that invest in the Trust.
A. The Board shall promptly inform Hartford if it determines that a
material irreconcilable conflict exists and the implications thereof.
A material irreconcilable conflict may arise for a variety of
reasons, including: (a) an action by any state insurance regulatory
authority; (b) a change in applicable federal or state insurance,
tax, or securities laws or regulations, or a public ruling, private
letter ruling, no-action or interpretive letter, or any similar
action by insurance, tax, or securities regulatory authorities; (c)
an administrative or judicial decision in any relevant proceeding;
(d) the manner in which the investments of any Fund are being
managed; (e) a difference in voting instructions given by variable
annuity and variable life insurance Contract owners; or (f) disregard
of a Contract owner's voting instructions.
7.2 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. Hartford will be responsible for assisting the
Board in carrying out its responsibilities under any Mixed and Shared Funding
Exemptive Order, or, if the Trust is engaged in mixed funding or shared funding
in reliance on Rule 6e-2, 6e-3(T), or any other regulation under the 1940 Act,
Hartford will be responsible for assisting the Board in carrying out its
responsibilities under such regulation, by providing the Board with access to
all information reasonably necessary for the Board to consider any issues
raised. Hartford shall carry out its responsibility under this Article 7.2 with
a view only to the interests of the Contract owners.
7.3 If it is determined by a majority of the Trust's Board, or a majority of
its Independent 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 material irreconcilable conflict, including, without
limitation, withdrawal of the affected Separate Account's investment in the
Funds. No charge or penalty will be imposed as a result of such withdrawal.
7.4 Hartford and the Adviser, at least annually, will 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 SEC upon request.
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ARTICLE VIII. INDEMNIFICATION
8.1 Indemnification by Hartford
A. Hartford agrees to indemnify and hold harmless the Distributor, the
Adviser, the Trust and each of its directors, trustees, officers,
employees and agents and each person, if any, who controls the Trust
within the meaning of Section 15 of the 1933 Act (collectively, the
"Indemnified Parties" and individually, the "Indemnified Party" for
purposes of this Article 8.1) against any and all losses, claims,
damages, liabilities (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 offer, sale
or acquisition of Fund shares or the Contracts or to the operation of
the Separate Accounts and:
1. Arise out of or are based upon any untrue statements or alleged
untrue statements of any material fact contained in a registration
statement, prospectus or other 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"), 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 information
furnished to Hartford by or on behalf of the Trust for use in
Company Documents or otherwise for use in connection with the
offer or 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 Article 8.2(A)(1) not
supplied by Hartford or persons under its control) or wrongful
conduct of Hartford or persons under its control, with respect to
the offer, sale, acquisition or distribution 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 Article 8.2(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 information furnished 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, as limited by and in accordance with the
provisions of Articles 8.1(B) and 8.5 hereof.
11
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 Adviser, the Trust or the Distributor, whichever
is applicable.
8.2 Indemnification by the Distributor
A. The Distributor agrees to indemnify and hold harmless the Trust, the
Adviser and Hartford and each of their respective trustees,
directors, officers, employees and agents and each person, if any,
who controls the Trust, the Adviser or Hartford, respectively, within
the meaning of Section 15 of the 1933 Act (collectively, the
"Indemnified Parties" and individually, an "Indemnified Party" for
purposes of this Article 8.2) against any and all losses, claims,
damages, liabilities (including amounts paid in settlement with
written consent from the Distributor, 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 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 a registration
statement, prospectus or sales literature of the Trust (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 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
in conformity with information furnished to the Distributor or
Trust or the designee of either by or on behalf of the Indemnified
Party for use in Fund Documents or otherwise for use in connection
with the offer or 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 Company Documents
not supplied by the Distributor or persons under its control) or
wrongful conduct of the Distributor or persons under its control,
with respect to the offer, sale or distribution 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 Company Documents, 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; or
4. Arise out of or result from any failure by the Distributor 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 in this
Agreement or arise out of or result from any other material breach
of this Agreement by the Distributor as limited by and in
accordance with the provisions of Articles 8.2(B) and 8.5 hereof.
12
B. The Distributor 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 Hartford or the Separate Account,
whichever is applicable.
8.3 Indemnification by the Trust
A. The Trust agrees to indemnify and hold harmless Hartford and each of
its trustees, 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 Article
8.3) against any and all losses, claims, damages, liabilities
(including amounts paid in settlement with written consent from the
Trust, 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 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 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 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 in conformity
with information furnished to the Distributor or Trust or designee
of either by or on behalf of Hartford for use in Fund 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 Company Documents
not supplied by the Distributor or persons under its control) or
wrongful conduct of the Trust, or persons under its control, with
respect to the sale or distribution of the Contracts or Fund
shares; or
3. Arise out of or result from any untrue statement or alleged untrue
statement of a material fact contained in Company Documents, or
the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statement
or statements therein not misleading, if such statement or
omission was made in reliance upon information furnished by or on
behalf of the Trust; or
4. Arise out of or result from any failure by the Trust 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 Trust in this Agreement
or arise out of or result from any other material breach of this
Agreement by the Trust, as limited by and in accordance with the
provisions of Articles 8.3(B) and 8.5 hereof.
13
B. The Trust 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 Hartford or the Separate Accounts, whichever is
applicable.
8.4 Indemnification by the Adviser
A. The Adviser agrees to indemnify and hold harmless Hartford, the Trust
or the Distributor and each of their trustees, directors, officers,
employees and agents and each person, if any, who controls Hartford,
the Trust and the Distributor, respectively, within the meaning of
Section 15 of the 1933 Act (collectively, the "Indemnified Parties"
and individually, an "Indemnified Party" for purposes of this Article
8.4) against any and all losses, claims, damages, liabilities
(including amounts paid in settlement with written consent from the
Adviser, 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 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 provided by the Adviser and
contained in a Fund Document or arise out of or are based upon the
omission or the alleged omission to state therein a material fact
about the Adviser 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 in conformity with information furnished
to the Adviser or Trust or the designee of either by or on behalf
of Hartford for use in Fund 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 Company Documents
not supplied by the Adviser or persons under its control) or
wrongful conduct of the Adviser or persons under its control, with
respect to the sale or distribution 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 Company Documents, or
the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statement
or statements therein not misleading, if such statement or
omission was made in reliance upon information furnished by or on
behalf of the Adviser; or
4. Arise out of or result from any failure by the Adviser 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 Adviser in this
Agreement or arise out of or result from any other material breach
of this Agreement by the Adviser, as limited by and in accordance
with the provisions of Articles 8.4(B) and 8.5 hereof.
14
B. The Adviser 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 Hartford or the Separate Accounts, whichever is
applicable.
8.5 Notice of Indemnification; Retention of Counsel
A. Any party seeking indemnification (each a "Potential Indemnitee")
shall promptly notify any party from whom it intends 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. A
Potential Indemnitor shall not be liable under this indemnification
provision with respect to any claim made against a Potential
Indemnitee unless such Potential Indemnitee shall have notified the
Potential Indemnitor 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 Potential Indemnitee
(or after such Potential Indemnitee shall have received notice of
such service on any designated agent), but failure to notify the
Potential Indemnitor of any such claim shall not relieve the
Potential Indemnitor from any liability which it may have to the
Potential Indemnitee against whom such action is brought otherwise
than on account of this indemnification provision.
B. In case any such action is brought against a Potential Indemnitee,
the Potential Indemnitor shall be entitled to participate, at its own
expense, in the defense of such action. The Potential Indemnitor also
shall be entitled to assume the defense thereof, with counsel
satisfactory to the party named in the action. After notice from the
Potential Indemnitor to such party of the Potential Indemnitor's
election to assume the defense thereof, the Potential Indemnitee
shall bear the fees and expenses of any additional counsel retained
by it, and the Potential Indemnitor 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.
8.6 With respect to any claim for indemnification made under this Agreement,
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.
8.7 If a party is defending a claim and indemnifying one or more parties to
this Agreement, 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 or parties to
this Agreement being indemnified of such settlement proposal together with its
counsel's recommendation. If the defending party desires to enter into the
settlement and any of the other parties fails to consent within five (5)
Business Days (unless such period is extended, in writing, by mutual agreement
of the parties hereto), then each such other party withholding consent, from the
time it fails to consent forward, shall defend the claim and shall further
indemnify the defending party and other remaining parties subject to this
Agreement, if any, for all costs associated with the claim which are in excess
of the proposed settlement amount.
15
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
Article 8.7 shall NOT apply.
8.8 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 IX. APPLICABLE LAW
9.1 This Agreement shall be construed and the provisions hereof interpreted
under and in accordance with the laws of the State of Connecticut.
9.2 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 SEC may grant.
ARTICLE X. TERMINATION
10.1 This Agreement may be terminated without penalty:
A. By any party for any reason upon six months' advance written notice
delivered to all of the other parties, it being understood that no
party may give notice under this provision until one (1) year from
the effective date of this Agreement; or
B. By Hartford by written notice to the Trust, the Adviser and the
Distributor with respect to any Fund in the event any of the Fund's
shares are not registered, issued or sold in accordance with
applicable state and/or federal law, or such law precludes the use of
such shares as the underlying investment vehicle of the Contracts
issued or to be issued by Hartford; or
C. By Hartford upon written notice to the Trust 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. By Hartford upon written notice to the Trust and the Distributor with
respect to any Fund in the event that such Fund fails to meet the
diversification requirements specified in this Agreement; or
16
E. By Hartford upon institution of formal proceedings against the Trust,
the Adviser or the Distributor by the NASD, the SEC, or any state
securities or insurance department or any other regulatory body; or
F. By the Distributor, the Adviser or the Trust upon written notice to
Hartford with respect to any Separate Account in the event that such
Separate Account ceases to be qualified as a segregated asset
account under the Connecticut Insurance Code; or
G. By the Distributor, the Adviser or the Trust upon written notice with
respect to any Separate Account in the event that effective
registration as a unit investment trust under the 1940 Act for such
Separate Account is not maintained; or
H. By the Distributor, the Adviser or the Trust in the event that the
Contracts cease to be treated as annuity contracts under the
applicable provisions of the Code; or
I. By the Distributor, the Adviser or the Trust in the event that
effective registration or exemption from registration under the 1933
Act of the Contracts is not maintained; or
J. By the Distributor or the Trust upon institution of formal
proceedings against Hartford or its agent by the NASD, the SEC, or
any state securities or insurance department or any other regulatory
body regarding Hartford's duties under this Agreement or related to
the sale of the Contracts issued by Hartford, the operation of the
Separate Accounts, or the purchase of shares of the Funds; or
K. By any party to the Agreement upon a determination by a majority of
the Board, or a majority of its independent Trustees, that a material
irreconcilable conflict, as described in Article VII hereof, exists;
or
L. By any party to the Agreement upon requisite vote of the Contract
owners having an interest in the Separate Accounts (or any
subaccounts thereof) to substitute the shares of another investment
company for the corresponding shares of a Fund in accordance with the
terms of the Contracts for which those shares had been selected or
serve as the underlying investment media; or
M. By either the Adviser or the Distributor in the event of a
termination of either of their contracts with the Trust, but each
shall use their best efforts to substitute themselves under this
Agreement with any successor investment adviser or distributor to the
Trust.
10.2 Each party to this Agreement shall promptly notify the other parties to
the Agreement of the institution against such party of any such formal
proceedings as described in Articles 10.1(E) and (J) hereof. Hartford shall give
60 days prior written notice to the Trust of the date of any proposed vote of
Contract owners to replace the Fund's shares as described in Article 10.1(M)
hereof.
10.3 Effect of Termination
A. Notwithstanding any termination of this Agreement, the Trust and the
Distributor shall at the option of Hartford, continue to make
available additional shares of the Funds, for the limited purposes
set forth in this Section 10.3(A), 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
17
applicable regulatory body. Specifically, without limitation, the
owners of the Existing Contracts will be permitted to reinvest
dividends in the Funds, direct allocation and reallocation of
investments in the Funds, redeem investments in the Funds and invest
in the Funds 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, 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 pursuant to Section 26(h) of the 1940 Act. Upon request,
Hartford will promptly furnish to the Trust 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 VIII Indemnification, Article
IX and Article 12.1 shall survive any termination of this Agreement.
10.4 Notwithstanding the termination of this Agreement, Huntington will
continue to pay service fees in accordance with Article 1.9 so long as net
assets of Hartford or a Separate Account remain in a Fund and Hartford continues
to provide services, provided such continued payment is in accordance with
applicable law and regulation.
ARTICLE XI. NOTICES
11.1 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 TRUST: With a copy to:
The Huntington Funds Xxxxx Xxxxxxxx, Esq.
c/o The Huntington National Bank Xxxxxxxx & Worcester LLP
00 Xxxxx Xxxx Xxxxxx 0000 X Xxxxxx XX
Xxxxxxxx, Xxxx 00000 Xxxxxxxxxx, XX 00000
Attn: President
And
Xxxxxx Xxxxxx, Secretary
Xxxx Xxxxx LLP
0000 Xxxxxxx Xxxxxx
00xx Xxxxx
Xxxxxxxxxx, XX 00000-0000
IF TO THE DISTRIBUTOR:
Unified Financial Securities, Inc.
0000 Xxxxx Xxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxxxxx, XX 00000
Attn: Broker Dealer Services
18
IF TO THE ADVISER: With a copy to:
Huntington Asset Advisors, Xxxxx Xxxxxxxx, Esq.
Inc.
00 Xxxxx Xxxx Xxxxxx Xxxxxxxx & Xxxxxxxxx XXX
Xxxxxxxx, Xxxx 00000 0000 X Xxxxxx XX
Attn: Chief Investment Officer Xxxxxxxxxx, XX 00000
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: Xxxx Xxxxxxx, President Attn: Xxxx Xxxxxxx, General
Counsel
ARTICLE XII. MISCELLANEOUS
12.1 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 or as
required by any governmental agency, regulator or other authority, shall not
without the express written consent of the affected party disclose, disseminate
or utilize such names and addresses and other confidential information until
such time as it may come into the public domain. Each party further agrees to
use and disclose Personal Information, as defined herein, only to carry out the
purposes for which it was disclosed to them and will not use or disclose
Personal Information if prohibited by applicable law, including, without
limitation, statutes and regulations enacted pursuant to the Xxxxx-Xxxxx-Xxxxxx
Act (Public Law 106-102). For purposes of this Agreement, "Personal Information"
means financial and medical information that identifies an individual personally
and is not available to the public, including, but not limited to, credit
history, income, financial benefits, policy or claim information and medical
records. If either party 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.
12.2 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.
12.3 This Agreement may be executed simultaneously in two or more counterparts,
each of which taken together shall constitute one and the same instrument.
12.4 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.
12.5 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.
12.6 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.
19
12.7 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 its name and on its behalf by its duly authorized representative as of the
date specified below, to be effective as of April 1, 2009.
HARTFORD LIFE INSURANCE COMPANY, UNIFIED FINANCIAL SECURITIES, INC.
on its behalf and on behalf of each
Separate Account named in Schedule
A, as may be amended from time to
time
By: /s/ Rob Arena By: /s/ Xxxxxxx X. Xxxxxxxxx
--------------------------- -----------------------------
Name: Rob Arena Name: Xxxxxxx X. Xxxxxxxxx
Its: Executive Vice President Its: President
Date: 5/26/09 Date: 5/12/09
HARTFORD LIFE AND ANNUITY INSURANCE
COMPANY, on its behalf and on behalf
of each Separate Account named in
Schedule A, as may be amended from
time to time
By: /s/ Rob Arena
---------------------------
Name: Rob Arena
Its: Executive Vice President
Date: 5/26/09
THE HUNTINGTON FUNDS, on its behalf HUNTINGTON ASSET ADVISORS, INC.
and on behalf of each Fund named in
this Schedule B, as may be amended
from time to time
By: /s/ Xxxx XxXxxxxx By: /s/ Xxx Xxxx
--------------------------- -----------------------------
Name: Xxxx XxXxxxxx Name: Xxx Xxxx
Its: Vice President Its: CCO
Date: 5/12/09 Date: 5/14/09
20
SCHEDULE A,
EFFECTIVE AS OF APRIL 1, 2009
SEPARATE ACCOUNTS AND CONTRACTS
NAME OF SEPARATE ACCOUNT CONTRACT FUNDED BY SEPARATE ACCOUNT
------------------------------------------------------------------------
Hartford Life Insurance Company The Huntington Director Variable
Separate Account Two Annuity (all series) Huntington
Director Outlook Variable Annuity
(all series)
Hartford Life Insurance Company Xxxxxxxxxx Xxxxxxxx Leaders
Separate Account Seven Variable Annuity (all series)
Hartford Life and Annuity Insurance Xxxxxxxxxx Xxxxxxxx Leaders
Company Separate Account Seven Variable Annuity (all series)
IN WITNESS WHEREOF, each of the parties has caused this Schedule A to be
executed in its name and on its behalf by its duly authorized representative as
of the date specified below, to be effective as of April 1, 2009.
HARTFORD LIFE INSURANCE COMPANY, on UNIFIED FINANCIAL SECURITIES, INC.
its behalf and on behalf of each
Separate Account named in Schedule
A, as may be amended from time to
time
By: /s/ Rob Arena By: /s/ Xxxxxxx X. Xxxxxxxxx
---------------------------- ----------------------------
Name: Rob Arena Name: Xxxxxxx X. Xxxxxxxxx
Its: Executive Vice President Its: President
Date: 5/26/09 Date: 5/12/09
HARTFORD LIFE AND ANNUITY
INSURANCE COMPANY,
on its behalf and on behalf of each
Separate Account named in Schedule
A, as may be amended from time to
time
By: /s/ Rob Arena
----------------------------
Name: Rob Arena
Its: Executive Vice President
Date: 5/26/09
THE HUNTINGTON FUNDS, on its behalf HUNTINGTON ASSET ADVISORS, INC.
and on behalf of each Fund named in
this Schedule B, as may be amended
from time to time
By: /s/ Xxxx XxXxxxxx By: /s/ Xxx Xxxx
---------------------------- ----------------------------
Name: Xxxx XxXxxxxx Name: Xxx Xxxx
Its: Vice President Its: CCO
Date: 5/12/09 Date: 5/14/09
1
SCHEDULE B
EFFECTIVE AS OF APRIL 1, 2009
PARTICIPATING FUNDS CUSIP NUMBER
----------------------------------------------------------------------------------
Huntington VA Income Equity Fund 446771107
Huntington VA Growth Fund 446771206
Huntington VA Dividend Capture Fund 446771305
Huntington VA Mid Corp America Fund 446771503
Huntington VA New Economy Fund 446771602
Huntington VA Rotating Markets Fund 446771701
Huntington VA Macro 100 Fund 446771875
Huntington VA Situs Fund 446771883
Huntington VA Mortgage Securities Fund 446771867
Huntington VA International Equity Fund 446771800
IN WITNESS WHEREOF, each of the parties has caused this Schedule B to be
executed in its name and on its behalf by its duly authorized representative as
of the date specified below, to be effective as of April 1, 2009.
HARTFORD LIFE INSURANCE COMPANY, on its UNIFIED FINANCIAL SECURITIES, INC.
behalf and on behalf of each Separate
Account named in Schedule A, as may be
amended from time to time
By: /s/ Rob Arena By: /s/ Xxxxxxx X. Xxxxxxxxx
-------------------------------- ----------------------------------
Name: Rob Arena Name: Xxxxxxx X. Xxxxxxxxx
Its: Executive Vice President Its: President
Date: 5/26/09 Date: 5/12/09
HARTFORD LIFE AND ANNUITY
INSURANCE COMPANY,
on its behalf and on behalf of each Separate
Account named in Schedule A, as may be
amended from time to time
By: /s/ Rob Arena
----------------------------------
Name: Rob Arena
Its: Executive Vice President
Date: 5/26/09
1
THE HUNTINGTON FUNDS, on its behalf and HUNTINGTON ASSET ADVISORS, INC.
on behalf of each Fund named in this
Schedule B, as may be amended from time
to time
By: /s/ Xxxx XxXxxxxx By: /s/ Xxx Xxxx
-------------------------------- ----------------------------------
Name: Xxxx XxXxxxxx Name: Xxx Xxxx
Its: Vice President Its: CCO
Date: 5/12/09 Date: 5/14/09
2
SCHEDULE C
Subject to the terms and conditions of this Agreement, Hartford shall be
appointed to, and agrees to act, as a limited agent of Trust for the sole
purpose of receiving instructions from authorized parties as defined by the
Contracts for the purchase and redemption of Fund shares prior to the close of
regular trading each Business Day. A "Business Day" is defined in Article 1.1(B)
of the Agreement. Except as particularly stated in this paragraph, Hartford
shall have no authority to act on behalf of Trust or to incur any cost or
liability on its behalf.
Until such time as Trust and Hartford are able to utilize the National
Securities Clearing Corporation ("NSCC") Defined Contribution Clearing and
Settlement ("DCC&S") Fund/SERV system: Trust will use its best efforts to
provide to Hartford or its designated agent closing net asset value, change in
net asset value, dividend or daily accrual rate information and capital gain
information by 6:30 p.m. Eastern Time each Business Day. Hartford or its agent
shall use this data to calculate unit values. Unit values shall be used to
process the same Business Day's contract transactions. Orders derived from, and
in amounts equal to, instructions received by Hartford prior to the Close of
Trading on the New York Stock Exchange on any Business Day ("Day 1") shall be
transmitted without modification (except for netting or aggregating such orders)
to Trust by 8:30 a.m. Eastern Time on the next Business Day. Such trades will be
effected at the net asset value of each Fund's shares calculated as of the Close
of Trading on Day 1. Trust will not accept any order made on a conditional basis
or subject to any delay or contingency.
Until such time as Trust and Hartford are able to utilize the DCC&S Fund/SERV
system, each party shall, as soon as practicable after transmittal of an
instruction or confirmation, verify the other party's receipt of such
instruction or confirmation, and in the absence of such verification such a
party to whom an instruction or confirmation is sent shall not be liable for any
failure to act in accordance with such instruction or confirmation, and the
sending party may not claim that such an instruction or confirmation was
received by the other. Each party shall notify the other of any errors,
omissions or interruptions in, or delay or unavailability as promptly as
possible.
a) For those purchase orders not transmitted via the DCC&S Fund/SERV
system, Hartford shall complete payment to Trust or its designated
agent in federal funds no later than 3:00 P.M. on the Business Day
following the day on which the instructions are treated as having
been received by Trust pursuant to this Agreement.
b) For those redemption orders not transmitted via the DCC&S Fund/SERV
system, Trust or its designated agent shall initiate payment in
federal funds no later than 3:00 P.M. on the Business Day following
the day on which the instructions are treated as having been received
by Trust pursuant to this Agreement.
3
At such time as Trust and Hartford are able to transmit information via the
NSCC's DCC&S Fund/SERV System:
a) Orders derived from, and in amounts equal to, instructions received
by Hartford prior to the Close of Trading on Day 1 shall be
transmitted without modification (except for netting and aggregation
of such orders) via the NSCC's DCC&S Fund/SERV system to Trust no
later than 5:00 a.m. Eastern Time on the Next Business Day. Such
trades will be effected at the net asset value of each Fund's shares
calculated as of the Close of Trading on Day 1.
b) Trust and Hartford shall mutually agree there may be instances when
orders shall be transmitted to Trust via facsimile no later than 8:30
a.m. rather than through the DCC&S Fund/SERV system. In such
instances, such orders shall be transmitted to Trust via facsimile no
later than 8:30 a.m. Eastern Time on the next Business Day.
c) With respect to purchase and redemption orders received by Trust on
any Business Day for any Fund, within the time limits set forth in
this Agreement, settlement shall occur consistent with the
requirements of DCC&S Fund/SERV system.
At such time as Trust and Hartford are able to transmit information via the
DCC&S Fund/SERV system: Trust or its designated agent shall send to Hartford,
via the DCC&S Fund/SERV system, verification of net purchase or redemption
orders or notification of the rejection of such orders ("Confirmations") on each
Business Day for which Hartford has transmitted such orders. Such confirmations
shall include the total number of shares of each Fund held by Hartford following
such net purchase or redemption. Trust, or its designated agent, shall submit in
a timely manner, such confirmations to the DCC&S Fund/SERV system in order for
Hartford to receive such confirmations no later than 11:00 a.m. Eastern Time the
next Business Day. Trust or its designated agent will transmit to Hartford via
DCC&S NETWORKING system those Networking activity files reflecting account
activity. In addition, within five (5) Business Days after the end of each
month, Trust or its affiliate will send Hartford a statement of account which
shall confirm all transactions made during that particular month in the account.
DOCUMENTS AND OTHER MATERIALS
DOCUMENTS PROVIDED BY HARTFORD
Hartford agrees to provide Trust, upon written request, any reports indicating
the number of shareholders that hold interests in the Funds and such other
information (including books and records) that Trust may reasonably request.
Hartford agrees to provide Trust, upon written request, such other information
(including books and records) as may be necessary or advisable to enable it to
comply with any law, regulation or order.
DOCUMENTS PROVIDED BY TRUST
Within five (5) Business Days after the end of each calendar month, Trust,
Distributor, or Adviser shall provide Hartford, or its designee, a monthly
statement of account, which shall confirm all transactions made during that
particular month.
4
AMENDMENT NO. 1
PARTICIPATION AGREEMENT
The Fund Participation Agreement (the "Agreement"), dated April 1, 2009, by and
among Hartford Life Insurance Company ("HL"), Hartford Life and Annuity
Insurance Company ("HLA") (HL and HLA together being collectively referred to
herein as "Hartford"), The Huntington Funds (the "Trust", and the "Funds"),
Unified Financial Securities, Inc., (the "Distributor"), and Huntington Asset
Advisors, Inc. (the "Adviser"), is hereby amended as follows:
1. SCHEDULE A TO THE AGREEMENT IS HEREBY DELETED IN ITS ENTIRETY AND REPLACED
WITH THE ATTACHED SCHEDULE A.
All other terms and provisions of the Agreement not amended herein shall remain
in full force and effect.
This Amendment may be executed simultaneously in two or more counterparts, each
of which taken together shall constitute one and the same instrument.
Effective date: May 2, 2011
HARTFORD LIFE INSURANCE COMPANY THE HUNTINGTON FUNDS
By its authorized officer, By its authorized officer,
By: /s/ Xxxxxx X. Xxxxxxx By: /s/ Xxxx Xxxxxxx
-------------------------------- ----------------------------------
Name: Xxxxxx X. Xxxxxxx Name: Xxxx Xxxxxxx
Its: Vice President Its: Assistant Treasurer
Date: June 6, 2011 Date: May 31, 2011
1
HARTFORD LIFE AND ANNUITY INSURANCE UNIFIED FINANCIAL SECURITIES, INC.
COMPANY
By its authorized officer, By its authorized officer,
By: /s/ Xxxxxx X. Xxxxxxx By: /s/ Xxxx Xxxxx Xxxxxxx
-------------------------------- ----------------------------------
Name: Xxxxxx X. Xxxxxxx Name: Xxxx Xxxxx Xxxxxxx
Its: Vice President Its: Assistant Vice President
Date: June 6, 2011 Date: June 2, 2011
HUNTINGTON ASSET ADVISORS, INC.
By its authorized officer,
By: [ILLEGIBLE]
--------------------------------
Name: [ILLEGIBLE]
Its: Interim Chief Compliance Officer
Date: June 1st, 2011
2
SCHEDULE A
SEPARATE ACCOUNTS AND CONTRACTS
SCHEDULE A SHALL BE DEEMED TO BE AUTOMATICALLY AMENDED BASED ON THE LIST OF
UNDERLYING FUNDS (OR SERIES) OF THE TRUST AND THE MUTUALLY ACCEPTABLE CLASSES OF
SHARES THEREOF, IF ANY, AS REFLECTED IN SEPARATE ACCOUNT REGISTRATION STATEMENTS
FOR HARTFORD AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION FROM TIME TO
TIME.
NAME OF SEPARATE ACCOUNT CONTRACTS FUNDED BY SEPARATE ACCOUNT
--------------------------------------------------------------------------------------------
Hartford Life Insurance Company Separate The Huntington Director Variable Annuity (all
Account Two series)
Huntington Director Outlook Variable Annuity
(all series)
Hartford Life Insurance Company Separate Xxxxxxxxxx Xxxxxxxx'x Personal Retirement
Account Seven Manager B-Share (all series)
Xxxxxxxxxx Xxxxxxxx Leaders Variable Annuity
(all series)
Hartford Life and Annuity Insurance Company Xxxxxxxxxx Xxxxxxxx'x Personal Retirement
Separate Account Seven Manager B-Share(all series)
Xxxxxxxxxx Xxxxxxxx Leaders Variable Annuity
(all series)
3
