PARTICIPATION AGREEMENT
Among
XXXXXXXXXXX VARIABLE ACCOUNT FUNDS,
OPPENHEIMERFUNDS, INC.
FORETHOUGHT LIFE INSURANCE COMPANY
And
FORETHOUGHT DISTRIBUTORS, LLC.
THIS AGREEMENT (the "Agreement"), made and entered into as of the 30th
day of October, 2015 by and among Forethought Life Insurance Company, an Indiana
corporation (hereinafter the "Company"), on its own behalf and on behalf of each
separate account of the Company named in Schedule 1 to this Agreement, as may be
amended from time to time by mutual consent (hereinafter collectively the
"Accounts"), Forethought Distributors, LLC, a Delaware corporation (herein the
"Company's Distributor") Xxxxxxxxxxx Variable Account Funds (hereinafter the
"Fund"), and OppenheimerFunds, Inc. (hereinafter the "Adviser").
WHEREAS, the Fund is an open-end management investment company and is
available to act as the investment vehicle for separate accounts now in
existence or to be established at any date hereafter for variable life insurance
policies, variable annuity contracts and other tax-deferred products
(collectively, the "Variable Insurance Products") offered by life insurance
companies (hereinafter "Participating Insurance Companies");
WHEREAS, the beneficial interest in the Fund is divided into several
series of shares, each designated a "Portfolio", and each representing the
interests in a particular managed pool of securities and other assets;
1
WHEREAS, the Fund has obtained an order from the Securities and
Exchange Commission (the "SEC"), dated July 16, 1986 (File No. 812-6324)
granting Participating Insurance Companies and variable annuity and variable
life insurance separate accounts exemptions from the provisions of sections
9(a), 13(a), 15(a), and 15(b) of the Investment Company Act of 1940, as amended,
(hereinafter the "1940 Act") and Rules 6e-2(b)(15) and 6e-3(T)(b)(15)
thereunder, to the extent necessary to permit shares of the Fund to be sold to
and held by variable annuity and variable life insurance separate accounts of
both affiliated and unaffiliated life insurance companies (hereinafter the
"Mixed and Shared Funding Exemptive Order");
WHEREAS, the Fund is registered as an open-end management investment
company under the 1940 Act and each class of shares of the Portfolios of the
Fund is registered under the Securities Act of 1933, as amended (hereinafter the
"1933 Act");
WHEREAS, the Adviser is duly registered as an investment adviser under
the federal Investment Advisers Act of 1940, as amended, and any applicable
state securities laws and serves as the investment adviser to the Fund;
WHEREAS, the Company has registered or will register certain variable
annuity and/or life insurance contracts under the 1933 Act (hereinafter
"Contracts") (unless an exemption from registration is available);
WHEREAS, the Accounts are or will be duly organized, validly existing
segregated asset accounts under applicable insurance law, established by
resolution of the Board of Directors of the Company, to set aside and invest
assets attributable to the aforesaid variable contracts (the Separate Account(s)
covered by the Agreement are specified in Schedule 1 attached hereto, as may be
modified by mutual consent from time to time);
WHEREAS, the Company has registered or will register the Accounts as
unit investment trusts under the 1940 Act (unless an exclusion from registration
is available);
WHEREAS, to the extent permitted by applicable insurance laws and
regulations, the Company intends to purchase shares in the Portfolios (the
Portfolios covered by this Agreement are specified in Schedule 2 attached hereto
as may be modified by mutual consent from time to time), on behalf of the
Accounts to fund the Contracts, and the Fund is authorized to sell such shares
to unit investment trusts such as the Accounts at net asset value; and
NOW, THEREFORE, in consideration of their mutual promises, the Fund,
the Adviser and the Company agree as follows:
ARTICLE I. PURCHASE AND REDEMPTION OF FUND SHARES
1.1. The Fund agrees to make available to the Company for
purchase on behalf of the Accounts those shares of a Portfolio of the Fund
which the Company orders on behalf of the Accounts, executing such orders on
a daily basis at the net asset value next computed after receipt by the Fund
or its designee of the order for such shares, as established in accordance
with the provisions of the then current prospectus of the Fund.
1.2. The Fund will not sell shares of any Portfolio to any other
Participating Insurance Company separate account unless an agreement
containing provisions similar in substance to Sections 2.1 and 2.2 of Article
II, Sections 3.8 and 3.9 (other than the provision requiring the Fund to
provide voting standards) of Article III and Article V of this Agreement is
in effect to govern such sales, it being agreed and understood by Company and
the Fund that this provision is not intended to prevent the Fund from selling
its shares to any potential investor whose purchase of shares does not render
the shares of the Fund or any Portfolio ineligible for continued or
additional investment by the Company and its Account(s), and it being further
understood and agreed by the Company and the Fund that
this provision shall apply prospectively to participation agreements that the
Fund enters into on or after the date hereof.
1.3. The Company shall be the designee of the Fund for receipt of
purchase orders and requests for redemptions or exchanges of shares of a
Portfolio ("Instructions"). The Business Day on which such Instructions are
received in proper form by the Company and time stamped by the Company by the
close of trading will be the date and time as of which Portfolio shares shall
be deemed purchased, exchanged or redeemed as a result of such Instructions;
provided that the Fund receives such Instructions by 9:30 a.m. Eastern Time
on the next following business day. Instructions received in proper form by
the Company and time stamped after the close of trading on any given Business
Day or received by the Fund after 9:30 a.m. Eastern Time on the next
following business day shall be treated as if received on the next following
Business Day. The Company warrants that all orders transmitted to the Fund by
9:30 a.m. Eastern Time on a Business Day were received by the Company in
proper form and time stamped prior to the close of trading on the prior
Business Day. "Business Day" shall mean any day on which the New York Stock
Exchange is open for trading and on which the Fund calculates its net asset
value pursuant to the rules of the SEC and its current prospectus.
The Fund shall calculate the net asset value per share of each Portfolio on
each Business Day, and shall communicate these net asset values to the Company
or its designee on a daily basis as soon as reasonably practicable after the
calculation is completed (normally by 6:30 p.m. Eastern time). If the Fund is
unable to meet the 6:30 p.m. time stated herein, the Fund shall provide
additional time equal to the additional time it takes the Fund to make the net
asset value
available to the Company for the Company to place orders for the
purchase and redemption of shares and make any applicable purchase payments.
The Company shall submit payment for the purchase of shares of a Portfolio
in federal funds transmitted by wire to the Fund or to its designated custodian,
which must receive such wires no later than the close of the Federal Reserve
Bank of New York, which is 6:00 p.m. Eastern time, on the Business Day following
the Business Day for which such purchase orders have been placed.
Issuance and transfer of the Portfolio shares will be by book entry only.
Stock certificates will not be issued to the Company or the Accounts. Portfolio
shares purchased from the Fund will be recorded in the name of the appropriate
Account or the appropriate subaccount of each Account.
The Fund shall furnish, on or before the declaration date, notice to the
Company of any income dividends or capital gain distributions payable on the
shares of any Portfolio. The Company hereby elects to receive all such income
dividends and capital gain distributions as are payable on shares of a Portfolio
in additional shares of that Portfolio, and the Company reserves the right to
change this election in the future. The Fund will notify the Company of the
number of shares so issued as payment of such dividends and distributions.
A. If the Fund provides materially incorrect share net asset value
information through no fault of the Company, that requires a correction the
Accounts shall be entitled to an adjustment with respect to the Fund shares
purchased or redeemed to reflect the correct net asset value per share to the
extent necessary to make the separate account or underlying Contract whole.
B. Any material error in the calculation or reporting of net asset value
per share, dividend or capital gain information shall be reported promptly to
the Company upon discovery.
1. The Fund, or Adviser shall reimburse the Company for any amount
that the Company is legally required to pay annuity or life insurance
contract owners that have selected a Series as an investment option
("Contract owners"), and which amount is due directly to the Fund's or its
agents' material miscalculation and/or incorrect reporting of the daily net
asset value, dividend rate or capital gains distribution rate. In no event
will Fund, Adviser or any affiliate be liable to Company, or any third
party for any consequential, incidental, special or indirect damages
resulting from the Fund's or its agents' material miscalculation and/or
incorrect reporting of the daily net asset value, dividend rate or capital
gains distribution rate (including but not limited to lost profits) even if
Fund or Adviser has been advised of the possibility of such losses.
2. Should a material miscalculation by the Fund or its agents result
in a gain to the Company, subject to the immediately following sentence,
the Company shall immediately reimburse the Fund, the applicable Series or
its agents for any material losses incurred by the Fund or its agents as a
result of the incorrect calculation. Should a material miscalculation by
the Fund or its agents result in a gain for Contract owners, the Company
will consult with the Fund or its designee as to what reasonable efforts
shall be made to recover the money and repay the Fund or its agents. The
Company shall then make such reasonable effort, at the expense of the Fund
or its agents, to recover the money and repay the Fund or its agents;
provided, however, the Company shall not be obligated to initiate or
otherwise pursue any legal action against Contract owners for any such
reimbursements.
3. The Fund shall reimburse the Company for mutually agreed upon
reasonable expenses incurred by the Company in resolving a net asset value
error including any mutually agreed upon administrative costs incurred by
the Company in resolving the error.
1.4. The Fund agrees to make Portfolio shares available for
purchase by the Company for their separate Accounts listed in Schedule 1 on
those days on which a Portfolio calculates its net asset value pursuant to
rules of the SEC; provided, however, that the Board of Trustees of the Fund
(hereinafter the "Trustees") may refuse to sell shares of any Portfolio to
any person, or suspend or terminate the offering of shares of any Portfolio
if such action is required by law or by regulatory authorities having
jurisdiction or is, in the sole discretion of the Trustees, acting in good
faith and in light of their fiduciary duties under federal and any applicable
state laws, in the best interests of the shareholders of any Portfolio
(including without limitation purchase orders that individually or together
with other contemporaneous orders pursuant to this agreement represent large
transactions in shares of any Portfolio held for a relatively brief period of
time). Such shares shall be purchased at the applicable net asset value per
share, increased by any initial sales charge, if the Fund's prospectus then
in effect imposes such a charge on such purchases. Without limiting the
foregoing, the Fund and the Fund's transfer agent may take such other action
(including, without limitation, rejecting specific purchase orders) as they
deem necessary to reduce, discourage or eliminate market timing activity. The
Company agrees to cooperate with the Fund and the Adviser to assist in the
implementation of the Fund's restrictions on purchase, redemption and
exchange activity that follows a market timing pattern, including but not
limited to providing information on Contract owner transactions, holdings and
other information as may
reasonably be requested by the Fund, the Adviser or their duly authorized
representatives. Nothing herein, nor any action by the Company, shall be
construed as, or infer that the Company has undertaken any duty or
obligation, whether express or implied, at law or in equity, to detect
abusive trading activities pursuant to the Fund policies.
1.5. The Fund agrees to redeem or exchange, upon the Company's
request, any full or fractional shares of the Fund held by the Company,
executing such requests on a daily basis at the net asset value next computed
after receipt by the Fund or its designee of the request for redemption,
reduced by any redemption fee or deferred sales charge, if the Fund's
prospectus in effect as of the date of such redemption imposes such a fee or
charge on such redemptions. For purposes of this Section 1.5, the Company
shall be the designee of the Fund for receipt of requests for redemption and
receipt by such designee shall constitute receipt by the Fund; provided that
the Fund receives written (or facsimile) notice of such request for
redemption by 9:30 a.m. Eastern Time on the next following Business Day;
however the Company undertakes to use its best efforts to provide such notice
to the Fund by no later than 9:00 A.M. Eastern time on the next following
Business Day. Payment shall be made within the time period specified in the
Fund's prospectus or statement of additional information ("SAI"), provided,
however, that in no event shall payment be delayed for a greater period than
is permitted by the 1940 Act. In the event the Fund does not pay for the Fund
shares that are redeemed on the next Business Day after a request to redeem
shares is made, then the Fund shall apply any such delay in redemptions
uniformly to all records holders of shares of that Portfolio. Payment shall
be in federal funds transmitted by wire to the Company's bank accounts as
designated by the Company in writing from time to time. The Company further
agrees to provide Fund, the Adviser, and their duly appointed agents
with reasonable access to its records, during Company's normal business
hours, related to Company's obligations under this agreement, to enable the
Fund or Adviser to: a) comply with any request of a board of trustees of a
Fund, a government body or self-regulatory organization; (b) make required
regulatory reports; (c) perform required Fund or shareholder supervision; (d)
audit Company's information, controls and procedures designed to fulfill its
duties and responsibilities under the Agreement. In the event Company may in
the future obtain a SSAE 16 type II report or other standard auditors report
Company will provide such report to the Fund or the Adviser upon request.
1.6. The Company agrees to purchase and redeem the shares of the
Portfolios named in Schedule 2 offered by the then current prospectus and SAI
of the Fund in accordance with the provisions of such prospectus and SAI.
1.7 Notwithstanding any contrary terms in the Agreement, if
transactions in Funds are to be processed through the National Securities
Clearing Corporation's ("NSCC") Mutual Fund Settlement, Entry and
Registration Verification (Fund/SERV) system, then both Company and Adviser
shall be bound by the terms of the Fund/SERV Agreement filed by each with the
NSCC. Company and Adviser each shall perform any and all duties, functions,
procedures and responsibilities assigned to it and as otherwise established
by the NSCC applicable to Fund/SERV. Any information transmitted through the
applicable Networking Matrix Level by any party to the other party pursuant
to this Agreement must be accurate, complete, and in the format prescribed by
the NSCC. Each party, shall adopt, implement and maintain procedures
reasonably designed to ensure compliance with this Section 1.7 and to limit
the access to, and the inputting of data into, Networking to persons
specifically authorized by such party.
ARTICLE II. REPRESENTATIONS AND WARRANTIES
2.1. The Company represents and warrants that the securities
deemed to be issued by the Accounts under the Contracts are or, prior to any
issuance or sale will be, registered under the 1933 Act (unless an exemption
from registration is available) and, that the Contracts will be issued in
material compliance with all applicable federal and state laws and
regulations. The Company represents and warrants that the underwriter for the
individual variable annuity and the variable life policies is or shall be a
member is good standing of Financial Industry Regulatory Authority ("FINRA")
and is or shall be a registered broker-dealer with the SEC at such time as it
acts as underwriter for the policies. The Company further represents and
warrants that it is an insurance company duly organized and in good standing
under the Indiana Insurance Code and that it has legally and validly
established the Accounts prior to the issuance or sale of units thereof as a
segregated asset account under applicable insurance law and has registered
the Accounts as unit investment trusts in accordance with the provisions of
the 1940 Act (unless an exclusion from registration is available) to serve as
segregated investment accounts for the Contracts, and that it will maintain
such registration for so long as any Contracts are outstanding or until
registration is no longer required under federal and state securities laws.
The Company shall amend the registration statement under the 1933 Act for the
Contracts and the registration statement under the 1940 Act for the Accounts
from time to time as required in order to effect the continuous offering of
the Contracts or as may otherwise be required by applicable law. The Company
shall register and qualify the Contracts for sale in accordance with the
securities laws of the various states only if and to the extent deemed
necessary by the Company.
2.2. The Company represents and warrants that the Contracts are
currently and at the time of issuance will be treated as life insurance or
annuity contracts under applicable provisions of the Internal Revenue Code of
1986, as amended (the "Code") and the regulations issued thereunder, and that
it will make every effort to maintain such treatment and that it will notify
the Fund and the Adviser immediately upon having a reasonable basis for
believing that the Contracts have ceased to be so treated or that they might
not be so treated in the future. In addition, the Company represents and
warrants that the Accounts are a "segregated asset accounts" and that
interests in the Accounts are offered exclusively through the purchase of or
transfer into a "variable contract" within the meaning of such terms under
Section 817 of the Code and the regulations issued thereunder and any
amendments or other modifications to such section or such regulations (and
any revenue rulings, revenue procedures, notices and other published
announcements of the Internal Revenue Service interpreting these provisions).
The Company shall continue to meet such definitional requirements, and it
will notify the Fund and the Adviser immediately upon having a reasonable
basis for believing that such requirements have ceased to be met or that they
might not be met in the future. The Company represents and warrants that any
Fund shares purchased with assets derived from tax-qualified retirement plans
will only be purchased through Contracts purchased in connection with such
plans.
2.3. The Fund represents and warrants that Fund shares sold
pursuant to this Agreement shall be registered under the 1933 Act and duly
authorized for issuance and sold in material compliance with applicable state
and federal law and that the Fund is and
shall remain registered under the 1940 Act for as long as the Fund shares are
sold. The Fund shall amend the registration statement for its shares under
the 1933 Act and the 1940 Act from time to time as required in order to
effect the continuous offering of its shares. The Fund shall register and
qualify the shares for sale in accordance with the laws of the various states
only if and to the extent deemed advisable by the Fund.
2.4. The Fund will at all times invest money from the Contracts
in such a manner as to ensure that the Contracts will be treated as variable
contracts under the Code and the regulations issued thereunder. Without
limiting the scope of the foregoing, the Fund represents and warrants that
each Portfolio of the Fund will comply with Section 817(h) of the Code and
Treasury Regulation 1.817-5, relating to the diversification requirements for
variable annuity, endowment, or life insurance contracts and any amendments
or other modifications to such Section or Regulations (and any revenue
rulings, revenue procedures, notices, and other published announcements of
the Internal Revenue Service interpreting these provisions). In the event the
Fund should fail to so qualify, it will take all reasonable steps (a) to
promptly notify the Company of such breach and (b) to resume compliance with
such diversification requirement within the grace period afforded by Treasury
Regulation 1.817.5. The Fund and Adviser represent that each Portfolio is
qualified as a Regulated Investment Company under Subchapter M of the Code
and that it will maintain such qualification (under Subchapter M or any
successor provision), and that it will notify the Company immediately upon
having a reasonable basis for believing that it has ceased to so qualify or
that it might not so qualify in the future. If a Fund fails to achieve
compliance with Section 817(h) within the grace period the Fund will
reimburse the Company for all mutually agreed upon reasonable expenses
resulting to the Company.
2.5. Certain of the Funds have adopted distribution plans under
Rule 12b-1 of the 1940 Act (12b-1 Plan) pursuant to which the Funds may
compensate firms for personal services, account maintenance services and/or
any distribution assistance provided ("12b-1 Services"). If the Contracts
purchase shares of a series and class of the Fund that have adopted a 12b-1
Plan, the Fund's distributor will pay the Company's Distributor for 12b-1
Services subject to the limitations set forth in the applicable Fund's
prospectus, Statement of Additional Information, and 12b-1 Plan, and such
payment may be reduced revised or terminated altogether at any time at the
discretion of the Fund's Trustees. The Company's Distributor agrees to
provide the Trustees any information as may be reasonably necessary for the
Trustees to review the Fund's 12b-1 Plan or Plans, to determine whether such
fees were used for purposes consistent with the purposes of Rule 12b-1.The
Fund represents that it is lawfully organized and validly existing under the
laws of the Commonwealth of Massachusetts and that it does and will comply
with applicable provisions of the 0000 Xxx.
2.6. The Adviser represents and warrants that it is and will
remain duly registered under all applicable federal and state securities laws
and that it shall perform its obligations for the Fund in compliance with any
applicable state and federal securities laws.
2.7. The Fund and Adviser each represent and warrant that all of
its respective directors, trustees, officers, employees, investment advisers,
and transfer agent of the Fund are and shall continue to be at all times
covered by a blanket fidelity bond (which may, at the Fund's election, be in
the form of a joint insured bond) or similar coverage for the benefit of the
Fund in an amount not less than the minimal coverage as required currently by
Section 17(g) and Rule 17g-1 under the 1940 Act or related provisions as may
be promulgated from time to time. The aforesaid bond shall include coverage
for larceny and
embezzlement and shall be issued by a reputable insurance company. The
Adviser agrees to make all reasonable efforts to see that this bond or
another bond containing these provisions is always in effect, and agrees to
notify the Company in the event that such coverage no longer applies.
2.8. The Company represents and warrants that all of its
directors, officers, employees, agents, investment advisers, and other
individuals and entities dealing with the money and/or securities of the Fund
are covered by a blanket fidelity bond or similar coverage in an amount not
less than the equivalent of U.S. $10 million. The aforesaid bond shall
include coverage for larceny and embezzlement and shall be issued by a
reputable insurance company. The Company agrees that any amount received
under such bond in connection with claims that derive from arrangements
described in this Agreement will be paid by the Company for the benefit of
the Fund. The Company agrees to make all reasonable efforts to see that this
bond or another bond containing these provisions is always in effect, and
agrees to notify the Fund and the Adviser in the event that such coverage no
longer applies.
2.9. The Fund and the Adviser represent that they will make a
good faith effort to furnish information to the Company about the Fund not
otherwise available to the Company which is required by state insurance law
to enable the Company to obtain the authority needed to issue the Contracts
in any applicable state.
The Company undertakes and agrees to comply, and to take full
responsibility in complying with any and all laws, regulations, protocols and
other requirements relating to money laundering, both United States and foreign,
including, without limitation, the International Money Laundering Abatement and
Anti-Terrorist Financing Act of 2001 (Title III of the USA
Patriot Act), hereinafter, collectively with the rules, regulations and orders
promulgated thereunder (the "Patriot Act") and any requirements and/or requests
in connection therewith, made by regulatory authorities, the Fund or their duly
appointed agents, either generally or in respect of a specific transaction,
and/or in the context of a "primary money laundering concern" as defined in the
Patriot Act. The Company agrees as a condition precedent to any transaction
taking or continuing to be in effect under this Agreement, to comply with any
and all anti-money laundering laws, regulations, orders or requirements, and
without prejudice to the generality of the above, to provide the Fund or its
duly appointed agents, with necessary reports and information for the Fund or
its agents to fulfill their obligations, if any, under the Patriot Act for the
purposes of the Fund or other third parties complying with any and all
anti-money laundering requirements imposed by the Patriot Act. The Company
agrees to file Currency Transaction Reports and/or Suspicious Activity Reports
with regulatory authorities. In the event reports and information deemed
satisfactory by the Fund are not received within a reasonable time period from
the date of the request, the Fund reserve the right to reject any transaction
and/or cease to transact with the Company and/or the Accounts.
Further, the Company represent that the Company has not received notice of,
and to the Company's knowledge, there is no basis for, any claim, action, suit,
investigation or proceeding that might result in a finding that the Company is
not or has not been in compliance with the Patriot Act, and the rules and
regulations promulgated thereunder.
2.10. The Company, the Fund and the Adviser each agree to
notify the others immediately upon having a reasonable basis for believing
that any of these representations and warranties are no longer true or
accurate to a material extent.
2.12 The Company shall maintain and enforce policies and procedures
reasonably designed to ensure that Portfolio share orders transmitted to the
Fund are segregated by time of receipt in order to prevent Share orders from
being executed at a price based on a previously determined net asset value.
2.13 The Company shall facilitate and cooperate with third-party
audits arranged by the Fund or the Adviser to evaluate the effectiveness of its
compliance controls.
2.14 The Company shall provide the Fund's chief compliance officer
with direct access to its compliance personnel.
2.15 The Company shall promptly provide the Fund's chief compliance
officer with special reports in the event of any compliance problems that arise
with respect to the Funds.
ARTICLE III. SALES MATERIAL, PROSPECTUSES AND OTHER REPORTS
3.1 The Company acknowledges that the Funds monitor their
trademark usage. The Funds and Adviser grant Company permission, during the
term of this Agreement, to use trade names, trademarks and logotypes of
Adviser or the Funds, subject to Adviser's or the Fund's oversight and
control, as necessary in connection with production of sales literature or
other promotional material that Company, may generate in connection with
marketing the Contracts. Company will submit an example of each piece of
sales literature or other promotional material in which the Fund or the
Adviser or an affiliate is described, at least ten Business Days prior to its
use. No such material shall be used if the Fund or its designee reasonably
object to such use within ten Business Days after receipt of such material.
3.2. The Company shall not give any information or make any
representations or statements on behalf of the Fund or concerning the Fund in
connection with the sale of the Contracts other than the information or
representations contained in the registration statement or prospectus for the
Fund shares, as such registration statement and prospectus may be amended or
supplemented from time to time, or in annual and semi-annual reports to
shareholders or proxy statements for the Fund, or in sales literature or
other promotional material approved by the Fund or its designee, except with
the permission of the Fund.
3.3. The Fund shall provide the Company with as many printed
copies of the current prospectus(es), statement of additional information,
proxy statements, annual reports and semi-annual reports of each Fund (and no
other fund), and any supplements or amendments to any of the foregoing, as
the Company may reasonably request. If requested by the Company, the Fund
shall provide such documents in the form of typeset electronic document files
or other such electronic means and such other assistance as is reasonably
necessary in order for the Company to have any of the prospectus(es),
statement of additional information, proxy statements, annual reports and
semi-annual reports of each Fund (and no other fund), and any supplements or
amendments to any of the foregoing. Such documents may be printed in
combination with such documents of other fund companies' and/or such
documents for the Contracts and/or may be delivered electronically. The
decision of whether to distribute summary prospectuses or statutory
prospectuses for a Fund is at the discretion of the Company.
3.4. The Fund or its designee will use commercially reasonable
efforts to provide the Company 30 days notice of change for a Fund, including
but not limited to, (a)
fund objective changes and (b) fund adviser or sub-adviser changes. The Fund
or its designee will use commercially reasonable efforts to provide the
Company 60 days notice of any change for a Fund, including but not limited
to, (a) no-action or exemptive requests from the SEC, (b) fund name changes
and/or (c) conditions or undertakings that affect the Company's rights or
obligations hereunder. The Fund or its designee will use commercially
reasonable efforts to provide the Company 90 days notice of changes for a
Fund, including but not limited to, (a) anticipated fund
mergers/substitutions and (b) fund liquidations. If the Fund does not provide
the Company with 90 days notice (anticipated fund mergers/substitutions and
fund liquidations only) the Company will use its best efforts to make the
change at the date requested by the Fund. The Fund will reimburse the Company
for all mutually agreed upon reasonable expenses for facilitating the changes
and for notifying Contract owners of such changes, including any additional
mutually agreed upon reasonable expenses incurred by the Company as a result
of the Fund failing to provide the Company with the required notice.
Notwithstanding anything to the contrary, the Fund will provide all
registration statement supplements to the Company in hand no later than the
date of filing such document with the Securities and Exchange Commission or
thirty (30) days before the effective date thereof, whichever first occurs;
time being of the essence. The Fund will provide the Company with updated
shareholder reports no later than 30 days after the end of the reporting
period. The Company reserves the right, in its sole discretion, to combine
the delivery of Fund supplements to coordinate with other Company variable
product supplements and the parties agree to work together in good faith to
determine reimbursement for reasonable administrative costs and expenses
incurred by the Company in
connection with circulating supplements that do not coincide with scheduled
variable product prospectus updates.
3.5. The Company assumes sole responsibility for ensuring that
the Fund's prospectus, shareholder reports and communications are delivered
to Contract owners in accordance with applicable federal and state securities
laws, provided that the Fund provides the Company with the aforementioned
documents timely.
3.6. In the event of a proxy solicitation, the Fund at its
expense shall, with respect to the Contracts, mail the proxy materials to
Contract Owners and tabulate the results. In order to assist the Fund in the
process, the Company will provide to the Fund or its designated
representative adequate electronic files so that the Fund may make proper
solicitations of Contract Owners. The electronic files will be in a mutually
acceptable format and will contain Contract Owner information, mailing
information, and the numbers of share of each applicable Fund in which each
Contract Owner has an interest on the record date.
3.7. The Company shall:
(i) promptly provide the Fund the information necessary
for the Fund (or its designee) to distribute proxy
materials to Contract Owners.
(ii) vote Fund shares in accordance with instructions
received from Contract owners; and
(iii) vote Fund shares for which no instructions have been
received in the same proportion as Fund shares of
such Portfolio(s) for which instructions have been
received
so long as and to the extent that the SEC continues to interpret the 1940 Act to
require pass-through voting privileges for variable contract owners or to the
extent otherwise required by law.
3.9. Participating Insurance Companies shall be responsible
for assuring that each of their separate accounts participating in a Portfolio
calculates voting privileges as required by the Mixed and Shared Funding
Exemptive Order and consistent with any reasonable standards that the Fund may
adopt and provide in writing.
ARTICLE IV. FEES AND EXPENSES
4.1. The Fund and Adviser shall pay no fee or other compensation
to the Company under this agreement, and the Company shall pay no fee or
other compensation to the Fund or Adviser, except as provided herein.
4.2. All expenses incident to performance by each party of its
respective duties under this Agreement shall be paid by that party. The Fund
shall see to it that all its shares are registered and authorized for
issuance in accordance with applicable federal law and, if and to the extent
advisable by the Fund, in accordance with applicable state laws prior to
their sale. The Fund shall bear the expenses for the cost of registration and
qualification of the Fund's shares, preparation and filing of the Fund's
prospectus and registration statement, proxy materials and reports, and the
preparation of all statements and notices required by any federal or state
law. Expenses associated with providing, printing, processing and
distributing such documents shall be allocated in accordance with Schedule 3
attached hereto.
4.3. In the event the Fund adds one or more additional Portfolios
and the parties desire to make such Portfolios available to the respective
Contract owners as an underlying investment medium, a new Schedule 2 or an
amendment to this Agreement shall be executed by the parties authorizing the
issuance of shares of the new Portfolios to the particular Accounts. The
amendment may also provide for the sharing of expenses for the
establishment of new Portfolios among Participating Insurance Companies
desiring to invest in such Portfolios and the provision of funds as the
initial investment in the new Portfolios.
ARTICLE V. POTENTIAL CONFLICTS
5.1. The Trustees will monitor the Fund for the existence of any
material irreconcilable conflict between the interests of the Contract owners
of all separate accounts investing in the Fund. An irreconcilable material
conflict may arise for a variety of reasons, including: (a) an action by any
state insurance regulatory authority; (b) a change in applicable federal or
state insurance, tax, or securities laws or regulations, or a public ruling,
private letter ruling, no-action or interpretative letter, or any similar
action by insurance, tax, or securities regulatory authorities; (c) an
administrative or judicial decision in any relevant proceeding; (d) the
manner in which the investments of any Portfolio are being managed; (e) a
difference in voting instructions given by participating insurance companies
or by variable annuity contract and variable life insurance contract owners;
or (f) a decision by an insurer to disregard the voting instructions of
Contract owners. The Trustees shall promptly inform the Company if it
determines that an irreconcilable material conflict exists and the
implications thereof.
5.2. The Company has reviewed a copy of the Mixed and Shared
Funding Exemptive Order, and in particular, has reviewed the conditions to
the requested relief set forth therein. The Company agrees to be bound by the
responsibilities of a participating insurance company as set forth in the
Mixed and Shared Funding Exemptive Order, including without limitation the
requirement that the Company report any potential or existing conflicts of
which it is aware to the Trustees. The Company will assist the Trustees in
carrying out their responsibilities in monitoring such conflicts under the
Mixed and Shared Funding Exemptive Order, by providing the Trustees in a
timely manner with all information
reasonably necessary for the Trustees to consider any issues raised. This
includes, but is not limited to, an obligation by the Company to inform the
Trustees whenever Contract owner voting instructions are disregarded and by
confirming in writing, at the Fund's request, that the Company are unaware of
any such potential or existing material irreconcilable conflicts.
5.3. If it is determined by a majority of the Trustees, or a
majority of its disinterested Trustees, that a material irreconcilable
conflict exists, the Company shall, at its expense and to the extent
reasonably practicable (as determined by a majority of the disinterested
Trustees), take whatever steps are necessary to remedy or eliminate the
irreconcilable material conflict, up to and including: (1) withdrawing the
assets allocable to some or all of the separate accounts from the Fund or any
Portfolio and reinvesting such assets in a different investment medium,
including (but not limited to) another Portfolio of the Fund, or submitting
the question whether such segregation should be implemented to a vote of all
affected Contract owners and, as appropriate, segregating the assets of any
appropriate group (I.E., annuity contract owners, life insurance contract
owners, or variable contract owners of one or more Participating Insurance
Companies) that votes in favor of such segregation, or offering to the
affected Contract owners the option of making such a change; and (2)
establishing a new registered management investment company or managed
separate accounts. The Company's obligations under this Section 5.3 shall not
depend on whether other affected participating insurance companies fulfill a
similar obligation.
5.4. If a material irreconcilable conflict arises because of a
decision by the Company to disregard Contract owner voting instructions and
that decision could conflict with the majority of Contract owner
instructions, the Company may be required, at the Fund's election, to
withdraw the Accounts' investment in the Fund and terminate this
Agreement; provided, however, that such withdrawal and termination shall be
limited to the extent required by the foregoing material irreconcilable
conflict as determined by a majority of the disinterested Trustees. Any such
withdrawal and termination must take place within six (6) months after the
Fund gives written notice that this provision is being implemented, and until
the end of the six month period the Fund shall continue to accept and
implement orders by the Company for the purchase and redemption of shares of
the Fund.
5.5. If a material irreconcilable conflict arises because a
particular state insurance regulator's decision applicable to the Company
conflicts with the majority of other state regulators, then the Company will
withdraw the Accounts' investment in the Fund and terminate this Agreement
within six months after the Trustees inform the Company in writing that it
has determined that such decision has created an irreconcilable material
conflict; provided, however, that such withdrawal and termination shall be
limited to the extent required by the foregoing material irreconcilable
conflict as determined by a majority of the disinterested Trustees. Until the
end of the foregoing six month period, the Fund shall continue to accept and
implement orders by the Company for the purchase and redemption of shares of
the Fund, subject to applicable regulatory limitation.
5.6. For purposes of Sections 5.3 through 5.6 of this Agreement,
a majority of the disinterested Trustees shall determine whether any proposed
action adequately remedies any irreconcilable material conflict, but in no
event will the Fund be required to establish a new funding medium for the
Contracts. The Company shall not be required by Section 5.3 to establish a
new funding medium for Contracts if an offer to do so has been declined by
vote of a majority of Contract owners materially adversely affected by the
irreconcilable material conflict. In the event that the Trustees determine
that any proposed
action does not adequately remedy any irreconcilable material conflict, then
the Company will withdraw the particular Accounts' investment in the Fund and
terminate this Agreement within six (6) months after the Trustees inform the
Company in writing of the foregoing determination, provided, however, that
such withdrawal and termination shall be limited to the extent required by
any such material irreconcilable conflict as determined by a majority of the
disinterested Trustees.
ARTICLE VI. APPLICABLE LAW
6.1. This Agreement shall be construed and the provisions hereof
interpreted under and in accordance with the laws of the State of New York.
6.2. This Agreement shall be subject to the provisions of the
1933 Act, the Securities Exchange Act of 1934 and the 1940 Act, and the rules
and regulations and rulings thereunder, including such exemption from those
statutes, rules and regulations as the Securities and Exchange Commission may
grant (including, but not limited to, the Mixed and Shared Funding Exemptive
Order) and the terms hereof shall be interpreted and construed in accordance
therewith, provided however that the term "Registration Statement or
Prospectus for the Variable Contracts" and terms of similar import shall
include (i) any offering circular or similar document and sales literature or
other promotional materials used to offer and/or sell the variable Contracts
in compliance with the private offering exemption in the 1933 Act and
applicable federal and state laws and regulations, and (ii) the term
"Registration Statement" and "Prospectus" as defined in the 1933 Act.
ARTICLE VII. TERMINATION
7.1. This Agreement shall terminate:
(a) at the option of any party upon six month's advance
written notice to the other parties;
(b) at the option of the Company to the extent that shares of
Portfolios are not reasonably available to meet the requirements of its
Contracts or are not appropriate funding vehicles for the Contracts, as
determined by the Company reasonably and in good faith. Prompt notice of the
election to terminate for such cause and an explanation of such cause shall be
furnished by the Company;
(c) as provided in Article V;
(d) at the option of the Fund or the Adviser upon institution
of formal proceedings against the Company (or its parent) by the NASD, the SEC,
the insurance commission of any state or any other regulatory body having
jurisdiction over that party, which would have a material adverse effect on the
Company's ability to perform its obligations under this Agreement;
(e) at the option of the Company upon institution of formal
proceedings against the Fund or the Adviser (or its parent) by the NASD, the
SEC, or any state securities or insurance department or any other regulatory
body having jurisdiction over that party, which would have a material adverse
effect on the Adviser's or the Fund's ability to perform its obligations under
this Agreement;
(f) at the option of the Company or the Fund upon receipt of
any necessary regulatory approvals or the vote of the Contract owners having an
interest in the Account (or any subaccount) to substitute the shares of another
investment company for the corresponding Portfolio shares of the Fund in
accordance with the terms of the Contracts for which those Portfolio shares have
been selected to serve as the underlying investment media. The Company will give
45 days prior written notice to the Fund of the date of any proposed vote or
other action taken to replace the Fund's shares;
(g) at the option of the Company or the Fund upon a
determination by a majority of the Trustees, or a majority of the disinterested
Trustees, that an irreconcilable material conflict exists among the interests of
(i) all Contract owners of variable insurance products of all separate accounts
or (ii) the interests of the Participating Insurance Companies investing in the
Fund as delineated in Article VII of this Agreement;
(h) at the option of the Company if the Fund ceases to
qualify as a Regulated Investment Company under Subchapter M of the Code, or
under any successor or similar provision, or if the Company reasonably believes
that the Fund may fail to so qualify;
(i) at the option of the Company if the Fund fails to meet
the diversification requirements specified in Section 2.6 hereof or if the
Company reasonably believes that the Fund will fail to meet such requirements;
(j) at the option of any party to this Agreement, upon
another party's failure to cure a material breach of any provision of this
Agreement within thirty days after written notice thereof;
(k) at the option of the Company, if the Company determines
in its sole judgment exercised in good faith, that either the Fund or the
Adviser has suffered a material adverse change in its business, operations or
financial condition since the date of this Agreement or is the subject of
material adverse publicity which is likely to have a material adverse impact
upon the business and operations of the Company;
(l) at the option of the Fund or the Adviser, if the Fund or
Adviser respectively, shall determine in its sole judgment exercised in good
faith, that the Company has suffered a material adverse change in its business,
operations or financial condition since the date
of this Agreement or is the subject of material adverse publicity which is
likely to have a material adverse impact upon the business and operations of the
Fund or the Adviser;
(m) subject to the Fund's compliance with Section 2.6 hereof,
at the option of the Fund in the event any of the Contracts are not issued or
sold in accordance with applicable requirements of federal and/or state law; or
(n) by mutual written agreement of the parties to this
Agreement.
7.2. It is understood and agreed that the right of any party hereto to
terminate this Agreement pursuant to Section 7.1(a) may be exercised for
cause or for no cause.
7.3 Effect of Termination.
(a) Notwithstanding any termination of this Agreement, the
Fund shall, at the option of the Company, continue to make available additional
shares of the Fund for up to six months following termination, 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. After such six month period from termination of this
Agreement, for all Existing Contracts, the owners of the Existing Contracts may
be permitted to hold, or redeem investments in the Fund. .
(c) In addition to the foregoing, Article VIII
Indemnification shall survive any termination of this Agreement for events
occurring prior to termination.
ARTICLE VIII. INDEMNIFICATION
8.1. INDEMNIFICATION BY THE COMPANY
(a) The Company agrees to indemnify and hold harmless the
Fund and the Adviser, each member of their Board of Trustees or Board of
Directors, each of their officers, employees and agents, and each person, if
any, who controls the Fund within the meaning of
Section 15 of the 1933 Act (collectively, the "Indemnified Parties" for purposes
of this Section 8.1) against any and all losses, claims, damages, liabilities
(including amounts paid in settlement with the written consent of the Company)
or litigation expenses (including the reasonable costs of investigating or
defending any alleged loss, claim, damage, fine, liability or expense and
reasonable external legal counsel fees incurred in connection therewith
(collectively, "Losses")), to which the Indemnified Parties may become subject
under any statute, regulation, at common law or otherwise, insofar as such
losses, claims, damages, liabilities or expenses (or actions in respect thereof)
or settlements are related to the sale or acquisition of the Fund's shares or
the Contracts and:
(i) arise out of or are based upon any untrue
statement or alleged untrue statement of any
material fact contained in the registration
statement, prospectus or SAI for the
Contracts or contained in sales literature or
other promotional material for the Contracts
(or any amendment or supplement to any of the
foregoing), or arise out of or are based upon
the omission or the alleged omission to state
therein a material fact required to be stated
therein or necessary to make the statements
therein not misleading in light of the
circumstances which they were made; provided
that this agreement to indemnify shall not
apply as to any Indemnified Party if such
statement or omission or such alleged
statement or omission was made in reliance
upon and in conformity with information
furnished to the Company by or on behalf of
the Fund or the Adviser for use in the
registration statement, prospectus or SAI for
the Contracts or sales literature (or any
amendment or supplement) or otherwise for use
in connection with the sale of the Contracts
or Fund shares; or
(ii) arise out of or as a result of statements or
representations by or on behalf of the
Company (other than statements or
representations contained in the Fund
registration statement, Fund prospectus or
sales literature or other promotional
material of the Fund not supplied by the
Company or persons under its control) or
wrongful conduct of the Company or persons
under its control, with respect to the sale
or disposition of the Contracts or Fund
shares, provided any such statement or
representation or such
wrongful conduct was not made in reliance
upon and in conformity with information
furnished in writing, via fax or via
electronic means, to the Company by or on
behalf of the Adviser or the Fund; or
(iii) arise out of or result from any untrue
statement or alleged untrue statement of a
material fact contained in the Fund
registration statement, Fund prospectus, SAI
or sales literature or other promotional
material of the Fund or any amendment thereof
or supplement thereto or the omission or
alleged omission to state therein a material
fact required to be stated therein or
necessary to make the statements therein not
misleading in light of the circumstances in
which they were made, if such statement or
omission was made in reliance upon
information furnished in writing, via fax or
via electronic means, to the Fund or the
Adviser by or on behalf of the Company or
persons under its control;
(iv) arise out of or result from any material
breach of this Agreement by the Company;
(v) arise out of or result from any failure by
the Company to provide the services or
furnish the materials required under the
terms of this Agreement; or
(vi) arise out of or result from a Contract
failing to be considered a life insurance
policy or an annuity Contract, whichever is
appropriate, under applicable provisions of
the Code thereby depriving the Fund of its
compliance with Section 817(h) of the Code,
unless such failure is due to the failure of
the Fund or any of the other investment
companies currently available as funding
vehicles for the Contracts to invest the
assets of any portfolio in such a manner as
to ensure that the Contracts will be treated
as annuity, endowment, or life insurance
contracts, whichever is appropriate, under
the Code and the regulations issued
thereunder (or any successor provisions).
except to the extent provided in Sections 8.1(b) and 8.3 hereof. This
indemnification shall be in addition to any liability which the Company may
otherwise have.
(b) The Company shall not be liable under this indemnification
provision with respect to any losses, claims, damages, liabilities or litigation
to which an Indemnified Party would otherwise be subject by reason of 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.
8.2. INDEMNIFICATION BY ADVISER AND FUND
(a)(1) The Adviser agrees to indemnify and hold harmless the
Company and each of its directors and officers, employees and agents, and each
person, if any, who controls the Company within the meaning of Section 15 of the
1933 Act (collectively, the "Indemnified Parties" for purposes of this Section
8.2) against any and all losses, claims, damages, liabilities (including amounts
paid in settlement with the written consent of the Adviser) or litigation
expenses (including any Losses) to which the Indemnified Parties may become
subject under any statute, regulation, at common law or otherwise, insofar as
such losses, claims, damages, liabilities or expenses (or actions in respect
thereof) or settlements are related to the sale or acquisition of the Fund's
shares or the Contracts and:
(i) arise out of or are based upon any untrue
statement or alleged untrue statement of any
material fact contained in the registration
statement, prospectus, SAI or sales
literature of the Fund (or any amendment or
supplement to any of the foregoing), or arise
out of or are based upon the omission or the
alleged omission to state therein a material
fact required to be stated therein or
necessary to make the statements therein not
misleading in light of the circumstances in
which they were made; provided that this
agreement to indemnify shall not apply as to
any Indemnified Party if such statement or
omission or such alleged statement or
omission was made in reliance upon and in
conformity with information furnished in
writing, via fax or via electronic means, to
the Adviser or the Fund by or on behalf of
the Company for use in the Fund registration
statement, prospectus or SAI, or sales
literature or other promotional material for
the Contracts or of the Fund; or
(ii) arise out of or as a result of statements or
representations (other than statements or
representations contained in the Contracts or
in the Contract registration statement, the
Contract prospectus, SAI, or sales literature
or other
promotional material for the Contracts not
supplied by the Adviser or the Fund or
persons under the control of the Adviser or
the Fund respectively) or wrongful conduct
of the Adviser or persons under its control,
with respect to the sale or distribution of
the Contracts, provided any such statement or
representation or such wrongful conduct was
not made in reliance upon and in conformity
with information furnished in writing, via
fax or via electronic means, to the Adviser
or the Fund by or on behalf of the Company;
or
(iii) arise out of any untrue statement or
allegedly untrue statement of a material fact
contained in a registration statement,
prospectus, SAI or sales literature covering
the Contracts (or any amendment thereof or
supplement thereto), or the omission or
alleged omission to state therein a material
fact required to be stated therein or
necessary to make the statement or statements
therein not misleading in light of the
circumstances in which they were made, if
such statement or omission was made in
reliance upon information furnished in
writing, via fax or via electronic means, to
the Company by or on behalf of the Fund or
persons under the control of the Adviser; or
(iv) arise out of or result from any material
breach of this Agreement by the Adviser.
except to the extent provided in Sections 8.2(b) and 8.3 hereof. This
indemnification shall be in addition to any liability which the Adviser may
otherwise have.
(a)(2) The Fund agrees to indemnify and hold harmless the
Indemnified Parties against any and all losses, claims, damages, liabilities
(including amounts paid in settlement with the written consent of the Fund) or
litigation expenses (including Losses) to which the Indemnified Parties may
become subject under any statute, regulation, at common law or otherwise,
insofar as such losses, claims, damages, liabilities or expenses (or actions in
respect thereof) or settlements are related to the operations of the Fund or the
sale or acquisition of the Fund's shares and:
(i) arise out of or are based upon (a) any untrue
statement or alleged untrue statement of any
material fact or (b) the
omission or the alleged omission to state
therein a material fact required to be stated
therein or necessary to make the statements
made therein, in light of the circumstances
in which they were made, not misleading, if
such fact, statement or omission is contained
in the registration statement for the Fund or
the Contracts, or in the prospectus or SAI
for the Contracts or the Fund, or in any
amendment to any of the foregoing, or in
sales literature or other promotional
material for the Contracts or of the Fund,
provided, however, that this agreement to
indemnify shall not apply as to any
Indemnified Party if such statement, fact or
omission or such alleged statement, fact or
omission was made in reliance upon and in
conformity with information furnished in
writing, via fax or via electronic means, to
the Adviser or the Fund by or on behalf of
the Indemnified Party; or
(ii) arise out of or as a result of statements or
representations (other than statements or
representations contained in the Contracts or
in the Contract registration statement, the
Contract prospectus, SAI, or sales literature
or other promotional material for the
Contracts not supplied by the Adviser or the
Fund or persons under the control of the
Adviser or the Fund respectively) or wrongful
conduct of the Fund or persons under its
control with respect to the sale or
distribution of Contracts, provided any such
statement or representation or such wrongful
conduct was not made in reliance upon and in
conformity with information furnished in
writing, via fax or via electronic means, to
the Adviser or the Fund by or on behalf of
the Company; or
(iii) arise out of or result from any material
breach of this Agreement by the Fund
(including a failure to comply with the
diversification requirements specified in
Section 2.6 of this Agreement).
except to the extent provided in Section 8.2(b) and 8.3 hereof. This
indemnification shall be in addition to any liability which the Fund may
otherwise have.
(b) The Fund and Adviser shall not be liable under this
indemnification provision with respect to any losses, claims, damages,
liabilities or litigation to which an Indemnified Party would otherwise be
subject by reason of such Indemnified Party's
willful misfeasance, bad faith, or gross negligence in the performance of such
Indemnified Party's duties or by reason of such Indemnified Party's reckless
disregard of obligations and duties under this Agreement.
8.3. INDEMNIFICATION PROCEDURE
Any person obligated to provide indemnification under this Article
VIII ("indemnifying party" for the purpose of this Section 8.3) shall not be
liable under the indemnification provisions of this Article VIII with respect to
any claim made against a party entitled to indemnification under this Article
VIII ("indemnified party" for the purpose of this Section 8.3) unless such
indemnified party shall have promptly notified the indemnifying party in writing
after the summons or other first legal process giving information of the nature
of the claim shall have been served upon such indemnified party (or after such
party shall have received notice of such service on any designated agent), but
failure to notify the indemnifying party of any such claim shall not relieve the
indemnifying party from any liability which it may have to the indemnified party
against whom such action is brought under the indemnification provisions of this
Article VIII, except to the extent that the failure to notify results in the
failure of actual notice to the indemnifying party and such indemnifying party
is damaged solely as a result of failure to give such notice. In case any such
action is brought against the indemnified party, the indemnifying party will be
entitled to participate, at its own expense, in the defense thereof. The
indemnifying party also shall be entitled to assume the defense thereof, with
counsel satisfactory to the party named in the action. After notice from the
indemnifying party to the indemnified party of the indemnifying party's election
to assume the defense thereof, the indemnified party shall bear the fees and
expenses of any additional counsel retained by it, and the indemnifying party
will not be liable to such party under this Agreement for any legal or
other expenses subsequently incurred by such party independently in connection
with the defense thereof other than reasonable costs of investigation, unless
(i) the indemnifying party and the indemnified party shall have mutually agreed
to the retention of such counsel or (ii) the named parties to any such
proceeding (including any impleaded parties) include both the indemnifying party
and the indemnified party and representation of both parties by the same counsel
would be inappropriate due to actual or potential differing interests between
them. The indemnifying party shall not be liable for any settlement of any
proceeding effected without its written consent but if settled with such consent
or if there be a final judgment for the plaintiff, the indemnifying party agrees
to indemnify the indemnified party from and against any loss or liability by
reason of such settlement or judgment.
A successor by law of the parties to this Agreement shall be entitled
to the benefits of the indemnification contained in this Article VIII. The
indemnification provisions contained in this Article VIII shall survive any
termination of this Agreement.
ARTICLE IX. NOTICES
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 to the
other party.
If to the Fund:
Xxxxxxxxxxx Variable Account Funds
0000 Xxxxx Xxxxxx Xxx
Xxxxxxxxxx, XX 00000
Attn: General Counsel
WITH A COPY TO:
Xxxxxxxxxxx Variable Account Funds
Two World Financial Center
000 Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attn.: Director of Variable Accounts
If to the Adviser:
OppenheimerFunds, Inc.
0000 Xxxxx Xxxxxx Xxx
Xxxxxxxxxx, XX 00000
Attn: General Counsel
WITH A COPY TO:
Xxxxxxxxxxx Variable Account Funds
Two World Financial Center
000 Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attn.: Director of Variable Accounts
If to the Company:
Forethought Life Insurance Company
000 Xxxxx Xxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxxxxxx, XX 00000
Attn: Xxxx Xxxx, EVP, Chief Investment Officer
ARTICLE X. MISCELLANEOUS
10.1. The Company represents and warrants that any Contracts
eligible to purchase shares of the Fund and offered and/or sold in private
placements will comply in all material respects with the exemptions from the
registration requirements of the 1933 Act and applicable federal and state
laws and regulations.
10.2. Subject to the requirements of legal process and regulatory
authority, each party hereto shall treat as confidential the names and
addresses of the owners of the Contracts and all information reasonably
identified as confidential in writing by any other party hereto and, except
as permitted by (i) this Agreement and (ii) by Title V, Subtitle A of the
Xxxxx-Xxxxx-Xxxxxx Act and by regulations adopted thereunder by regulators
having jurisdiction over the parties hereto, shall not disclose, disseminate
or utilize such names and addresses and other confidential information
without the express written consent of the affected party until such time as
it may come into the public domain.
10.3 Each party will treat as confidential any and all "Nonpublic
Personal Financial Information," Contract holder information and all
information reasonably expected to be treated as confidential (collectively,
"Confidential Information") and not release any Confidential Information
unless (a) the other party provides written consent to do so; (b) a party is
compelled to do so by court order, subpoena or comparable request issued by
any governmental agency, regulator or other competent authority; or (c)
permitted by applicable law. Each party shall safeguard Confidential
Information as required by applicable law and provide reasonable confirmation
upon request. As used above, (i) "Nonpublic Personal Financial Information"
shall refer to personally identifiable financial information about any
prospective or then existing customer of the Company including customer
lists, names, addresses, account numbers and any other data provided by
customers to the Company in connection with the purchase or maintenance of a
product or service that is not Publicly Available.
Any information shall not be deemed confidential if (A) it was already
in the possession of the non-disclosing party prior to being furnished by the
disclosing party, (B) it was publicly available prior to being disclosed or
thereafter became publicly available, or (C) it was independently developed
by the non-disclosing party without the use of any information from the
disclosing party. The Fund and its affiliates agree that it and they shall
not use the information received pursuant to this Agreement, including any
Confidential Information, for marketing or solicitation purposes.
10.3. Each party shall treat as confidential all information of
the other party which the parties agree in writing is confidential
("Confidential Information"). Except as permitted by this Agreement or as
required by appropriate governmental authority (including,
without limitation, the SEC, the NASD, or state securities and insurance
regulators) the receiving party shall not disclose or use Confidential
Information of the other party before it enters the public domain, without
the express written consent of the party providing the Confidential
Information.
10.4. The captions in this Agreement are included for convenience
of reference only and in no way define or delineate any of the provisions
hereof or otherwise affect their construction or effect.
10.5. This Agreement may be executed simultaneously in two or more
counterparts, each of which taken together shall constitute one and the same
instrument.
10.6. If any provision of this Agreement shall be held or made
invalid by a court decision, statute, rule or otherwise, the remainder of the
Agreement shall not be affected thereby.
10.7. The parties to this Agreement acknowledge and agree that all
liabilities of the Fund arising, directly or indirectly, under this
Agreement, of any and every nature whatsoever, shall be satisfied solely out
of the assets of the Fund and that no Trustee, director, officer, agent or
holder of shares of beneficial interest of the Fund shall be personally
liable for any such liabilities.
10.8. The parties to this Agreement agree that the assets and
liabilities of each Portfolio of the Fund are separate and distinct from the
assets and liabilities of each other Portfolio. No Portfolio shall be liable
or shall be charged for any debt, obligation or liability of any other
Portfolio.
10.9. Each party hereto shall cooperate with, and promptly notify
each other party and all appropriate governmental authorities (including
without limitation the Securities
and Exchange Commission, FINRA 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.
10.10. 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.
10.11. It is understood by the parties that this Agreement is not
an exclusive arrangement in any respect.
10.12. The Company and the Adviser each understand and agree that
the obligations of the Fund under this Agreement are not binding upon any
Trustee or shareholder of the Fund personally, but bind only the Fund with
respect to the Portfolio and the Portfolio's property; the Company and the
Adviser each represent that it has notice of the provisions of the
Declaration of Trust of the Fund disclaiming Trustee and shareholder
liability for acts or obligations of the Fund.
10.13. This Agreement shall not be assigned by any party hereto
without the prior written consent of all the parties.
10.14. This Agreement sets forth the entire agreement between the
parties and supercedes all prior communications, agreements and
understandings, oral or written, between the parties regarding the subject
matter hereof.
10.15 The waiver of, or failure to exercise, any right provided
for in this Agreement shall not be deemed a waiver of any further or future
right under this Agreement.
10.16 Any party shall be excused from performance under this
Agreement and shall have no liability to any other party hereof or any third
person for any
period that it is prevented, hindered or unable to perform any of our
obligations, in whole or in part, as a result of acts of God, strikes,
terrorist activities, power outages (including so-called xxxxx outs), or
other causes beyond its reasonable control; and such non-performance shall
not be a default under this Agreement, for as long as such circumstances
prevail, provided that each party uses commercially reasonable efforts to
recommence performance as soon as practicable.
10.17 The parties mutually acknowledge that this Agreement
represents the collective drafting efforts of each party and therefore any
ambiguity shall not be interpreted against the interests of any party.
IN WITNESS WHEREOF, each of the parties hereto has caused its duly
authorized officers to execute this Agreement.
FORETHOUGHT LIFE INSURANCE COMPANY
By:
---------------------------------------
Name:
---------------------------------------
Title:
---------------------------------------
Date:
---------------------------------------
FORETHOUGHT DISTRIBUTORS, LLC.
By:
---------------------------------------
Name:
---------------------------------------
Title:
---------------------------------------
Date:
---------------------------------------
XXXXXXXXXXX VARIABLE ACCOUNT FUND
By:
---------------------------------------
Name:
---------------------------------------
Title:
---------------------------------------
Date:
---------------------------------------
OPPENHEIMERFUNDS, INC.
By:
---------------------------------------
Name:
---------------------------------------
Title:
---------------------------------------
Date:
---------------------------------------
SCHEDULE 1
The Portfolios will be available for any Contract or separate account sponsored
by Company.
SCHEDULE 2
The Fund agrees to make available all the Portfolios of Xxxxxxxxxxx Variable
Account Funds, Portfolios include both service class and non-service class
shares.
42
SCHEDULE 3
ALLOCATION OF EXPENSES
ITEM PAID BY THE COMPANY PAID BY THE FUND
------------------------------- ------------------------------------------------- -------------------------------------
Registration Statements Preparing and filing the Separate Account's Preparing and filing the Fund's
registration statement registration statement
Prospectuses, Supplements, and Text composition and alterations for Separate Text composition and alterations for
Statements of Additional Account prospectus, supplements and statements Fund prospectuses, supplements and
Information of additional information statements of additional information
Printing, processing, mailing and distributing Printing, processing, mailing and
or electronically delivering of Separate Account distributing and/or electronically
prospectuses, supplements and statements of delivering of Fund prospectuses,
additional information to new and existing supplements and statements of
Contract owners as required by applicable law additional information for use with
Contract owners, including Contract
Printing, processing, mailing and distributing owners making an initial investment in
Separate Account and Series prospectuses, a Fund, as required by applicable law
supplements and statements of additional (1)
information for use with prospective Contract
owners
Documents and Communications Printing, processing, mailing and
related fund to changes distributing or electronically
delivering Series and Separate Account
supplements and other communications
related to fund substitutions, fund
closings, fund mergers and other
similar fund transactions(1)
Annual and Semi-Annual Reports Text composition of annual and semi-annual Text composition of annual and
reports of the Separate Account semi-annual reports of the Fund
Printing, processing, mailing, and distributing Printing, processing, mailing, and
or electronically delivering annual and distributing or electronically
semi-annual reports of the Separate Account to delivering annual and semi-annual
Contract owners reports of the Fund to Contract
owners(1)
Proxies Text composition, printing, processing, mailing, Text composition, printing,
distributing or electronically delivering and processing, mailing, distributing or
tabulation of proxy statements and voting electronically delivering and
instruction solicitation materials to Contract tabulation of proxy statements and
owners with respect to proxies sponsored by the voting instruction solicitation
Separate Accounts materials to Contract owners with
respect to proxies sponsored by a
Fund(1)
----------
(1) The Company may request that the Fund provide typeset electronic document
files of such documents for use with Contract owners. The Company may choose to
print the Funds' prospectus(es), statement of additional information, and
semi-annual and annual reports, or any of such documents, in combination
with such documents of other fund companies; or may utilize electronic delivery
for such fund documents. In this case, the Fund's share of the total expense for
printing, processing, mailing, and distribution of the combined materials or of
electronic delivery of such materials shall be allocated based upon the Fund's
share of the total costs determined according to the number of pages of the
Fund's relative portions of the documents.
