EXHIBIT 24.B.8(NN)
FUND PARTICIPATION AGREEMENT
THIS AGREEMENT is made as of March 12, 2012, among Northern Lights Variable
Trust, an open-end management investment company organized as a Delaware
business trust (the "Trust"), Northern Lights Distributors, LLC, a Nebraska
limited liability company (the "Underwriter"), ValMark Advisers, Inc., an Ohio
corporation (the "Adviser") and Minnesota Life Insurance Company, a life
insurance company organized under the laws of the State of Minnesota (the
"Company"), on its own behalf and on behalf of each segregated asset account of
the Company set forth on Schedule A, as the parties hereto may amend it from
time to time (the "Accounts") (individually, a "Party", and collectively, the
"Parties").
W I T N E S S E T H:
WHEREAS, the Trust has registered with the Securities and Exchange
Commission as an open-end management investment company under the Investment
Company Act of 1940, as amended (the "1940 Act"), and has registered the offer
and sale of its shares ("Shares") under the Securities Act of 1933, as amended
(the "1933 Act"); and
WHEREAS, the Trust desires to act as an investment vehicle for separate
accounts established for variable life insurance policies and variable annuity
contracts to be offered by insurance companies that enter into participation
agreements with the Trust (the "Participating Insurance Companies"); and
WHEREAS, the beneficial interest in the Trust may be divided into several
series of Shares, each series representing an interest in a particular managed
portfolio of securities and other assets, and the Trust will make Shares listed
on Schedule B hereto as the Parties hereto may amend from time to time (each a
"Portfolio"; reference herein to the "Trust" includes reference to each
Portfolio, to the extent the context requires) available for purchase by the
Accounts; and
WHEREAS, the Trust has received an order from the Securities and Exchange
Commission ("SEC"), dated August 16, 2011 (File No. 812 - 13863) granting
Participating Insurance Companies and their separate accounts exemptions from
the provisions of Sections 9(a), 13(a), 15(a) and 15(b) of the 1940 Act, and
Rules 6e-2(b)(15) and 6e-3(T)(b)(15) thereunder, to the extent necessary to
permit Shares of the Trust to be sold to and held by variable annuity and
variable life insurance separate accounts of life insurance companies and
certain qualified pension and retirement plans (the "Exemptive Order"); and
WHEREAS, the Adviser is duly registered as an investment adviser under the
Investment Advisers Act of 1940 (the "Advisers Act") and any applicable state
securities laws and serves as the investment adviser to the Portfolios; and
WHEREAS, the Underwriter is registered as a broker dealer with the SEC under
the Securities Exchange Act of 1934, as amended (the "1934 Act"), and is a
member in good standing of the Financial Industry Regulatory Authority, Inc.
("FINRA") and serves as the principal underwriter of the Shares of the
Portfolios; and
WHEREAS, the Company will be the issuer of certain variable annuity
contracts and variable life insurance contracts ("Contracts") as set forth on
Schedule A hereto, as the Parties hereto may amend from time to time, which
Contracts (hereinafter collectively, the "Contracts"), will be registered under
the 1933 Act; and
WHEREAS, the Company will fund the Contracts through the Accounts, each of
which may be divided into two or more subaccounts ("Subaccounts"; reference
herein to an "Account" includes reference to each Subaccount thereof to the
extent the context requires); and
WHEREAS, the Company will serve as the depositor of the Accounts, each of
which is registered as a unit investment trust investment company under the
1940 Act, and the security interests deemed to be issued by the Accounts under
the Contracts will be registered as securities under the 1933 Act; and
WHEREAS, the Company intends to utilize Shares of one or more Portfolios as
an investment vehicle of the Accounts;
NOW, THEREFORE, in consideration of their mutual promises, the parties agree
as follows:
ARTICLE I
Sale of Trust Shares
1.1 The Trust shall make Shares of its Portfolios available to the Accounts
at the net asset value of the applicable Portfolio next computed after receipt
of such purchase order by the Trust (or its agent),as established in accordance
with the provisions of the then current prospectus of the Portfolio. For
purposes of this agreement, the term "prospectus" shall include the summary
prospectus as well as the statutory prospectus. Shares of a particular
Portfolio of the Trust shall be ordered in such quantities and at such times as
determined by the Company to be necessary to meet the requirements of the
Contracts. Notwithstanding anything to the contrary herein, the Trustees of the
Trust (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 deemed 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 such Portfolio.
The Parties hereto may agree, from time to time, to add other Portfolios
to provide additional funding media for the Contracts, or to delete, combine,
or modify existing Portfolios, by amending Schedule B hereto. Upon such
amendment to Schedule B, any applicable reference to a Portfolio, the Trust, or
its Shares herein shall include a reference to any such additional Portfolio.
Schedule B, as amended from time to time, is incorporated herein by reference
and is a part hereof.
1.2 The Trust will redeem any full or fractional Shares of any Portfolio
when requested by the Company on behalf of an Account at the net asset value of
the applicable Portfolio next computed after receipt by the Trust (or its
agent) of the request for redemption, as established in accordance with the
provisions of the then current prospectus of the applicable Portfolio. With
respect to payment of the purchase price by the Company and of redemption
proceeds by the Trust, the Company and the Trust shall net purchase and
redemption orders with respect to each Portfolio and shall transmit one net
payment per Portfolio in accordance with this Section 1.2 and Section 1.4. The
Trust shall make payment no later than 12:00 noon New York time on the same day
as the order is placed, to the extent practicable, but in no event shall
payment be delayed for a greater period than is permitted by the 0000 Xxx.
1.3 For the purposes of Sections 1.1 and 1.2, the Trust hereby appoints the
Company as its agent for the limited purpose of receiving and accepting
purchase and redemption orders resulting from investment in and payments under
the Contracts. Receipt by the Company shall constitute receipt by the Trust
provided that i) such orders are received by the Company in good order prior to
the time the net asset value of each Portfolio is priced in accordance with its
prospectus and ii) the Trust receives notice of such orders by 10:00 a.m. New
York time on the next following Business Day. "Business Day" shall mean any day
on which the New York Stock Exchange is open for regular trading, on which the
Trust calculates the Portfolio's net asset value pursuant to the rules of the
SEC and on which the Company is open for business.
1.4 The Company shall wire payment for net purchase orders that are
transmitted to the Trust in accordance with Section 1.3 to a custodial agent
designated by the Trust no later than 3.00 p.m. New York time on the same
Business Day that the Trust receives notice of the order. Payments shall be
made in federal funds transmitted by wire.
1.5 Issuance and transfer of the Trust's Shares will be by book entry only.
Stock certificates will not be issued to the Company or the Accounts. Shares
ordered from the Trust will be recorded in the appropriate title for each
Account or the appropriate subaccount of each Account.
1.6 The Trust shall furnish, on or before the ex dividend date, notice (by
email or telephone followed by written or email confirmation) to the Company of
any income dividends or capital gain distributions payable on the Trust's
Shares. The Company hereby elects to receive all such income dividends and
capital gain distributions as are payable on a Portfolio's Shares in additional
Shares of that Portfolio. The Company reserves the right to revoke this
election and to
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receive all such dividends and capital gain distributions in cash. The Trust
shall notify the Company of the number of Shares so issued as payment of such
dividends and distributions.
1.7 The Trust shall make the net asset value per share for each Portfolio
available to the Company on a daily basis 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 p.m. New York time.
1.8 The Company shall use the data provided by the Trust each Business Day
pursuant to Section 1.7 above immediately to calculate Account unit values and
to process transactions that receive that same Business Day's Account unit
values. The Company shall perform such Account processing the same Business
Day, and shall place corresponding orders to purchase or redeem Shares with the
Trust by 10:00 a.m. New York time the following Business Day.
1.9 The Trust agrees that its Shares will be sold only to Participating
Insurance Companies and their separate accounts and to certain qualified
pension and retirement plans ("Plans") to the extent permitted by the Exemptive
Order. No Shares of any Portfolio will be sold directly to the general public.
The Company agrees that Trust Shares will be used only for the purposes of
funding the Contracts and Accounts listed in Schedule A, as amended from time
to time.
1.10 The Trust agrees that all Participating Insurance Companies shall have
the obligations and responsibilities regarding pass-through voting and
conflicts of interest corresponding to those contained in Section 2.8 and
Article IV of this Agreement.
1.11 The Trust shall use its best efforts to provide closing net asset
value, dividend and capital gain information on a per-share basis to the
Company on each Business Day. Any material errors in the calculation of net
asset value, dividend and/or capital gain information shall be reported to the
Company promptly upon discovery. Material errors will be corrected in the
applicable Business Day's net asset value per share. The Company will adjust
the number of shares purchased or redeemed for the Accounts to reflect the
correct net asset value per share.
ARTICLE II
Obligations of the Parties
2.1 The Trust shall prepare and be responsible for filing with the SEC and
any state regulators requiring such filing all shareholder reports, notices,
proxy materials (or similar materials such as voting instruction solicitation
materials), prospectuses and statements of additional information of the Trust.
The Trust shall bear the costs of registration and qualification of its Shares,
preparation and filing of the documents listed in this Section 2.1 and all
taxes to which an issuer is subject on the issuance and transfer of its Shares.
2.2 At the option of the Company, the Trust shall either (a) provide the
Company with as many printed copies of the Trust's current prospectus, annual
report, semi-annual report and other shareholder communications, including any
amendments or supplements to any of the foregoing, as the Company shall
request; or (b) provide the Company with a camera ready copy of such documents
in a form suitable for printing and from which information relating to series
of the Trust other than the Portfolios has been deleted to the extent
practicable. The Trust shall provide the Company with a copy of its statement
of additional information, including any amendments or supplements, in a form
suitable for duplication by the Company. Expenses of furnishing such documents
for marketing purposes shall be borne by the Company and expenses of furnishing
such documents for current Contract owners for whom Shares are held by an
Account shall be borne by the Trust. If the Company elects to receive a camera
ready copy of such documents, the Trust shall reimburse the Company in an
amount equal to the product of A and B, where A is the number of such documents
distributed to owners of the Contracts, and B is the Trust's per unit cost of
typesetting and printing such documents. The Trust (at its expense) shall
distribute any Trust-sponsored proxy materials to Contract owners through a
proxy solicitation firm, and the Company agrees to provide reasonable support
and cooperation for any proxy solicitation. The Trust shall provide the
materials described in this Section 2.2 within a reasonable time prior to
required printing and distribution of such materials, or as reasonably
requested by the Company.
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2.3 (a) The Company shall bear the costs of distributing the Trust's
prospectus, statement of additional information, shareholder reports and other
shareholder communications to Contract owners of and applicants for policies
for which the Trust is serving or is to serve as an investment vehicle. The
Company assumes sole responsibility for ensuring that such materials are
delivered to Contract owners on a timely basis in accordance with applicable
federal and state securities laws, provided that the Trust provides such
materials to the Company in accordance with the terms of this Agreement. The
Trust shall bear the costs of distributing proxy materials (or similar
materials such as voting solicitation instructions) to Contract owners.
(b) If the Company elects to include any materials provided by the
Trust, specifically prospectuses, statements of additional information,
shareholder reports and proxy materials, on its web site or in any other
computer or electronic format, the Company assumes sole responsibility for
maintaining such materials in the form provided by the Trust or as filed in
definitive form with the SEC, and for promptly replacing such materials with
all updates provided by the Trust. The Trust agrees to provide all such
materials to the Company in high resolution Portable Document Format (PDF) in a
timely fashion at no additional cost. In addition to the other requirements set
forth in this Agreement, the Trust shall offer a summary prospectus for each
Portfolio in accordance with Rule 498 of the 1933 Act, and it shall deliver to
the Company the statutory prospectus and statement of additional information in
an electronic format that permits persons accessing such documents to move
directly back and forth between each section heading in a table of contents and
the section of the document referenced in that section heading, as required by
Rule 498 of the 0000 Xxx.
2.4 The Parties each agree and acknowledge that it has no rights to the
name, logo, brand or xxxx of the other Party or its affiliates and that all use
of any designation comprised in whole or part of any such name, logo, brand or
xxxx by a Party is prohibited without the prior written consent of the other
Party, unless use is required under applicable law. Upon termination of this
Agreement for any reason, each Party shall cease all use of the other Party's
name, logo, brand or xxxx as soon as reasonably practicable.
2.5 (a) The Company shall furnish, or cause to be furnished, to the Trust or
its designee, a copy of each Contract prospectus or statement of additional
information in which the Trust, Underwriter and/or the Adviser is named prior
to filing of such document with the SEC. The Company shall furnish, or shall
cause to be furnished, to the Trust or its designee, each piece of sales
literature or other promotional material in which the Trust or its investment
adviser(s) is named, at least fifteen Business Days prior to its use. No such
material shall be used if the Trust or its designee reasonably objects to such
use within fifteen Business Days after receipt of such material.
(b) The Trust shall furnish, or shall cause to be furnished, to the
Company or its designee, each piece of sales literature or other promotional
material in which the Company, the Accounts or the Contracts are named, at
least fifteen Business Days prior to its use. No such material shall be used if
the Company or its designee reasonably objects to such use within fifteen
Business Days after receipt of such material.
2.6 The Company and its affiliates shall not give any information or make
any representations or statements on behalf of the Trust or concerning the
Trust or any of its affiliates or its investment adviser(s) in connection with
the sale of the Contracts other than information or representations contained
in and accurately derived from the registration statement, including the
prospectus and statement of additional information, for the Trust Shares (as
such registration statement, prospectus and statement of additional information
may be amended or supplemented from time to time), reports of the Trust,
Trust-sponsored proxy statements, or in materials approved by the Trust or its
designee for distribution including sales literature or other promotional
material, except as required by legal process or regulatory authorities or with
the written permission of the Trust or its designee.
2.7 The Trust and its affiliates shall not give any information or make any
representations or statements on behalf of the Company or concerning the
Company or any of its affiliates, the Contracts or the Accounts other than
information or representations contained in and accurately derived from the
registration statement, including the prospectus and statement of additional
information, for the Contracts (as such registration statement, prospectus, and
statement of additional information may be amended or supplemented from time to
time), or in materials approved by the Company or its designee for distribution
including sales literature or
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other promotional materials, except as required by legal process or regulatory
authorities or with the written permission of the Company or its designee.
2.8 So long as, and to the extent that the SEC interprets the 1940 Act to
require pass-through voting privileges for owners of variable life insurance
policies and/or variable annuity contracts, the Company will provide
pass-through voting privileges to Contract owners whose cash values are
invested, through the Accounts, in Shares of the Trust. The Trust shall require
all Participating Insurance Companies to calculate voting privileges in the
same manner and the Company shall be responsible for assuring that the Accounts
calculate voting privileges in the manner established by the Trust. With
respect to each Account, the Company will vote Shares of the Trust held by the
Account and for which no timely voting instructions from policyowners are
received, in the same proportion as those Shares for which timely voting
instructions are received. The Company and its affiliates and agents will in no
way recommend or oppose or interfere with the solicitation of proxies for Trust
Shares held by Contract owners without the prior written consent of the Trust,
which consent may be withheld in the Trust's sole discretion. The Company
reserves the right to vote Trust Shares held in any segregated asset account in
its own right, to the extent permitted by law.
2.9 The Company shall adopt and implement procedures reasonably designed to
ensure that information concerning the Trust and its affiliates that is
intended for use only by brokers or agents selling the Contracts (i.e.,
information that is not intended for distribution to Contract owners) ("broker
only materials") is so used.
2.10 For purposes of Sections 2.6 and 2.7, 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, or other public media, (e.g.,
on-line networks such as the Internet or other electronic messages), sales
literature (i.e., any written communication distributed or made generally
available to customers or the public, including brochures, circulars, research
reports, market letters, form letters, seminar texts, reprints or excerpts of
any other advertisement, sales literature, or published article), educational
or training materials or other communications distributed or made generally
available to some or all agents or employees, registration statements,
prospectuses, statements of additional information, shareholder reports, and
proxy materials and any other material constituting sales literature or
advertising under the FINRA rules, the 1933 Act or the 0000 Xxx.
2.11 The Trust will immediately notify the Company of (i) the issuance by
any court or regulatory body of any stop order, cease and desist order, or
other similar order with respect to the Trust's registration statement under
the 1933 Act or the Trust prospectus, (ii) any request by the SEC for any
amendment to such registration statement or the Trust prospectus that may
affect the offering of Shares of the Trust, (iii) the initiation of any
proceedings for that purpose or for any other purpose relating to the
registration or offering of the Trust's Shares, or (iv) any other action or
circumstances that may prevent the lawful offer or sale of Shares of any
Portfolio in any state or jurisdiction, including, without limitation, any
circumstances in which (a) such Shares are not registered and, in all material
respects, issued and sold in accordance with applicable state and federal law,
or (b) such law precludes the use of such Shares as an underlying investment
medium of the Contracts issued or to be issued by the Company. The Trust will
make every reasonable effort to prevent the issuance, with respect to any
Portfolio, of any such stop order, cease and desist order or similar order and,
if any such order is issued, to obtain the lifting thereof at the earliest
possible time.
2.12 The Company will immediately notify the Trust of (i) the issuance by
any court or regulatory body of any stop order, cease and desist order, or
other similar order with respect to each Account's registration statement under
the 1933 Act relating to the Contracts or each Account prospectus, (ii) any
request by the SEC for any amendment to such registration statement or Account
prospectus that may affect the offering of Shares of the Trust, (iii) the
initiation of any proceedings for that purpose or for any other purpose
relating to the registration or offering of each Account's interests pursuant
to the Contracts, or (iv) any other action or circumstances that may prevent
the lawful offer or sale of said interests in any state or jurisdiction,
including, without limitation, any circumstances in which said interests are
not registered and, in all material respects, issued and sold in accordance
with applicable state and federal law. The Company will make every reasonable
effort to prevent the issuance of any such
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stop order, cease and desist order or similar order and, if any such order is
issued, to obtain the lifting thereof at the earliest possible time.
2.13 (a) The Company confirms that it will be considered the Trust's agent
for purposes of Rule 22c-1 under the 1940 Act. The Company may authorize such
intermediaries as it deems appropriate ("Correspondents") to receive orders on
the Trust's behalf for purposes of Rule 22c-1 under the 1940 Act. The Company
shall be liable to the Trust for each Correspondent's compliance with this
Section 2.13 to the same extent as if the Company itself had acted or failed to
act instead of the Correspondent. The Company acknowledges that it has:
(1) adopted and implemented procedures reasonably designed to prevent orders
received after the market close on any day that the Trust is open for business
from being improperly aggregated with orders received prior to the market
close; and (2) determined that each Correspondent has adopted and implemented
its own internal procedures reasonably designed to prevent orders received
after the market close on any day that the Trust is open for business from
being improperly aggregated with orders received prior to the market close.
(b) The Company agrees to provide or cause to be provided, promptly upon
written request by the Trust or the Underwriter, the Taxpayer Identification
Number ("TIN"), the International/Individual Taxpayer Identification Number
("ITIN"), or other government-issued identifier ("GII"), if known, and the
amount, date, name or other identifier of any investment professional(s)
associated with a Contract owner(s) or account (if known), of all Contract
owners that purchased, redeemed, transferred or exchanged Trust Shares held
through an account with the Company covered by the period of the request.
(c) If the requested information is not on the Company's books and records,
the Company agrees to: (i) promptly obtain and transmit the requested
information; (ii) obtain assurances from the indirect intermediary with access
to such information that the requested information will be provided directly to
the Trust or the Underwriter promptly; or (iii) if directed by the Trust or the
Underwriter, block further purchases of Trust Shares from such indirect
intermediary. In such instance, the Company agrees to inform the Trust or the
Underwriter whether it plans to perform (i), (ii) or (iii). Responses required
by this paragraph must be communicated in writing and in a format mutually
agreed upon by the parties.
(d) The Company agrees to transmit the requested information that is on its
books and records to the Trust, the Underwriter, or their designee promptly,
but in any event not later than ten Business Days, after receipt of a request.
To the extent practicable, the format for any transaction information provided
to the Trust or the Underwriter should be consistent with the NSCC Standardized
Data Reporting Format. All Contract owner information shall be transmitted and
received by both parties using data security and encryption technology that is
standard for the industry in transmitting confidential information. The Trust
agrees not to use the information received for marketing or any other similar
purpose without the prior written consent of the Company.
(e) The Company will execute or cause to be executed any instructions from
the Trust, the Underwriter, or their agents to restrict or prohibit further
purchases or exchanges of Trust Shares by a Contract owner who has been
identified by the Trust or the Underwriter as having engaged in transactions in
Trust Shares (either directly or indirectly through an account with the
Company) that violate policies established by the Trust as soon as reasonably
practicable, but not later than five (5) business days after receipt of such
instructions.
ARTICLE III
Representations and Warranties
3.1 The Company represents and warrants (i) that it is an insurance company
duly organized and in good standing under the laws of the State of Minnesota
and has full corporate power, authority and legal right to execute, deliver and
perform its duties and comply with its obligations under this Agreement,
(ii) that it has legally and validly established and maintained each Account as
a segregated asset account under such law and the regulations thereunder, and
(iii) that the Contracts comply in all material respects with all other
applicable federal and state laws and regulations.
3.2 The Company represents and warrants that (i) each Account has been
registered or, prior to any issuance or sale of the Contracts, will be
registered and each Account will remain
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registered as a unit investment trust in accordance with the provisions of the
1940 Act, (ii) each Account does and will comply in all material respects with
the requirements of the 1940 Act and the rules thereunder, (iii) each Account's
1933 Act registration statement relating to the Contracts, together with any
amendments thereto, will at all times comply in all material respects with the
requirements of the 1933 Act and the rules thereunder, (iv) the Company will
amend the registration statement for its Contracts under the 1933 Act and for
its Accounts under the 1940 Act from time to time as required in order to
effect the continuous offering of its Contracts or as may otherwise be required
by applicable law, and (v) each Account prospectus will at all times comply in
all material respects with the requirements of the 1933 Act and the rules
thereunder.
3.3 The Company represents and warrants that the Contracts or interests in
the Accounts are or, prior to issuance, will be registered as securities under
the 1933 Act. The Company further represents and warrants that: (i) the
Contracts will be issued and sold in compliance in all material respects with
all applicable federal and state laws, (ii) the sale of the Contracts, and the
allocation of purchase payments under the Contracts to any Portfolio of the
Trust, shall comply in all material respects with federal and state securities
and insurance suitability requirements, (iii)the Company has adopted policies
and procedures reasonably designed to comply with the US PATRIOT Act, and
(iv) the Company does not encourage or facilitate active trading and has
adopted policies and procedures reasonably designed to prevent market timing
within the Portfolios.
3.4 The Trust represents and warrants (i) that it is duly organized and
validly existing under the laws of the State of Delaware and has full power,
authority and legal right to execute, deliver and perform its duties and comply
with its obligations under this Agreement, (ii) that it does and will comply in
all material respects with the requirements of the 1940 Act and the rules
thereunder, (iii) that its 1933 Act registration statement, together with any
amendments thereto, will at all times comply in all material respects with the
requirements of the 1933 Act and rules thereunder, and (iv) that its prospectus
will at all times comply in all material respects with the requirements of the
1933 Act and the rules thereunder.
3.5 The Trust represents and warrants that the Trust Shares offered and sold
pursuant to this Agreement shall be registered under the 1933 Act to the extent
required by the 1933 Act and the Trust shall be registered under the 1940 Act
to the extent required by the 1940 Act prior to any issuance or sale of such
Shares. The Trust shall amend its registration statement for its shares under
the 1933 Act and itself under the 1940 Act from time to time as required in
order to effect the continuous offering of its Shares. The Trust shall register
and qualify its Shares for sale in accordance with the laws of the various
states only if and to the extent deemed advisable by the Trust or if required
by law.
3.6 The Trust represents and warrants that each Portfolio intends to and
will at all times comply with the diversification requirements set forth in
Section 817(h) of the Internal Revenue Code of 1986, as amended, (the "Code")
and the regulations thereunder and that the Trust will notify the Company
promptly in writing upon having a reasonable basis for believing that a
Portfolio does not so comply. In the event of any such non-compliance, the
Trust will take all reasonable steps to adequately diversify the Portfolio so
as to achieve compliance within the grace period afforded by Section 1.817-5 of
the regulations under the Code.
Notwithstanding any other provision of this Agreement, the Company
agrees that if the Internal Revenue Service ("IRS") asserts in writing in
connection with any governmental audit or review of the Company or, if the
Company is made aware in writing, of any Contract owners or annuitants,
insureds or participants under the Contracts (as appropriate) (collectively,
"Participants"), that any Portfolio has failed to comply with the
diversification requirements of Section 817(h) of the Code or the Company
otherwise becomes aware of any facts that could give rise to any claim against
the Trust or its affiliates as a result of such a failure or alleged failure:
(a) the Company shall promptly notify the Trust of such assertion or
potential claim;
(b) the Company shall consult with the Trust as to how to minimize any
liability that may arise as a result of such failure or alleged failure.
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3.7 The Trust represents that each Portfolio is currently qualified as a
Regulated Investment Company under Subchapter M of the Code and that it will
make every effort to maintain such qualification (under Subchapter M or any
successor or similar provision) and that it will notify the Company promptly
upon having a reasonable basis for believing that a Portfolio has ceased to so
qualify.
3.8 The Trust represents and warrants that all of its trustees, officers and
employees are and shall continue to be at all times covered by a blanket
fidelity bond or similar coverage for the benefit of the Trust in an amount not
less than the minimal coverage as required currently by Rule 17g-(1) under the
1940 Act or related provisions as may be promulgated from time to time. The
aforesaid Bond shall include coverage for larceny and embezzlement and shall be
issued by a reputable bonding company.
3.9 The Company represents and warrants that the Contracts currently are
treated as annuity contracts or life insurance contracts under applicable
provisions of the Code and that it will make every effort to maintain such
treatment; the Company will notify the Trust immediately upon having a
reasonable basis for believing that any of the Contracts have ceased to be so
treated or that they might not be so treated in the future.
3.10 The Company represents and warrants that each Account is a "segregated
asset account" and that interests in each Account 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
thereunder. The Company will make every effort to continue to meet such
definitional requirements, and it will notify the Trust 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.
3.11 Each of the Parties represents and warrants that it shall perform its
obligations hereunder in compliance, in all material respects, with any
applicable state and federal laws.
3.12 The Trust represents and warrants that the investment advisory or
management fees paid to the Adviser are legitimate and not excessive and are
derived from an advisory contract which does not result in a breach of
fiduciary duty.
3.13 The Adviser represents and warrants that it is duly organized and
validly existing under the laws of the State of Ohio and that the Adviser is
currently registered and will, during the term of this Agreement, remain
registered as an investment adviser under the Advisers Act.
3.14 The Underwriter represents and warrants that it is a member in good
standing of the FINRA and is registered as a broker-dealer with the SEC. The
Underwriter further represents that it will sell and distribute the Trust
Shares in accordance with the laws of all applicable state and federal laws,
including without limitation the 1933 Act, the 1934 Act, and the 1940 Act.
ARTICLE IV
Potential Conflicts
4.1 The Parties acknowledge that the Trust's Shares may be made available
for investment to other Participating Insurance Companies. In such event, the
Trustees will monitor the Trust for the existence of any material
irreconcilable conflict between the interests of the contract owners of all
Participating Insurance Companies. 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 variable annuity contract and variable life insurance policyowners; or (f) a
decision by an insurer to disregard the voting instructions of contract owners.
The Trustees shall promptly inform the Company if they determine that an
irreconcilable material conflict exists and the implications thereof.
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4.2 The Company agrees to promptly 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 under the Exemptive Order by
providing the Trustees with all information reasonably necessary for the
Trustees to consider any issues raised including, but not limited to,
information as to a decision by the Company to disregard Contract owner voting
instructions.
4.3 If it is determined by a majority of the Trustees, or a majority of its
disinterested Trustees, that a material irreconcilable conflict exists that
affects the interests of Contract owners, the Company shall, in cooperation
with other Participating Insurance Companies whose contract owners are also
affected, 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, which
steps could include: (a) withdrawing the assets allocable to some or all of the
Accounts from the Trust or any Portfolio and reinvesting such assets in a
different investment medium, including (but not limited to) another Portfolio
of the Trust, or submitting the question of whether or not 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 (b) establishing a new registered management investment
company or managed separate account.
4.4 If a material irreconcilable conflict arises because of a decision by
the Company to disregard Contract owner voting instructions and that decision
represents a minority position or would preclude a majority vote, the Company
may be required, at the Trust's election, to withdraw each affected Account's
investment in the Trust and terminate this Agreement with respect to such
Account; provided, however that such withdrawal and termination shall be
limited to the extent required to adequately remedy 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 Trust gives written notice that this provision is being
implemented. Until the end of such six (6) month period, the Trust shall
continue to accept and implement orders by the Company for the purchase and
redemption of Shares of the applicable Portfolio.
4.5 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 affected
Account's investment in the Trust and terminate this Agreement with respect to
such Account within six (6) 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 to adequately remedy the foregoing
material irreconcilable conflict as determined by a majority of the
disinterested Trustees. Until the end of such six (6) month period, the Trust
shall continue to accept and implement orders by the Company for the purchase
and redemption of Shares of the applicable Portfolio.
4.6 For purposes of Sections 4.3 through 4.6 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 Company be required to establish a new funding medium for the Contracts if
an offer to do so has been declined by vote of a majority of Contract owners
materially adversely affected by the irreconcilable material conflict. In the
event that the Trustees determine that any proposed action does not adequately
remedy any irreconcilable material conflict, then the Company will withdraw the
Account's investment in the Trust and terminate this Agreement within six
(6) months after the Trustees inform the Company in writing of the foregoing
determination.
4.7 The Company shall at least annually submit to the Trustees such reports,
materials or data as the Trustees may reasonably request so that the Trustees
may fully carry out the duties imposed upon them by the Exemptive Order, and
said reports, materials and data shall be submitted more frequently if deemed
appropriate by the Trustees.
4.8 If and to the extent that Rule 6e-2 and Rule 6e-3(T) are amended, or a
similar rule or Rule 6e-3is adopted, to provide exemptive relief from any
provision of the 1940 Act or the rules promulgated thereunder with respect to
mixed or shared funding (as defined in the
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Exemptive Order) on terms and conditions materially different from those
contained in the Exemptive Order, then the Trust and/or the Participating
Insurance Companies, as appropriate, shall take such steps as may be necessary
to comply with Rules 6e-2 and 6e-3(T), as amended, and Rule 6e-3 or any other
rule, as adopted, to the extent such rules are applicable.
ARTICLE V
Indemnification
5.1 Indemnification By the Company. The Company agrees to indemnify and hold
harmless the Trust, the Adviser and their respective affiliates and each of
their Trustees, officers, employees and agents and each person, if any, who
control them or any of their affiliates within the meaning of Section 15 of the
1933 Act (collectively, the "Trust Indemnified Parties" for purposes of this
Article V) against any and all losses, claims, damages, liabilities (including
amounts paid in settlement with the written consent of the Company) 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 Trust
Indemnified Parties may become subject under any statute or regulation, or at
common law or otherwise, insofar as such Losses:
(a) arise out of or are based upon any untrue statements or alleged
untrue statements of any material fact contained in a registration statement or
prospectus for the Contracts or in the Contracts themselves or in advertising
or sales literature for the Contracts (or any amendment or supplement to any of
the foregoing) (collectively, "Company Documents" for the purposes of this
Article V), 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 Trust Indemnified Party if such statement
or omission or such alleged statement or omission was made in reliance upon and
was accurately derived from written information furnished to the Company or its
affiliates by or on behalf of the Trust or its affiliates for use in Company
Documents or otherwise for use in connection with the sale of the Contracts or
Trust Shares; or
(b) arise out of or result from statements or representations (other
than statements or representations contained in and accurately derived from
Trust Documents as defined in Section 5.2(a)) or the negligent or wrongful
conduct of the Company, or persons under its control (including, without
limitation, its employees), in connection with the sale or distribution of the
Contracts or Trust Shares; or
(c) arise out of or result from any untrue statement or alleged untrue
statement of a material fact contained in Trust Documents as defined in
Section 5.2(a) or the omission or alleged omission to state therein a material
fact required to be stated therein or necessary to make the statements therein
not misleading if such statement or omission was made in reliance upon and
accurately derived from written information furnished to the Trust, the
Underwriter, or their affiliates by or on behalf of the Company or its
affiliates; or
(d) arise out of or result from any failure by the Company to perform
the obligations, provide the services or furnish the materials required under
the terms of this Agreement; or
(e) arise out of or result from any material breach of any
representation and/or warranty made by the Company in this Agreement or arise
out of or result from any other material breach of this Agreement by the
Company.
5.2 Indemnification By the Trust. The Trust agrees to indemnify and hold
harmless the Company its affiliates and each of its directors, officers,
employees and agents and each person, if any, who controls the Company or any
of its affiliates within the meaning of Section 15 of the 1933 Act
(collectively, the "Company Indemnified Parties" for purposes of this Article
V) against any and all Losses to which the Company Indemnified Parties may
become subject under any statute or regulation, or at common law or otherwise,
insofar as such Losses:
(a) arise out of or are based upon any untrue statements or alleged
untrue statements of any material fact contained in the registration statement
or prospectus for the Trust or in advertising or sales literature for the Trust
(or any amendment or supplement to any of the foregoing), (collectively, "Trust
Documents" for the purposes of this Article V), or arise out of or
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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 Company
Indemnified Party if such statement or omission or such alleged statement or
omission was made in reliance upon and was accurately derived from written
information furnished to the Trust, the Underwriter, or their affiliates by or
on behalf of the Company or its affiliates for use in Trust Documents or
otherwise for use in connection with the sale of the Contracts or Trust Shares;
or
(b) arise out of or result from statements or representations (other
than statements or representations contained in and accurately derived from
Company Documents) or the negligent or wrongful conduct of the Trust or persons
under their control (including, without limitation, its employees), in
connection with the sale or distribution of the Contracts or Trust Shares; or
(c) 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 statements therein not misleading if such statement or
omission was made in reliance upon and accurately derived from written
information furnished to the Company or its affiliates by or on behalf of the
Trust, Underwriter, Adviser, or their affiliates; or
(d) arise out of or result from any failure by the Trust to perform the
obligations, provide the services or furnish the materials required under the
terms of this Agreement; or
(e) 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.
5.3 Indemnification By the Adviser. The Adviser agrees to indemnify and hold
harmless the Company Indemnified Parties against any and all Losses to which
the Company Indemnified Parties may become subject under any statute or
regulation, or at common law or otherwise, insofar as such Losses:
(a) arise out of or are based upon any untrue statements or alleged
untrue statements of any material fact contained in the Trust 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 Company Indemnified Party if such statement or omission or such
alleged statement or omission was made in reliance upon and was accurately
derived from written information furnished to the Trust, the Adviser, the
Underwriter, or their affiliates by or on behalf of the Company or its
affiliates for use in Trust Documents or otherwise for use in connection with
the sale of the Contracts or Trust Shares; or
(b) arise out of or result from statements or representations (other
than statements or representations contained in and accurately derived from
Company Documents) or the negligent or wrongful conduct of the Trust or Adviser
or persons under their control (including, without limitation, its employees),
in connection with the sale or distribution of the Contracts or Trust Shares; or
(c) 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 statements therein not misleading if such statement or
omission was made in reliance upon and accurately derived from written
information furnished to the Company or its affiliates by or on behalf of the
Trust, Advisor, or their affiliates; or
(d) arise out of or result from any failure by the Trust, or Adviser to
perform the obligations, provide the services or furnish the materials required
under the terms of this Agreement; or
-11-
(e) arise out of or result from any material breach of any
representation and/or warranty made by the Trust or Adviser in this Agreement
or arise out of or result from any other material breach of this Agreement by
the Trust or Adviser.
5.4 Indemnification of the Company by the Underwriter. The Underwriter
agrees to indemnify and hold harmless the Company Indemnified Parties against
any and all Losses to which the Company Indemnified Parties may become subject
under any statute or regulation, or at common law or otherwise, insofar as such
Losses:
(a) arise out of or result from any failure by the Underwriter to
perform the obligations, provide the services or furnish the materials required
under the terms of this Agreement; or
(b) arise out of or result from any material breach of any
representation and/or warranty made by the Underwriter in this Agreement or
arise out of or result from any other material breach of this Agreement by the
Underwriter.
5.5 Indemnification of the Underwriter by the Company. The Company agrees to
indemnify and hold harmless the Underwriter and its affiliates and each of
their officers, employees and agents and each person, if any, who control them
or any of their affiliates within the meaning of Section 15 of the 1933 Act
(collectively, the "Underwriter Indemnified Parties" for purposes of this
Article V) against any and all Losses to which the Underwriter Indemnified
Parties may become subject under any statute or regulation, or at common law or
otherwise, insofar as such Losses:
(a) arise out of or result from any failure by the Company to perform
the obligations, provide the services or furnish the materials required under
the terms of this Agreement; or
(b) arise out of or result from any material breach of any
representation and/or warranty made by the Company in this Agreement or arise
out of or result from any other material breach of this Agreement by the
Company.
5.6 No Party shall be liable under the indemnification provisions of
Sections 5.1, 5.2, 5.3, 5.4, or 5.5 as applicable, with respect to any Losses
incurred or assessed against a Trust Indemnified Party, Underwriter Indemnified
Party, or a Company Indemnified Party, as applicable (as to each, an
"Indemnified Party") to the extent the Losses arise from such Indemnified
Party's willful misfeasance, bad faith or gross negligence in the performance
of such Indemnified Party's duties or by reason of such Indemnified Party's
reckless disregard of obligations or duties under this Agreement.
5.7 No Party shall be liable under the indemnification provisions of
Sections 5.1, 5.2, 5.3, 5.4, or 5.5 as applicable, with respect to any claim
made against an Indemnified Party unless such Indemnified Party shall have
notified the party or parties against whom Indemnification is sought (the
"Indemnifying Party") in writing within a reasonable time after the summons, or
other first written notification, giving information of the nature of the claim
shall have been served upon or otherwise received by such Indemnified Party (or
after such Indemnified Party shall have received notice of service upon or
other notification to any designated agent), but failure to notify the
Indemnifying Party of any such claim shall not relieve such Indemnifying Party
from any liability which it may have to the Indemnified Party in the absence of
Sections 5.1, 5.2, 5.3, 5.4, or 5.5.
5.8 In case any such action is brought against the Indemnified Parties, the
Indemnifying Party shall be entitled to participate, at its own expense, in the
defense of such action. The Indemnifying Party also shall be entitled to assume
the defense thereof, with counsel reasonably satisfactory to the party named in
the action. After notice from the Indemnifying Party to the Indemnified Party
of an election to assume such defense, the Indemnified Party shall cooperate
with the Indemnifying Party and bear the fees and expenses of any additional
counsel retained by it, and the Indemnifying Party will not be liable to the
Indemnified Party under this Agreement for any legal or other expenses
subsequently incurred by such Indemnified Party independently in connection
with the defense thereof other than reasonable costs of investigation.
-12-
ARTICLE VI
Confidentiality
6.1 The Trust acknowledges that the identities of the customers of Company
or any of its affiliates (collectively, the "Company Protected Parties" for
purposes of this Article VI), information maintained regarding those customers,
and all computer programs and procedures or other information developed by the
Company Protected Parties or any of their employees or agents in connection
with Company's performance of its duties under this Agreement are the valuable
property of the Company Protected Parties. The Trust agrees that if it comes
into possession of any list or compilation of the identities of or other
information about the Company Protected Parties' customers, or any other
information or property of the Company Protected Parties, other than such
information as may be independently developed or compiled by the Trust from
information supplied to it by the Company Protected Parties' customers who also
maintain accounts directly with the Trust, the Trust will hold such information
or property in confidence and refrain from using, disclosing or distributing
any of such information or other property except: (a) with Company's prior
written consent; or (b) as required by law or judicial process. The Company
acknowledges that the identities of the customers of the Trust or any of its
affiliates (collectively, the "Trust Protected Parties" for purposes of this
Article VI), information maintained regarding those customers, and all computer
programs and procedures or other information developed by the Trust Protected
Parties or any of their employees or agents in connection with the Trust's
performance of its duties under this Agreement are the valuable property of the
Trust Protected Parties. The Company agrees that if it comes into possession of
any list or compilation of the identities of or other information about the
Trust Protected Parties' customers or any other information or property of the
Trust Protected Parties, other than such information as may be independently
developed or compiled by Company from information supplied to it by the Trust
Protected Parties' customers who also maintain accounts directly with the
Company, the Company will hold such information or property in confidence and
refrain from using, disclosing or distributing any of such information or other
property except: (a) with the Trust's prior written consent; or (b) as required
by law or judicial process. Each party acknowledges that any breach of the
agreements in this Article VI would result in immediate and irreparable harm to
the other parties for which there would be no adequate remedy at law and agree
that in the event of such a breach, the other parties will be entitled to
equitable relief by way of temporary and permanent injunctions, as well as such
other relief as any court of competent jurisdiction deems appropriate.
ARTICLE VII
Termination
7.1 (a) This Agreement may be terminated by either party for any reason by
ninety (90) days advance written notice delivered to the other party.
(b) This Agreement may be terminated by the Company immediately upon
written notice to the Trust with respect to any Portfolio:
(i) based upon the Company's determination that Shares of such
Portfolio are not reasonably available to meet the requirements of the
Contracts; or
(ii) in the event any of the Portfolio's Shares are not registered,
and in all material respects issued or sold in accordance with applicable state
and/or federal law or such law precludes the use of such Shares as the
underlying investment media of the Contracts issued or to be issued by the
Company; or
(iii) in the event that such Portfolio ceases to qualify as a
Regulated Investment Company under Subchapter M of the Code or under any
successor or similar provision, or if the Company reasonably believes that the
Trust may fail to so qualify; or
(iv) in the event that such Portfolio fails to meet the
diversification requirements specified in this Agreement.
7.2 Notwithstanding any termination of this Agreement under Section 7.1, the
Trust shall, at the option of the Company, continue to make available
additional Shares of the Trust (or any Portfolio) for at least 180 days,
pursuant to the terms and conditions of this Agreement, for all Contracts in
effect on the effective date of termination of this Agreement, provided that the
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Company continues to pay the costs set forth in Section 2.3 and meet all
obligations of the Company under this Agreement (treating it as being in full
force and effect), and further provided that Shares of the Trust (or any
Portfolio) shall only be required to be made available with respect to owners
of the Contracts for whom Shares are held by an Account on the effective date
of the termination. Such Contract owners will be permitted to reallocate
investments in the Portfolio and/or invest in the Portfolio upon the making of
additional purchase payments under the Contracts. The provisions of this
Section 7.2 shall not apply to any termination pursuant to Article IV or in the
event the Trust determines to liquidate the Portfolio and end the Portfolio's
existence.
7.3 The provisions of Articles V and VI shall survive the termination of
this Agreement, and the provisions of Articles II and IV shall survive the
termination of this Agreement as long as Shares of the Trust are held on behalf
of Contract owners in accordance with Section 7.2.
7.4 This Agreement will terminate as to a Portfolio upon at least sixty
(60) days advance written notice:
(a) at the option of the Trust upon institution of formal proceedings
against the Company by FINRA, the SEC, or any state securities or insurance
department or any other regulatory body if the Trust shall determine, in its
sole judgment exercised in good faith, that the Company has suffered a material
adverse change in its business, operations, financial condition, or prospects
since the date of this Agreement or is the subject of material adverse
publicity; or
(b) at the option of the Company upon institution of formal proceedings
against the Trust, its principal underwriter, or its investment adviser by
FINRA, the SEC, or any state securities or insurance department or any other
regulatory body if the Company shall determine, in its sole judgment exercised
in good faith, that the Trust, its principal underwriter, or its investment
adviser has suffered a material adverse change in its business, operations,
financial condition, or prospects since the date of this Agreement or is the
subject of material adverse publicity; or
7.5 This Agreement will terminate as to a Portfolio immediately upon prior
written notice which shall be given as soon as possible within twenty-four
(24) hours after the terminating Party learns of the event causing termination
to be required:
(a) at the option of the Trust if the Contracts issued by the Company
cease to qualify as annuity contracts or life insurance contracts under the
Code (other than by reason of the Portfolio's noncompliance with Section 817(h)
or Subchapter M of the Code) or if interests in an Account under the Contracts
are not registered, or, in all material respects, are not issued or sold in
accordance with any applicable federal or state law; or
(b) upon another Party's material breach of any provision of this
Agreement, and such breach is not cured within 30 days of receiving written
notice of such breach.
7.6 The Parties hereto agree to cooperate and give reasonable assistance to
one another in taking all necessary and appropriate steps for the purpose of
ensuring that an Account owns no Shares of a Portfolio after the effective date
of this Agreement's termination with respect to such Shares or, if such
ownership following termination cannot be avoided, that the duration thereof is
as brief as reasonably practicable. Such steps may include, for example,
combining the affected Account with another Account, substituting other
portfolio shares for those of the affected Portfolio, or otherwise terminating
participation by the Contracts in such Portfolio.
ARTICLE VIII
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 in writing to the
other party.
If to the Trust: Xxxxxx Xxxxxx, President
Northern Lights Variable Trust
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000 Xxxxxxxx Xxxx.
Xxxxxxxxx, Xxx Xxxx 00000
with a copy to: XxXxx X. Xxxxxxxx, Esq.
Xxxxxxxx Xxxx LLP
00 Xxxxx Xxxx Xxxxxx, Xxxxx 0000
Xxxxxxxx, Xxxx 00000
If to the Company: Minnesota Life Insurance Company
000 Xxxxxx Xxxxxx Xxxxx
Xx. Xxxx, XX 00000-0000
Attention: Second Vice President - Law
If to the Underwriter: Northern Lights Distributors, LLC
Attn: Xxxxx Xxxxxxx
0000 Xxxxx 000xx Xxxxxx
Xxxxx, XX 00000
If to the Adviser: Xxxxxxx XxXxxxx, Chief Investment Officer
ValMark Advisers, Inc.
000 Xxxxxxxxxx Xxxxx, Xxxxx 000Xxxxx, XX 00000
ARTICLE IX
Miscellaneous
9.1 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.
9.2 This Agreement may be executed simultaneously in two or more
counterparts, each of which taken together shall constitute one and the same
instrument.
9.3 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.
9.4 This Agreement shall be construed and the provisions hereof interpreted
under and in accordance with the laws of State of Minnesota without regard for
that state's principles of conflict of laws.
9.5 The parties to this Agreement acknowledge and agree that all liabilities
of the Trust arising, directly or indirectly, under this Agreement, of any and
every nature whatsoever, shall be satisfied solely out of the assets of the
Trust and that no Trustee, officer, agent or holder of Shares of beneficial
interest of the Trust shall be personally liable for any such liabilities.
9.6 Each party shall cooperate with each other party and all appropriate
governmental authorities (including without limitation the SEC, 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.
9.7 The rights, remedies and obligations contained in this Agreement are
cumulative and are in addition to any and all rights, remedies and obligations,
at law or in equity, which the Parties hereto are entitled to under state and
federal laws.
9.8 The parties to this Agreement acknowledge and agree that this Agreement
shall not be exclusive in any respect.
9.9 Neither this Agreement nor any of its rights or obligations hereunder
may be assigned by any party without the prior written approval of the other
parties.
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9.10 No provisions of this Agreement may be amended or modified in any
manner except by a written agreement properly authorized and executed by all
Parties hereto.
IN WITNESS WHEREOF, the Parties have caused their duly authorized officers
to execute this Agreement as of the date and year first above written.
NORTHERN LIGHTS VARIABLE TRUST
By: /s/ Xxxxxx Xxxxxx
------------------------------
Name: Xxxxxx Xxxxxx
Title: President
MINNESOTA LIFE INSURANCE COMPANY
By: /s/ Xxxxxx Xxxxx
------------------------------
Name: Xxxxxx Xxxxx
Title: Second Vice President and Actuary
NORTHERN LIGHTS DISTRIBUTORS, LLC
By: Xxxxx Xxxx
------------------------------
Name: Xxxxx Xxxx
Title: President
ValMark Advisers, Inc.
By: /s/ Xxxxxxx XxXxxxx
------------------------------
Name: Xxxxxxx XxXxxxx
Title: Chief Investment Officer
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SCHEDULE A
Separate Accounts and Associated Contracts
NAME OF SEPARATE ACCOUNT AND POLICIES/CONTRACTS FUNDED
DATE ESTABLISHED BY BOARD OF DIRECTORS BY SEPARATE ACCOUNT
-------------------------------------- -------------------------
Variable Annuity Account MultiOption Advisor
September 10, 1984 MultiOption Legend
MultiOption Extra
SCHEDULE B
PARTICIPATING PORTFOLIOS
TOPS/TM/ Capital Preservation ETF Portfolio - Class 2
TOPS/TM/ Balanced ETF Portfolio - Class 2
TOPS/TM/ Moderate Growth ETF Portfolio - Class 2
TOPS/TM/ Growth ETF Portfolio - Class 2
TOPS/TM/ Aggressive Growth ETF Portfolio - Class 2
TOPS/TM/ Protected Balanced ETF Portfolio - Class 2
TOPS/TM/ Protected Moderate Growth ETF Portfolio - Class 2
TOPS/TM/ Protected Growth ETF Portfolio - Class 2
