RETAIL FUND PARTICIPATION AGREEMENT
THIS AGREEMENT, made and entered into this 6TH DAY OF NOVEMBER, 2008, by and
among HARTFORD LIFE INSURANCE COMPANY, a stock life insurance company organized
under the laws of Connecticut (hereinafter the "COMPANY"), on its own behalf and
on behalf of each separate account of the Company set forth in SCHEDULE
A hereto, as may be amended from time to time (each such account hereinafter
referred to as a "SEPARATE ACCOUNT"), and Delaware Distributors, L.P., a limited
partnership organized under the State of Delaware (hereinafter the
"UNDERWRITER"), the distributor to the each open-end diversified management
investment company set forth in Schedule B hereto (hereinafter each a "FUND").
WITNESSETH:
WHEREAS, beneficial interests in the Funds are divided into several series of
shares, each representing the interest in a particular managed portfolio of
securities and other assets (the "PORTFOLIOS"); and
WHEREAS, each Fund is registered as an open-end management investment company
under the Investment Company Act of 1940, as amended (hereinafter the "1940
ACT") and its shares are registered under the Securities Act of 1933, as amended
(hereinafter the "1933 ACT"); and
WHEREAS, the Company issues certain group variable annuity contracts and group
funding agreements (the "CONTRACTS") in connection with retirement plans
intended to meet the qualification requirements of Sections 401, 403(b) or 457
of the Internal Revenue Code of 1986, as amended (the "CODE"); and
WHEREAS, each Separate Account is a duly organized, validly existing segregated
asset account, established by resolution of the Board of Directors of the
Company under the insurance laws of the State of Connecticut to set aside and
invest assets attributable to the Contracts; and
WHEREAS, Delaware Management Company, a series of Delaware Management Business
Trust (the "ADVISER") is the investment adviser of the Portfolios of the Fund
and is duly registered as an investment adviser under the Investment Advisers
Act of 1940, as amended (the "ADVISERS ACT"), and any applicable state
securities laws; and
WHEREAS, the Underwriter is the principal underwriter for the Fund and is
registered as a broker-dealer with the Securities and Exchange Commission
(hereinafter the "SEC") under the Securities Exchange Act of 1934, as amended
(hereinafter the "1934 ACT"), and is a member in good standing of the Financial
Industry Regulatory Authority. (hereinafter "FINRA"); and
WHEREAS, to the extent permitted by applicable insurance laws and regulations,
the Company intends to purchase shares in the Portfolios set forth in SCHEDULE A
on behalf of each corresponding Separate Account set forth on such SCHEDULE A to
fund the Contracts and the Underwriter is authorized to sell such shares to unit
investment trusts such as the Separate Accounts at net asset value.
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NOW, THEREFORE, in consideration of their mutual promises, the Company and the
Underwriter agree as follows:
ARTICLE I. PURCHASE AND REDEMPTION OF FUND SHARES.
1.1 The Underwriter agrees to sell to the Company those shares of the
Portfolios which the Company orders on behalf of any Separate Account, executing
such orders on a daily basis at the net asset value next computed after receipt
and acceptance by the Fund or its designee of such order. For purposes of this
Section, the Company shall be the designee of the Fund for receipt of such
orders from each Separate Account. Receipt by such designee shall constitute
receipt by the Fund; provided that the designee has received such orders prior
to the Close of Trading on a given Business Day "(Trade Date") and the Fund or
its transfer agent receives notice of such order via the National Securities
Clearing Corporation (the "NSCC") in accordance with the NSCC's Defined
Contribution Clearance & Settlement ("DCC&S") platform cycle file. The Fund will
receive all orders to purchase Fund shares using the NSCC's DCC&S platform. The
Fund will also provide the Company with account positions and activity data
using the NSCC's Networking platform. The Company shall pay for Fund shares by
federal funds wire using the NSCC's Fund/SERV System in accordance with the
rules and regulations of the NSCC as may be amended from time to time. Payment
shall be in federal funds transmitted by wire to the Fund's designated Settling
Bank from the NSCC. "BUSINESS DAY" shall mean any day on which the New York
Stock Exchange is open for trading and on which a Portfolio calculates it net
asset value pursuant to the rules of the SEC. "Close of Trading" shall mean 4:00
p.m. Eastern Time on a Business Day or such other time as the net value of a
Portfolio is calculated, as disclosed in the then current prospectuses of the
Funds. "NETWORKING" shall mean the NSCC's product that allows Funds and
Companies to exchange account level information electronically. "SETTLING BANK"
shall mean the entity appointed by the Fund to perform such settlement services
on behalf of the Fund and agrees to abide by the NSCC's Rules and Procedures
insofar as they relate to the same day funds settlement.
If the Company is somehow prohibited from submitting purchase and settlement
instructions to the Fund for Fund shares via the NSCC's DCC&S platform the
following shall apply to this Section:
The Company shall use its best efforts to promptly notify the Fund or its
transfer agent of its inability to use the NSCC's DCC&S platform via telephone
and/or facsimile transmission. The Fund and the Underwriter agree to sell the
Company those shares of the Portfolios which the Company orders on behalf of any
Separate Account, executing such orders on a daily basis at the net asset value
next computed after receipt and acceptance by the Fund or its designee of such
order. For purposes of this Section, the Company shall be the designee of the
Fund for the receipt of such orders from the Separate Account and receipt by
such designee shall constitute receipt by the Fund; provided that the designee
has received such orders prior to the Close of Trading on a given Business Day
("Trade Date") and the Company shall use its best efforts to provide the Fund or
its transfer agent notice of such orders by 8:30 a.m. Eastern Time, but in no
event later than 9:00 a.m. Eastern Time on the first Business Day following the
Trade Date by facsimile or such other means mutually agreed upon by the parties.
The Company shall pay for Fund shares by federal funds wire by 1:00 p.m. Eastern
Time on the first Business Day following the Trade Date. Payment shall be in
federal funds transmitted by wire to the Fund's designated custodian. "BUSINESS
DAY" shall mean any day on which the New York Stock Exchange is open for trading
and on which a Portfolio calculates it net asset value pursuant to the rules of
the SEC. "Close of Trading" shall mean 4:00 p.m. Eastern Time on a Business Day
or such other time as the net asset value of a Portfolio is calculated, as
disclosed in the then current prospectus of the Portfolio.
1.2 The Underwriter agrees to make shares of the Portfolios available
indefinitely for purchase at the applicable net asset value per share by the
Company on Business Days; provided, however, that the Board of Trustees or
Directors, as applicable, of the Fund (hereinafter the "TRUSTEES/DIRECTORS") may
refuse to sell shares of any Fund to any person, or suspend or terminate the
offering of shares of any Fund if such action is required by law or by
regulatory authorities having
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jurisdiction or is, in the sole discretion of the Trustees/Directors, acting in
good faith and in compliance with their fiduciary duties under federal and any
applicable state laws, necessary in the best interests of the shareholders of
any Fund.
1.3 The Underwriter agrees to redeem in accordance with a Fund's prospectus,
upon the Company's request, any full or fractional shares of a Portfolio held by
the Company on behalf of a Separate Account, executing such requests on a daily
basis at the net asset value next computed after receipt and acceptance by the
Fund or its designee of the request for redemption. For purposes of this
Section, the Company shall be the designee of the Fund for receipt of requests
for redemption from each Separate Account and receipt by such designee shall
constitute receipt by the Fund; provided that the designee has received such
orders prior to the Close of Trading on a given Business Day ("Trade Date") and
the Fund or its transfer agent receives notice of such request for redemption
via the NSCC in accordance with the NSCC's DCC&S platform cycle file. The Fund
will receive all orders to redeem Fund shares using the NSCC's DCC&S platform.
The Fund will also provide the Company with account positions and activity data
using the NSCC's Networking platform. Payment for Fund shares redeemed shall be
made in accordance with this section using the NSCC's Fund/SERV System. Payment
shall be in federal funds transmitted by the NSCC to the Separate Account's
Settling Bank in accordance with the rules and regulations of the NSCC as may be
amended from time to time.
If the Company is somehow prohibited from submitting redemption and settlement
instructions to the Fund for Fund shares via the NSCC's DCC&S platform the
following shall apply to this Section:
The Underwriter agrees to redeem in accordance with a Fund's prospectus, upon
the Company's request, any full or fractional shares of the Fund held by the
Company on behalf of a Separate Account, executing such requests on a daily
basis at the net asset value next computed after receipt and acceptance by the
Fund or its designee of the request for redemption. For purposes of this
Section, the Company shall be the designee of the Fund for receipt of requests
for redemption from each Separate Account and receipt by such designee shall
constitute receipt by the Fund; provided that the designee has received such
orders prior to the Close of Trading on a given Business Day ("Trade Date") and
the Company shall use its best efforts to provide the Fund or its transfer agent
notice of such request for redemption by 8:30 a.m. Eastern Time, but in no event
later than 9:00 a.m. Eastern Time on the first Business Day following the Trade
Date by facsimile or other such means mutually agreed upon by the parties.
Payment shall be in federal funds transmitted by wire to the Separate Account as
designated by the Company by 1:00 p.m., on the first Business Day following the
Trade Date.
1.4 The Company will place separate orders to purchase or redeem shares of each
Portfolio.
1.5 Issuance and transfer of the Fund's shares will be by book entry only.
Share certificates will not be issued to the Company or any Separate Account.
Purchase and redemption orders for Fund shares will be recorded in an
appropriate title for each Separate Account or the appropriate subaccount of
each Separate Account.
1.6 The Underwriter shall furnish notice to the Company of any income,
dividends or capital gain distributions payable on the Fund's shares via the
NSCC system. The Company hereby elects to receive all such dividends and
distributions as are payable on a Portfolio's shares in the form of additional
shares of that Portfolio. The Fund shall notify the Company of the number of
shares so issued as payment of such dividends and distributions. The Company
reserves the right to revoke this election and to receive in cash all such
dividends and distributions declared after receipt of notice of revocation by
the Fund.
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1.7 The Underwriter shall make the net asset value per share of each Portfolio
available to the Company on a daily basis as soon as reasonably practical after
the close of trading each Business Day, but in no event later than 7:00 p.m.
Eastern time on such Business Day.
1.8(a) If the Underwriter or the Fund provides materially incorrect share net
asset value information through no fault of the Company, the Separate Accounts
shall be entitled to an adjustment with respect to the Portfolio shares
purchased or redeemed to reflect the correct net asset value per share.
1.8(b) The determination of the materiality of any net asset value pricing
error and its correction shall be based on the SEC's recommended guidelines
regarding these errors, however, Underwriter reserves the right to follow its
own guidelines. The Underwriter shall indemnify and hold harmless the Company
against any amount the Company is legally required to pay Contract Owners,
participants or beneficiaries that have selected a Portfolio as an investment
option ("Contract owners"), and which amount is due to the Fund's or its agents'
material miscalculation and/or incorrect reporting of or failure to report the
daily net asset value, dividend rate or capital gains distribution rate. The
Company shall submit an invoice to the Fund or its agents for such losses
incurred as a result of the above which shall be payable within sixty (60) days
of receipt. The Underwriter and the Fund are not required to indemnify the
Company in the event that the Underwriter's or the Fund's guidelines do not
require a correction. Should a material miscalculation by the Fund or its agents
result in a gain to the Company, the Company shall immediately reimburse the
Fund, the applicable Portfolios or its agents for any material losses incurred
by the Fund, the applicable Portfolios or its agents as a result of the
incorrect calculation. Should a material miscalculation by the Fund or its
agents result in a gain to Contract owners, the Company will consult with the
Fund or its designee as to what reasonable efforts shall be made to recover the
money and repay the Fund, the applicable Portfolio or its agents. The Company
shall then make such reasonable effort, at the expense of the Fund or its
agents, to recover the money and repay the Fund, the applicable Portfolios or
its agents; but the Company shall not be obligated to take legal action against
Contract owners.
With respect to the material errors or omissions described above, this section
shall control over other indemnification provisions in this Agreement.
ARTICLE II. REPRESENTATIONS AND WARRANTIES
2.1. The Company represents and warrants that the Contracts are or will be
registered unless exempt and that it will make every effort to maintain such
registration under the 1933 Act to the extent required by the 1933 Act; that the
Contracts are intended to be issued and sold in compliance in all material
respects with all applicable federal and state laws. The Company further
represents and warrants that it is an insurance company duly organized and in
good standing under applicable law and that it has legally and validly
established each Separate Account prior to any issuance or sale of Contracts,
shares or other interests therein, as a segregated asset account under the
insurance laws of the State of Connecticut and has registered or, prior to any
issuance or sale of the Contracts, will register and will maintain the
registration of each Separate Account as a unit investment trust in accordance
with and to the extent required by the provisions of the 1940 Act, unless exempt
therefrom, to serve as a segregated investment account for the Contracts. Unless
exempt, the Company shall amend its registration statement for its Contracts
under the 1933 Act and the 1940 Act from time to time as required in order to
effect the continuous offering of its Contracts. The Company shall register and
qualify the Contracts for sale in accordance with securities laws of the various
states only if and to the extent deemed necessary by the Company. With respect
to the Separate Accounts purchases of shares of the Funds, the Company
represents and warrants that the Separate Accounts will comply with Section
12(d)(1) of the 1940 Act unless the Separate Accounts are not deemed investment
companies under the 1940 Act for purposes of Section 12(d)(1) of the 1940 Act.
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2.2 The Underwriter represents and warrants that (i) Fund shares sold pursuant
to this Agreement shall be registered under the 1933 Act and duly authorized for
issuance in accordance with applicable law and that the Fund is and shall remain
registered under the 1940 Act for as long as the Fund shares are sold; (ii) the
Fund shall amend the registration statement for its shares under the 1933 Act
and the 1940 Act from time to time as required in order to effect the continuous
offering of its shares; and (iii) the Fund shall register and qualify its shares
for sales in accordance with the laws of the various states only if and to the
extent deemed advisable by the Fund or the Underwriter.
2.3 The Underwriter represents that each Fund (a) is currently qualified as a
Regulated Investment Company under Subchapter M of the Code; (b) will make every
effort to maintain such qualification (under Subchapter M or any successor or
similar provision); and (c) will notify the Company immediately upon having a
reasonable basis for believing that such Fund has ceased to so qualify or might
not so qualify in the future.
2.4 To the extent that the Fund finances distribution expenses pursuant to Rule
12b-1 under the 1940 Act, the Underwriter represents that the Fund's Board of
Trustees or Directors, as applicable, including a majority of its
Trustees/Directors who are not interested persons of the Fund, have formulated
and approved a plan under Rule 12b-1 to finance distribution expenses.
2.5 The Underwriter makes no representation as to whether any aspect of a
Fund's operations (including, but not limited to, fees and expenses and
investment policies) complies with the insurance laws or insurance regulations
of the various states.
2.6 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 Fund shares
in accordance in all material respects with all applicable federal and state
securities laws, including without limitation the 1933 Act, the 1934 Act, and
the 0000 Xxx.
2.7 The Underwriter represents that the Fund is lawfully organized and validly
existing under the laws of its state of organization and that it does and will
comply in all material respects with applicable provisions of the 0000 Xxx.
2.8 The Underwriter represents and warrants that all of a Fund's
Trustees/Directors, officers, employees, investment advisers, and other
individuals/entities having access to the funds and/or securities of the Fund
are and continue to be at all times covered by a blanket fidelity bond or
similar coverage for the benefit of the Fund in an amount not less than the
minimal coverage as required by Rule 17g-1 under the 1940 Act or related
provisions as may be promulgated from time to time. The aforesaid Bond includes
coverage for larceny and embezzlement and is issued by a reputable bonding
company.
2.9 The Company represents and warrants that all of its directors, officers,
employees, investment advisers, and other individuals/entities dealing with the
money and/or securities of the Fund are covered by a blanket fidelity bond or
similar coverage in an amount not less than $5 million. The aforesaid includes
coverage for larceny and embezzlement and is issued by a reputable bonding
company.
2.10 The Underwriter represents and warrants that the Adviser is and shall
remain duly registered in all material respects under all applicable federal and
state securities laws and that the Adviser shall perform its obligations for the
Fund in compliance in all material respects with any applicable state and
federal securities laws.
2.11 The Company represents that it has adopted written policies and procedures
reasonably designed to detect and deter frequent and/or disruptive trading in
Shares. The Company and the Fund
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agree to reasonably cooperate for the purpose of discouraging frequent or
disruptive trading in shares of the Funds and agree to negotiate a "shareholder
information agreement" under Rule 22c-2.
2.12 The Company agrees to purchase and redeem the shares of the Portfolios
offered by the then current prospectus of the relevant Portfolio in accordance
with the provisions of such prospectus including specifically, and without in
any way limiting other provisions of the prospectus, that the Company will only
send to the Fund to receive a given Business Day's net asset value those orders
it received from Contract holders prior to Close of Trading.
2.13 The Company represents that it is aware that the Funds are not sold solely
as funding vehicles for variable annuity and life insurance separate accounts
and therefore have not obtained an order from the SEC providing an exemption
from the provisions of Sections 9(a), 13(a), 15(a) and 15(b) of 1940 Act, and
Rules 6e-2(b)(15) and 6e-3(T)(b)(15) thereunder and is further aware that the
Funds do not certify compliance with the Sections of the Internal Revenue Code
and Treasury Regulations relating to the diversification requirements for
variable annuity, endowment, or life insurance contracts.
2.14 The Company represents and warrants that it is legally permitted to
receive Rule 12b-1 payments in connection with the distribution or marketing of
Fund shares to Contract owners.
2.15 The foregoing representations and warranties shall be made, by the party
hereto that makes the representation or warranty as of the date first written
above and at the time of each purchase and each sale of the Fund's shares
pursuant to this Agreement.
ARTICLE III. PROSPECTUSES; REPORTS AND PROXY STATEMENTS, VOTING; CONTRACT OWNER
COMMUNICATIONS
3.1 The Underwriter shall provide the Company with as many printed copies of
the Fund's current prospectus and statement of additional information as the
Company may reasonably request. If requested by the Company, in lieu of
providing printed copies of the Fund's current prospectus and statement of
additional information, the Underwriter shall provide e-mail transmissions or
PDF files containing the Fund's prospectus and statement of additional
information, and such other assistance as is reasonably necessary in order for
the Company once each year (or more frequently if the prospectus and/or
statement of additional information for the Fund are amended during the year) to
have the prospectus for the Contracts (if applicable) and the Fund's prospectus
printed together in one document or separately. The Company may elect to print
the Fund's prospectus and/or its statement of additional information in
combination with other fund companies' prospectuses and statements of additional
information.
3.2(a) The Underwriter shall provide the Company with copies of the Fund's
proxy statements, Fund reports to shareholders, and other Fund communications to
shareholders in such quantity as the Company shall reasonably require for
distributing to Contract owners.
3.2(b) The Fund shall pay for the cost of typesetting all Fund prospectuses,
statements of additional information, Fund reports to shareholders and other
Fund communications to Contract owners and prospective Contract owners. The
Company shall pay for the costs of printing and distributing all Fund
prospectuses, statements of additional information, Fund reports to shareholders
and other Fund communications to Contract owners and prospective Contract
owners. The Fund shall pay for all costs for typesetting, printing and
distributing proxy materials.
3.3. The Fund's statement of additional information shall be obtainable by
Contract owners from the Fund, the Underwriter, the Company or such other person
as the Fund may designate.
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3.4 If and to the extent required by law the Company shall distribute all proxy
material furnished by the Fund to Contract owners to whom voting privileges are
required to be extended and shall:
A. solicit voting instructions from Contract owners;
B. vote the Fund shares held in the Separate Account in accordance with
instructions received from Contract owners; and
C. so long as and to the extent that the SEC continues to interpret the
1940 Act to require pass through voting privileges for variable
annuity contract owners, vote Fund shares held in the Separate
Account for which no timely instructions have been received, in the
same proportion as Fund shares of such Portfolio for which
instructions have been received from the Company's Contract owners.
The Company reserves the right to vote Fund shares held in any
segregated asset account for its own account, to the extent permitted
by law. Notwithstanding the foregoing, with respect to the Fund
shares held by unregistered Separate Accounts that issue Contracts
issued in connection with employee benefit plans subject to the
provisions of the Employee Retirement Income Security Act of 1974, as
amended, the Company shall vote such Fund shares allocated to such
Contracts only in accordance with the Company's agreements with such
Contract owners.
3.5 The Fund will comply with all provisions of the 1940 Act requiring voting
by shareholders. The Fund will not hold annual meetings but will hold such
special meetings as may be necessary from time to time. Further, the Fund will
act in accordance with the SEC interpretation of the requirements of Section
16(a) with respect to periodic elections of directors or trustees and with
whatever rules the SEC may promulgate with respect thereto.
3.6 The Company agrees to provide the following services to Contract owners:
(a) responding to inquiries from the Company Contract owners using one
or more Portfolios of the Fund as an investment vehicle regarding
the services performed by the Company as they relate to the Fund;
and
(b) communicating directly with Contract owners concerning the Fund's
operations.
ARTICLE IV. SALES MATERIAL AND INFORMATION
4.1 The Company shall furnish, or shall cause to be furnished, to the Fund, the
Underwriter or their designee, each piece of sales literature or other
promotional material prepared by the Company or any person contracting with the
Company in which the Fund, the Adviser or the Underwriter is described, at least
five Business Days prior to its use. No such literature or material shall be
used without prior approval from the Fund, the Underwriter or their designee.
Such approval process shall not apply to subsequent usage of materials that are
substantially similar to prior approved materials.
4.2 Neither the Company nor any person contracting with the Company shall give
any information or make any representations or statements on behalf of the Fund
or concerning the Fund in connection with the sale of the Contracts other than
the information or representations contained in the registration statement or
prospectus for the Fund shares, as such registration statement and prospectus
may be amended or supplemented from time to time, or in reports to shareholders
or proxy statements for the Fund, or in sales literature or other promotional
material approved by the Fund or its designee, except with the permission of the
Fund or its designee.
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4.3 The Fund shall furnish, or shall cause to be furnished, to the Company or
its designee, each piece of sales literature or other promotional material in
which the Company or any Separate Account is named, at least five Business Days
prior to its use. No such literature or material shall be used without prior
approval from the Company or its designee. Such approval process shall not apply
to subsequent usage of materials that are substantially similar to prior
approved materials.
4.4 Neither the Fund nor the Underwriter shall give any information or make any
representations on behalf of the Company or concerning the Company, each
Separate Account, or the Contracts other than the information or representations
contained in the Contracts, a disclosure document, registration statement or
prospectus for the Contracts (if applicable), as such registration statement and
prospectus may be amended or supplemented from time to time, or in published
reports for each Separate Account which are in the public domain or approved by
the Company for distribution to Contract owners or participants, or in sales
literature or other promotional material approved by the Company, except with
the permission of the Company.
4.5 The Fund will provide to the Company at least one complete copy of all
prospectuses, statements of additional information, reports to shareholders,
proxy statements, and all amendments to any of the above, that relate to the
Fund or its shares, promptly after the filing of such document with the SEC or
other regulatory authorities.
4.6. The Company will provide to the Fund at least one complete copy of all
prospectuses, statements of additional information, reports, solicitations for
voting instructions, and all amendments to any of the above, if applicable to
the investment in a Separate Account or Contract, promptly after the filing of
such document with the SEC or other regulatory authorities.
4.7 For purposes of this Article IV, the phrase "sales literature or other
promotional material" includes, but is not limited to, advertisements (such as
material published, or designed for use in, a newspaper, magazine, or other
periodical, radio, television, telephone or tape recording, videotape display,
signs or billboards, motion pictures, Internet, or other public media), sales
literature (i.e., any written communication distributed or made generally
available to customers or the public, including brochures, circulars, research
reports, market letters, form letters, electronic mail, seminar texts, reprints
or excerpts of any other advertisement, sales literature, or published article),
educational or training materials or other communications distributed or made
generally available to some or all agents or employees, registration statements,
disclosure documents, prospectuses, statements of additional information,
shareholder reports, and proxy materials.
4.8 The Company agrees and acknowledges that the Company has no right, title or
interest in the names and marks of the Fund and that all use of any designation
comprised in whole or part or such names or marks under this Agreement shall
inure to the benefit of the Fund and the Underwriter. Except as provided in
Section 4.1, the Company shall not use any such names or marks on its own behalf
or on behalf of a Separate Account in connection with marketing the Contracts
without prior written consent of the Fund or the Underwriter. Upon termination
of this Agreement for any reason, the Company shall cease all use of any such
names or marks.
4.9 The Fund and Underwriter agree and acknowledge that each has no right,
title or interest in the names and marks of the Company, and that all use of any
designation comprised in whole or part or such names or marks under this
Agreement shall inure to the benefit of the Company. Except as provided in
Section 4.3, the Fund and Underwriter shall not use any such names or marks on
its own behalf or on behalf of a Fund in connection with marketing the Fund
without prior written consent of the Company. Upon termination of this Agreement
for any reason, the Fund and Underwriter shall cease all use of any such names
or marks.
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ARTICLE V. FEES AND EXPENSES
5.1 The Underwriter shall pay the fees and expenses provided for in the
attached SCHEDULE B.
5.2 With respect to any Portfolio that offers shares of classes for which
Distribution Plans have been adopted under Rule 12b-1 (individually a "12b-1
Plan") of 1940 Act, the Company will provide distribution and marketing services
in the promotion of the Fund shares. In connection with the receipt of
distribution fees and/or the receipt of service fees as set forth under 12b-1
Plan(s) applicable to the class or classes of Fund shares purchased by the
Company, the Company will perform administrative and other services to your
customers who own Fund shares, including, but not limited to, furnishing
personal and other services and assistance, answering routine inquiries
regarding a Portfolio, account designations and addresses, maintaining such
accounts, or such other services as the Fund may require, to the extent
permitted by applicable statutes, rules or regulations. For such services, the
Underwriter is permitted to make payment under the terms of the 12b-1 Plans
adopted by certain of the Funds, as such Plans may be in effect from time to
time. The 12b-1 Plans in effect on the date of this Agreement are described in
the Funds' Prospectuses and such Funds are listed in Schedule B. Each Fund
reserves the right to terminate or suspend its 12b-1 Plan at any time as
specified in the Plan and the Underwriter reserves the right, at any time,
without notice, to modify, suspend or terminate payments hereunder in connection
with such 12b-1 Plan. The Company will furnish the Fund and Underwriter with
such information as may be reasonably requested by the Fund or its directors or
trustees or by Underwriter with respect to such 12b-1 fees paid to the Company
pursuant to this Agreement.
ARTICLE VI. INDEMNIFICATION
6.1 Indemnification By The Company
(a) The Company agrees to indemnify and hold harmless the Fund, the Underwriter
and each of their respective trustees, directors, officers, employees or agents
and each person, if any, who controls the Fund or the Underwriter within the
meaning of section 15 of the 1933 Act (collectively, the "INDEMNIFIED PARTIES"
for purposes of this Section 6.1) against any and all losses, claims, damages,
liabilities (including amounts paid in settlement with the written consent of
the Company) or litigation (including reasonable legal and other expenses), to
which the Indemnified Parties may become subject under any statute, regulation,
at common law or otherwise, insofar as such losses, claims, damages, liabilities
or expenses (or actions in respect thereof) or settlements are related to the
sale or acquisition of the Fund's shares or the Contracts and:
(i) arise out of or are based upon any untrue statement or alleged
untrue statement of any material fact contained in the disclosure
statement, registration statement, prospectus or statement of
information for the Contracts or contained in the Contracts or sales
literature or other promotional material for the Contracts (or any
amendment or supplement to any of the foregoing), or arise out of or
are based upon the omission or the alleged omission to state therein
a material fact required to be stated therein or necessary to make
the statements therein not misleading; provided that this agreement
to indemnify shall not apply as to an Indemnified Party if such
statement or omission or such alleged statement or omission was made
in reliance upon and in conformity with information furnished by
such Indemnified Party or the Fund to the Company on behalf of the
Fund for use in the registration statement, prospectus or statement
of additional information for the Contracts or in the Contracts or
sales literature (or any amendment or supplement) or otherwise for
use in connection with the sale of the Contracts or Fund shares; or
(ii) arise out of or as a result of (a) statements or representations by
or on behalf of the Company (other than statements or
representations contained in the Fund registration
9
statement, Fund prospectus or sales literature or other promotional
material of the Fund not supplied by the Company, or persons under
its control and other than statements or representations authorized
by the Fund, the Underwriter or the Adviser); or (b) the willful
misfeasance, bad faith, gross negligence or reckless disregard of
duty of the Company or persons under its control, with respect to
the sale or distribution of the Contracts or Fund shares; or
(iii) arise out of or as a result of any untrue statement or alleged
untrue statement of a material fact contained in the Fund
registration statement, Fund prospectus, statement of additional
information or sales literature or other promotional material of
the Fund (or any amendment thereof or supplement thereto) or the
omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements
therein not misleading, if such a statement or omission was made in
reliance upon and in conformity with information furnished to the
Fund or the Underwriter by the Company or persons under its
control; or
(iv) arise as a result of any material failure by the Company to provide
the services and furnish the materials under the terms of this
Agreement; or
(v) arise out of or result from any material breach of any
representation and/or warranty made by the Company in this Agreement
or arise out of or result from any other material breach by the
Company of this Agreement; except to the extent provided in Sections
6.1 (b) and 6.3 hereof.
(b) No party shall be entitled to indemnification to the extent that such loss,
claim, damage, liability or litigation is due to the willful misfeasance, bad
faith, gross negligence or reckless disregard of duty by the party seeking
indemnification.
(c) In accordance with Section 6.3 hereof, the Indemnified Parties will
promptly notify the Company of the commencement of any litigation or proceedings
against them in connection with the issuance or sale of the Fund shares or the
Contracts or the operation of the Fund.
6.2 Indemnification By the Underwriter
(a) The Underwriter agrees, with respect to each Portfolio that it distributes,
to indemnify and hold harmless the Company and each of its directors, officers,
employees or agents and each person, if any, who controls the Company within the
meaning of section 15 of the 1933 Act (collectively, the "INDEMNIFIED PARTIES"
for purposes of this Section 6.2) against any and all losses, claims, damages,
liabilities (including amounts paid in settlement with the written consent of
the Underwriter) or litigation (including reasonable legal and other expenses)
to which the Indemnified Parties may become subject under any statute,
regulation, at common law or otherwise, insofar as such losses, claims, damages,
liabilities or expenses (or actions in respect thereof) or settlements are
related to the sale or acquisition of the shares of the Portfolios that it
distributes or the Contracts and:
(i) arise out of or are based upon any untrue statement or alleged
untrue statement of any material fact contained in the registration
statement, prospectus or statement of additional information for the
Fund or sales literature or other promotional material of the Fund
(or any amendment or supplement to any of the foregoing), or arise
out of or are based upon the omission or the alleged omission to
state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading; provided
that this agreement to indemnify shall not apply as to any
Indemnified Party if such statement or omission or such alleged
statement or omission was made in reliance upon and in conformity
with information furnished by such Indemnified Party or the Company
to the Fund or the Underwriter on behalf of the Company for use in
the registration statement, prospectus or statement of additional
information for the Fund or in sales literature of the Fund (or any
amendment or
10
supplement thereto) or otherwise for use in connection with the sale
of the Contracts or the Portfolio shares; or
(ii) arise out of or as a result of (a) statements or representations
(other than statements or representations contained in the
registration statement, prospectus or sales literature for the
Contracts not supplied by the Fund or the Underwriter or persons
under their respective control and other than statements or
representations authorized by the Company); or (b) the willful
misfeasance, bad faith, gross negligence or reckless disregard of
duty of the Fund or the Underwriter or persons under the control of
the Fund or the Underwriter, respectively, with respect to the sale
or distribution of the Contracts or Portfolio shares; or
(iii) arise out of any untrue statement or alleged untrue statement of a
material fact contained in a registration statement, prospectus,
statement of additional information or sales literature or other
promotional material with respect to the Contracts (or any
amendment thereof or supplement thereto), or the omission or
alleged omission to state therein a material fact required to be
stated therein or necessary to make the statement or statements
therein not misleading, if such statement or omission was made in
reliance upon and in conformity with information furnished to the
Company by the Fund or the Underwriter or persons under the control
of the Fund or the Underwriter, respectively; or
(iv) arise as a result of any material failure by the Fund or the
Underwriter to provide the services and furnish the materials under
the terms of this Agreement; or
(v) arise out of or result from any material breach of any
representation and/or warranty made by the Underwriter or the Fund
in this Agreement or arise out of or result from any other material
breach of this Agreement by the Underwriter or the Fund; except to
the extent provided in Sections 6.2(b) and 6.3 hereof.
(b) No party shall be entitled to indemnification to the extent that such loss,
claim, damage, liability or litigation is due to the willful misfeasance, bad
faith, gross negligence or reckless disregard of duty by the party seeking
indemnification.
(c) In accordance with Section 6.3 hereof, the Indemnified Parties will
promptly notify the Underwriter of the commencement of any litigation or
proceedings against them in connection with the issuance or sale of the Fund
shares or the Contracts or the operation of the Separate Accounts.
6.3. Indemnification Procedure
(a) Any person obligated to provide indemnification under this Article VI
("INDEMNIFYING PARTY" for the purpose of this Section 6.3) shall not be liable
under the indemnification provisions of this Article VI with respect to any
claim made against a party entitled to indemnification under this Article VI
("INDEMNIFIED PARTY" for the purpose of this Section 6.3) unless such
Indemnified Party shall have notified the Indemnifying Party in writing within a
reasonable time after the summons or other first legal process giving
information of the nature of the claim shall have been served upon such
Indemnified Party (or after such party shall have received notice of such
service on any designated agent), but failure to notify the Indemnifying Party
of any such claim shall not relieve the Indemnifying Party from any liability
which it may have to the Indemnified Party against whom such action is brought
otherwise than on account of the indemnification provision of this Article VI.
In case any such action is brought against the Indemnified Party, the
Indemnifying Party will be entitled to participate, at its own expense, in the
defense thereof. The Indemnifying Party also shall be entitled to assume the
defense thereof, with counsel satisfactory to the party named in the action.
After notice from the Indemnifying Party to the Indemnified Party of the
Indemnifying Party's election to assume the defense thereof, the Indemnified
Party shall bear the fees and expenses of any additional counsel retained by the
Indemnified
11
Party, and the Indemnifying Party will not be liable to such party under this
Agreement for any legal or other expenses subsequently incurred by such party
independently in connection with the defense thereof other than reasonable costs
of investigation, unless:
(i) the Indemnifying Party and the Indemnified Party shall have mutually
agreed to the retention of such counsel or
(ii) the named parties to any such proceeding (including any impleaded
parties) include both the Indemnifying Party and the Indemnified
Party and representation of both parties by the same counsel would
be inappropriate due to actual or potential differing interests
between them.
A successor by law of the parties to this Agreement shall be entitled to the
benefits of the indemnification contained in this Article VI. The
indemnification provisions contained in this Article VI shall survive any
termination of this Agreement.
ARTICLE VII. APPLICABLE LAW
7.1 This Agreement shall be construed and the provisions hereof interpreted
under and in accordance with the laws of the State of Connecticut.
7.2 This Agreement shall be subject to the provisions of the 1933, 1934 and
1940 Acts, and the rules and regulations and rulings thereunder, including such
exemptions from those statutes, rules and regulations as the SEC may grant and
the terms hereof shall be interpreted and construed in accordance therewith.
ARTICLE VIII. TERM & TERMINATION
8.1 Term.
(a) Except as otherwise provided below, the term of this Agreement shall be for
five (5) years from the date hereof, unless terminated earlier by reason of a
breach of contract or by law, or pursuant to this section 8. At the end of the
initial term of this Agreement, this Agreement shall be automatically renewed
for successive one year periods, unless any party notifies the other no later
than thirty days before any anniversary of its intent to terminate this
Agreement.
8.2 This Agreement shall terminate:
(a) at the option of any party upon sixty (60) days advance written
notice to the other parties unless otherwise agreed in a separate
written agreement among the parties; or
(b) at the option of the Fund, the Underwriter or the Adviser upon
institution of formal proceedings against the Company by the FINRA,
the SEC, the insurance commission of any state or any other
regulatory body regarding the Company's duties under this Agreement
or related to the sale of the Contracts, the administration of the
Contracts, the operation of the Separate Accounts, or the purchase of
the Fund shares, which in the judgment of the Fund, the Underwriter
or the Adviser are reasonably likely to have a material adverse
effect on the Company's ability to perform its obligations under this
Agreement; or
(c) at the option of the Company upon institution of formal proceedings
against the Fund, the Underwriter or the Adviser by the FINRA, the
SEC, or any state securities or insurance department or any other
regulatory body, related to the purchase or sale of the Fund shares
or the operation of the Fund which in the judgment of the Company
are reasonably likely to have a material
12
adverse effect on the Underwriter's, the Fund's or the Adviser's
ability to perform its obligations under this Agreement; or
(d) at the option of the Company if a Portfolio delineated in SCHEDULE A
ceases to qualify as a Regulated Investment Company under Subchapter
M of the Code (a "RIC"), or under any successor or similar provision,
and the disqualification is not cured within the period permitted for
such cure, or if the Company reasonably believes that any such
Portfolio may fail to so qualify and be unable to cure such
disqualification within the period permitted for such cure; or
(e) at the option of any party to this Agreement, upon another party's
material breach of any provision of this Agreement; provided that
the party not in breach shall give the party in breach notice of the
breach and the party in breach does not cure such breach within 30
days of receipt of such notice of breach; or
(f) at the option of the Company, if the Company determines in its sole
judgment exercised in good faith, that either the Fund, the
Underwriter or the Adviser has suffered a material adverse change in
its business, operations or financial condition since the date of
this Agreement or is the subject of material adverse publicity which
is likely to have a material adverse impact upon the business and
operations of the Company; or
(g) at the option of the Fund, the Underwriter or the Adviser if the
Fund, the Underwriter or the Adviser respectively, shall determine
in its sole judgment exercised in good faith, that the Company has
suffered a material adverse change in its business, operations or
financial condition since the date of this Agreement or is the
subject of material adverse publicity which is likely to have a
material adverse impact upon the business and operations of the Fund
or Underwriter.
8.3 Notice Requirement
(a) In the event that any termination of this Agreement is based upon the
provisions of Sections 8.1(b), 8.1(c) or 8.1(d), prompt written notice of the
election to terminate this Agreement for cause shall be furnished by the party
terminating the Agreement to the non-terminating parties, with said termination
to be effective upon receipt of such notice by the non-terminating parties;
provided that for any termination of this Agreement based on the provisions of
Section 8.1(d), said termination shall be effective upon the Portfolio's failure
to qualify as a RIC and to cure such disqualification within the period
permitted for such cure.
(b) In the event that any termination of this Agreement is based upon the
provisions of Sections 8.1(f) or 8.1(g), prior written notice of the election to
terminate this Agreement for cause shall be furnished by the party terminating
this Agreement to the non-terminating parties. Such prior written notice shall
be given by the party terminating this Agreement to the non-terminating parties
at least 60 days before the effective date of termination.
8.4 It is understood and agreed that the right to terminate this Agreement
pursuant to Section 8.1(a) may be exercised for any reason or for no reason.
8.5 Effect of Termination
(a) Notwithstanding any termination of this Agreement pursuant to Section
8.1(a) through 8.1(g) of this Agreement and subject to Section 1.2 of this
Agreement, the Underwriter and Fund will, at the option of the Company, continue
to make available additional shares of the Portfolios for so long after the
termination of this Agreement as the Company desires pursuant to the terms and
conditions of this Agreement as provided in paragraph (b) below, for all
Contracts in effect on the effective date of
13
termination of this Agreement (hereinafter referred to as "EXISTING CONTRACTS"),
unless such further sale of Fund shares is proscribed by law, regulation or an
applicable regulatory body. Specifically, without limitation, the owners of the
Existing Contracts shall be permitted to direct reallocation of investments in
the Fund, redeem investments in the Fund and/or invest in the Fund upon the
making of additional purchase payments under the Existing Contracts unless such
further sale of Fund shares is proscribed by law, regulation or an applicable
regulatory body.
(b) Fund and/or Underwriter shall remain obligated to pay Company the fee in
effect as of the date of termination for so long as shares are held by the
Accounts and Company continues to provide services to the Accounts. Such fee
shall apply to shares purchased both prior to and subsequent to the date of
termination. This Agreement, or any provision thereof, shall survive the
termination to the extent necessary for each party to perform its obligations
with respect to shares for which a fee continues to be due subsequent to such
termination.
(c) In the event of the insolvency or liquidation of the Company, fees shall
continue to be payable directly to the Company or its liquidator, receiver,
conservator or statutory successor, without diminution and reasonable provision
for verification by the Company or its liquidator, receiver, conservator or
statutory successor.
ARTICLE IX. NOTICES
9.1 (a) Any notice shall be deemed duly given only if sent by hand or
overnight express delivery, evidenced by written receipt or by certified mail,
return receipt requested, to the other party at the address of such party set
forth below or at such other address as such party may from time to time specify
in writing to the other party. All notices shall be deemed given the date
received or rejected by the addressee.
If to the Company:
Hartford Life Insurance Company
000 Xxxxxxxxx Xxxxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
Attention: Vice President, Investment Products Division
with a copy to:
General Counsel
Hartford Life Insurance Company
000 Xxxxxxxxx Xxxxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
14
If to the Fund:
c/o Delaware Distributors, L.P.
One Commerce Square
0000 Xxxxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000
Attn, General Counsel
If to the Underwriter:
Delaware Distributors, L.P.
One Commerce Square
0000 Xxxxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000
Attention: General Counsel
ARTICLE X MISCELLANEOUS
10.1 Subject to law and regulatory authority, each party hereto shall treat as
confidential the names and addresses of the owners of the Contracts and all
other information reasonably identified as such in writing by any other party
hereto, and, except as contemplated by this Agreement, shall not disclose,
disseminate or utilize such confidential information without the express prior
written consent of the affected party until such time as it may come into the
public domain. In addition, the parties hereby represent that they will use and
disclose Personal Information (as defined below) only to carry out the purposes
for which it was disclosed to them and will not use or disclose Personal
information if prohibited by applicable law, including, without limitation,
statutes and regulations enacted pursuant to the Xxxxx-Xxxxx-Xxxxxx Act (Public
Law 106-102). "PERSONAL INFORMATION" means financial and medical information
that identifies an individual personally and is not available to the public,
including, but not limited to, credit history, income, financial benefits,
policy or claim information and medical records. If either party outsources
services to a third party, such third party will agree in writing to maintain
the security and confidentiality of any information shared with them.
10.2 The captions in this Agreement are included for convenience of reference
only and in no way define or delineate any of the provisions hereof or otherwise
affect their construction or effect.
10.3 This Agreement may be executed simultaneously in two or more counterparts,
each of which taken together shall constitute one and the same instrument.
10.4 If any provision of this Agreement shall be held or made invalid by a
court decision, statute, rule or otherwise, the remainder of the Agreement shall
not be affected thereby.
10.5 This Agreement shall not be assigned by any party hereto without the prior
written consent of all the parties.
10.6 Each party hereto shall cooperate with each other party and all
appropriate governmental authorities (including without limitation the SEC, the
FINRA, and state insurance regulators) and shall permit each other and such
authorities (and the parties hereto) reasonable access to its books and records
in connection with any investigation or inquiry relating to this Agreement or
the transactions contemplated hereby.
15
10.7 Each party represents that (a) the execution and delivery of this
Agreement and the consummation of the transactions contemplated herein have been
duly authorized by all necessary corporate or trust action, as applicable, by
such party and when so executed and delivered this Agreement will be the valid
and binding obligation of such party enforceable in accordance with its terms
subject to bankruptcy, insolvency, reorganization, moratorium and similar laws
of general applicability relating to or affecting creditors' rights and to
general equity principles; (b) the party has obtained, and during the term of
this Agreement will maintain, all authorizations, licenses, qualifications or
registrations required to be maintained in connection with the performance of
its duties under this Agreement; and (c) the party will comply in all material
respects with all applicable laws, rules and regulations.
10.8 The parties to this Agreement may amend by written agreement the Schedules
to this Agreement from time to time to reflect changes in or relating to the
Contracts, the Separate Accounts or the Portfolios of the Fund.
IN WITNESS WHEREOF, each of the parties hereto has caused this Agreement to be
executed in its name and behalf by its duly authorized representative as of the
date first written above.
HARTFORD LIFE INSURANCE COMPANY DELAWARE DISTRIBUTORS, L.P.
BY DELAWARE DISTRIBUTORS, INC., GENERAL
PARTNER
By: /s/ Xxxxx Xxxxx By: /s/ Xxxxxxx X. Xxxxxxx
---------------------------- ----------------------------
Name: Xxxxx Xxxxx Name: Xxxxxxx X. Xxxxxxx
Title: Assistant Vice President Title: Senior Vice President
16
SCHEDULE A
SEPARATE ACCOUNTS
SEPARATE ACCOUNTS
Each Separate Account established by resolution of the Board of Directors of
Company under the insurance laws of the State of Connecticut to set aside and
invest assets attributable to the Contracts. Currently, those Separate Accounts
are as follows:
401 MARKET
K, K1, K2, K3, K4
TK, TK1, TK2, TK3, TK4
VK, VK1, VK2, VK3, VK4
UK, XX0, XX0, XX0, XX0, 401
403 AND 457 MARKETS
DCI, DCII, DCIII, DCIV, DCV, DCVI, 457, 403, UFC, Separate Account Two, Separate
Account Eleven, Separate Account Fourteen
In accordance with the provisions of this Retail Fund Participation Agreement,
the Separate Account(s) shown on Schedule A may invest in the following
Portfolios:
FUND SHARE CUSIP NASDAQ
NUMBER FUND NAME CLASS TYPE NUMBER SYMBOL
------------------------------------------------------------------------------------------------------------------
452 Delaware Aggressive Allocation Portfolio A Equity 245918883 DFGAX
535 Delaware Aggressive Allocation Portfolio R Equity 245918826 DFGRX
496 Delaware American Services A Equity 00000X000 DASAX
552 Delaware American Services R Equity 00000X000 DASRX
002 Delaware Balanced A Equity 246093108 DELFX
521 Delaware Balanced R Equity 246093884 DELRX
008 Delaware Cash Reserve A Money Market 245910104 DCRXX
444 Delaware Conservative Allocation Portfolio A Equity 245918107 DFIAX
533 Delaware Conservative Allocation Portfolio R Equity 245918818 DFIRX
023 Delaware Core Plus Bond A Fixed Income 246094205 DEGGX
526 Delaware Core Plus Bond R Fixed Income 246094809 DUGRX
460 Delaware Corporate Bond A Fixed Income 245908785 DGCAX
536 Delaware Corporate Bond R Fixed Income 245908744 DGCRX
024 Delaware Delchester A Fixed Income 245908207 DETWX
189 Delaware Diversified Income A Fixed Income 246248744 DPDFX
531 Delaware Diversified Income R Fixed Income 246248553 DPRFX
129 Delaware Dividend Income A Equity 00000X000 DDIAX
543 Delaware Dividend Income R Equity 00000X000 DDDRX
019 Delaware Emerging Markets A Equity 245914841 DEMAX
464 Delaware Extended Duration Bond A Fixed Income 245908835 DEEAX
549 Delaware Extended Duration Bond R Fixed Income 245908728 DEERX
179 Delaware Global Value A Equity 245914718 DABAX
016 Delaware Growth Opportunities A Equity 245906102 DFCIX
523 Delaware Growth Opportunities R Equity 245906508 DFRIX
17
FUND SHARE CUSIP NASDAQ
NUMBER FUND NAME CLASS TYPE NUMBER SYMBOL
------------------------------------------------------------------------------------------------------------------
137 Delaware High-Yield Opportunities A Fixed Income 245908876 DHOAX
539 Delaware High-Yield Opportunities R Fixed Income 245908736 DHIRX
556 Delaware Inflation Protected Bond A Fixed Income 246094882 DIPAX
034 Delaware International Value Equity A Equity 245914106 DEGIX
527 Delaware International Value Equity R Equity 245914577 DIVRX
001 Delaware Large Cap Value A Equity 245907100 DELDX
520 Delaware Large Cap Value R Equity 245907886 DECRX
022 Delaware Limited-Term Diversified Income A Fixed Income 245912308 DTRIX
525 Delaware Limited-Term Diversified Income R Fixed Income 245912803 DLTRX
577 Delaware Mid Cap Value A Equity 246093868 DLMAX
580 Delaware Mid Cap Value R Equity 246093843 DLMRX
448 Delaware Moderate Allocation Portfolio A Equity 245918503 DFBAX
534 Delaware Moderate Allocation Portfolio R Equity 245918834 DFBRX
095 Delaware REIT A Equity 246248868 DPREX
529 Delaware REIT R Equity 246248561 DPRRX
316 Delaware Select Growth A Equity 928931104 DVEAX
532 Delaware Select Growth R Equity 928931740 DFSRX
480 Delaware Small Cap Core A Equity 00000X000 DCCAX
550 Delaware Small Cap Core R Equity 00000X000 DCCRX
509 Delaware Small Cap Growth A Equity 246118301 DSCAX
537 Delaware Small Cap Growth R Equity 246118590 DSCRX
021 Delaware Small Cap Value A Equity 246097109 DEVLX
538 Delaware Small Cap Value R Equity 246097505 DVLRX
003 Delaware Trend A Equity 245905104 DELTX
522 Delaware Trend R Equity 245905500 DETRX
101 Delaware U.S. Growth A Equity 245917505 DUGAX
530 Delaware U.S. Growth R Equity 245917711 DEURX
456 Delaware Value A Equity 00000X000 DDVAX
561 Delaware Value R Equity 245907860 DDVRX
18
SCHEDULE B
In consideration of the services provided by the Company, Underwriter, in
accordance with the terms of this Agreement, agrees to pay Company the 12b-1 fee
described in a Fund's Prospectus, as a percentage of the average daily net asset
value of the Company's Separate Account(s) assets invested in a Portfolio and
the Company an Administrative Fee as a percentage of the average daily net asset
value of the Company's Separate Account(s) assets invested in a Portfolio so
that the Company receives the Aggregate Fees listed below. Company will only be
entitled to such 12b-1 fees with respect to accounts associated with the
Portfolios referred to in this Agreement, such undisputed amounts to be paid
within 30 days of the end of each calendar quarter.
With respect to Fund shares purchased pursuant to this Agreement, Underwriter
will pay Company the Administrative Fee, which is the amount of the Aggregate
Fees not covered by a Fund's 12b-1 fee. For the purpose of computing payments of
the Administrative Fee to the Company, the average daily amount invested by the
Company's Separate Account in a Portfolio for any calendar month will be
computed by totaling the Separate Account's aggregate investment (share net
asset value multiplied by total number of shares of the Portfolio held by the
Separate Account) on each calendar day during the month and dividing by the
total number of calendar days during each month. The Company will deliver to
Underwriter a monthly statement showing the calculation of the Administrative
Fee payable to the Company by Underwriter, along with other supporting data
reasonably requested by Underwriter. The data shall be sent in the format
described in Schedule C. Undisputed amounts to be paid within 30 days of
Underwriter's receipt of Company's statement.
ADMINISTRATIVE FEES AND RULE 12B-1 FEES
ADMINISTRATIVE
FUND FEES* RULE 12B-1 FEES TOTAL FEE
---------------------------------------------------------------------------------------
SHARE CLASS A
All Delaware Equity Funds 0.25% 0.25% 0.50%
All Delaware Fixed Income 0.15% 0.25% 0.40%
Funds except for:
- Diversified Income Fund 0.25% 0.25% 0.50%
- Limited-Term Diversified 0.15% 0.15% 0.30%
Income Fund
Money Market Fund 0.10% 0.00% 0.10%
SHARE CLASS R
All Delaware Equity Funds 0.25% 0.50% 0.75%
All Delaware Fixed Income 0.15% 0.50% 0.65%
Funds
------------
* Administrative Fees shall be paid by Underwriter or one of its affiliates
out of Underwriter's or such affiliate's own assets.
19
SCHEDULE C
CONTACT INFORMATION
- Name, phone number, e-mail, company, address of invoice contact
- How to send payment (wire instructions or check/address)
INVOICE DATA
- Date of Invoice
- Billing Period
- Company Name
- Invoice number
- Accounts by Delaware fund name & CUSIP
- Delaware fund account number
- Average assets for the billing period
- Compensation rate
- Payable Amount
20
