RETAIL FUND PARTICIPATION AGREEMENT
THIS AGREEMENT, made and entered into this 9th of August, 2004, by and among
HARTFORD LIFE INSURANCE COMPANY, a stock life insurance company organized under
the laws of the State 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"), The Xxxxx Funds, an open-end
diversified management investment company organized under the laws of the
Commonwealth of Massachusetts, The Xxxxx Institutional Funds, an open-end
diversified management investment company organized under the laws of the
Commonwealth of Massachusetts (The Xxxxx Funds and The Xxxxx Institutional Funds
hereinafter referred to collectively as the "FUND"), and Xxxx Xxxxx & Company,
Incorporated, a registered broker-dealer organized under the laws of the State
of Delaware (hereinafter the "UNDERWRITER").
WITNESSETH:
WHEREAS, beneficial interests in the Fund 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, the 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, Xxxx Xxxxx Management, Inc. (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 National
Association of Securities Dealers, Inc. (hereinafter "NASD"); 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, the Fund
and the Underwriter agree as follows:
ARTICLE I. Purchase and Redemption of Fund Shares.
1.1 The Fund and the Underwriter agree 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. Orders must be received by
the Company prior to the earlier of 4:00 p.m. Eastern Time or the close of the
New York Stock Exchange on a Business Day to receive the net asset value
computed that Business Day. The Company represents to the Fund and the
Underwriter that all orders transmitted to the Fund and the Underwriter after
4:00 p.m. Eastern Time, or after the close of the New York Stock Exchange if the
Exchange closed earlier than 4:00 p.m. Eastern Time that day, were received by
the Company prior to such time. Receipt by such designee shall constitute
receipt by the Fund; provided that the Fund or the Underwriter receives notice
of such order via the National Securities Clearing Corporation (the "NSCC") by
9:00 a.m. Eastern Time on the next following Business Day. The Fund will receive
all orders to purchase Portfolio shares using the NSCC's Defined Contribution
Clearance & Settlement ("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 Portfolio shares by the scheduled close of
federal funds transmissions on the same Business Day it places an order to
purchase Portfolio shares in accordance with this section using the NSCC's
Fund/SERV System. Payment shall be in federal funds transmitted by wire from the
Company's designated Settling Bank to the NSCC. "BUSINESS DAY" shall mean any
day on which the New York Stock Exchange is open for trading and on which the
Fund calculates it net asset value pursuant to the rules of the SEC.
"NETWORKING" shall mean the NSCC's product that allows Fund's 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 Portfolio shares via the NSCC's DCC&S platform the
following shall apply to this Section:
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 Fund or the Underwriter receives notice
of such order by 10:00 a.m. Eastern Time on the next following Business Day. The
Company shall pay for Portfolio shares by the scheduled close of federal funds
transmissions on the same Business Day it places an order to purchase Portfolio
shares in accordance with this section. Payment shall be in federal funds
transmitted by wire to the Fund's designated custodian.
1.2 The Fund and the Underwriter agree 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 Portfolio to any person, or suspend or
terminate the offering of shares of any Portfolio if such action is required by
law or by regulatory authorities having jurisdiction or is, in the sole
discretion of the Trustees/Directors, acting in good faith and in compliance
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with their fiduciary duties under federal and any applicable state laws,
necessary in the best interests of the shareholders of any Portfolio.
1.3 The Fund and the Underwriter agree to redeem for cash, 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 the Fund or the Underwriter receives notice of such request for
redemption via the NSCC by 9:00 a.m. Eastern Time on the next following Business
Day. The Fund will receive all orders to redeem Portfolio 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 as designated by the Company, on
the same Business Day the Fund or the Underwriter receives notice of the
redemption order from the Company provided that the Fund or the Underwriter
receives notice by 10:00 a.m. Eastern Time on such Business Day.
If the Company is somehow prohibited from submitting redemption and settlement
instructions to the Fund for Portfolio shares via the NSCC's DCC&S platform the
following shall apply to this Section:
The Fund and the Underwriter agree to redeem for cash, 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 the Fund or the Underwriter receives notice of such request for
redemption by 10:00 a.m. Eastern Time on the next following Business Day.
Payment shall be in federal funds transmitted by wire to the Separate Account as
designated by the Company, on the same Business Day the Fund or the Underwriter
receives notice of the redemption order from the Company provided that the Fund
or the Underwriter receives notice by 10:00 a.m. Eastern Time on such Business
Day.
1.4 The Company agrees to purchase and redeem the shares of the Portfolios
named in SCHEDULE A offered by the then current prospectus of the Fund in
accordance with the provisions of the applicable prospectus.
1.5 The Company will place net purchase/redemption orders to purchase or redeem
shares of each Portfolio.
1.6 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.
1.7 The Underwriter shall furnish notice to the Company of any income,
dividends or capital gain distributions payable on the Fund's shares no later
than the ex-dividend date. 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
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issued as payment of such dividends and distributions no later than one Business
Day after issuance. 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.
1.8 The Underwriter 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 close of trading each Business Day, but in no event later than 6:30 p.m.
Eastern Time on such Business Day.
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.
B. The determination of the materiality of any net asset value pricing
error and its correction shall be based on the SEC's recommended
guidelines regarding these errors. Any material error in the
calculation or reporting of net asset value per share, dividend or
capital gain information shall be reported promptly to the Company
upon discovery. The Company shall be entitled to (1) an adjustment
with respect to Fund shares purchased or redeemed to reflect the
correct net asset value per share and (2) reimbursement of expenses
incurred by the Company in connection with the Company's
responsibility to adjust any Contract owners account value as to any
amount the Company is legally required to pay Contract owners,
participants or beneficiaries that have selected a Portfolio as an
investment option, and which amount is due to the Fund's or its
agents' material miscalculation and/or incorrect reporting of the
daily net asset value, dividend rate or capital gains distribution
rate. 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. 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 Portfolio 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, participants,
or beneficiaries, 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 Portfolio or its agents; but the Company shall not be
obligated to take legal action against Contract owners, participants
or beneficiaries.
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
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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.
2.2 The Fund and the Underwriter represent and warrant 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 Fund represents that each Portfolio (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 Portfolio 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 Fund represents that its 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 Fund makes no representation as to whether any aspect of its operations
(including, but not limited to, fees and expenses and investment policies)
complies with the insurance laws or insurance regulations of the various states
except that the Fund represents that, to the best information and belief of the
Fund, the Fund's investment policies, fees and expenses are and shall at all
times remain in compliance with the laws of the States of Connecticut and
California. The Fund and the Underwriter represent that, to the best information
and belief of the Fund and the Underwriter, their respective operations are and
shall at all times remain in material compliance with the laws of the State of
Connecticut to the extent required to perform this Agreement
2.6 The Underwriter represents and warrants that it is a member in good
standing of the NASD 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 Fund represents that it is lawfully organized and validly existing
under the laws of the Commonwealth of Massachusetts and that it does and will
comply in all material respects with applicable provisions of the 0000 Xxx.
2.8 The Fund represents and warrants that all of its 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 minimum 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 fidelity insurance company.
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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 that the Company, the Fund, and the Underwriter
deem reasonably necessary or appropriate to protect the Fund and the Underwriter
as well as their respective directors, officers, employees and agents, but in no
event not less than $5 million. The aforesaid includes coverage for larceny and
embezzlement and is issued by a reputable fidelity insurance company. Further,
the Company represents and warrants that it shall maintain insurance of such
types and in such amounts as it may reasonably deem necessary or appropriate to
protect the Fund or the Underwriter as well as their respective directors,
officers, employees and agents against loss from errors or omissions in
performance of the Company's duties and obligations described in or contemplated
by this Agreement. The Company shall notify the Fund and the Underwriter of any
material changes to the aforementioned liability insurance.
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 the laws of the State of
Connecticut and any applicable state and federal securities laws.
2.11 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
3.1 The Fund shall provide the Company at no charge 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 Fund shall provide camera-ready film, computer
diskettes, 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, subject to the provisions
of Section 4.1.
3.2(a). The Fund shall provide the Company at no charge 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, 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.
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 (5) calendar days prior to its use. No such literature or material shall be
used without prior approval from the Fund, the Underwriter or their designee,
however, the failure to object in writing within two (2) Business days will be
deemed approval. Such approval process shall not apply to subsequent usage of
materials that are substantially similar to previously 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 and issued by the Fund or its designee and furnished in
writing to the Company, except with the express permission of the Fund or its
designee, which shall not be unreasonably withheld.
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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 (5) calendar
days prior to its use. No such literature or material shall be used without
prior approval from the Company or its designee, which shall not be unreasonably
withheld; however, the failure to object in writing within two (2) Business Days
will be deemed approval. Such approval process shall not apply to subsequent
usage of materials that are substantially similar to previously 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 express permission of the Company, which shall not be unreasonably withheld.
4.5 The Fund will provide to the Company at least one (1) 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 of 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, which shall not be
unreasonably withheld. 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
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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,
which shall not be unreasonably withheld. Upon termination of this Agreement for
any reason, the Fund and Underwriter shall cease all use of any such names or
marks.
ARTICLE V. Fees and Expenses
5.1 The Fund shall pay the fees and expenses provided for in the attached
SCHEDULE B.
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 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
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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 6.4 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 6.4 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 set forth in
Schedule A, 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 and are held through 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 supplement thereto) or
otherwise for use in connection with the sale of the Contracts or
the Portfolio shares; or
10
(ii) arise out of or as a result of (a) statements or representations
by or on behalf of the Underwriter (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 6.4 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 6.4 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 by the Fund
(a) The Fund agrees 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 6.3) against any and all losses, claims, damages, liabilities
(including amounts paid in settlement with the written consent of the
Fund) 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 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
11
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 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
by or on behalf of the Fund (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 6.3(b) and 6.4 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 6.4 hereof, the Indemnified Parties will
promptly notify the Fund 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.
6.4. Indemnification Procedure
(a) Any person obligated to provide indemnification under this Article
VI ("INDEMNIFYING PARTY" for the purpose of this Section 6.4) 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 6.4) 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
12
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 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, the
Advisers Act, and 1940 Act, 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. Termination
8.1 This Agreement shall terminate:
(a) at the option of any party upon one hundred twenty (120) 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 or the Underwriter upon an adverse finding
against the Company by the NASD, NASD Regulation, Inc. ("NASDR"), 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
13
(c) at the option of the Company upon an adverse finding against the
Fund, the Underwriter or the Adviser by the NASD, NASDR, 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 adverse effect on the
Underwriter's or the Fund'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
thirty (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 or the Underwriter if the Fund or the
Underwriter 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.
8.2 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 sixty (60)
days before the effective date of termination.
8.3 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.
14
8.4 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 Company may require the Fund and
the Underwriter to continue to make available additional shares of
the Fund 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 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 Contracts and Company continues to provide services to
the Contracts. 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.
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
15
If to the Fund:
The Xxxxx Funds or The Xxxxx Institutional Funds
c/o Xxxx Xxxxx & Company, Incorporated
00 Xxxxxxxxxx Xxxxxx
Xxxxxx Xxxx, XX 00000
Attention: Xxxxxxxxx X. Xxxx, Treasurer &
Assistant Secretary
If to the Underwriter:
Xxxx Xxxxx & Company, Incorporated
00 Xxxxxxxxxx Xxxxxx
Xxxxxx Xxxx, XX 00000
Attention: Xxxxxxxxx X. Xxxx, Treasurer
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) that is obtained in the course
of performance of their duties and obligations under this Agreement only as
necessary to effect the terms and conditions of this Agreement or as permitted
or required 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 any party outsources services provided for
under this Agreement to a third party, to the extent reasonable and practicable,
such party will ensure that such third party shall maintain the security and
confidentiality of any information provided to them by any party to this
Agreement.
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
NASD, NASDR and state insurance regulators) and
16
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.
Notwithstanding the foregoing, each party hereto further agrees to furnish the
California Insurance Commissioner with any information or reports in connection
with services provided under this Agreement which such Commissioner may request
in order to ascertain whether the insurance operations of the Company are being
conducted in a manner consistent with the California laws and regulations.
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.
10.9 This Agreement may be amended by a written agreement signed by authorized
representatives of the parties. This Agreement, together with any Schedules
attached hereto, contains the entire agreement between the parties relating to
the subject matter, and shall supersede any prior agreements or understandings
between the parties hereto.
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 THE FUND
By /s/ Xxxxx Xxxxxxxx By /s/ Xxxxxxxxx X. Xxxx
------------------------------ ------------------------------
Name: Xxxxx Xxxxxxxx Name: Xxxxxxxxx X. Xxxx
Title: Senior Vice President, Retail Title: Treasurer and Assistant
Products Secretary
XXXX XXXXX & COMPANY, INCORPORATED
By /s/ Xxxxxxxxx X. Xxxx
------------------------------
Name: Xxxxxxxxx X. Xxxx
Title: Treasurer
17
SCHEDULE A
SEPARATE ACCOUNTS
Each Separate 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. Currently, those Separate Accounts
are as follows:
401 MARKET
K, Kl, K2, K3, K4
TK, TK1, TK2, TK3, TK4
VK, VK1, VK2, VK3, VK4
UK, XX0, XX0, XX0, XX0
403 AND 457 MARKETS
DCI, DCII, DCIII, DCIV, DCV, DCVI, 457, 403, UFC, Eleven
PORTFOLIOS
THE XXXXX INSTITUTIONAL FUNDS
The Xxxxx Capital Appreciation Fund Class I
The Xxxxx Capital Appreciation Fund Class R
Xxxxx XxxXxx Growth Fund Class I
Xxxxx XxxXxx Growth Fund Class R
Alger LargeCap Growth Fund Class I
18
SCHEDULE B
In consideration of the services provided by the Company, the Fund agrees to pay
the Company an amount equal to the following basis points per annum on the
average aggregate amount invested by the Company's Separate Account(s) in each
Portfolio under the Fund Participation Agreement, such amounts to be paid within
thirty (30) days of the end of each calendar quarter.
PORTFOLIO SERVICE FEES 12B-1 FEES
---------------------------------------------------------------------------------------
The Xxxxx Capital Appreciation Institutional Fund Class I 0.30% 0.25%
The Xxxxx Capital Appreciation Institutional Fund Class R 0.30% 0.50%
Xxxxx XxxXxx Growth Institutional Fund Class I 0.30% 0.25%
Xxxxx XxxXxx Growth Institutional Fund Class R 0.30% 0.50%
Xxxxx LargeCap Growth Institutional Fund Class I 0.30% 0.25%
19
FIRST AMENDMENT TO PARTICIPATION AGREEMENT
Between
XXXX XXXXX & COMPANY, INCORPORATED,
THE XXXXX FUNDS,
THE ALGER INSTITUTIONAL FUNDS
And
HARTFORD LIFE INSURANCE COMPANY
THIS AMENDMENT is made and entered into as of the 3rd day of July, 2007 between
Hartford Life Insurance Company ("Hartford"), and Xxxx Xxxxx & Company, Inc., a
Delaware corporation ("Underwriter") and The Xxxxx Funds and The Xxxxx
Institutional Funds, each a Massachusetts business trust (collectively, the
"Funds").
WHEREAS, the parties entered into a
Retail Fund Participation Agreement dated
August 9, 2004 (the "Agreement"). All terms not defined herein shall have the
meanings assigned to them in the Agreement;
WHEREAS, the parties desire to amend the Agreement to allow for the addition of
a certain Fund or Funds;
NOW, THEREFORE, the parties agree as follows:
1. Schedules A and B shall be replaced by the attached Schedules A and B.
2. This Amendment may be executed in counterparts, each of which shall be an
original and both of which shall constitute one instrument.
IN WITNESS HEREOF, the parties hereto have executed and delivered this Amendment
effective as of the date first written above.
1
HARTFORD LIFE INSURANCE COMPANY XXXX XXXXX & COMPANY, INCORPORATED
By: /s/ Xxxxx Xxxxx By: /s/ Xxxx Xxxx
--------------------------- ---------------------------
Name: Xxxxx Xxxxx Name: Xxxx Xxxx
Title: Assistant Vice President Title: Vice President
Date: 7/5/07 Date: July 3, 2007
THE XXXXX FUNDS
By: /s/ Xxxx Xxxx
---------------------------
Name: Xxxx Xxxx
Title: Assistant Secretary
Date: July 3, 2007
2
SCHEDULE A
SEPARATE ACCOUNTS
Each Separate 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. 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, Fourteen
PORTFOLIOS
All Class I shares
All Class R shares
All Class N shares
3
SCHEDULE B
In consideration of the services provided by the Company, the Funds agree to pay
the Company an amount equal to the following basis points per annum on the
average aggregate amount invested by the Company's Separate Account(s) in each
Portfolio under the Fund Participation Agreement, such amounts to be paid within
30 days of the end of each calendar quarter.
ADDITIONAL PAYMENTS FROM THE
LEGITIMATE PROFITS OF XXXX
SHARE SHAREHOLDER XXXXX MANAGEMENT, INC. OR ITS TOTAL
CLASS 12B-1 FEES SERVICING FEES AFFILIATES COMPENSATION
----------------------------------------------------------------------------------------------------
A 0.25% N/A 0.25% 0.50%
I N/A 0.25% 0.30% 0.55%
N 0.25% N/A 0.15% 0.40%
R 0.50% 0.25% 0.05% 0.80%
The minimum quarterly shareholder servicing fee payable by the Distributor is
$25. If fees due to the Company during a quarter total less than the $25 minimum
payment, the Company will not be paid for providing shareholder services for
that quarter.
If the Company is compensated at a lower rate than the compensation stated
herein, but fails to alert the Distributor within three months of a lower
payment, the Distributor will not adjust the Company's compensation
retroactively.
4
FIRST AMENDMENT
TO THE
RETAIL FUND PARTICIPATION AGREEMENT
THIS FIRST AMENDMENT, dated effective as of March 20, 2009 ("Effective Date"),
is by and between HARTFORD LIFE INSURANCE COMPANY ("Company") and XXXX XXXXX &
COMPANY, INCORPORATED ("Underwriter"), and THE XXXXX FUNDS, THE ALGER
INSTITUTIONAL FUNDS, THE XXXXX FUNDS II AND XXXXX CHINA-U.S. GROWTH FUND
(collectively, the "Fund") and amends that certain
Retail Fund Participation
Agreement between the Company, the Fund and the Underwriter, dated August 9,
2004 (the "Agreement").
WITNESSETH:
WHEREAS, the Company, the Fund and the Underwriter wish to amend the Agreement
to add Class A shares of the Portfolios and related fees and update the Separate
Accounts to be set forth on SCHEDULE A and SCHEDULE B of the Agreement; and
WHEREAS, the Company desires to add two new paragraphs to the Agreement; and
WHEREAS, each of the Fund and the Underwriter wish to update their address for
notice in the Agreement.
NOW THEREFORE, in consideration of the above, Company, the Fund and Underwriter
hereby agree as follows:
1. SCHEDULES A AND B to the Agreement are deleted in their entirety and
replaced with the attached "SCHEDULE A" and "SCHEDULE B".
2. The following is added as a new section entitled Section 8.1(h) of the
Agreement:
"(h) This Agreement shall automatically renew for successive one year
periods, unless any party notifies the others of termination as set forth
under Section 8.1 of the Agreement."
3. The following is added as a new section entitled Section 8.4(c) of the
Agreement:
"(c) In the event of the insolvency or liquidation of Company, fees shall
continue to be payable directly to Company or its liquidator, receiver,
conservator or statutory successor, without diminution and reasonable
provision for verification by Company or its liquidator, receiver,
conservator or statutory successor."
4. The address for notice in Section 9.1 of the Agreement for each of the
Fund and the Underwriter is updated as follows:
If to the Fund:
The Xxxxx Funds or The Alger Institutional Fund
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: General Counsel
If to the Underwriter:
Xxxx Xxxxx & Company, Incorporated
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: General Counsel
5. Except as modified hereby, all other terms and conditions of the Agreement
shall remain in full force and effect.
5. The Amendment may be executed in two or more counterparts, each of which
shall be deemed to be an original, but all of which together shall constitute
one and the same Amendment.
IN WITNESS WHEREOF, Company, the Fund and Underwriter have caused this First
Amendment to be executed by their duly authorized officers effective as of the
Effective Date.
HARTFORD LIFE INSURANCE COMPANY
By: /s/ Xxxxx Xxxxx
------------------------------------
Name: Xxxxx Xxxxx
Title: Assistant Vice President
XXXX XXXXX & COMPANY, INCORPORATED
By: /s/ Xxxx Xxxx
------------------------------------
Name: Xxxx Xxxx
Title: Senior Vice President
THE XXXXX FUNDS, THE ALGER
INSTITUTIONAL FUNDS, THE XXXXX FUNDS II
AND XXXXX CHINA-U.S. GROWTH FUND
By: /s/ Xxxx Xxxx
------------------------------------
Name: Xxxx Xxxx
Title: Assistant Secretary
SCHEDULE A
SEPARATE ACCOUNTS
Each Separate Account established by resolution of the Board of Directors or
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
PORTFOLIOS
THE XXXXX INSTITUTIONAL FUNDS
Xxxxx Capital Appreciation Institutional Fund Class I
Xxxxx Capital Appreciation Institutional Fund Class R
Xxxxx XxxXxx Growth Institutional Fund Class I
Xxxxx XxxXxx Growth Institutional Fund Class R
Xxxxx LargeCap Growth Institutional Fund Class I
Xxxxx LargeCap Growth Institutional Fund Class R
Xxxxx SmallCap Growth Institutional Fund Class I
Xxxxx SmallCap Growth Institutional Fund Class R
The Xxxxx Family of Funds
Xxxxx Capital Appreciation Fund Class A
Alger LargeCap Growth Fund Class A
Xxxxx XxxXxx Growth Fund Class A
Alger SMidCap Growth Fund Class A
Alger SmallCap Growth Fund Class A
Xxxxx Growth Opportunities Fund Class A
Xxxxx Health Sciences Fund Class A
Xxxxx Balanced Fund Class A
Xxxxx Convertible Fund Class A
Xxxxx Spectra Fund Class A
Alger Green Fund Class A
Xxxxx Analyst Fund Class A
Xxxxx International Opportunities Fund Class A
Xxxxx China-U.S. Growth Fund Class A
SCHEDULE B
In consideration of the services provided by the Company, the Fund agrees to pay
the Company an amount equal to the following basis point per annum on the
average aggregate amount invested by the Company's Separate Account(s) in each
of the Portfolio under the Fund Participation Agreement, such amounts to be paid
within 30 days of the end of each calendar quarter.
12B-1 AND/ OR
SHAREHOLDER
PORTFOLIO SERVICE FEES SERVICE FEE
------------------------------------------------------------------------------------------------
Xxxxx Capital Appreciation Institutional Fund Class I (.30)% (0.25)%
Xxxxx Capital Appreciation Institutional Fund Class R (.30)% (0.50)%
Xxxxx XxxXxx Growth Institutional Fund Class I (.30)% (0.25)%
Xxxxx XxxXxx Growth Institutional Fund Class R (.30)% (0.50)%
Xxxxx LargeCap Growth Institutional Fund Class I (.30)% (0.25)%
Xxxxx LargeCap Growth Institutional Fund Class R (.30)% (0.50)%
Xxxxx SmallCap Growth Institutional Fund Class I (.30)% (0.25)%
Xxxxx SmallCap Growth Institutional Fund Class R (.30)% (0.50)%
Xxxxx Capital Appreciation Fund Class A (.30)% (0.25)%
Xxxxx LargeCap Growth Fund Class A (.30)% (0.25)%
Xxxxx XxxXxx Growth Fund Class A (.30)% (0.25)%
Xxxxx SMidCap Growth Fund Class A (.30)% (0.25)%
Xxxxx SmallCap Growth Fund Class A (.30)% (0.25)%
Xxxxx Growth Opportunities Fund Class A (.30)% (0.25)%
Xxxxx Health Sciences Fund Class A (.30)% (0.25)%
Xxxxx Balanced Fund Class A (.30)% (0.25)%
Xxxxx Convertible Fund Class A (.30)% (0.25)%
Xxxxx Spectra Fund Class A (.30)% (0.25)%
Xxxxx Green Fund Class A (.30)% (0.25)%
Xxxxx Analyst Fund Class A (.30)% (0.25)%
Xxxxx International Opportunities Fund Class A (.30)% (0.25)%
Xxxxx China-U.S. Growth Fund Class A (.30)% (0.25)%
The minimum quarterly fee payable by the Underwriter is $25. If fees due to the
Company during a quarter total less than the $25 minimum payment, the Company
will not be paid for that quarter.
If the Company is compensated at a lower rate than the compensation stated
herein, but fails to alert the Underwriter within three months of a lower
payment, the Underwriter will not adjust the Company's compensation
retroactively.
AMENDMENT
TO THE
RETAIL FUND PARTICIPATION AGREEMENT
BY AND BETWEEN
HARTFORD LIFE INSURANCE COMPANY, THE XXXXX FUNDS,
THE ALGER INSTITUTIONAL FUNDS AND XXXX XXXXX & COMPANY, INCORPORATED
Pursuant to Sections 10.8 and 10.9 of the
Retail Fund Participation Agreement
dated August 9, 2004 by and among Hartford Life Insurance Company, The Xxxxx
Funds, The Alger Institutional Funds and Xxxx Xxxxx & Company, Incorporated, as
amended July 3, 2007 and March 20, 2009 (the "AGREEMENT"), the Agreement is
hereby amended as provided below (the "AMENDMENT"), effective as of the latest
date set forth below:
1. Hartford Securities Distribution Company, Inc., a broker-dealer registered
with the Securities Exchange Commission under the Securities Act of 1934, a
member of the Financial Industry Regulatory Authority, and affiliate of
Hartford Life Insurance Company, is hereby added as a party to this
Agreement.
2. The Xxxxx Portfolios, a Massachusetts business trust with series portfolios
that are registered investment companies. Is hereby added to the Agreement.
3. Section 9.1(a) is hereby amended to add the following to the end of this
section:
If to Hartford Securities Distribution Company, Inc.:
Hartford Securities Distribution Company, Inc.
000 Xxxxxxxxx Xxxxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
Attention: Vice President, Retirement Plans
With a copy to:
Hartford Securities Distribution Company, Inc.
000 Xxxxxxxxx Xxxxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
Attention: General Counsel
4. Schedules A AND B to the Agreement are deleted in their entirety and
replaced with the attached "SCHEDULE A" and "SCHEDULE B".
5. Except as modified hereby, all other terms and conditions of the Agreement
shall remain in full force and effect.
1
6. The Amendment may be executed in two or more counterparts, each of which
shall be deemed to be an original, but all of which together shall
constitute one and the same Amendment.
IN WITNESS WHEREOF, the undersigned have executed this Amendment to the
Agreement.
XXXX XXXXX & COMPANY, THE FUND
INCORPORATED
Xxx Xxxxxx, Executive Vice Xxx Xxxxxx, Secretary
President
Print name and title Print name and title
/s/ Xxx Xxxxxx /s/ Xxx Xxxxxx
----------------------------------- -----------------------------------
Signature Signature
Date 18/8/09 Date 10/8/09
HARTFORD LIFE INSURANCE COMPANY HARTFORD SECURITIES DISTRIBUTION
COMPANY, INC.
Xxxxxxx X. Xxxx, Assistant Vice Xxxxxxx X. Xxxx, Assistant Vice
President President
Print name and title Print name and title
/s/ Xxxxxxx X. Xxxx /s/ Xxxxxxx X. Xxxx
----------------------------------- -----------------------------------
Signature Signature
Date 10/7/09 Date 10/7/09
2
SCHEDULE A
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.
PORTFOLIOS
THE XXXXX INSTITUTIONAL FUNDS
Xxxxx Capital Appreciation Institutional Fund Class I
Xxxxx Capital Appreciation Institutional Fund Class R
Xxxxx XxxXxx Growth Institutional Fund Class I
Xxxxx XxxXxx Growth Institutional Fund Class R
Xxxxx LargeCap Growth Institutional Fund Class I
Xxxxx LargeCap Growth Institutional Fund Class R
Xxxxx SmallCap Growth Institutional Fund Class I
Xxxxx SmallCap Growth Institutional Fund Class R
The Xxxxx Family of Funds
Xxxxx Capital Appreciation Fund Class A
Alger LargeCap Growth Fund Class A
Xxxxx XxxXxx Growth Fund Class A
Alger SMidCap Growth Fund Class A
Alger SmallCap Growth Fund Class A
Xxxxx Growth Opportunities Fund Class A
Xxxxx Health Sciences Fund Class A
Xxxxx Balanced Fund Class A
Xxxxx Convertible Fund Class A
Xxxxx Spectra Fund Class A
Alger Green Fund Class A
Xxxxx Analyst Fund Class A
Xxxxx International Opportunities Fund Class A
Xxxxx China-U.S. Growth Fund Class A
The Xxxxx Portfolios
3
Xxxxx Capital Appreciation Portfolio Class I-2
Xxxxx Large Cap Growth Portfolio Class I-2
Xxxxx Mid Cap Growth Portfolio Class I-2
Xxxxx XXxx Cap Growth Portfolio Class I-2
Xxxxx Small Cap Growth Portfolio Class I-2
Xxxxx Growth & Income Portfolio Class I-2
Xxxxx Balanced Portfolio Class I-2
4
SCHEDULE B
In consideration of the services provided by the Company, the Fund agrees to pay
the Company an amount equal to the following basis point per annum on the
average aggregate amount invested by the Company's Separate Account(s) in each
of the Portfolio under the Fund Participation Agreement, such amounts to be paid
within 30 days of the end of each calendar quarter.
Fees paid in accordance with the Fund's Rule 12b-1 plans as described in Section
2.4 and identified below will be made payable to the Company's affiliate,
Hartford Securities Distribution Company, Inc., a broker-dealer registered with
the Securities Exchange Commission under the Securities Act of 1934 and member
of the Financial Industry Regulatory Authority. "Service fees" paid for
sub-accounting/recordkeeping services will be made payable to the Company.
ADDITIONAL
12B-1 AND/ OR COMPENSATION
SERVICE SHAREHOLDER FROM XXXXX'X
PORTFOLIO FEES SERVICE FEE LEGITIMATE PROFITS
-------------------------------------------------------------------------------------------------------------------------------
Xxxxx Capital Appreciation Institutional Fund Class I (.30)% (0.25)% N/A
Xxxxx Capital Appreciation Institutional Fund Class R (.30)% (0.50)% N/A
Xxxxx XxxXxx Growth Institutional Fund Class I (.30)% (0.25)% N/A
Xxxxx XxxXxx Growth Institutional Fund Class R (.30)% (0.50)% N/A
Xxxxx LargeCap Growth Institutional Fund Class I (.30)% (0.25)% N/A
Xxxxx LargeCap Growth Institutional Fund Class R (.30)% (0.50)% N/A
Xxxxx SmallCap Growth Institutional Fund Class I (.30)% (0.25)% N/A
Xxxxx SmallCap Growth Institutional Fund Class R (.30)% (0.50)% N/A
Xxxxx Capital Appreciation Fund Class A (.30)% (0.25)% N/A
Xxxxx LargeCap Growth Fund Class A (.30)% (0.25)% N/A
Xxxxx XxxXxx Growth Fund Class A (.30)% (0.25)% N/A
Xxxxx SMidCap Growth Fund Class A (.30)% (0.25)% N/A
Xxxxx SmallCap Growth Fund Class A (.30)% (0.25)% N/A
Xxxxx Growth Opportunities Fund Class A (.30)% (0.25)% N/A
Xxxxx Health Sciences Fund Class A (.30)% (0.25)% N/A
Xxxxx Balanced Fund Class A (.30)% (0.25)% N/A
Xxxxx Convertible Fund Class A (.30)% (0.25)% N/A
Xxxxx Spectra Fund Class A (.30)% (0.25)% N/A
Xxxxx Green Fund Class A (.30)% (0.25)% N/A
Xxxxx Analyst Fund Class A (.30)% (0.25)% N/A
Xxxxx International Opportunities Fund Class A (.30)% (0.25)% N/A
Xxxxx China-U.S. Growth Fund Class A (.30)% (0.25)% N/A
Xxxxx Capital Appreciation Portfolio Class I-2 N/A N/A (0.10)%
Xxxxx Large Cap Growth Portfolio Class I-2 N/A N/A (0.10)%
Xxxxx Mid Cap Growth Portfolio Class I-2 N/A N/A (0.10)%
Xxxxx XXxx Cap Growth Portfolio Class I-2 N/A N/A (0.10)%
Xxxxx Small Cap Growth Portfolio Class I-2 N/A N/A (0.10)%
Xxxxx Growth & Income Portfolio Class I-2 N/A N/A (0.10)%
Xxxxx Balanced Portfolio Class I-2 N/A N/A (0.10)%
5
The minimum quarterly fee payable by the Underwriter is $25. If fees due to the
Company during a quarter total less than the $25 minimum payment, the Company
will not be paid for that quarter.
If the Company is compensated at a lower rate than the compensation stated
herein, but fails to alert the Underwriter within three months of a lower
payment, the Underwriter will not adjust the Company's compensation
retroactively.
6
