Exhibit 8(ii)(i)
EXECUTION COPY
PARTICIPATION AGREEMENT
Among
Jefferson National Life Insurance Company,
ProFunds,
Access One Trust
and
ProFund Advisors LLC
THIS AGREEMENT, dated as of the 1st day of May, 2010 by and among
Jefferson National Life Insurance Company (the "Company"), a Texas life
insurance company, on its own behalf and on behalf of each segregated asset
account of the Company set forth on Schedule A hereto, as may be amended from
time to time (each account hereinafter referred to as the "Account"), ProFunds,
a Delaware business trust, Access One Trust, a Delaware business trust (each of
ProFunds or the Access One Trust referred to herein as the "Fund"), and ProFund
Advisors LLC (the "Adviser"), a Maryland limited liability company.
WHEREAS, the Fund engages in business as an open-end management investment
company and is available to act as the investment vehicle for separate accounts
established for variable life insurance and variable annuity contracts to be
offered by insurance companies which have entered into participation agreements
with the Fund ("Participating Insurance Companies");
WHEREAS, the shares of beneficial interest of the Fund are divided into
several series of shares, each designated a "Portfolio" and representing the
interest in a particular managed portfolio of securities and other assets;
WHEREAS, the Fund is registered as an open-end management investment
company under the Investment Company Act of 1940, as amended (the "1940 Act"),
and shares of the Portfolios are registered under the Securities Act of 1933, as
amended (the "1933 Act");
WHEREAS, the Adviser, which serves as investment adviser to the Fund, is
duly registered as an investment adviser under the federal Investment Advisers
Act of 1940, as amended;
WHEREAS, the Company has issued or will issue certain variable life
insurance and/or variable annuity contracts supported wholly or partially by the
Account (the "Contracts"), and said Contracts are listed in Schedule A hereto,
as it may be amended from time to time by mutual written agreement;
WHEREAS, the Account is duly established and maintained as a segregated
asset account, duly established by the Company, on the date shown for such
Account on Schedule A hereto, to set aside and invest assets attributable to the
aforesaid Contracts; and
WHEREAS, to the extent permitted by applicable insurance laws and
regulations, the Company intends to purchase shares in the Portfolios listed in
Schedule A hereto, as it may be amended from time
to time by mutual written agreement (the "Designated Portfolios"), on behalf of
the Account to fund the aforesaid Contracts;
NOW, THEREFORE, in consideration of their mutual promises, the Company,
the Fund and the Adviser agree as follows:
ARTICLE I. Sale of Fund Shares
1.1. Subject to Article X hereof, and the terms set forth in the registration
statement, as amended from time to time, the Fund agrees to make available to
the Company for purchase on behalf of the Account, shares of the Designated
Portfolios, such purchases to be effected at net asset value in accordance with
Section 1.3 of this Agreement. Notwithstanding the foregoing, (i) Portfolios
(other than those listed on Schedule A hereto) in existence now or that may be
established in the future will be made available to the Company only as the Fund
may so provide, and (ii) the Board of Trustees of the Fund (the "Board") may
suspend or terminate the offering of shares of any Designated Portfolio or class
thereof, if such action is required by law or by regulatory authorities having
jurisdiction or if, in the sole discretion of the Board acting in good faith and
in light of its fiduciary duties under federal and any applicable state laws,
suspension or termination is necessary in the best interests of the shareholders
of such Designated Portfolio. The Fund reserves the right, upon prior written
notice to the Company (given at the earliest practicable time), to take all
actions, including but not limited to, the dissolution, reorganization,
liquidation, merger or sale of all assets of the Fund or any Portfolio upon the
sole authorization of the Board of Trustees, acting in good faith.
1.2. The Fund shall redeem, at the Company's request, any full or fractional
Designated Portfolio shares held by the Company on behalf of the Account, such
redemptions to be effected at net asset value in accordance with Section 1.3 of
this Agreement. Notwithstanding the foregoing, (i) the Company shall not redeem
Fund shares attributable to Contract owners except in the circumstances
permitted in Section 10.3 of this Agreement, and (ii) the Fund may delay
redemption of Fund shares of any Designated Portfolio to the extent permitted by
the 1940 Act, and any rules, regulations or orders thereunder.
1.3. Purchase and Redemption Procedures
(a) The Fund hereby appoints the Company as an agent of the Fund for the limited
purpose of receiving and accepting purchase and redemption requests on behalf of
the Account (but not with respect to any Fund shares that may be held in the
general account of the Company) for shares of those Designated Portfolios made
available hereunder, based on allocations of amounts to the Account or
subaccounts thereof under the Contracts and other transactions relating to the
Contracts or the Account. Receipt and acceptance of any such request (or
relevant transactional information therefor) on any day the New York Stock
Exchange is open for trading and on which a Designated Portfolio calculates its
net asset value (a "Business Day") pursuant to the rules of the Securities and
Exchange Commission ("SEC") by the Company as such limited agent of the Fund
prior to the time that the Fund ordinarily calculates its net asset value as
described from time to time in the Fund's prospectus (which as of the date of
execution of this Agreement is 4:00 p.m. Eastern Time) shall constitute receipt
and acceptance by the Designated Portfolio on that same Business Day. To
facilitate the Designated Portfolios' daily trading practices, the Company (i)
shall use its best efforts to provide the Fund with daily net aggregate trade
and other information relating to the Designated Portfolios at times and in the
manner specified by the Fund prior to the close of business on each Business
Day, and (ii) shall provide the Fund by 9:00 a.m Eastern time on the following
Business Day with a final report of the previous Business Day's transaction
information related to the Designated Portfolios.
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(b) The Company shall pay for shares of each Designated Portfolio on the
Business Day following the Company's receipt and acceptance, in its capacity as
limited agent of the Fund, of a purchase request for such shares. Payment for
Designated Portfolio shares shall be made in federal funds transmitted to the
Fund or other designated person by wire to be received by 2:00 p.m. Eastern Time
on the Business Day following Company's receipt and acceptance, in its capacity
as limited agent of the Fund, of the purchase request for Designated Portfolio
shares (unless the Fund determines and so advises the Company that sufficient
proceeds are available from redemption of shares of other Designated Portfolios
effected pursuant to redemption requests tendered by the Company on behalf of
the Account). If federal funds are not received on time, such funds will be
invested, and Designated Portfolio shares purchased thereby will be issued, as
soon as practicable and the Company shall promptly, upon the Fund's request,
reimburse the Fund for any charges, costs, fees, interest or other expenses
incurred by the Fund in connection with any advances to, or borrowing or
overdrafts by, the Fund, or any similar expenses incurred by the Fund, as a
result of portfolio transactions effected by the Fund based upon such purchase
request. Upon receipt of federal funds so wired, such funds shall cease to be
the responsibility of the Company and shall become the responsibility of the
Fund.
(c) Payment for Designated Portfolio shares redeemed by the Account or the
Company shall be made in federal funds transmitted by wire to the Company or any
other designated person on the next Business Day after the Fund is properly
notified of the redemption order of such shares (unless redemption proceeds are
to be applied to the purchase of shares of other Designated Portfolio in
accordance with Section 1.3(b) of this Agreement), except that the Fund reserves
the right to redeem Designated Portfolio shares in assets other than cash and to
delay payment of redemption proceeds to the extent permitted under Section 22(e)
of the 1940 Act and any Rules thereunder, and in accordance with the procedures
and policies of the Fund as described in the then current prospectus. The Fund
shall not bear any responsibility whatsoever for the proper disbursement or
crediting of redemption proceeds by the Company, the Company alone shall be
responsible for such action.
(d) Any purchase or redemption request for Designated Portfolio shares held or
to be held in the Company's general account shall be effected at the net asset
value per share next determined after the Fund's receipt and acceptance of such
request, provided that, in the case of a purchase request, payment for Fund
shares so requested is received by the Fund in federal funds prior to close of
business for determination of such value, as defined from time to time in the
Fund's prospectus.
1.4 The Fund shall use its best efforts to make the net asset value per share
for each Designated Portfolio available to the Company by 6:30 p.m. Eastern Time
each Business Day, and in any event, as soon as reasonably practicable after the
net asset value per share for such Designated Portfolio is calculated, and shall
calculate such net asset value in accordance with the Fund's prospectus. Neither
the Fund, any Designated Portfolio, the Adviser, nor any of their affiliates
shall be liable for any information provided to the Company pursuant to this
Agreement, or any loss resulting from such information, if such information is
based on incorrect information supplied by the Company or any other
Participating Insurance Company to the Fund or the Adviser. The Fund will
provide notice of any error in calculation of net asset value of each portfolio
as soon as reasonably practical after discovery thereof. Any such notice will
state for each day for which an error occurred, the incorrect price, the correct
price and the reason for the price change. The Fund shall make the Company whole
for any losses incurred as a result of pricing errors.
1.5 The Fund shall furnish notice (by wire or telephone followed by written
confirmation) to the Company as soon as reasonably practicable of any income
dividends or capital gain distributions payable on any Designated Portfolio
shares. The Company, on its behalf and on behalf of the Account, hereby elects
to receive all such dividends and distributions as are payable on any Designated
Portfolio shares in
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the form of additional shares of that Designated Portfolio. The Company reserves
the right, on its behalf and on behalf of the Account, to revoke this election
and to receive all such dividends and capital gain distributions in cash. The
Fund shall notify the Company promptly of the number of Designated Portfolio
shares so issued as payment of such dividends and distributions. The Company
acknowledges and agrees that dividends and distributions with respect to the
shares of any Designated Portfolio shall constitute consent dividends for
purposes of Section 561 of the Internal Revenue Code of 1986, as amended (the
"Code"), that such dividends and distributions shall be effected in accordance
with Section 565 of the Code, and that the Company will take all necessary
actions so that such dividends and distributions are considered consent
dividends.
1.6 Issuance and transfer of Fund shares shall be by book entry only. Share
certificates will not be issued to the Company or the Account. Purchase and
redemption orders for Fund shares shall be recorded in an appropriate ledger for
the Account or the appropriate subaccount of the Account.
1.7 (a) The parties hereto acknowledge that the arrangement contemplated by
this Agreement is not exclusive; the Fund's shares may be sold to
other insurance companies (subject to Section 2.2 hereof) and the
cash value of the Contracts may be invested in other investment
companies.
(b) The Company shall not, without prior notice to the Adviser (unless
otherwise required by applicable law), take any action to operate
the Account as a management investment company under the 1940 Act.
(c) The Company shall not, without prior notice to the Adviser (unless
otherwise required by applicable law), induce Contract owners to
change or modify the Fund or change the Fund's investment adviser.
(d) The Company shall not, without prior notice to the Fund, induce
Contract owners to vote on any matter submitted for consideration by
the shareholders of the Fund in a manner other than as recommended
by the Board.
1.8 The Company acknowledges that, pursuant to Form 24F-2, the Fund is not
required to pay fees to the SEC for registration of its shares under the 1933
Act with respect to its shares issued to an Account that is a unit investment
trust that offers interests that are registered under the 1933 Act and on which
a registration fee has been or will be paid to the SEC (a "Registered Account").
The Company agrees to provide the Fund each year within 60 days of the end of
the Fund's fiscal year, or when reasonably requested by the Fund, information as
to the number of shares purchased by a Registered Account and any other Account
the interests of which are not registered under the 0000 Xxx. The Company
acknowledges that the Fund intends to rely on the information so provided and
represents and warrants that such information shall be accurate.
ARTICLE II. Representations and Warranties
2.1. The Company represents and warrants that the Contracts (a) are, or prior to
issuance will be, registered under the 1933 Act, or (b) are not registered
because they are properly exempt from registration under the 1933 Act or will be
offered exclusively in transactions that are properly exempt from registration
under the 1933 Act. The Company further represents and warrants that the
Contracts will be issued and sold in compliance in all material respects with
all applicable federal securities and state securities and insurance laws and
that the sale of the Contracts shall comply in all material respects with state
insurance suitability requirements. The Company further represents and warrants
that it is an insurance company duly organized and in good standing under
applicable law, that it has legally and
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validly established the Account prior to any issuance or sale thereof as a
segregated asset account under Texas insurance laws, and that it (a) has
registered or, prior to any issuance or sale of the Contracts, will register the
Account as a unit investment trust in accordance with the provisions of the 1940
Act to serve as a segregated investment account for the Contracts, or
alternatively (b) has not registered the Account in proper reliance upon an
exclusion from registration under the 1940 Act. The Company shall register and
qualify the Contracts or interests therein as securities in accordance with the
laws of the various states only if and to the extent deemed advisable by the
Company. The Company further represents and warrants that it shall comply on a
best efforts basis with the procedures specified in Schedule C, and has
implemented internal controls and procedures reasonably designed to comply with
the procedures specified in Schedule C.
2.2. The Fund represents and warrants (a) that Designated Portfolios shares sold
pursuant to this Agreement shall be registered under the 1933 Act, duly
authorized for issuance and sold in compliance with applicable state and federal
securities laws, (b) that the Fund is and shall remain registered under the 1940
Act, (c) that shares of the Designated Portfolios will be sold only to
Participating Insurance Companies and their separate accounts or to persons or
plans that communicate to the Fund that they qualify to purchase shares of the
Designated Portfolios under Section 817(h) of the Code, and the regulations
thereunder without impairing the ability of the Account to consider the
portfolio investments of the Designated Portfolios as constituting investments
of the Account for purposes of Section 817(h) ("Qualified Persons"), and (d)
shares of the Designated Portfolios will not be sold directly to the general
public. The Fund shall amend the registration statement for its shares under the
1933 Act and the 1940 Act from time to time as required in order to effect the
continuous offering of its shares. The Fund shall register and qualify the
shares for sale in accordance with the laws of the various states only if and to
the extent deemed advisable by the Fund.
2.3. The Company represents and warrants that it and each Account are, and will
continue to be, Qualified Persons.
2.4. The Fund makes no representations as to whether any aspect of its
operations, including, but not limited to, investment policies, fees and
expenses, complies with the insurance and other applicable laws of the various
states.
2.5. The Fund represents that it is lawfully organized and validly existing
under the laws of the State of Delaware and that it does and will comply in all
material respects with the 1940 Act.
2.6. The Adviser represents and warrants that it is registered as an investment
adviser with the SEC.
2.7. The Fund and the Adviser represent and warrant that all of their
trustees/directors, officers, employees, and other individuals or entities
dealing with the money and/or securities of the Fund are and shall 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
currently by Rule 17g-1 of the 1940 Act or related provisions as may be
promulgated from time to time. The aforesaid bond shall include coverage for
larceny and embezzlement and shall be issued by a reputable bonding company.
2.8. The Company represents and warrants that all of its directors, officers,
employees, and other individuals/entities employed or controlled by the Company
dealing with the money and/or securities of the Account are covered by a blanket
fidelity bond or similar coverage for the benefit of the Account, in an amount
not less than $5 million. The aforesaid bond includes coverage for larceny and
embezzlement and is issued by a reputable bonding company. The Company agrees to
hold for the benefit of the Fund and to pay to the Fund any amounts lost from
larceny, embezzlement or other events covered by the
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aforesaid bond to the extent such amounts properly belong to the Fund pursuant
to the terms of this Agreement. The Company agrees to make all reasonable
efforts to see that this bond or another bond containing these provisions is
always in effect, and agrees to notify the Fund and the Adviser in the event
that such coverage no longer applies.
2.9. The Company represents and warrants that it shall comply with any
applicable privacy and notice provisions of 15 U.S.C. xx.xx. 6801-6827 and any
applicable regulations promulgated thereunder (including but not limited to 17
C.F.R. Part 248) as they may be amended.
2.10. The Company represents and warrants that it has in place an anti-money
laundering program ("AML program") that does now and will continue to comply
with applicable laws and regulations, including the relevant provisions of the
USA PATRIOT Act (Pub. L. No. 107-56 (2001)) and the regulations issued
thereunder.
2.11. The Company agrees that it will comply at all times with the provisions of
Rules 22c-1 and 38a-1 under the 1940 Act and, with respect to Rule 38a-1, shall
provide such certifications as may reasonably be requested by the Fund's Chief
Compliance Officer.
2.12. The Company represents and warrants that it will maintain operational
systems and procedures adequate to accommodate stock splits and reverse stock
splits which may be approved by the Board for any of the Designated Portfolios.
The Company acknowledges that any such stock splits and reverse stock splits
shall be determined by the Fund in its sole discretion.
ARTICLE III. Prospectuses and Proxy Statements; Voting
3.1. The Fund or its agent shall provide the Company with as many copies of the
Fund's current prospectus as the Company may reasonably request. The Company
shall bear the expense of printing copies of the current prospectus and profiles
for the Contracts that will be distributed to existing Contract owners, and the
Company shall bear the expense of printing copies of the Fund's prospectus and
profiles that are used in connection with offering the Contracts issued by the
Company. If requested by the Company in lieu thereof, the Fund shall provide
such documentation (including a final copy of the current prospectus set in type
or in camera ready format or in electronic format at the Fund's expense) and
other assistance as is reasonably necessary in order for the Company once each
year (or more frequently if the prospectus for the Fund is amended) to have the
prospectus for the Contracts and the Fund's prospectus or profile printed
together in one document.
3.2. The Fund's prospectus shall state that the current Statement of Additional
Information ("SAI") for the Fund is available, and the Fund, at its expense,
shall provide a reasonable number of copies of such SAI free of charge to the
Company for itself and for any owner of a Contract with Contract value allocated
to a Designated Portfolio who requests such SAI.
3.3. The Fund shall provide the Company with information regarding the Fund's
expenses, which information may include a table of fees and related narrative
disclosure for use in any prospectus or other descriptive document relating to a
Contract. The Company agrees that it will use such information in the form
provided. The Company shall provide prior written notice of any proposed
modification of such information, which notice will describe in detail the
manner in which the Company proposes to modify the information, and agrees that
it may not modify such information in any way without the prior consent of the
Fund.
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3.4. The Fund, at its expense, shall provide the Company with copies of its
proxy material, reports to shareholders, and other communications to
shareholders in such quantity as the Company shall reasonably require for
distributing to Contract owners. If requested by the Company in lieu thereof,
the Fund shall provide such material, reports or other communications in "camera
ready" format on diskette. The Company may request customized reports to
shareholders, but such customized reports shall only be provided at the
Company's expense.
3.5. The Company shall:
(i) solicit voting instructions from Contract owners;
(ii) vote the Fund shares in accordance with instructions received from Contract
owners in that Account; and
(iii) vote Fund shares for which no instructions have been received in the same
proportion as Fund shares of such Designated Portfolio held by an Account for
which instructions have been received, so long as and to the extent that the SEC
continues to interpret the 1940 Act to require pass-through voting privileges
for variable contract owners or to the extent otherwise required by law. The
Company will vote Fund shares held in any segregated asset account in the same
proportion as Fund shares of such Designated Portfolio for which voting
instructions have been received from Contract owners, to the extent permitted by
law.
3.6. Participating Insurance Companies shall be responsible for assuring that
each of their separate accounts participating in a Designated Portfolio
calculates voting privileges as required by the Mixed and Shared Funding
Exemptive Order (See Section 7.1) and consistent with any reasonable standards
that the Fund may adopt and provide in writing.
ARTICLE IV. Sales Material and Information
4.1. The Company shall furnish, or shall cause to be furnished, to the Fund or
its designee, each piece of sales literature or other promotional material that
the Company develops and in which the Fund (or a Designated Portfolio thereof)
or the Adviser is named at least ten Business Days prior to first use. No such
material shall be used until either approved by the Fund or its designee, or the
expiration of the ten Business Day period without comment. The Fund or its
designee reserves the right to reasonably object to the continued use of any
such sales literature or other promotional material in which the Fund (or a
Designated Portfolio thereof) or the Adviser is named, and no such material
shall be used if the Fund or its designee so objects.
4.2. The Company shall not give any information or make any representations or
statements on behalf of the Fund or concerning the Fund or the Adviser in
connection with the sale of the Contracts other than the information or
representations contained in the registration statement or prospectus or SAI for
the Fund shares, as such registration statement and prospectus or SAI may be
amended or supplemented from time to time, or in reports 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.
4.3. The Fund and the Adviser, or their designee, shall furnish, or cause to be
furnished, to the Company, each piece of sales literature or other promotional
material that it develops and in which the Company, and/or its Account, is named
at least ten Business Days prior to first use. No such material shall be used
until either approved by the Company or the expiration of the ten Business Day
period
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without comment. The Company reserves the right to reasonably object to the
continued use of any such sales literature or other promotional material in
which the Company and/or its Account is named, and no such material shall be
used if the Company so objects.
4.4. The Fund shall not give any information or make any representations on
behalf of the Company or concerning the Company, the Account, or the Contracts
other than the information or representations contained in a registration
statement, prospectus (which shall include an offering memorandum, if any, if
the Contracts issued by the Company or interests therein are not registered
under the 1933 Act), or SAI for the Contracts, as such registration statement,
prospectus, or SAI may be amended or supplemented from time to time, or in
published reports for the Account which are in the public domain or approved by
the Company for distribution to Contract owners, or in sales literature or other
promotional material approved by the Company or its designee, except with the
permission of the Company.
4.5. The Fund will provide to the Company at least one complete copy of all
registration statements, prospectuses, SAIs, reports, proxy statements, sales
literature and other promotional materials, applications for exemptions,
requests for no-action letters, and all amendments to any of the above, that
relate to the Designated Portfolios or their shares, promptly after the filing
of such document(s) with the SEC or other regulatory authorities.
4.6. The Company will provide to the Fund at least one complete copy of all
registration statements, prospectuses (which shall include an offering
memorandum, if any, if the Contracts issued by the Company or interests therein
are not registered under the 1933 Act), SAIs and reports for the Contracts or
the Account, if any; and all solicitations for voting instructions, sales
literature and other promotional materials, applications for exemptions and
requests for no-action letters that relate to the Fund or Designated Portfolio;
and all amendments to any of the above, promptly after the filing of such
document(s) with the SEC or other regulatory authorities. The Company shall
provide to the Fund and the Adviser any complaints received from the Contract
owners pertaining to the Fund or a Designated Portfolio.
4.7. The Fund will provide the Company with as much notice as is reasonably
practicable of any proxy solicitation for any Designated Portfolio, and of any
material change in the Fund's registration statement, particularly any change
resulting in a change to the registration statement or prospectus for any
Account. The Fund will work with the Company so as to enable the Company to
solicit proxies from Contract owners, or to make changes to its prospectus or
registration statement, in an orderly manner. The Fund will make reasonable
efforts to attempt to have changes affecting Contract prospectuses become
effective simultaneously with the annual updates for such prospectuses.
4.8. For purposes of this Article IV, the phrase "sales literature and other
promotional materials" includes, but is not limited to, any of the following
that refer to the Fund, any Designated Portfolio or any affiliate of the Fund:
advertisements (such as material published, or designed for use in, a newspaper,
magazine, or other periodical, radio, television, telephone or tape recording,
videotape display, signs or billboards, motion pictures, or other public media),
sales literature (i.e., any written communication distributed or made generally
available to customers or the public, including brochures, circulars, reports,
market letters, form letters, seminar texts, reprints or excerpts of any other
advertisement, sales literature, or published article), educational or training
materials or other communications distributed or made generally available to
some or all agents or employees, and registration statements, prospectuses,
SAIs, shareholder reports, proxy materials, and any other communications
distributed or made generally available with regard to the Fund.
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ARTICLE V. Fees and Expenses
5.1. The Fund shall pay no fee or other compensation to the Company under this
Agreement. Nothing herein shall prevent the parties hereto from otherwise
agreeing to perform and arranging for compensation for (i) distribution and
shareholder-related services under a plan adopted in accordance with Rule 12b-1
under the 1940 Act, and (ii) services (including certain shareholder-related
services) that are not primarily intended to result in the sale of shares of the
Designated Portfolios, which are provided to Contract owners relating to the
Designated Portfolios.
5.2. All expenses incident to performance by the Fund under this Agreement shall
be paid by the Fund. The Fund shall see to it that all its shares are registered
and authorized for issuance in accordance with applicable federal law and, if
and to the extent deemed advisable by the Fund, in accordance with applicable
state laws prior to their sale. The Fund shall bear the expenses for the cost of
registration and qualification of the Fund's shares, preparation and filing of
the Fund's prospectus and registration statement, proxy materials and reports
(except customized reports), setting the prospectus in type, setting in type and
printing the proxy materials and reports to shareholders (including the costs of
printing a prospectus that constitutes an annual report), the preparation of all
statements and notices required by any federal or state law, and all taxes on
the issuance or transfer of the Fund's shares.
5.3. The Company shall bear the expenses of distributing the Fund's prospectus
or profile to owners of Contracts issued by the Company and of distributing the
Fund's proxy materials and reports to such Contract owners.
ARTICLE VI. Diversification and Qualification
6.1. Subject to Company's representations and warranties in Sections 2.1, 2.3
and 6.3, the Fund represents and warrants that it will invest its assets in such
a manner as to ensure that the Contracts will be treated as annuity or life
insurance contracts, whichever is appropriate, under the Code and the
regulations issued thereunder (or any successor provisions). Without limiting
the scope of the foregoing, each Designated Portfolio has complied and will make
every effort to continue to comply with Section 817(h) of the Code and Treasury
Regulation ss.1.817-5, and any Treasury interpretations thereof, relating to the
diversification requirements for variable annuity, endowment, or life insurance
contracts, and any amendments or other modifications or successor provisions to
such Section or Regulations. In the event of a breach of this Article VI by the
Fund, it will take all reasonable steps (a) to notify the Company of such breach
and (b) to adequately diversify the Fund so as to achieve compliance within the
grace period afforded by Treasury Regulation ss.1.817-5. Upon the written
request of the Company, the Fund shall provide Company a certification of its
compliance with Section 817(h) of the Code and Treasury Regulation 1.817-5
within twenty (20) days of the end of each calendar quarter.
6.2. The Fund represents and warrants that each Designated Portfolio is or will
be qualified as a Regulated Investment Company under Subchapter M of the Code,
and that it will make every effort to maintain such qualification (under
Subchapter M or any successor or similar provisions) and that it will notify the
Company immediately upon having a reasonable basis for believing that a
Designated Portfolio has ceased to so qualify or that it might not so qualify in
the future.
6.3. The Company represents and warrants that the Contracts are currently, and
at the time of issuance shall be, treated as life insurance or annuity contracts
under applicable provisions of the Code, and that it will make every effort to
maintain such treatment, and that it will notify the Fund and the Adviser
immediately upon having a reasonable basis for believing the Contracts have
ceased to be so treated or that they might not be so treated in the future. The
Company agrees that any prospectus
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offering a contract that is a "modified endowment contract" as that term is
defined in Section 7702A of the Code (or any successor or similar provision),
shall identify such contract as a modified endowment contract. In addition, the
Company represents and warrants that each of its Accounts is a "segregated asset
account" and that interests in the Accounts are offered exclusively through the
purchase of or transfer into a "variable contract" within the meaning of such
terms under Section 817 of the Code and the regulations thereunder. The Company
will use every effort to continue to meet such definitional requirements, and it
will notify the Fund and the Adviser immediately upon having a reasonable basis
for believing that such requirements have ceased to be met or that they might
not be met in the future.
ARTICLE VII. Potential Conflicts
7.1. The Fund represents and warrants that it may rely on an order that was
granted by the SEC in Variable Insurance Funds, et al. (File No.: 812-10694),
Investment Company Act Rel. No. 23594 (Dec. 10, 1998) granting Participating
Insurance Companies and variable annuity separate accounts and variable life
insurance separate accounts relief from the provisions of Sections 9(a), 13(a),
15(a), and 15(b) of the 1940 Act and Rules 6e-2(b)(15) and 6e-3(T)(b)(15)
thereunder, to the extent necessary to permit shares of the Designated
Portfolios to be sold to and held by variable annuity separate accounts and
variable life insurance separate accounts of both affiliated and unaffiliated
Participating Insurance Companies, qualified pension and retirement plans
outside of the separate account context, and other permitted investors (the
"Mixed and Shared Funding Order"). The parties to this Agreement agree that the
conditions or undertakings required by the Mixed and Shared Funding Order that
may be imposed on the Company, the Fund and/or the Adviser by virtue of such
order by the SEC: (i) shall apply only upon the sale of shares of the Designated
Portfolios to variable life insurance separate accounts (and then only to the
extent required under the 1940 Act); (ii) will be incorporated herein by
reference; and (iii) such parties agree to comply with such conditions and
undertakings to the extent applicable to each such party notwithstanding any
provision of this Agreement to the contrary.
7.2. If and to the extent that Rule 6e-2 and Rule 6e-3(T) are amended, or Rule
6e-3 is adopted, to provide exemptive relief from any provision of the 1940 Act
or the rules promulgated thereunder with respect to mixed or shared funding (as
defined in the Mixed and Shared Funding Exemptive Order) on terms and conditions
materially different from those contained in the Mixed and Shared Funding
Exemptive Order, then (a) the Fund and/or the Participating Insurance Companies,
as appropriate, shall take such steps as may be necessary to comply with Rules
6e-2 and 6e-3(T), as amended, and Rule 6e-3, as adopted, to the extent such
rules are applicable; and (b) Sections 3.5 and 3.6 of this Agreement shall
continue in effect only to the extent that terms and conditions substantially
identical to such Sections are contained in such Rule(s) as so amended or
adopted.
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ARTICLE VIII. Indemnification
8.1. Indemnification By the Company
(a) The Company agrees to indemnify and hold harmless the Fund (which shall
include the Designated Portfolios) and the Adviser and each of its
trustees/directors and officers, and each person, if any, who controls the Fund
or Adviser within the meaning of Section 15 of the 1933 Act or who is under
common control with the Adviser (collectively, the "Indemnified Parties" for
purposes of this Section 8.1) against any and all losses, claims, damages,
liabilities (including amounts paid in settlement with the written consent of
the Company) or litigation (including legal and other expenses), to which the
Indemnified Parties may become subject under any statute or regulation, at
common law or otherwise, insofar as such losses, claims, damages, liabilities or
expenses (or actions in respect thereof) or settlements:
(i) arise out of or are based upon any untrue statement or alleged untrue
statements of any material fact contained in the registration statement,
prospectus (which shall include a written description of a Contract that is not
registered under the 1933 Act), or SAI for the Contracts or contained in the
Contracts or sales literature 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 any Indemnified Party if such
statement or omission or such alleged statement or omission was made in reliance
upon and in conformity with information furnished to the Company by or on behalf
of the Fund for use in the registration statement, prospectus or SAI 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 statements or representations (other
than statements or representations contained in the registration statement,
prospectus, SAI, or sales literature of the Fund not supplied by the Company or
persons under its control) or wrongful conduct of the Company or its agents or
persons under the Company's authorization or control, with respect to the sale
or distribution of the Contracts or Fund shares; or
(iii) arise out of any untrue statement or alleged untrue statement of a
material fact contained in a registration statement, prospectus, SAI, or sales
literature 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 information furnished to
the Fund by or on behalf of the Company; 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
(including a failure, whether unintentional or in good faith or otherwise, to
comply with the qualification requirements specified in Article VI 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 of this Agreement by the Company; or
(vi) arise as a result of the failure of the Company to provide such
information or payment for shares in accordance with the deadlines stated in
Section 1.3; or
- 11 -
(vii) arise out of information provided to the Company pursuant to this
Agreement, or to any other Participating Insurance Company pursuant to another
participation agreement, which information is based on incorrect information
supplied by the Company to the Fund or the Adviser.
as limited by and in accordance with the provisions of Sections 8.1(b) and
8.1(c) hereof.
(b) The Company shall not be liable under this indemnification provision with
respect to any losses, claims, damages, liabilities or litigation to which an
Indemnified Party would otherwise be subject by reason of such Indemnified
Party's willful misfeasance, bad faith, or gross negligence in the performance
of such Indemnified Party's duties or by reason of such Indemnified Party's
reckless disregard of its obligations or duties under this Agreement.
(c) The Company shall not be liable under this indemnification provision with
respect to any claim made against an Indemnified Party unless such Indemnified
Party shall have notified the Company 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
Indemnified Party shall have received notice of such service on any designated
agent), but failure to notify the Company of any such claim shall not relieve
the Company from any liability which it may have to the Indemnified Party
against whom such action is brought otherwise than on account of this
indemnification provision. In case any such action is brought against an
Indemnified Party, the Company shall be entitled to participate, at its own
expense, in the defense of such action. The Company also shall be entitled to
assume the defense thereof, with counsel satisfactory to the party named in the
action. After notice from the Company to such party of the Company's election to
assume the defense thereof, the Indemnified Party shall bear the fees and
expenses of any additional counsel retained by it, and the Company 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.
(d) Each of the Fund and the Adviser will promptly notify the Company of the
commencement of any litigation or proceedings of which it has knowledge against
an Indemnified Party in connection with the issuance or sale of the Fund shares
or the Contracts or the operation of the Fund.
8.2. Indemnification by the Adviser
(a) The Adviser agrees to indemnify and hold harmless the Company and each of
its directors and officers and each person, if any, who controls the Company
within the meaning of Section 15 of the 1933 Act (collectively, the "Indemnified
Parties" for purposes of this Section 8.2) against any and all losses, claims,
damages, liabilities (including amounts paid in settlement with the written
consent of the Adviser) or litigation (including legal and other expenses) to
which the Indemnified Parties may become subject under any statute or
regulation, at common law or otherwise, insofar as such losses, claims, damages,
liabilities or expenses (or actions in respect thereof) or settlements:
(i) arise out of or are based upon any untrue statement or alleged untrue
statement of any material fact contained in the registration statement or
prospectus or SAI or sales literature of the Fund (or any amendment or
supplement to any of the foregoing), or arise out of or are based upon the
omission or the alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading,
provided that this agreement to indemnify shall not apply as to any Indemnified
Party if such statement or omission or such alleged statement or omission was
made in reliance upon and in conformity with information furnished to the
Adviser or Fund by or on behalf of the Company for use in the registration
statement, prospectus or SAI for the Fund or in sales literature (or
- 12 -
any amendment or supplement) or otherwise for use in connection with the sale of
the Contracts or Fund shares; or
(ii) arise out of or as a result of statements or representations (other
than statements or representations contained in the registration statement,
prospectus, SAI or sales literature for the Contracts not supplied by the Fund
or the Adviser) or wrongful conduct of the Adviser with respect to the sale or
distribution of the Contracts or Fund shares; or
(iii) arise out of any untrue statement or alleged untrue statement of a
material fact contained in a registration statement, prospectus, SAI or sales
literature covering the Contracts, or any amendment thereof or supplement
thereto, or the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statement or statements
therein not misleading, if such statement or omission was made in reliance upon
information furnished to the Company by or on behalf of the Adviser; or
(iv) arise as a result of any failure by the Fund to comply with the
diversification and other qualification requirements specified in Article VI of
this Agreement; or
(v) arise out of or result from any material breach of any representation
and/or warranty made by the Adviser in this Agreement or arise out of or result
from any other material breach of this Agreement by the Adviser;
as limited by and in accordance with the provisions of Sections 8.2(b) and
8.2(c) hereof.
(b) The Adviser shall not be liable under this indemnification provision with
respect to any losses, claims, damages, liabilities or litigation to which an
Indemnified Party would otherwise be subject by reason of such Indemnified
Party's willful misfeasance, bad faith, or gross negligence in the performance
or such Indemnified Party's duties or by reason of such Indemnified Party's
reckless disregard of obligations and duties under this Agreement or to the
Company or the Account, whichever is applicable.
(c) The Adviser shall not be liable under this indemnification provision with
respect to any claim made against an Indemnified Party unless such Indemnified
Party shall have notified the Adviser 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
Indemnified Party shall have received notice of such service on any designated
agent), but failure to notify the Adviser of any such claim shall not relieve
the Adviser from any liability which it may have to the Indemnified Party
against whom such action is brought otherwise than on account of this
indemnification provision. In case any such action is brought against the
Indemnified Party, the Adviser will be entitled to participate, at its own
expense, in the defense thereof. The Adviser also shall be entitled to assume
the defense thereof, with counsel satisfactory to the party named in the action.
After notice from the Adviser to such party of the Adviser's election to assume
the defense thereof, the Indemnified Party shall bear the fees and expenses of
any additional counsel retained by it, and the Adviser 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.
(d) The Company agrees promptly to notify the Adviser of the commencement of any
litigation or proceedings of which it has knowledge against an Indemnified Party
in connection with the issuance or sale of the Contracts or the operation of the
Account.
- 13 -
8.3. Indemnification By the Fund
(a) To the extent permitted by applicable law, the Fund agrees to indemnify and
hold harmless the Company and each of its directors and officers and each
person, if any, who controls the Company within the meaning of Section 15 of the
1933 Act (collectively, the "Indemnified Parties" for purposes of this Section
8.3) against any and all losses, claims, expenses, damages, liabilities
(including amounts paid in settlement with the written consent of the Fund) or
litigation (including legal and other expenses) to which the Indemnified Parties
may be required to pay or may become subject under any statute or regulation, at
common law or otherwise, insofar as such losses, claims, expenses, damages,
liabilities or expenses (or actions in respect thereof) or settlements, are
related to the operations of the Fund 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 or
prospectus or SAI or sales literature of the Fund (or any amendment or
supplement to any of the foregoing), or arise out of or are based upon the
omission or the alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading,
provided that this agreement to indemnify shall not apply as to any Indemnified
Party if such statement or omission or such alleged statement or omission was
made in reliance upon and in conformity with information furnished to the
Adviser or Fund by or on behalf of the Company for use in the registration
statement, prospectus or SAI for the Fund or in 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 as a result of any failure by the Fund to provide the services
and furnish the materials under the terms of this Agreement (including a
failure, whether unintentional or in good faith or otherwise, to comply with the
diversification and other qualification requirements specified in Article VI of
this Agreement); or
(iii) arise out of or result from any material breach of any
representation and/or warranty made by the Fund in this Agreement or arise out
of or result from any other material breach of this Agreement by the Fund;
as limited by and in accordance with the provisions of Sections 8.3(b) and
8.3(c) hereof.
(b) The Fund shall not be liable under this indemnification provision with
respect to any losses, claims, damages, liabilities or litigation to which an
Indemnified Party would otherwise be subject by reason of such Indemnified
Party's willful misfeasance, bad faith, or gross negligence in the performance
of such Indemnified Party's duties or by reason of such Indemnified Party's
reckless disregard of obligations and duties under this Agreement or to the
Company, the Fund, the Adviser or the Account, whichever is applicable.
(c) The Fund shall not be liable under this indemnification provision with
respect to any claim made against an Indemnified Party unless such Indemnified
Party shall have notified the Fund 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
Indemnified Party shall have received notice of such service on any designated
agent), but failure to notify the Fund of any such claim shall not relieve the
Fund from any liability which it may have to the Indemnified Party against whom
such action is brought otherwise than on account of this indemnification
provision. In case any such action is brought against the Indemnified Parties,
the Fund will be entitled to participate, at its own expense, in the defense
thereof. The Fund also shall be entitled to assume the defense thereof, with
counsel satisfactory to the party named in the action. After notice from the
Fund to such party of the
- 14 -
Fund's election to assume the defense thereof, the Indemnified Party shall bear
the fees and expenses of any additional counsel retained by it, and the Fund
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.
(d) The Company agrees promptly to notify the Fund of the commencement of any
litigation or proceeding of which it has knowledge against an Indemnified Party
in connection with the Agreement, the issuance or sale of the Contracts, the
operation of the Account, or the sale or acquisition of shares of the Fund.
(e) The Adviser agrees promptly to notify the Fund of the commencement of any
litigation or proceeding of which it has knowledge against it or any of its
respective officers or directors in connection with the Agreement, the issuance
or sale of the Contracts, the operation of the Account, or the sale or
acquisition of shares of the Fund.
ARTICLE IX. Applicable Law
9.1. This Agreement shall be construed and the provisions hereof interpreted
under and in accordance with the laws of the State of New York.
9.2. 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
(including, but not limited to, the Mixed and Shared Funding Exemptive Order)
and the terms hereof shall be interpreted and construed in accordance therewith.
If, in the future, the Mixed and Shared Funding Exemptive Order should no longer
be necessary under applicable law, then Article VII shall no longer apply.
ARTICLE X. Termination
10.1. This Agreement shall continue in full force and effect until the first to
occur of:
(a) termination by any party, for any reason with respect to some or all
Designated Portfolios, by three (3) months advance written notice
delivered to the other parties; or
(b) termination by the Company by written notice to the Fund and the
Adviser based upon the Company's determination that shares of the
Fund are not reasonably available to meet the requirements of the
Contracts; or
(c) termination by the Company by written notice to the Fund and the
Adviser in the event any of the Designated Portfolio's shares are
not registered, issued or sold in accordance with applicable state
and/or federal law or such law precludes the use of such shares as
the underlying investment media of the Contracts issued or to be
issued by the Company; or
(d) termination by the Fund or Adviser in the event that formal
administrative proceedings are instituted against the Company by
FINRA, the SEC, the Insurance Commissioner or like official 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
operation of any Account, or the purchase of the Designated
Portfolios' shares; provided, however, that the Fund or Adviser
determines in its sole judgment exercised in good faith, that any
- 15 -
such administrative proceedings will have a material adverse effect
upon the ability of the Company to perform its obligations under
this Agreement; or
(e) termination by the Company in the event that formal administrative
proceedings are instituted against the Fund or Adviser by the SEC or
any state securities or insurance department or any other regulatory
body; provided, however, that the Company determines in its sole
judgment exercised in good faith, that any such administrative
proceedings will have a material adverse effect upon the ability of
the Fund or Adviser to perform its obligations under this Agreement;
or
(f) termination by the Company by written notice to the Fund and the
Adviser with respect to any Designated Portfolio in the event that
such Portfolio ceases to qualify as a Regulated Investment Company
under Subchapter M or fails to comply with the Section 817(h)
diversification requirements specified in Article VI hereof, or if
the Company reasonably believes that such Portfolio may fail to so
qualify or comply; or
(g) termination by the Fund or Adviser by written notice to the Company
in the event that the Contracts fail to meet the qualifications
specified in Section 6.3 hereof; or
(h) termination by either the Fund or the Adviser by written notice to
the Company, if either one or both of the Fund or the Adviser
respectively, shall determine, in their sole judgment exercised in
good faith, that the Company has suffered a material adverse change
in its business, operations, financial condition, or prospects since
the date of this Agreement or is the subject of material adverse
publicity; or
(i) termination by the Company by written notice to the Fund and the
Adviser, if the Company shall determine, in its sole judgment
exercised in good faith, that the Fund or the Adviser has suffered a
material adverse change in its business, operations, financial
condition or prospects since the date of this Agreement or is the
subject of material adverse publicity; or
(j) termination by the Fund or the Adviser by written notice to the
Company, if the Company gives the Fund and the Adviser the written
notice specified in Section 1.7(a)(ii) hereof and at the time such
notice was given there was no notice of termination outstanding
under any other provision of this Agreement; provided, however, any
termination under this Section 10.1(j) shall be effective forty-five
days after the notice specified in Section 1.7(a)(ii) was given; or
(k) termination by the Adviser or Fund if the Board has decided to (i)
refuse to sell shares of any Designated Portfolio to the Company
and/or any of its Accounts; (ii) suspend or terminate the offering
of shares of any Designated Portfolio; or (iii) dissolve,
reorganize, liquidate, merge or sell all assets of the Trust or any
Designated Portfolio, subject to the provisions of Section 1.1; or
(l) termination by the Company upon any substitution of the shares of
another investment company or series thereof for shares of a
Designated Portfolio of the Fund in accordance with the terms of the
Contracts, provided that the Company has given at least 45 days
prior written notice to the Fund and Adviser of the date of
substitution; or
- 16 -
(m) termination by any party in the event that the Board determines that
a material irreconcilable conflict exists as provided in Article
VII.
10.2. (a) Notwithstanding any termination of this Agreement, and except as
provided in Section 10.2(b), the Fund and the Adviser shall, at the option of
the Company, continue, until the one year anniversary from the date of
termination, and from year to year thereafter if deemed appropriate by the Fund
and the Adviser, to make available additional shares of the Fund pursuant to the
terms and conditions of this Agreement, for all Contracts in effect on the
effective date of termination of this Agreement (hereinafter referred to as
"Existing Contracts"). Specifically, based on instructions from the owners of
the Existing Contracts, the Accounts shall be permitted to reallocate
investments in the Designated Portfolios of the Fund and redeem investments in
the Designated Portfolios, and shall be permitted to invest in the Designated
Portfolios in the event that owners of the Existing Contracts make additional
premium payments under the Existing Contracts. Company agrees, promptly after
any termination of this Agreement, to take all reasonable steps necessary to
redeem the investment of the Accounts in the Designated Portfolios within one
year from the date of termination of the Agreement as provided in Article X.
Such steps may include, but not be limited to, obtaining an order pursuant to
Section 26(c) of the 1940 Act to permit the substitution of other securities for
the shares of the Designated Portfolios. The Fund or the Adviser may, in their
discretion, permit the Accounts to continue to invest in the Designated
Portfolios beyond such one year anniversary for an additional year beginning on
the first annual anniversary of the date of termination, and from year to year
thereafter; provided that the Fund or the Adviser agrees in writing to permit
the Accounts to continue to invest in the Designated Portfolios at the beginning
of any such year.
(b) In the event (i) the Agreement is terminated pursuant to Sections 10.1(g) or
10.1(m), at the option of the Fund or the Adviser; or (ii) the one year
anniversary of the termination of the Agreement is reached or, after waiver as
provided in Section 10.2(a), such subsequent anniversary is reached (each of (i)
and (ii) referred to as a "triggering event" and the date of termination as
provided in (i) or the date of such anniversary as provided in (ii) referred to
as the "request date"), the parties agree that such triggering event shall be
considered as a request for immediate redemption of shares of the Designated
Portfolios held by the Accounts, received by the Fund as of the request date,
and the Fund agrees to process such redemption request in accordance with the
1940 Act and the regulations thereunder and the Fund's registration statement.
(c) The parties agree that this Section 10.2 shall not apply to any terminations
under Article VII and the effect of such Article VII terminations shall be
governed by Article VII of this Agreement. The parties further agree that, to
the extent that all or a portion of the assets of the Accounts continue to be
invested in the Fund or any Designated Portfolio of the Fund, Articles I, II,
VI, VII, VIII and IX will remain in effect after termination.
10.3. The Company shall not redeem Fund shares attributable to the Contracts (as
opposed to Fund shares attributable to the Company's assets held in the Account)
except (i) as necessary to implement Contract owner initiated or approved
transactions, (ii) as required by state and/or federal laws or regulations or
judicial or other legal precedent of general application (hereinafter referred
to as a "Legally Required Redemption"), (iii) upon 45 days prior written notice
to the Fund and Adviser, as permitted by an order of the SEC pursuant to Section
26(c) of the 1940 Act, but only if a substitution of other securities for the
shares of the Designated Portfolios is consistent with the terms of the
Contracts, or (iv) as permitted under the terms of the Contract. Upon request,
the Company will promptly furnish to the Fund and the Adviser reasonable
assurance that any redemption pursuant to clause (ii) above is a Legally
Required Redemption. Furthermore, except in cases where permitted under the
terms of the Contracts, the Company shall not prevent Contract owners from
allocating payments to a Portfolio that
- 17 -
was otherwise available under the Contracts without first giving the Fund or the
Adviser 45 days notice of its intention to do so.
10.4. Notwithstanding any expiration or termination of this Agreement, Article
VIII, Article IX and Sections 12.5, 12.7, 12.9 and 12.11 shall survive the
expiration or termination of this Agreement.
ARTICLE XI. Notices
Any notice shall be sufficiently given when sent by registered or
certified mail or overnight delivery to the other party at the address of such
party set forth below or at such other address as such party may from time to
time specify in writing to the other party.
If to the Fund: ProFunds/Access One Trust
c/o ProFund Advisors LLC
0000 Xxxxxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxxx, XX 00000
If to Adviser: ProFund Advisors LLC
0000 Xxxxxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxxx, XX 00000
If to the Company: Jefferson National Life Insurance Company
0000 Xxxxxxxxx Xxxxxx Xxxxx, Xxxxx 0000
Xxxxxxxxxx, Xxxxxxxx 00000
Attn: General Counsel
ARTICLE XII. Miscellaneous
12.1. All persons dealing with the Fund must look solely to the property of the
respective Designated Portfolios listed on Schedule A hereto as though each such
Designated Portfolio had separately contracted with the Company and the Adviser
for the enforcement of any claims against the Fund. The parties agree that
neither the Board, officers, agents or shareholders of the Fund assume any
personal liability or responsibility for obligations entered into by or on
behalf of the Fund.
12.2. Subject to the requirements of legal process and regulatory authority,
each party hereto shall treat as confidential the names and addresses of the
owners of the Contracts and all information reasonably identified as
confidential in writing by any other party hereto and, except as permitted by
this Agreement, shall not disclose, disseminate or utilize such names and
addresses and other confidential information without the express written consent
of the affected party until such time as such information has come into the
public domain.
12.3. 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.
- 18 -
12.4. This Agreement may be executed simultaneously in two or more counterparts,
each of which taken together shall constitute one and the same instrument.
12.5. 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.
12.6. Each party hereto shall cooperate with each other party and all
appropriate governmental authorities (including without limitation the SEC,
FINRA, and state insurance regulators) and shall permit such authorities
reasonable access to its books and records in connection with any investigation
or inquiry relating to this Agreement or the transactions contemplated hereby.
Notwithstanding the generality of the foregoing, each party hereto further
agrees to furnish the Texas 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 variable insurance
operations of the Company are being conducted in a manner consistent with the
Texas insurance laws and regulations and any other applicable law or
regulations.
12.7. The rights, remedies and obligations contained in this Agreement are
cumulative and are in addition to any and all rights, remedies, and obligations,
at law or in equity, which the parties hereto are entitled to under state and
federal laws.
12.8. This Agreement or any of the rights and obligations hereunder may not be
assigned by any party without the prior written consent of all parties hereto;
provided, however, that the Adviser may assign this Agreement or any rights or
obligations hereunder to any affiliate or company under common control with the
Adviser, if such assignee is duly licensed and registered to perform services
under this Agreement. The Company shall promptly notify the Fund and the Adviser
of any change in control of the Company.
- 19 -
12.9. Any and all disputes arising under or in connection with this Agreement
will be finally and exclusively resolved by arbitration under the rules of
arbitration then in effect for the National Association of Securities Dealers,
Inc. or the American Arbitration Association, such organization to be selected
in the sole discretion of the Trust. The arbitration will be held in New York,
NY before three arbitrators who have no present or former affiliation with any
party to this Agreement and who are knowledgeable about mutual funds, the asset
management industry and the subject of the dispute. Each party will choose one
arbitrator, and the two arbitrators so chosen will choose a third who will chair
the proceedings. In no event will the arbitrators have the authority to make any
award that provides for punitive or exemplary damages. Any decision rendered by
the arbitrators will be binding, final and conclusive upon both parties, and a
judgment thereon may be entered in, and enforced by, any court having
jurisdiction over the party against which an award is entered, or by any court
having jurisdiction over the assets of any party against which an award is
entered, and the parties hereby irrevocably waive any objections to the
jurisdiction of such court based on any ground, including improper venue or
forum non conveniens. Except where clearly prevented by the subject matter of
the dispute, both parties will continue performing their respective obligations
under this Agreement while the dispute is being resolved. The prevailing party
in any claim, action, arbitration, or other proceeding arising under or in
connection with the implementation or enforcement of this Agreement will be
entitled to recover from the other party all reasonable attorneys' fees incurred
in connection therewith.
12.10. The Company shall furnish, or shall cause to be furnished, to the Fund or
its designee copies of the following reports:
(a) the Company's annual statement (prepared under statutory accounting
principles) and annual report (prepared under generally accepted
accounting principles) filed with any state or federal regulatory
body or otherwise made available to the public, as soon as
practicable and in any event within 90 days after the end of each
fiscal year; and
(b) any registration statement (without exhibits) and financial reports
of the Company filed with the Securities and Exchange Commission or
any state insurance regulatory, as soon as practicable after the
filing thereof.
12.11 For purposes of this paragraph, each of ProFunds and the Access One Trust
are referred to as a "Trust." This Agreement constitutes a separate and
distinguishable agreement as between Company and each Trust. The Agreement has
been structured as a single document for convenience only. The representations,
warranties, duties and obligations of each Trust hereunder are several, not
joint. The representations, warranties, duties and obligations of Company to
each Trust are separate and do not inure to another Trust. For purposes of this
Agreement, references to Fund shall mean to each Fund on an individual basis. No
Trust shall be responsible for the actions (or inactions) of another Trust.
- 20 -
IN WITNESS WHEREOF, each of the parties hereto has caused this Agreement
to be executed in its name and on its behalf by its duly authorized
representative and its seal to be hereunder affixed hereto as of the date
specified below.
Jefferson National Life Insurance Company By its authorized officer
By: ________________________________
Title: _____________________________
Date: ______________________________
ProFunds By its authorized officer
By: ________________________________
Title: _____________________________
Date: ______________________________
ProFund Advisors LLC By its authorized officer
By: ________________________________
Title: _____________________________
Date: ______________________________
Access One Trust By its authorized officer
By: ________________________________
Title: _____________________________
Date: ______________________________
- 21 -
EXECUTION COPY
Schedule A
Account(s) Contract(s)
Jefferson National Life JNL-2300 Series
Annuity Account G and state variations
Designated Portfolio(s) CUSIP
----------------------- -----
Access VP High Yield 00433W-304
ProFunds VP Asia 30 743185761
ProFunds VP Basic Materials 00000X000
ProFunds VP Bear 743185688
ProFunds VP Biotechnology 00000X000
ProFunds VP Bull 743185738
ProFunds VP Consumer Goods 00000X000
ProFunds VP Emerging Markets 00000X000
ProFunds VP Europe 30 743185597
ProFunds VP Financials 00000X000
ProFunds VP Health Care 00000X000
ProFunds VP Industrials 00000X000
ProFunds VP International 00000X000
ProFunds VP Japan 743185118
ProFunds VP Large Cap Growth 00000X000
ProFunds VP Large Cap Value 00000X000
ProFunds VP Mid-Cap 00000X000
ProFunds XX XxxXxx Growth 00000X000
ProFunds XX XxxXxx Value 00000X000
ProFunds VP Nasdaq 100 743185134
ProFunds VP Oil & Gas 00000X000
ProFunds VP Pharmaceuticals 00000X000
ProFunds VP Precious Metals 00000X000
ProFunds VP Real Estate 00000X000
ProFunds VP Rising Rates Opportunity 00000X000
ProFunds VP Short Nasdaq 100 743185589
ProFunds VP Short Small-Cap 00000X000
ProFunds VP Small-Cap Growth 00000X000
ProFunds VP Small-Cap Value 00000X000
ProFunds VP Technology 00000X000
ProFunds VP U.S. Gov't Plus 743185563
ProFunds VP Ultra MidCap 00000X000
ProFunds VP Ultra Nasdaq 100 743185647
ProFunds VP UltraBull 743185712
ProFunds VP UltraSmall-Cap 743185753
ProFunds VP Utilities 00000X000
A-1
