EXHIBIT (8b)
PARTICIPATION AGREEMENT
AMONG
XXXXXXX & XXXXXX INSURANCE FUND, INC.
XXXXXXX & XXXXXX INVESTOR SERVICES, INC.
XXXXXXX & NAPIERS ADVISORS, INC.
AND
KEYPORT LIFE INSURANCE COMPANY
This Agreement, made and entered into this 20TH day of SEPT., 1996 by and
among Keyport Life Insurance Company, a Rhode Island corporation, (referred to
as the "Company"), each on its own behalf and on behalf of its Separate Account,
which is a segregated asset account of the Company; Xxxxxxx & Xxxxxx Insurance
Fund, Inc. (the "Fund"), a Maryland Corporation; Xxxxxxx & Xxxxxx Investor
Services, Inc. ("Distributor"), a New York corporation; and Xxxxxxx & Xxxxxx
Advisors, Inc. ("Advisor"), a New York corporation.
WHEREAS, the Fund engages in business as an open-end investment management
company and is available to act as the investment vehicle for separate accounts
established for variable life insurance policies and variable annuity contracts
("Variable Insurance Products") to be offered by insurance companies which have
entered into participation agreements with the Fund and Distributor
substantially identical to this Agreement (hereinafter "Participating Insurance
Companies"); and
WHEREAS, the beneficial interest in the Fund is divided into several series
of shares (such series being hereinafter referred to individually as a
"Portfolio" or collectively as the "Portfolios") as shown on Schedule A attached
hereto; and
WHEREAS, the Fund currently intends to apply for an order from the
Securities and Exchange Commission ("SEC"), granting Participating Insurance
Companies and variable annuity and variable life insurance separate accounts
exemptions from the provisions of Sections 9(a), 13(a), 15(a), and 15(b) of the
Investment Company Act of 1940, as amended (hereinafter the "1940 Act") and
Rules 6e-2(b)(15) and 6e-3(T)(b)(15) thereunder to the extent necessary to
permit shares of the Fund to be sold to and held by variable annuity separate
and variable life insurance accounts of both affiliated and unaffiliated life
insurance companies (hereinafter the "Shared Funding Exemptive Order"); and
WHEREAS, the Fund is registered as an open-end investment management
company under the 1940 Act and its shares are registered under the Securities
Act of 1933, as amended (hereinafter the "1933 Act"); and
WHEREAS, Xxxxxxx & Xxxxxx Advisors, Inc. (the "Advisor") is duly registered
as an investment advisor under the federal Investment Advisors Act of 1940 and
any applicable state securities law; and
WHEREAS, the Company has registered or will register certain Variable
Insurance Products under the 1933 Act; and
WHEREAS, the Company has established a duly organized, and validly existing
segregated asset account as shown on Schedule B attached hereto (the "Separate
Account") established by resolution of the Boards of Directors of the Company,
and divided such Separate Account into subaccounts to set aside and invest
assets attributable to aforesaid variable annuity contracts; and
2
WHEREAS, the Company has registered or will register the certain Separate
Account as a unit investment trust under the 1940 Act; and
WHEREAS, Distributor is registered as a broker-dealer with 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, Keyport Financial Services Corporation ("KFSC") the underwriter
for the individual variable annuity and the variable life policies, is
registered as a broker-dealer with the SEC under the 1934 Act and is a member in
good standing of the NASD; and
WHEREAS, to the extent permitted by applicable insurance laws and
regulations, the Company intends to purchase shares in the Portfolios on behalf
of the Separate Account to fund certain Variable Insurance Products. Distributor
is authorized to sell such shares to unit investment trusts such as the Separate
Account at net asset value, and acts as distributor of the Portfolio shares.
NOW, THEREFORE, in consideration of their mutual promises, the Company, the
Fund and the Distributor agree as follows:
ARTICLE I. Sale of Fund Shares
1.1 Distributor shall sell to the Company those shares of the Fund which
the Separate Account orders, executing such orders on a daily basis at the net
asset value next computed after receipt by the Fund or its designee of the order
for shares of the Fund. For purposes of this Section 1.1, the Company shall be
the designee of the Fund for receipt of such orders from the
3
Separate Account and receipt by such designee shall constitute receipt by the
Fund provided that the Company receives the order by 4:00 p.m. New York time and
the Fund receives notice from the Company, as the Company and Fund may agree, by
9:00 a.m. New York time on the next Business Day. "Business Day" shall mean any
day on which the New York Stock Exchange is open for regular trading and on
which the Fund calculates its net asset value pursuant to the rules of the SEC.
1.2 The Fund agrees subject to the terms of this Agreement, to make its
shares available indefinitely for purchase at the applicable net asset value per
share by the Company and its Separate Account on those days on which the Fund
calculates its net asset value pursuant to rules of the SEC. The Fund shall use
reasonable efforts to calculate such net asset value on each day on which the
New York Stock Exchange is open for trading. Notwithstanding the foregoing, the
Board of Directors of the Fund (hereinafter the "Board") 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 Board
acting in good faith and in light of its fiduciary duties under federal and any
applicable state laws, necessary in the best interests of the shareholders of
such Portfolio.
1.3 The Fund agrees that shares of the Fund will be sold only to
Participating Insurance Companies and their separate accounts which have agreed
to participate in the Fund to fund their Separate Accounts and/or certain
qualified plans, all in accordance with the requirements of Section 817(h) of
the Internal Revenue Code of 1986, as amended (hereinafter "Code") and Treasury
Regulation 1.817-5. No shares of any Portfolio will be sold to the general
public.
4
1.4 The Fund and Distributor will not sell Fund shares to any insurance
company or separate account unless an agreement containing substantially similar
provisions as Articles I, III, V, VI and Sections 2.5 of Article II of this
Agreement is in effect to govern such sales.
1.5 The Fund will redeem for cash, on the Company's request, any full or
fractional shares of the Fund held by the Company, executing such requests on a
daily basis at the net asset value next computed after receipt by the Fund or
its designee of redemption requests. For purposes of this Section 1.5, the
Company shall be the designee of the Fund for receipt of requests for redemption
from the Separate Account, and receipt by such designee should constitute
receipt by the Fund; provided that the Company receives the request for
redemption by 4:00 p.m. New York time, and the Fund receives notice from the
Company, as the Company and Fund may agree, by 9:00 a.m. New York time on the
next Business Day.
Subject to the applicable rules and regulations, if any, of the SEC, the
Fund may pay the redemption price for shares of any Portfolio in whole or in
part by a distribution in kind of securities from the Portfolio of the Fund
allocated to such Portfolio in lieu of money, valuing such securities at their
value employed for determining net asset value governing such redemption price,
and selecting such securities in a manner the Board may determine in good faith
to be fair and equitable.
1.6 The Fund may suspend the redemption of any full or fractional shares
of the Fund (1) for any period (a) during which the New York Stock Exchange is
closed (other than customary weekend and holiday closings) or (b) during which
trading on the New York Stock Exchange is restricted; (2) for any period during
which an emergency exists as a result of which (a) disposal by the Fund of
securities owned by it is not reasonably practicable or (b) it is not
5
reasonably practicable for the Fund fairly to determine the value of its net
assets; or (3) for such other periods as the SEC may by order permit for the
protection of shareholders of the Fund.
1.7 The Company will purchase and redeem the shares of each Portfolio
offered by the then current prospectus of the Fund in accordance with the
provisions of such prospectus and statement of additional information ("SAI")
(collectively referred to as "Prospectus," unless otherwise provided). The
Company agrees that all net amounts available under the Variable Insurance
Products with the form number(s) that are listed on Schedule B attached hereto
and incorporated herein by this reference, as such Schedule B may be amended
from time to time hereafter by mutual written agreement of all the parties
hereto (the "Contracts"), shall be invested in the Fund, in such other Funds
advised by Xxxxx, Xxx & Farnham Incorporated or the Advisor as may be mutually
agreed to in writing by the parties hereto, or in the Company's general
accounts, or in such other funds as the parties hereto agree in writing.
1.8 The Company shall pay for Fund shares on the same Business Day as an
order to purchase Fund shares is made in accordance with the provisions of
Section 1.1 hereof. Payment shall be in federal funds transmitted by wire, or
may otherwise be provided by separate agreement. For purpose of Section 2.10 and
2.11, upon receipt by the Fund of the federal funds so wired, such funds shall
cease to be the responsibility of the Company and shall become the
responsibility of the Fund.
1.9 Issuance and transfer of the Funds' shares will be by book entry only.
Stock certificates will not be issued to the Company or the Separate Account.
Shares ordered from the Fund will be recorded in an appropriate title for the
Separate Account or the appropriate subaccount of the Separate Account.
6
1.10 The Fund shall furnish same day notice (by wire or telephone,
followed by written confirmation) to the Company of any income dividends or
capital gain distributions payable on the shares of any Portfolio. The Company
hereby elects to receive all such income dividends and capital gain
distributions as are payable on the Portfolio shares in additional shares of
that Portfolio. The Company reserves the right to revoke this election and to
receive all such income, dividends and capital gain distributions in cash. The
Fund shall notify the Company of the number of shares so issued as payment of
such income, dividends and capital gains distributions.
1.11 The Fund shall make the net asset value per share for each Series
available to the Company on a daily basis as soon as reasonably practical after
the net asset value per share is calculated and shall use its best efforts to
make such net asset value per share available by 7 p.m., New York time.
ARTICLE II. Representations and Warranties
2.1 The Company represents and warrants that the Contracts are or will be
registered under the 1933 Act to the extent required by the 1933 Act; that the
Contracts will be issued and distributed in compliance in all material respects
with all applicable federal and state 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 and
that prior to any issuance or sale of any Contract it has legally and validly
established the Separate Account as a segregated asset account under the
applicable state insurance laws and has registered or, prior to any issuance or
sale of the Contracts, will register the Separate Account as a unit investment
trust in accordance
7
with the provisions of the 1940 Act to serve as a segregated investment account
for the Contracts.
2.2 The Company represents and warrants that KFSC, the underwriter for the
individual variable annuity and the variable life policies, is a member in good
standing of the NASD and is a registered broker-dealer with the SEC. The Company
represents and warrants that the Company and KFSC will issue and distribute such
policies in accordance in all material respects with all applicable state and
federal securities laws, including without limitation the 1933 Act, the 1934
Act, and the 0000 Xxx.
2.3 The Fund represents and warrants that Fund shares sold pursuant to
this Agreement shall be registered under the 1933 Act, duly authorized for
issuance and sold in compliance with the laws of the State of Maryland and all
applicable federal and any state securities laws and that the Fund is and shall
remain registered under the 0000 Xxx. 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 or
Distributor.
2.4 The Fund represents that it intends to qualify as a Regulated
Investment Company under Subchapter M of the Code and that it will make every
effort to maintain such qualification (under Subchapter M or any successor or
similar provision) and that it will notify the Company immediately upon having a
reasonable basis for believing that it has ceased to so qualify or that it might
not so qualify in the future. The Fund represents and warrants that each
Portfolio will comply with the diversification requirements set forth in Section
817(h) of the Code, and the
8
rules and regulations thereunder, including without limitation Treasury
Regulation 1.817-5, and will notify the Company immediately upon having a
reasonable basis for believing any Fund has ceased to comply or might not so
comply and will immediately take all reasonable steps to adequately diversify
the Fund to achieve compliance within the grace period afforded by Regulation
1.817-5. The Fund acknowledges that any failure to qualify as a Regulated
Investment Company will eliminate the ability of the subaccounts to avail
themselves of the "look through" provisions of section 817(h) of the Code, and
that as a result the Contracts will almost certainly fail to qualify as annuity
contracts under section 817(h) of the Code.
2.5 The Company represents that the Contracts are currently treated as
endowment 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 Distributor immediately upon having a reasonable basis for believing
that the Contracts have ceased to be so treated or that they might not be so
treated in the future.
2.6 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 regulations of the various states
except that the Fund represents that it is currently in compliance and shall at
all times remain in compliance with the applicable insurance laws of the
domiciliary states of the Participating Insurance Companies to the extent that
the Participating Insurance Companies advise the Fund, in writing, of such laws
or any changes in such laws.
2.7 Distributor represents and warrants that it is a member in good
standing of the NASD and is registered as a broker-dealer with the SEC.
Distributor further represents that it
9
will sell and distribute the Fund's shares in accordance with applicable state
and federal securities laws, including without limitation the 1933 Act, the 1934
Act, and the 0000 Xxx.
2.8 The Fund represents that it is lawfully organized and validly existing
under the laws of the State of Maryland and that it does and will comply in all
material respects with the 0000 Xxx.
2.9 The Fund represents and warrants that the Advisor is and shall remain
duly registered under all applicable federal and state securities laws and that
the Advisor shall perform its obligations for the Fund in compliance in all
material respects with the applicable laws of the State of New York and any
applicable state and federal securities laws.
2.10 The Fund represents and warrants that all of its Directors, officers,
employees, investment advisors, and other individuals/entities dealing with the
money and/or to securities of the Fund are and shall continue to be at all times
covered by a blanket fidelity bond or similar coverage in an amount not less
than the minimal 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.
2.11 The Company represents and warrants that all of its directors,
officers, employees, investment advisors, and other individuals/entities dealing
with the money and/or securities of the Fund are covered by a blanket fidelity
bond or similar coverage for the benefit of the Fund, in an amount not less than
ten million dollars ($10,000,000) with no deductible amount. The aforesaid bond
shall include coverage for larceny and embezzlement and shall be issued by a
reputable fidelity insurance company. The Company agrees to make all reasonable
10
efforts to see that this bond or another bond containing these provisions is
always in effect, and agrees to notify the Fund and Distributor in the event
such coverage no longer applies.
ARTICLE III. Prospectus and Proxy Statements; Voting
3.1 The Fund and the Advisor shall provide the Company with as many copies
of the Fund's current prospectus and Statement of Additional Information as the
Company may reasonably request in connection with delivery of the prospectus to
shareholders and purchasers of Variable Insurance Products. If requested by
Company in lieu thereof, the Fund or the Advisor shall provide such
documentation (including a "camera ready" copy of the new prospectus as set in
type or, at the request of Company, as a diskette in the form sent to the
financial printer) and other assistance as is reasonably necessary in order for
the parties hereto once a year (or more frequently if the prospectus for the
shares is supplemented or amended) to have the prospectus for the Variable
Insurance Products and the prospectus for the Fund shares printed together in
one document. The expenses of such printing will be apportioned between the
Company and the Fund as the parties agree to in writing. In the event that the
Company requests that the Fund or the Advisor provide the Fund's prospectus in a
"camera ready" or diskette format, the Fund shall be responsible for providing
the prospectus in the format in which it is accustomed to formatting
prospectuses and shall bear the expense of providing the prospectus in such
format (e.g. typesetting expenses) and the Company shall bear the expense of
adjusting or changing the format to conform with any of its prospectus.
3.2 The Fund's prospectus shall state that the Statement of Additional
Information for the Fund is available from Distributor and the Company, and at
its expense, shall provide a final
11
copy of such Statement of Additional Information to Distributor for duplication
and provision to any Owner of a Variable Insurance Product or prospective owner
who requests it.
3.3 The Fund, at its expense, shall provide the Company with copies of its
proxy materials, reports to shareholders and other communications (except for
prospectus and Statements of Additional Information, which are covered in
Section 3.1) to shareholders in such quantity as the Company shall reasonably
require for distribution to owners of Variable Insurance Products (hereinafter
"Owners").
3.4 If and to the extent required by law the Company shall:
(i) solicit voting instructions from Owners;
(ii) vote the Fund shares in accordance with instructions received
from Owners; and
(iii) vote Fund shares for which no instructions have been received
in a particular Separate Account in the same proportion as Fund
shares of such Portfolio for which instructions have been
received in that Separate Account,
so long and to the extent that the SEC continues to interpret the 1940 Act to
require pass-through voting privileges for variable contract owners. The Company
reserves the right to vote Fund shares held in any segregated asset account in
its own right, to the extent permitted by law. Participating Insurance
Companies shall be responsible for assuring that each of their Separate Accounts
participating in the Fund calculates voting privileges in a manner consistent
with the standards to be provided in writing to the Participating Insurance
Companies.
3.5 The Fund shall comply with all provisions of the 1940 Act requiring
voting by shareholders, and in particular the Fund will either provide for
annual meetings or comply with Section 16(c) of the 1940 Act (although the Fund
is not one of the trusts described in Section
12
16(c) of that Act) as well as with Section 16(a) and, if and when applicable,
16(b). Further, the Fund will act in accordance with the SEC's interpretation of
the requirements of Section 16(a) with respect to periodic elections of
directors and with whatever rules the Commission 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
or its designee, the form of each piece of sales literature or other promotional
material in which the Fund or its investment advisor is named, at least ten (10)
Business Days prior to its use. No such material shall be used if the Fund or
its designee reasonably objects to such use within five (5) Business Days after
receipt of its material.
4.2 The Company shall not give any information or make any representations
or statements on behalf of the Fund or concerning the Fund in connection with
the sale of Variable Insurance Products 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 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 or its designee 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 and/or its Separate Account(s),
are named at least ten (10) Business Days prior to its use. No such material
shall be used if the Company or its designee reasonably objects to such use
within five (5) Business Days after receipt of such material.
13
4.4 The Fund shall not give any information or make any representations or
statements on behalf of the Company or concerning the Company, each Separate
Account, or the Variable Insurance Products other than the information or
representations contained in or accurately derived from a registration statement
or prospectus for such Variable Insurance Products, as such registration
statement and prospectus may be amended or supplemented from time to time, or in
published reports for such Separate Account which are in the public domain or
approved by the Company for distribution to 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 shall provide to the Company at least one complete copy of
all registration statements, prospectuses, Statements of Additional Information,
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 Fund or its shares, contemporaneously
with the filing of such document with the SEC or other regulatory authorities.
4.6 The Company shall provide to the Fund at least one complete copy of
all registration statements, prospectuses, Statements of Additional Information,
reports, solicitations for voting instructions, 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 Variable
Insurance Products or any Separate Account, contemporaneously with the filing of
such document with the SEC or other regulatory authorities.
14
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, 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, 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,
Statements of Additional Information, shareholder reports, and proxy materials
and any other material constituting sales literature or advertising under the
1933 Act, the 1940 Act or NASD rules.
ARTICLE V. Fees and Expenses
5.1 The Fund shall pay no fee or other compensation to the Company under
this Agreement (except for items covered in Article III), except that if the
Fund or any Portfolio adopts and implements a plan pursuant to Rule 12b-1 to
finance distribution expenses, then Distributor may make payments to the Company
for the Variable Insurance Products if and in amounts agreed to by Distributor
in writing and such payments will be made out of existing fees payable to
Distributor, past profits of Distributor or other resources available to
Distributor. No such payments shall be made directly by the Fund. Currently,
no such payments are contemplated.
15
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 of
registration and qualification of the Fund's shares, preparation and filing of
the Fund's prospectus and registration statement, proxy materials and 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 proxy
materials and reports to Owners.
ARTICLE VI. Potential Conflicts
6.1 The parties acknowledge that the Fund presently intends to file an
application with the SEC to request an order granting relief from various
provisions of the 1940 Act and the rules thereunder to the extent necessary to
permit the Fund shares to be sold to and held by variable annuity and variable
life insurance separate accounts of both affiliated and unaffiliated
Participating Insurance Companies and Qualified Plans. It is anticipated that
the Exemptive Order, when and if issued, shall require the Fund and each
Participating Insurance Company to comply with conditions and undertakings
substantially as provided in this Section 6. If the Exemptive Order imposes
conditions materially different from those provided for in this Section 6, the
conditions and undertakings imposed by the Exemptive Order shall govern this
Agreement
16
and the parties hereto agree to amend this Agreement consistent with the
Exemptive Order. The Fund will not enter into a participation agreement with any
other Participating Insurance Company unless it imposed the same conditions and
undertakings as are imposed on the Company.
6.2 The Board shall monitor the Fund for the existence of any material
irreconcilable conflict between the interests of the Owners of separate accounts
of Participating Insurance Companies investing in the Fund. A material
irreconcilable conflict may arise for a variety of reasons, including: (a) an
action by any state insurance regulatory authority; (b) a change in applicable
federal or state insurance, tax, or securities laws or regulations, or a public
ruling, private letter ruling, no-action or interpretative letter, or any
similar action by insurance, tax, or securities regulatory authorities; (c) an
administrative or judicial decision in any relevant proceeding; (d) the manner
in which the investments of any Portfolio are being managed; (e) a difference in
voting instructions given by variable annuity contract and variable life
insurance policy Owners; (f) a decision by an insurer to disregard the voting
instructions of Owners; or (g) if applicable, a decision of a Qualified Plan to
disregard the voting instructions of plan participants. The Board shall
promptly inform the Company if it determines that a material irreconcilable
conflict exists and the implications thereof.
6.3 The Company will report any potential or existing conflicts (including
the occurrence of any event specified in paragraph 6.1 which may give rise to
such a conflict) of which it is aware to the Board. The Company will assist the
Board in carrying out their responsibilities under the Shared Funding Exemptive
Order, by providing the Board with all information reasonably necessary for the
Board to consider any issues raised. This includes, but
17
is not limited to, an obligation by the Company to inform the Board whenever
Owner voting instructions are disregarded. The responsibilities of the Company
will be carried out with a view to the interests of the Owners.
6.4 If it is determined by a majority of the Board, or a majority of its
disinterested trustees, that a material irreconcilable conflict exists, the
Company and other Participating Insurance Companies shall, at their expense and
to the extent reasonably practicable (as determined by a majority of the
disinterested directors), take whatever steps are necessary to remedy or
eliminate the material irreconcilable conflict, up to and including: (1)
withdrawing the assets allocable to some or all of the separate accounts of
Participating Insurance Companies from the Fund or any Portfolio and reinvesting
such assets in a different investment medium, including (but not limited to)
another Portfolio of the Fund, or submitting the question whether such
segregation should be implemented to a vote of all affected Owners and, as
appropriate, segregating the assets of any particular group (i.e., annuity
contract owners, life insurance contract owners, or variable contract owners of
one or more Participating Insurance Companies) that votes in favor of such
segregation, or offering to the affected Owners the option of making such a
change; and (2) establishing a new registered management investment company or
managed separate account.
6.5 If a material irreconcilable conflict arises because of a decision by
the Company to disregard Owner voting instructions and that decision represents
a minority position or would preclude a majority vote, the Company shall be
required, at the Fund's election, to withdraw the affected Separate Account's
(or subaccount's) investment in the Fund and terminate this Agreement with
respect to such Separate Account (or subaccount); provided, however, that such
18
withdrawal and termination shall be limited to the extent required by the
foregoing material irreconcilable conflict as determined by a majority of the
disinterested members of the Board. The responsibility to take such remedial
action shall be carried out with a view only to the interests of the Owners. Any
such withdrawal and termination must take place within six (6) months after the
Fund gives written notice that this provision is being implemented, and until
the end of that six (6) month period Distributor and the Fund shall continue to
accept and implement orders by the Company for the purchase and redemption of
shares of the Fund.
6.6 If a material irreconcilable conflict arises because a particular
state insurance regulator's decision applicable to the Company conflicts with
the majority of other state regulators, then the Company will withdraw the
affected Separate Account's investment in the Fund and terminate this Agreement
within six (6) months after the Board informs the Company in writing that it has
determined that such decision has created a irreconcilable material conflict;
provided, however, that such withdrawal and termination shall be limited to the
extent required by the foregoing irreconcilable material conflict as determined
by a majority of the disinterested members of the Board. Until the end of the
foregoing six (6) month period, Distributor and the Fund shall continue to
accept and implement orders by the Company for the purchase and redemption of
shares of the Fund.
6.7 For purposes of Sections 6.4 through 6.7 of this Agreement, a majority
of the disinterested members of the Board shall determine whether any proposed
action adequately remedies any irreconcilable material conflict, but in no
event will the Fund be required to establish a new funding medium for the
Variable Insurance Products. The Company shall not be required by Section 6.4 to
establish a new funding medium for the Variable Insurance
19
Products if an offer to do so has been declined by vote of a majority of Owners
materially adversely affected by the irreconcilable material conflict. In the
event that the Board determines that any proposed action does not adequately
remedy any irreconcilable material conflict, then the Company shall withdraw the
affected Separate Account's investment in the Fund and terminate this Agreement
within six (6) months after the Board informs the Company in writing of the
foregoing determination; provided, however, that such withdrawal and termination
shall be limited to the extent required by any such material irreconcilable
conflict as determined by a majority of the disinterested Members of the Board.
6.8 If and to the extent that Rule 6e-2 or 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 Shared Funding Exemptive Order) on terms and conditions
materially different from those contained in the 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 3.4, 3.5, 6.2, 6.3, 6.4, 6.5, and 6.6 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.
ARTICLE VII. Indemnification
7.1 Indemnification By the Company
7.1(a) The Company shall indemnify and hold harmless the Distributor,
the Advisor, the Fund and each member of the Board and officers and each person,
if any, who controls the Fund
20
within the meaning of Section 15 of the 1933 Act (collectively, the "Indemnified
Parties" for purposes of this Section 7.1) 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, 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 of the Variable Insurance Products and:
(i) arise out of or are based upon any untrue statements or alleged untrue
statements of any material fact contained in the registration
statement or prospectus for the Variable Insurance Products or in the
sales literature for the Variable Insurance Products (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 in writing to the
Company by or on behalf of the Fund for use in the registration
statement or prospectus for the Variable Insurance Products or in the
sales literature (or any amendment or supplement) or otherwise for use
in connection with the sale of the Variable Insurance Products or Fund
shares; or
(ii) arise out of or are based upon statements or representations (other
than statements or representations contained in the Registration
Statement, prospectus or sales
21
literature of the Fund not supplied by the Company, or persons under
its control) or wrongful conduct of the Company or persons under its
control, with respect to the sale or distribution of the Variable
Insurance Products; or
(iii) arise out of any untrue statement or alleged untrue statement of a
material fact contained in a Registration Statement, prospectus, 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 from any 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 of this Agreement by the
Company, as limited by and in accordance with the provisions of
Sections 7.1(b) and 7.1(c) hereof.
7.1(b) The Company shall not be liable under this indemnification
provision with respect to any losses, claims, damages, liabilities or litigation
incurred or assessed against an Indemnified Party as such may arise from such
Indemnified Party's willful misfeasance, bad faith, or gross negligence in the
performance of such Indemnified Party's duties or by reason of such Indemnified
Party's reckless disregard of obligations or duties under this Agreement or to
the Fund, whichever is applicable.
22
7.1(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
election of one or both of the Company 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.
7.1(d) The Indemnified Parties shall promptly notify the Company of the
commencement of any litigation or proceeding against them in connection with the
issuance or sale of Variable Insurance Products or the operation of the Fund.
This indemnification shall be in addition to any liability which the Company may
otherwise have.
7.2 Indemnification By the Advisor
23
7.2(a) The Advisor shall indemnify and hold harmless the Company, and
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 7.2) against any and all losses, claims,
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 become subject under any statute, at common law or
otherwise, insofar as such losses, claims, damages, liabilities or expenses (or
actions in respect thereof) or settlements are related to the operations of the
Fund and:
(i) arise out of or are based upon any untrue statements or alleged untrue
statements of any material fact contained in the registration
statement or prospectus or sales literature for 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 in
writing to the Advisor, Distributor or the Fund by or on behalf of the
Company for use in the registration statement or prospectus for the
Fund or in the sales literature (or any amendment or supplement) or
otherwise for use in connection with the sale of Fund shares;or
(ii) arise out of or are based upon statements or representations (other
than statements or representations contained in the Registration
Statement, prospectus or sales
24
literature of the Variable Insurance Products not supplied by the
Advisor, Distributor or persons under its control) or wrongful conduct
of one or both of the Fund or the Advisor or persons under its
control, with respect to the sale or distribution of Fund shares; or
(iii) arise out of any untrue statement or alleged untrue statement of a
material fact contained in a Registration Statement, prospectus, or
sales literature of the Variable Insurance Products, 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 Company by or on behalf of the Fund; or
(iv) arise out of or result from any failure by the Advisor to provide the
services and furnish the materials under the terms of this Agreement
(including a failure to comply with the diversification requirements
specified in Article II of this Agreement); or
(v) 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 7.2(b) and
7.2(c) hereof.
7.2(b) The Advisor shall not be liable under this indemnification
provision with respect to any losses, claims, damages, liabilities or litigation
incurred or assessed against an Indemnified Party as such may arise from such
Indemnified Party's willful misfeasance, bad
25
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, Distributor or each
Separate Account, whichever is applicable.
7.2(c) The Advisor 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 Advisor in writing within a
reasonable time after the summons or other first legal process giving
information of the nature of the claim shall have 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 Advisor of any such
claim shall not relieve the Advisor 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
and Indemnified Party, the Advisor will be entitled to participate, at its own
expense, in the defense thereof. The Advisor also shall be entitled to assume
the defense thereof, with counsel satisfactory to the party named in the action.
After notice from the Advisor to such party of the Advisor'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 Advisor 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.
7.2(d) The Company agrees promptly to notify the Advisor of the
commencement of any litigation or proceedings against it or any of its officers
or directors in connection with this Agreement, the issuance or sale of the
Variable Insurance Products or the operation of the
26
Account. This indemnification shall be in addition to any liability which the
Advisor may otherwise have.
7.3 Indemnification by the Distributor
7.3(a) The Distributor shall 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 7.3) against any and all
losses, claims, damages, liabilities or litigation (including legal and other
expenses) to which the Indemnified Parties may become subject under any statute,
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 and:
(i) arise out of or are based upon statements or representations (other
than statements or representations contained in the Registration
Statement, prospectus or sales literature for the Variable Insurance
Products not supplied by the Distributor, Advisor, Fund or persons
under its control) or wrongful conduct of the Distributor or persons
under its control, with respect to the sale or distribution of the
Fund shares; or
(ii) arise out of any untrue statement or alleged untrue statement of a
material fact contained in sales literature of the Variable Insurance
Products, 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
27
reliance upon and in conformity with information furnished to the
Company by the Distributor, or
(iii) arise out of or result from any failure by the Distributor to provide
the services and furnish the materials under the terms of this
Agreement; or
(iv) arise out of or result from any material breach of any representation
and/or warranty made by the Distributor in this Agreement or arise out
of or result from any other material breach of this Agreement by the
Distributor;
as limited by and in accordance with the provisions of Sections 7.3(b) and
7.3(c) hereof.
7.3(b) The Distributor 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 or the Separate Account, whichever is applicable.
7.3(c) The Distributor 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 Distributor in writing within a
reasonable time after the summons or other first legal process giving
information of the nature of the claim shall have 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 Distributor of any
such claim shall not relieve the Distributor from any liability which it may
have to the Indemnified Party against and whom such action is brought otherwise
than on account of this indemnification provision. In case any such
28
action is brought against an Indemnified Party, the Distributor will be entitled
to participate, at its own expense, in the defense thereof. The Distributor
also shall be entitled to assume the defense thereof, with counsel satisfactory
to the party named in the action. After notice from the Distributor to such
party of the Distributor'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 Distributor 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.
7.3(d) The Company agrees promptly to notify the Distributor of the
commencement of any litigation or proceedings against them or any of their
respective officers or directors in connection with this Agreement, the issuance
or sale of the Variable Insurance Products or the operation of either Account.
This indemnification shall be in addition to any liability which the Distributor
may otherwise have.
ARTICLE VIII. Applicable Law
8.1 This Agreement shall be construed and the provisions hereof
interpreted under and in accordance with the laws of New York.
8.2 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 Shared Funding Exemptive Order) and the
terms hereof shall be interpreted and construed in accordance therewith.
29
ARTICLE XI. Termination
9.1. This Agreement shall continue in full force and effect until the first
to occur of:
(a) termination by any party for any reason by six months' advance written
notice delivered to the other parties; or
(b) termination by the Company by written notice to the Fund and the
Distributor with respect to any Portfolio based upon the Company's
determination that shares of such Portfolio are not reasonably
available to meet the requirements of the Contracts or not consistent
with the Company's obligations to Owners; or
(c) termination by the Company by written notice to the Fund and the
Distributor with respect to any Portfolio in the event any of the
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 investments media of the Variable
Insurance Products issued or to be issued by the Company; or
(d) termination by the Company by written notice to the Fund and the
Distributor with respect to any Portfolio in the event that such
Portfolio ceases to qualify as a Regulated Investment Company under
Subchapter M of the Code or any independent or resulting failure under
Section 817 of the Code, or under any successor or similar provision
of either, or if the Company reasonably believe that the Fund may fail
to so qualify; or
(e) termination by either the Fund or the Distributor by written notice to
the Company, if either one or both of the Fund or the Distributor
respectively, shall determine, in their sole judgement exercised in
good faith, that the Company has
30
suffered a material adverse change in their business, operations,
financial condition or prospects since the date of this Agreement or
are the subject of material adverse publicity; but no termination
shall be effective under this subsection (e) until the Company has
been afforded a reasonable opportunity to respond to a statement by
the Fund or the Distributor concerning the reason for notice of
termination hereunder; or
(f) termination by the Company by written notice to the Fund and the
Distributor, if the Company shall determine, in its sole judgement
exercised in good faith, that either the Fund or the Distributor 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; but no termination shall
be effective under this subsection (f) until the Company has been
afforded a reasonable opportunity to respond to a statement by the
Fund or the Distributor concerning the reason for notice of
termination hereunder.
(g) At the option of the Fund if the Variable Insurance Products cease to
qualify as annuity contracts or life insurance contracts, as
applicable, under the Code, of if the Fund reasonably believes that
the Variable Insurance Products may fail to so qualify. Termination
shall be effective upon receipt of notice by the Company.
(h) At the option of the Company, upon the Fund's breach of any material
provision of this Agreement, which breach has not been cured to the
satisfaction of the Company within ten (10) days after written notice
of such breach is delivered to the Fund.
31
(i) At the option of the Fund, upon the Company's breach of any material
provision of this Agreement, which breach has not been cured to the
satisfaction of the Fund within ten (10) days after written notice of
such breach is delivered to the Company.
(j) At the option of the Company, if the Variable Insurance Products are
not sold in accordance with applicable federal and/or state law by the
Distributor. Termination shall be effective immediately upon such
occurrence without notice.
(k) At the option of the Fund, if the Variable Insurance Products are not
registered and issued in accordance with applicable federal and/or
state law. Termination shall be effective immediately upon such
occurrence without notice.
9.2 ffect of Termination. Notwithstanding any termination of this
Agreement, the Fund and the Distributor shall at the option of the Company,
continue to make available additional shares of the Fund pursuant to the terms
and conditions of this Agreement, for all Variable Insurance Products in effect
on the effective date of termination of this Agreement (hereinafter referred to
as "Existing Contracts"). Specifically, without limitation, the Owners of the
Existing Contracts shall be permitted to reallocate 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. The parties agree
that this Section 9.2 shall not apply to any terminations under Article VI and
the effect of such Article VI terminations shall be governed by Article VI of
this Agreement. However, in no event shall the Fund and Distributor be required
to make additional shares available to Existing Contracts for more that six (6)
months after the date of termination of the Agreement.
32
9.3 The Company shall not redeem Fund shares attributable to the Variable
Insurance Products (as opposed to Fund shares attributable to the Company's
assets held in the Separate Account) except (i) as necessary to implement Owner
initiated or approved transactions, or (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") or (iii) as
permitted by an order of the SEC pursuant to Section 26(b) of the 1940 Act. Upon
request, the Company will promptly furnish to the Fund and the Distributor the
opinion of counsel for the Company (which counsel shall be reasonably
satisfactory to the Fund and the Distributor) to the effect that any redemption
pursuant to the clause (ii) above is a Legally Required Redemption. Furthermore,
except in cases where permitted under the terms of the Variable Insurance
Products, and as may be in the best interests of Owners, as determined by the
Company, the Company shall not prevent Owners from allocating payments to a
Portfolio that was otherwise available under the Contracts without first giving
the Fund or the Distributor ninety (90) days notice of its intention to do so.
9.4 Notwithstanding any termination of this Agreement for any reason, the
terms and conditions of the following provisions of this Agreement shall remain
in effect with respect to any Existing Contract, for so long as such Existing
Contract has assets invested in the Fund: Section 1.3 to 1.10 of Article I
(governing the pricing and redemption of shares); Article II (Representations
and Warranties); Sections 3.1 through 3.3 and 3.5 of Article III (Prospectus and
Proxy Statements, and Voting); Articles IV and VIII (Sales Material and
Information; Fees and Expenses, Diversification; Potential Conflicts;
Indemnification; and Applicable Law); Article X (Notices); and Sections 11.1,
11.2, and 11.5 through 11.8 of Article XI (Miscellaneous).
33
Further, notwithstanding any termination of this Agreement for any reason, the
terms and conditions of the following provisions of this Agreement shall remain
in effect with regard to Variable Insurance Products previously invested in the
Fund: Article II (Representations and Warranties); and Article VIII
(Indemnification).
ARTICLE X. Notices
Any notice shall be sufficiently given when sent by registered or certified
mail to the other party at the address of such party set forth below or at such
other address as such party may from time to time specify in writing to the
other party.
If to the Fund:
c/o Manning & Xxxxxx Insurance Fund, Inc.
0000 Xxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Attention: Corporate Secretary
If to the Company:
Keyport Life Insurance Company
000 Xxxx Xxxxxx
Xxxxxx, XX 00000
Attention: General Counsel
If to Distributor:
Xxxxxxx & Xxxxxx Investor Services, Inc.
0000 Xxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Attention: Secretary
ARTICLE XI. Miscellaneous
34
11.1 All persons dealing with the Fund must look solely to the property of
the Fund for the enforcement of any claims against the Fund as neither the
Board, officers, agents or shareholders assume any personal liability for any
obligations entered into on behalf of the Fund.
11.2 Subject to the requirements of legal process and regulatory
authority, each party hereto shall treat as confidential the names and addresses
of the Owners 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 until such time as it may come into the public domain
without the express written consent of the affected party.
11.3 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.
11.4 This Agreement may be executed simultaneously in two or more
counterparts, each of which taken together shall constitute one and the same
instrument.
11.5 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.
11.6 Each party hereto shall cooperate with each other party and all
appropriate governmental authorities (including without limitation the SEC, the
NASD, 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.
35
11.7 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.
11.8 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 Distributor may assign the Agreement or any
rights or obligations hereunder to any affiliate of or company under common
control with the Distributor (but in such event the Distributor shall continue
to be liable under Article VII of this Agreement for any indemnification due to
the Company, and assignee shall also be liable), if such assignee is duly
licensed and registered to perform the obligations of the Distributor under this
Agreement.
11.9 No provision of the Agreement may be amended or modified in any manner
except by a written agreement properly authorized and executed by the Fund, the
Distributor and the Company.
36
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.
KEYPORT LIFE INSURANCE COMPANY
By its authorized officer,
By: /s/ Xxxx X. Xxxxxxxxxx
----------------------
Title: President and CEO
-----------------
Date: September 25, 1996
------------------
XXXXXXX & XXXXXX INVESTOR SERVICES, INC.
By its authorized officer,
By: /s/ B. Xxxxxx Xxxxxxx
---------------------
Title: President
---------
Date: September 20, 1996
------------------
XXXXXXX & XXXXXX INSURANCE FUND, INC.
By its authorized officer,
By: /s/ B. Xxxxxx Xxxxxxx
---------------------
Title: President
---------
Date: September 20, 1996
------------------
XXXXXXX & XXXXXX ADVISORS, INC.
By its authorized officer,
By: /s/ Xxxxxxx Xxxxxxx
-------------------
Title: President
---------
Date: September 20, 1996
------------------
37
Schedule A
Xxxxxxx & Xxxxxx Insurance Fund
Xxxxxxx & Xxxxxx Moderate Growth Portfolio
Xxxxxxx & Xxxxxx Growth Portfolio
Xxxxxxx & Xxxxxx Equity Portfolio
Xxxxxxx & Xxxxxx Small Cap Portfolio
Xxxxxxx & Xxxxxx Bond Portfolio
Xxxxxxx & Xxxxxx Maximum Horizon Portfolio
38
Schedule B
Separate Accounts Selected Funds
Variable Account J Xxxxxxx & Xxxxxx Moderate Growth Portfolio
Xxxxxxx & Xxxxxx Growth Portfolio
Xxxxxxx & Xxxxxx Equity Portfolio
Xxxxxxx & Xxxxxx Small Cap Portfolio
Xxxxxxx & Xxxxxx Bond Portfolio
Xxxxxxx & Xxxxxx Maximum Horizon Portfolio
--------------------------------------------------------------------------------
Contract - Form Number
----------------------
DVA(1) (Group Master Contract)
DVA(1)/CERT (Group Certificate)
DVA(1)/IND (Individual Contract)
39
