FUND PARTICIPATION AGREEMENT
This Fund Participation Agreement (the "Agreement"), effective as of May 1,
2006, is made by and among Genworth Life and Annuity Insurance Company
("Company"), JPMorgan Insurance Trust (the "Trust"), the Trust's investment
advisor, JPMorgan Investment Advisors Inc. (the "Adviser"), and the Trust's
administrator, JPMorgan Funds Management, Inc. (the "Administrator").
WHEREAS, the Trust engages in business as an open-end management
investment company and is available to act as the investment vehicle for
separate accounts established by insurance companies for individual and
group life insurance policies and annuity contracts with variable
accumulation and/or pay-out provisions (hereinafter referred to
individually and/or collectively as "Variable Insurance Products");
WHEREAS, insurance companies desiring to utilize the Trust as an
investment vehicle under their Variable Insurance Products are required
to enter into participation agreements with the Trust and the
Administrator (the "Participating Insurance Companies");
WHEREAS, shares of the Trust are divided into several series of shares,
each representing the interest in a particular managed portfolio of
securities and other assets, any one or more of which may be made
available for Variable Insurance Products of Participating Insurance
Companies;
WHEREAS, the Trust intends to offer shares of the series set forth on
Schedule B (each such series hereinafter referred to as a "Portfolio")
as may be amended from time to time by mutual agreement of the parties
hereto under this Agreement to the accounts of the Company specified on
Schedule A (hereinafter referred to individually as an "Account,"
collectively, the "Accounts");
WHEREAS, the Trust has obtained an order from the Securities and
Exchange Commission, granting the Trust 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 Trust to be sold to and held by Variable Insurance Product
separate accounts of both affiliated and unaffiliated insurance
companies (hereinafter the "Shared Funding Exemptive Order");
WHEREAS, the Trust is registered as an open-end management investment
company under the 1940 Act and its shares are registered under the
Securities Act of 1933, as amended (hereinafter the "1933 Act");
WHEREAS, the Adviser is duly registered as an investment adviser under
the Investment Advisers Act of 1940, as amended, and any applicable
state securities laws;
WHEREAS, the Adviser is the investment adviser of the Portfolios of the
Trust;
WHEREAS, the Company has registered certain Variable Insurance Products
under the 1933 Act; and
WHEREAS, to the extent permitted by applicable insurance laws and
regulations, each Account intends to purchase shares of the Portfolios
to fund certain of the aforesaid Variable Insurance Products and the
Trust is authorized to sell such shares to each such Account at net
asset value.
NOW, THEREFORE, in consideration of their mutual promises, the Company,
the Trust, the Adviser, and the Administrator agree as follows:
- 1 -
Article 1
The Contracts
1. The Company represents that it has established each of the Accounts
specified on Schedule A as a separate account under Virginia law, and has
registered each such Account as a unit investment trust under the 1940 Act to
serve as an investment vehicle for variable annuity contracts and/ or variable
life contracts offered by the Company (the "Contracts"). The Contracts provide
for the allocation of net amounts received by the Company to separate divisions
of the Account for investment in the shares of the Portfolios. Selection of a
particular division is made by the Contract owner who may change such selection
from time to time in accordance with the terms of the applicable Contract. The
Company agrees to make every reasonable effort to market its Contracts. In
marketing its Contracts, the Company will comply with all applicable state or
Federal laws.
Article 2
Trust Shares
2.1. The Trust agrees to make available for purchase by the Company shares of
the Portfolios and shall execute orders placed for each Account on a daily
basis at the net asset value next computed after receipt by the Trust or its
designee of such order. For purposes of this Section 2.1, the Company shall be
the designee of the Trust for receipt of such orders from the Account and
receipt by such designee shall constitute receipt by the Trust; provided that
the Trust's designated transfer agent receives notice of such order by 10:00
a.m. Eastern Time on the next following Business Day ("Trade Date plus 1").
Notwithstanding the foregoing, the Company shall use its best efforts to
provide the Trust's designated transfer agent with notice of such orders by
9:30 a.m. Eastern Time on Trade Date plus 1. "Business Day" shall mean any day
on which the New York Stock Exchange is open for trading and on which the Trust
calculates its net asset value pursuant to the rules of the Securities and
Exchange Commission ("SEC"), as set forth in the Trust's prospectus and
statement of additional information. Notwithstanding the foregoing, the Board
of Trustees of the Trust (hereinafter the "Board") may refuse to permit the
Trust 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 their fiduciary duties under federal
and any applicable state laws, necessary in the best interests of the
shareholders of such Portfolio.
2.2. The Trust agrees that shares of the Trust will be sold only to
Participating Insurance Companies for their Variable Insurance Products and, in
the Trust's discretion, to qualified pension and retirement plans. No shares of
any Portfolio will be sold to the general public.
2.3. The Trust agrees to redeem for cash, on the Company's request, any full or
fractional shares of the Trust held by an Account, executing such requests on a
daily basis at the net asset value next computed after receipt by the Trust or
its designee of the request for redemption. For purposes of this Section 2.3,
the Company shall be the designee of the Trust for receipt of requests for
redemption from each Account and receipt by such designee shall constitute
receipt by the Trust; provided that the Trust's designated transfer agent
receives notice of such request for redemption on Trade Date plus 1 in
accordance with the timing rules described in Section 2.1.
2.4. The Company agrees that purchases and redemptions of Portfolio shares
offered by the then current prospectus of the Trust shall be made in accordance
with the provisions of such prospectus. The Accounts of the Company, under
which amounts may be invested in the Trust are listed on Schedule A attached
hereto and incorporated herein by reference, as such Schedule A may be amended
from time to time by mutual written agreement of all of the parties hereto.
2.5. The Company will place separate orders to purchase or redeem shares of
each Portfolio. Each order shall describe the net amount of shares and dollar
amount of each Portfolio to be purchased or redeemed. In the event of net
purchases, the Company shall pay for Portfolio shares on Trade Date plus 1.
Payment shall be in federal funds transmitted by wire. In the event of net
redemptions, the Portfolio shall pay
- 2 -
the redemption proceeds in federal funds transmitted by wire by 2:00 p.m.
Eastern Time on Trade Date plus 1. Notwithstanding the foregoing, if the
payment of redemption proceeds on the next Business Day would require the
Portfolio to dispose of Portfolio securities or otherwise incur substantial
additional costs, and if the Portfolio has determined to settle redemption
transactions for all shareholders on a delayed basis, proceeds shall be wired
to the Company within seven (7) days and the Portfolio shall notify in writing
the person designated by the Company as the recipient for such notice of such
delay by 3:00 p.m. Eastern Time on Trade Date plus 1.
2.6. Issuance and transfer of the Trust's shares will be by book entry only.
Share certificates will not be issued to the Company or any Account. Shares
ordered from the Trust will be recorded in an appropriate title for each
Account or the appropriate subaccount of each Account.
2.7. On each record date, the Administrator shall use its best efforts to
furnish same day notice by 6:30 p.m. Eastern Time (by wire, telephone,
electronic media or by fax) to the Company of any dividends or capital gain
distributions payable on the Trust's shares. The Company hereby elects to
receive all such 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 dividends and capital
gain distributions in cash. The Trust shall notify the Company of the number of
shares so issued as payment of such dividends and distributions.
2.8. The Administrator shall make the net asset value per share of each
Portfolio available to the Company on a daily basis as soon as reasonably
practical after the net asset value per share is calculated and shall use its
best efforts to make such net asset value per share available by 6:30 p.m.
Eastern Time. In the event that the Administrator is unable to meet the 6:30
p.m. time stated immediately above, then the Administrator shall provide the
Company with additional time to notify the Administrator of purchase or
redemption orders pursuant to Sections 2.1 and 2.3, respectively, above. Such
additional time shall be equal to the additional time that the Administrator
takes to make the net asset values available to the Company.
2.9. If the Administrator provides materially incorrect share net asset value
information through no fault of the Company, the Company shall be entitled to
an adjustment with respect to the Trust shares purchased or redeemed to reflect
the correct net asset value per share as subsequently determined by the
Administrator. The determination of the materiality of any net asset value
pricing error shall be based on the Trust's policy for correction of pricing
errors (the "Pricing Policy"). The Company shall correct such error in its
records and in the records prepared by it for Contract owners in accordance
with information provided by the Administrator. Any material error in the
calculation or reporting of net asset value per share, dividend or capital gain
information shall be reported promptly upon discovery to the Company.
2.10 The Administrator shall provide information to the Company of the amount
of shares traded and the associated cost per share (NAV) total trade amount and
the outstanding share balances held by the Account in each Portfolio as of the
end of each Business Day. Such information will be furnished (electronically or
by fax) by 1:00 p.m. Eastern time on the next Business Day.
2.11 Contract Owner Information
2.11(a) Agreement to Provide Information. Effective October 16, 2006 or other
effective date as determined by the SEC, the Company agrees to provide the
Portfolio, upon written request, the taxpayer identification number ("TIN"), if
known, of any or all Contract owners(s) and the amount, date, name or other
identifier of any investment professional(s) associated with the Contract
owners(s) (if known), and transaction type (purchase, redemption, transfer, or
exchange) of every purchase, redemption, transfer, or exchange of Shares held
through an Insurance Company Fund Account during the period covered by the
request.
(i) Period Covered by Request. Requests must set forth a specific period,
not to exceed one year from the date of the request, for which
transaction information is sought. A request may be ongoing and
continuous (e.g., for each trading day throughout the year) or for
specified periods of time. A Portfolio may request transaction
information older than one
- 3 -
year from the date of the request as it deems necessary to investigate
compliance with policies established by the Portfolio for the purpose of
eliminating or reducing market timing and abusive trading practices.
(ii) Form and Timing of Response. Company agrees to transmit the requested
information that is on its books and records to the Portfolio or its
designee promptly, but in any event not later than ten business days,
after receipt of a request. If the requested information is not on
Company's books and records, Company agrees to use reasonable efforts
to: (i) promptly obtain and transmit the requested information;
(ii) obtain assurances from the Contract owner that the requested
information will be provided directly to the Portfolio promptly; or
(iii) if directed by the Portfolio, block further purchases of Portfolio
Shares from such Contract owner. In such instance, Company agrees to
inform the Portfolio whether it plans to perform (i), (ii) or, at the
direction of the Portfolio, (iii). Responses required by this paragraph
must be communicated in writing and in a format mutually agreed upon by
the parties. To the extent practicable, the format for any transaction
information provided to the Portfolio should be consistent with the NSCC
Standardized Data Reporting Format.
(iii) Limitations on Use of Information. The Trust agrees not to use the
Contract owner information received from Company pursuant to this
Agreement for marketing or any other similar purpose.
2.11(b) Agreement to Restrict Trading. Insurance Company agrees to execute
written instructions from a Portfolio to restrict or prohibit further purchases
or exchanges of Shares by a Contract owner that has been identified by the
Portfolio as having engaged in transactions in the Portfolio's Shares through
an Account that violate policies established for the purpose of eliminating or
reducing market timing and abusive trading practices.
(i) Form of Instructions. Instructions must include the TIN, if known, and
the specific restriction(s) to be executed. If the TIN is not known, the
instructions must include an equivalent identifying number of the
Shareholder(s) or the Account(s) or other agreed upon information to
which the instruction relates.
(ii) Timing of Response. Company agrees to execute instructions as soon as
reasonably practicable, but not later than five business days after
receipt of the instructions by the Company.
(iii) Confirmation by Intermediary. Company must provide written confirmation
to the Portfolio that instructions have been executed. Company agrees to
provide confirmation as soon as reasonably practicable, but not later
than ten business days after the instructions have been executed.
2.11 (c ) For purposes of this Section 2.11
The term "Portfolio" includes JPMorgan Distribution Services, Inc., which is
the Trust's principal underwriter; the Trust's transfer agent and the series of
the Trust listed in the Agreement.
The term "written" and/or "in writing" within this Section 2.11 or any Section
of this Agreement includes electronic writings and facsimile transmissions.
Article 3
Prospectuses, Reports to Shareholders and Proxy Statements, Voting
3.1. The Trust shall provide the Company with as many printed copies of the
Trust's current prospectuses as the Company may reasonably request. The
Administrator will provide the Company with a copy of the statement of
additional information suitable for duplication. If requested by the Company,
in lieu of providing printed copies, the Trust shall provide camera-ready film
or computer diskettes containing the Trust's prospectuses and statement of
additional information in order for the Company once each year (or more
frequently if the prospectuses and/or statement of additional information for
the Trust is amended during the year) to have the prospectuses for the
Contracts and the applicable Trust prospectuses printed together in one
document or separately. The Company may elect to print the Trust's prospectuses
and/or its statement of
- 4 -
additional information in combination with other investment companies'
prospectuses and statements of additional information.
3.2(a). Except as otherwise provided in this Section 3.2, all expenses of
preparing, setting in type and printing and distributing Trust prospectuses and
statements of additional information shall be the expense of the Company. For
prospectuses and statements of additional information provided by the Company
to its existing owners of Contracts in order to update disclosure as required
by the 1933 Act and/or the 1940 Act, the cost of setting in type, printing and
distributing shall be borne by the Trust. If the Company chooses to receive
camera-ready film or computer diskettes in lieu of receiving printed copies of
the Trust's prospectus and/or statement of additional information, the Trust
shall bear the cost of typesetting to provide the Trust's prospectus and/or
statement of additional information to the Company in the format in which the
Trust is accustomed to formatting prospectuses and statements of additional
information, respectively, and the Company shall bear the expense of adjusting
or changing the format to conform with any of its prospectuses and/or
statements of additional information. In such event, the Trust will reimburse
the Company in an amount equal to the product of x and y where x is the number
of such prospectuses distributed to owners of the Contracts, and y is the
Trust's per unit cost of printing the Trust's prospectuses. The same procedures
shall be followed with respect to the Trust's statement of additional
information. The Trust shall not pay any costs of typesetting, printing and
distributing the Trust's prospectus and/or statement of additional information
to prospective Contract owners.
3.2(b). The Trust, at the Company's expense, shall provide the Company with
copies of Annual and Semi-Annual Reports (the "Reports") in such quantity as
the Company shall reasonably require for distributing to Contract owners. The
Trust, at its expense, shall provide the Contract owners designated by the
Company with copies of its proxy statements and other communications to
shareholders (except for prospectuses and statements of additional information,
which are covered in Section 3.2(a) above, and Reports). The Trust shall not
pay any costs of distributing Reports and other communications to prospective
Contract owners.
3.2(c). The Company agrees to provide the Trust or its designee with such
information as may be reasonably requested by the Trust to assure that the
Trust's expenses do not include the cost of typesetting, printing or
distributing any of the foregoing documents other than those actually
distributed to existing Contract owners.
3.2(d). The Trust shall pay no fee or other compensation to the Company under
this Agreement, except that if the Trust or any Portfolio adopts and implements
a plan pursuant to Rule 12b-1 to finance distribution expenses, then the Trust
may make payments to the Company or to the underwriter for the Contracts if and
in amounts agreed to by the Trust in writing. In addition, the Trust may pay
the Company servicing fees under a servicing agreement pursuant to the services
plan it has adopted.
3.2(e). All expenses, including expenses to be borne by the Trust pursuant to
Section 3.2 hereof, incident to performance by the Trust under this Agreement
shall be paid by the Trust. The Trust 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 Trust, in accordance with
applicable state laws prior to their sale. The Trust shall bear the expenses
for the cost of registration and qualification of the Trust's shares.
3.3. If and to the extent required by law, the Company shall with respect to
proxy material distributed by the Trust to Contract owners designated by the
Company to whom voting privileges are required to be extended:
(i) solicit voting instructions from Contract owners;
(ii) vote the Trust shares in accordance with instructions received from
Contract owners; and
(iii) vote Trust shares for which no instructions have been received in the
same proportion
- 5 -
as Trust shares of such Portfolio 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.
The Company reserves the right to vote Trust shares held in any segregated
asset account in its own right, to the extent permitted by law.
Article 4
Sales Material and Information
4.1. The Company shall furnish, or shall cause to be furnished, to the Trust,
the Adviser or their designee each piece of sales literature or other
promotional material prepared by the Company or any person contracting with the
Company to prepare such material in which the Trust, the Adviser or the
Administrator is described, promptly after filing such documents with the SEC
and/or other regulatory authorities. An example of language used to describe
the Trust in such documents shall be provided at least 10 Business Days prior
to use. No such material shall be used if the Trust, the Adviser, the
Administrator or their designee reasonably objects to such use within ten
Business Days after receipt of such material.
4.2. Neither the Company nor any person contracting with the Company to prepare
sales literature or other promotional material shall give any information or
make any representations or statements on behalf of the Trust or concerning the
Trust in connection with the sale of the Contracts other than the information
or representations contained in the registration statement or Trust prospectus,
as such registration statement or Trust prospectus may be amended or
supplemented from time to time, or in reports to shareholders or proxy
statements for the Trust, or in sales literature or other promotional material
approved by the Trust or its designee, except with the permission of the Trust
or its designee.
4.3. The Administrator shall furnish, or shall cause to be furnished, to the
Company or its designee, each piece of sales literature or other promotional
material prepared by the Trust in which the Company or its Accounts, are
described at least ten Business Days prior to its use. No such material shall
be used if the Company or its designee reasonably objects to such use within
ten Business Days after receipt of such material.
4.4. Neither the Trust, the Administrator, nor the Adviser shall give any
information or make any representations on behalf of the Company or concerning
the Company, each Account, or the Contracts, other than the information or
representations contained in a registration statement or prospectus for the
Contracts, as such registration statement or prospectus may be amended or
supplemented from time to time, or in published reports or solicitations for
voting instruction for each 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 Trust will provide to the Company, upon its request, at least one
complete copy of all registration statements, prospectuses, statements of
additional information, reports, proxy statements, applications for exemptions,
requests for no-action letters, and all amendments to any of the above, that
relate to the Trust or its shares, promptly after the filing of such document
with the SEC or other regulatory authorities.
4.6. The Company will provide to the Trust at least one complete copy of the
following documents provided they specifically mention the Trust and provided
the Trust has not previously reviewed the documents: all registration
statements, prospectuses, statements of additional information, reports,
solicitations for voting instructions, applications for exemptions, requests
for no action letters, and all amendments to any of the above, that relate to
the investment in an Account or Contract, prior to the filing of such documents
with the SEC or other regulatory authorities. No such material shall be used if
the Trust, the Adviser, the Administrator or their designee reasonably objects
to such use within ten Business Days after receipt of such material.
- 6 -
4.7. For purposes of this Article 4, the phrase "sales literature or other
promotional material" includes, but is not limited to, any of the following:
advertisements (such as material published, or designed for use in, a
newspaper, magazine, or other periodical, radio, television, internet,
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), and educational or training materials or
other communications distributed or made generally available to some or all
agents or employees.
Article 5
Administrative Services to Contract Owners
5. Administrative services to Contract owners shall be the responsibility of
the Company and shall not be the responsibility of the Trust, the Adviser or
the Administrator. The Trust and the Administrator recognize that the
Account(s) will be the sole shareholder(s) of Trust shares issued pursuant to
the Contracts.
Article 6
Representations and Warranties
6.1. The Trust represents that it believes, in good faith, that each Portfolio
is currently qualified as a regulated investment company under Subchapter M of
the Internal Revenue Code of 1986, as amended (the "Code") and that it will
make every effort to maintain such qualification of the Trust and that it will
notify the Company immediately upon having a reasonable basis for believing
that a Portfolio has ceased to so qualify or that it might not so qualify in
the future.
6.2. The Company represents that it believes, in good faith, that the Contracts
will at all times be treated as 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 Trust 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.
6.3. The Trust represents that it believes, in good faith, that the Portfolios
will at all times comply with the diversification requirements set forth in
Section 817(h) of the Code and Section 1.817-5(b) of the regulations under the
Code, and that it will make every effort to maintain the Trust's compliance
with such diversification requirements, and that it will notify the Company
immediately upon having a reasonable basis for believing that a Fund has ceased
to so qualify or that a Portfolio might not so qualify in the future.
6.4. The Company represents and warrants that the interests of the Contracts
are or will be registered unless exempt and that it will maintain such
registration under the 1933 Act and the regulations thereunder to the extent
required by the 1933 Act and that the Contracts will be issued and sold in
compliance with all applicable federal and state laws and regulations. The
Company also represents and warrants that the Portfolios will be sold in
accordance with such Portfolio's current prospectus. The Company further
represents and warrants that it is an insurance company duly organized and in
good standing under applicable law and that it has legally and validly
established each Account prior to any issuance or sale thereof as a segregated
asset account under the laws of the Commonwealth of Virginia and the
regulations thereunder and has registered or, prior to any issuance or sale of
the Contracts, will maintain the registration of each Account as a unit
investment trust in accordance with and to the extent required by the
provisions of the 1940 Act and the regulations thereunder, unless exempt
therefrom, to serve as a segregated investment account for the Contracts. The
Company shall amend its registration statement for its contracts under the 1933
Act and the 1940 Act from time to time as required in order to effect the
continuous offering of its Contracts.
- 7 -
6.5. The Company represents that it believes, in good faith, that the Account
is a "segregated asset account" and that interests in the Account are offered
exclusively through the purchase of a "variable contract," within the meaning
of such terms under Section 1.817-5(f)(2) of the regulations under the Code,
and that it will make every effort to continue to meet such definitional
requirements, and that it will notify the Trust immediately upon having a
reasonable basis for believing that such requirements have ceased to be met or
that they might not be met in the future.
6.6. The Trust represents and warrants that it is and shall continue to be at
all times covered by a blanket fidelity bond or similar coverage for the
benefit of the Trust in an amount no 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. Such bond shall include coverage for larceny and
embezzlement and shall be issued by a reputable bonding company. The Trust will
notify the Company immediately upon having a reasonable basis for believing
that the Trust no longer has the coverage required by this Section 6.6.
6.7. The Company represents and warrants that all of its directors, officers,
employees, investment advisers, and other entities dealing with the money or
securities of the Trust are and shall continue to be at all times covered by a
blanket fidelity bond or similar coverage for the benefit of the Trust, in an
amount not less than five million dollars ($5,000,000). Such bond shall include
coverage for larceny and embezzlement and shall be issued by a reputable
bonding company. 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 Trust immediately upon having a reasonable basis for
believing that the Company no longer has the coverage required by this
Section 6.7.
6.8. The Trust represents that to the extent that it decides to finance
distribution expenses pursuant to Rule 12b-1 under the 1940 Act, the Trust
undertakes to have a majority of the disinterested members of the Board
formulate and approve any plan under Rule 12b-1 to finance distribution
expenses.
6.9. The Adviser and the Administrator each represents and warrants that it
complies with all applicable federal and state laws and regulations and that it
will perform its obligations for the Trust and the Company in compliance with
the laws and regulations of its state of domicile and any applicable state and
federal laws and regulations.
Article 7
Statements and Reports
7.1. The Administrator or its designee will make available electronically to
the Company within five (5) business days after the end of each month a monthly
statement of account confirming all transactions made during that month in the
Account.
7.2. The Trust and Administrator agree to provide the Company no later than
March 1 of each year with the investment advisory and other expenses of the
Trust incurred during the Trust's most recently completed fiscal year, to
permit the Company to fulfill its prospectus disclosure obligations under the
SEC's variable annuity fee table requirements.
Article 8
Potential Conflicts
8.1. The Board will monitor the Trust for the existence of any material
irreconcilable conflict between the interests of the contract owners of all
separate accounts investing in the Trust. An irreconcilable material conflict
may arise for a variety of reasons, including: (a) an action by any state
insurance regulatory authority; (b) a change in applicable federal or state
insurance, tax, or securities laws or regulations, or a public ruling, private
letter ruling, no-action or interpretative letter, or any similar action by
insurance, tax, or securities regulatory authorities; (c) an administrative or
judicial decision in any relevant proceeding; (d) the
- 8 -
manner in which the investments of any Portfolio are being managed; (e) a
difference in voting instructions given by variable annuity contract owners and
variable life insurance contract owners; or (f) a decision by a Participating
Insurance Company to disregard the voting instructions of contract owners. The
Board shall promptly inform the Company if it determines that an irreconcilable
material conflict exists and the implications thereof.
8.2. The Company will report in writing any potential or existing material
irreconcilable conflict of which it is aware to the Administrator. Upon receipt
of such report, the Administrator shall report the potential or existing
material irreconcilable conflict to the Board. The Administrator shall also
report to the Board on a quarterly basis whether the Company has reported any
potential or existing material irreconcilable conflicts during the previous
calendar quarter. The Company will assist the Board in carrying out its
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 is not limited to, an obligation by the
Company to inform the Board whenever Contract owner voting instructions are
disregarded.
8.3. 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 trustees), take whatever steps are necessary to remedy or
eliminate the irreconcilable material conflict, up to and including:
(1) withdrawing the assets allocable to some or all of the separate accounts
from the Trust or any Portfolio and reinvesting such assets in a different
investment medium, including (but not limited to) another Portfolio of the
Trust, or submitting the question whether such segregation should be
implemented to a vote of all affected Contract owners and, as appropriate,
segregating the assets of any appropriate group (i.e., annuity contract owners,
life insurance policy owners, or variable contract owners of one or more
Participating Insurance Companies) that votes in favor of such segregation, or
offering to the affected Contract owners the option of making such a change;
and (2) establishing a new registered management investment company or managed
separate account. No charge or penalty will be imposed as a result of such
withdrawal. The Company agrees that it bears the responsibility to take
remedial action in the event of a Board determination of an irreconcilable
material conflict and the cost of such remedial action, and these
responsibilities will be carried out with a view only to the interests of
Contract owners.
8.4. If a material irreconcilable conflict arises because of a decision by the
Company to disregard Contract owner voting instructions and that decision
represents a minority position or would preclude a majority vote, the Company
may be required, at the Trust's election, to withdraw the affected Account's
investment in the Trust and terminate this Agreement with respect to such
Account (at the Company's expense); provided, however that such 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. No charge or penalty will be imposed as a result of such
withdrawal. The Company agrees that it bears the responsibility to take
remedial action in the event of a Board determination of an irreconcilable
material conflict and the cost of such remedial action, and these
responsibilities will be carried out with a view only to the interests of
Contract owners.
8.5. For purposes of Sections 8.3 through 8.4 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 Trust be required to establish a new funding medium for the
Contracts. The Company shall not be required by Section 8.3 through 8.4 to
establish a new funding medium for the Contracts if an offer to do so has been
declined by vote of a majority of Contract owners materially adversely affected
by the irreconcilable material conflict.
8.6. 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 Shared Funding Exemptive Order) on terms and conditions
materially different from those contained in the Shared Funding Exemptive
Order, then the Trust and/or the Participating Insurance Companies, as
appropriate, shall take such steps as may be necessary to comply with Rules
6e-2 and 6e-3(T), as amended, and Rule 6e-3, as adopted, to the extent such
rules are applicable.
- 9 -
8.7. Each of the Company and the Adviser shall at least annually submit to the
Board such reports, materials or data as the Board may reasonably request so
that the Board may fully carry out the obligations imposed upon them by the
provisions hereof and in the Shared Funding Exemptive Order, and said reports,
materials and data shall be submitted more frequently if deemed appropriate by
the Board. Without limiting the generality of the foregoing or the Company's
obligations under Section 8.2, the Company shall provide to the Administrator a
written report to the Board no later than January 15/th/ of each year
indicating whether any material irreconcilable conflicts have arisen during the
prior fiscal year of the Trust. All reports received by the Board of potential
or existing conflicts, and all Board action with regard to determining the
existence of a conflict, notifying Participating Insurance Companies of a
conflict, and determining whether any proposed action adequately remedies a
conflict, shall be properly recorded in the minutes of the Board or other
appropriate records, and such minutes or other records shall be made available
to the SEC upon request.
Article 9
Indemnification
9.1. Indemnification By The Company
9.1 (a). The Company agrees to indemnify and hold harmless the Trust, the
Administrator, the Adviser, and each member of their respective Boards and
officers and each person, if any, who controls the Trust within the meaning of
Section 15 of the 1933 Act (collectively, the "Indemnified Parties" for
purposes of this Section 9.1) 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
or acquisition of the Trust's shares or the Contracts 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 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 Trust for
use in the registration statement or prospectus 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 Trust
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 or sales literature of the Trust not supplied by the Company,
or persons under its control and other than statements or
representations authorized by the Trust) or unlawful conduct of the
Company or persons under its control, with respect to the sale or
distribution of the Contracts or Trust shares; or
(iii) arise out of or as a result of any untrue statement or alleged untrue
statement of a material fact contained in a registration statement,
prospectus, or sales literature of the Trust 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 Trust by or on behalf of the Company; or
(iv) arise as a result of any failure by the Company to provide the services
and furnish the materials under the terms of this Agreement; or
- 10 -
(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 Section 9.1(b)
and 9.1(c) hereof.
9.1(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.
9.1(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 the Indemnified Parties, the Company shall be entitled to
participate, at as own expense, in the defense of such action. The Company also
shall be entitled to assume the defense thereof, with counsel satisfactory to
the Indemnified Party named in the action. After notice from the Company to
such Indemnified 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 shall not be liable to such Indemnified
Party under this Agreement for any legal or other expenses subsequently
incurred by such Indemnified Party independently in connection with the defense
thereof other than reasonable costs of investigation.
9.1(d). The Indemnified Parties will promptly notify the Company of the
commencement of any litigation or proceedings against them in connection with
the issuance or sale of the Trust shares or the Contracts or the operation of
the Trust.
9.2. Indemnification by Administrator
9.2(a). The Administrator 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 9.2) against any and all
losses, claims, damages, liabilities (including amounts paid in settlement with
the written consent of the Administrator) 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:
(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 sales literature of the Trust (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 Trust or the Administrator
by or on behalf of the Company, the Adviser, Counsel for the Trust, the
independent public accountant to the Trust, or any person or entity that
is not acting as agent for or controlled by the Administrator for use in
the registration statement or prospectus for the Trust or in sales
literature (or any amendment or supplement) or otherwise for use in
connection with the sale of the Contracts or Portfolio shares; or
- 11 -
(ii) arise out of or as a result of any untrue statement or alleged untrue
statement of a material fact contained in a registration statement,
prospectus, 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 Administrator; or
(iii) arise as a result of any failure by the Administrator 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 Administrator in this Agreement or arise out
of or result from any other material breach of this Agreement by the
Administrator; as limited by and in accordance with the provisions of
Section 9.2(b) and 9.2(c) hereof.
9.2(b). The Administrator 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 and duties under
this Agreement.
9.2(c). The Administrator 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 Administrator 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
Administrator of any such claim shall not relieve the Administrator 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 Administrator
will be entitled to participate, at its own expense, in the defense thereof.
The Administrator also shall be entitled to assume the defense thereof, with
counsel satisfactory to the Indemnified Party named in the action. After notice
from the Administrator to such Indemnified Party of the Administrator'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
Administrator will not be liable to such Indemnified Party under this Agreement
for any legal or other expenses subsequently incurred by such Indemnified Party
independently in connection with the defense thereof other than reasonable
costs of investigation.
9.2(d). The Company agrees promptly to notify the Administrator of the
commencement of any litigation or proceedings against it or any of its officers
or directors in connection with the issuance or sale of the Contracts or the
operation of each Account in which the Portfolios are made available.
9.3. Indemnification by the Adviser
9.3(a). The Adviser agrees to 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 (hereinafter collectively, the
"Indemnified Parties" and individually, "Indemnified Party," for purposes of
this Section 9.3) 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, 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 sales literature of the Trust (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
- 12 -
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 the Trust by or on behalf of the
Company, the Administrator, Counsel for the Trust, the independent
public accountant to the Trust, or any person or entity that is not
acting as agent for or controlled by the Adviser for use in the
registration statement or prospectus for the Trust or in sales
literature (or any amendment or supplement) or otherwise for use in
connection with the sale of the Contracts or Portfolio shares; or
(ii) arise out of or as a result of any untrue statement or alleged untrue
statement of a material fact contained in a registration statement,
prospectus, 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
(iii) arise as a result of any failure by the Adviser 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 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 Section 9.3(b)
and 9.3(c) hereof.
9.3(b). The Adviser 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 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 and duties under this Agreement.
9.3(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 Parties, 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
Indemnified Party named in the action. After notice from the Adviser to such
Indemnified 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 Indemnified Party
under this Agreement for any legal or other expenses subsequently incurred by
such Indemnified Party independently in connection with the defense thereof
other then reasonable costs of investigation.
9.3(d). The Company agrees to promptly notify the Adviser of the commencement
of any litigation or proceedings against it or any of its respective officers
or directors in connection with this Agreement, the issuance or sale of the
Contracts, with respect to the operation of each Account, or the sale or
acquisition of shares of the Trust.
9.4. Indemnification by the Trust
9.4(a). The Trust agrees to 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 (hereinafter collectively, the
"Indemnified Parties" and individually, "Indemnified Party," for purposes of
this
- 13 -
Section 9.4) against any and all losses, claims, damages, liabilities
(including amounts paid in settlement with the written consent of the Trust) 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:
(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 sales literature of the Trust (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 the Trust by or on behalf of the
Adviser, the Company, or the Administrator for use in the registration
statement or prospectus for the Trust or in sales literature (or any
amendment or supplement) or otherwise for use in connection with the
sale of the Contracts or Portfolio shares; or
(ii) arise out of or as a result of any untrue statement or alleged untrue
statement of a material fact contained in a registration statement,
prospectus, 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 Trust; or
(iii) arise as a result of any failure by the Trust 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 Trust in this Agreement or arise out of or
result from any other material breach of this Agreement by the Trust; as
limited by and in accordance with the provisions of Section 9.4(b) and
9.4(c) hereof.
9.4(b). The Trust 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 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 and duties under this Agreement.
9.4(c). The Trust 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 Trust 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 Trust of any such claim shall not relieve the
Trust 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 Trust will be entitled to participate, at its own expense, in the defense
thereof. The Trust also shall be entitled to assume the defense thereof, with
counsel satisfactory to the Indemnified Party named in the action. After notice
from the Trust to such Indemnified Party of the Trust'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 Trust will not be liable to such
Indemnified Party under this Agreement for any legal or other expenses
subsequently incurred by such Indemnified Party independently in connection
with the defense thereof other then reasonable costs of investigation.
9.4(d). The Company agrees to promptly notify the Trust of the commencement of
any litigation or proceedings against it or any of its respective officers or
directors in connection with this Agreement, the
- 14 -
issuance or sale of the Contracts, with respect to the operation of each
Account, or the sale or acquisition of shares of the Trust.
Article 10
Applicable Law
10.1. This Agreement shall be construed and the provisions hereof interpreted
under and in accordance with the laws of the State of Massachusetts.
10.2. 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.
Article 11
Termination
11.1. This Agreement shall continue in full force and effect until the first to
occur of:
(a) termination by any party for any reason upon ninety days advance written
notice delivered to the other parties; or
(b) termination by the Company by written notice to the Trust, the Adviser,
and the Administrator 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. Reasonable advance
notice of election to terminate shall be furnished by the Company, said
termination to be effective ten (10) days after receipt of notice unless
the Trust makes available a sufficient number of shares to reasonably
meet the requirements of the Account within said ten (10) day period; or
(c) termination by the Company upon written notice to the Trust, the
Adviser, and the Administrator 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 investment medium of
the Contracts issued or to be issued by the Company. The terminating
party shall give prompt notice to the other parties of its decision to
terminate; or
(d) termination by the Company upon written notice to the Trust, the Adviser
and the Administrator 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 under any successor or similar provision; or
(e) termination by the Company upon written notice to the Trust, the
Adviser, and the Administrator with respect to any Portfolio in the
event that such Portfolio fails to meet the diversification requirements
specified in Section 6.3 hereof; or
(f) termination by either the Trust, the Adviser, or the Administrator by
written notice to the Company, if either one or more of the Trust, the
Adviser, or the Administrator, shall determine, in its or their sole
judgment exercised in good faith, that the Company and/or their
affiliated companies 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, provided
that the Trust, the Adviser, or the Administrator will give the Company
sixty (60) days' advance written notice of such determination of its
intent to terminate this Agreement, and provided further that after
consideration of the actions taken
- 15 -
by the Company and any other changes in circumstances since the giving
of such notice, the determination of the Trust, the Adviser, or the
Administrator shall continue to apply on the 60th day since giving of
such notice, then such 60th day shall be the effective date of
termination; or
(g) termination by the Company by written notice to the Trust, the Adviser,
and the Administrator, if the Company shall determine, in its sole
judgment exercised in good faith, that either the Trust, the Adviser, or
the Administrator 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, provided
that the Company will give the Trust, the Adviser, and the Administrator
sixty (60) days' advance written notice of such determination of its
intent to terminate this Agreement, and provided further that after
consideration of the actions taken by the Trust, the Adviser, or the
Administrator and any other changes in circumstances since the giving of
such notice, the determination of the Company shall continue to apply on
the 60th day since giving of such notice, then such 60th day shall be
the effective date of termination; or
(h) termination by any party upon the other party's breach of any
representation in Article 6 or any material provision of this Agreement,
which breach has not been cured to the satisfaction of the terminating
party within ten (10) days after written notice of such breach is
delivered to the Trust or the Company, as the case may be; or
(i) termination by the Trust, the Adviser, or Administrator by written
notice to the Company in the event an Account or Contract is not
registered (unless exempt from registration) or sold in accordance with
applicable federal or state law or regulation, or the Company fails to
provide pass-through voting privileges as specified in Section 3.3.
11.2. Effect of Termination. Notwithstanding any termination of this Agreement,
the Trust may continue to make available additional shares of the Trust
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") unless such further sale of Trust shares
is proscribed by law, regulation or applicable regulatory body, or unless the
Trust determines that liquidation of the Trust following termination of this
Agreement is in the best interests of the Trust and its shareholders. The
parties agree that this Section 11.2 shall not apply to any terminations under
Article 8 and the effect of such Article 8 terminations shall be governed by
Article 8 of this Agreement.
11.3. The Company shall not redeem Trust shares attributable to the Contracts
(as distinct from Trust shares attributable to the Company's assets held in the
Account) except (i) as necessary to implement Contract 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(c) of the 1940 Act.
Upon request, the Company will promptly furnish to the Trust, the Adviser and
the Administrator the opinion of counsel for the Company (which counsel shall
be reasonably satisfactory to the Trust and the Adviser) to the effect 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 was otherwise available under the Contracts without first giving
the Trust or the Adviser 30 days notice of its intention to do so.
Article 12
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.
- 16 -
If to the Trust:
JPMorgan Insurance Trust
Mail Code OH1-1235
0000 Xxxxxxx Xxxxxxx
XX0-0000
Xxxxxxxx, Xxxx 00000
Attn: Contract Administrator
If to the Administrator:
JPMorgan Funds Management, Inc.
Mail Code OH1-1235
0000 Xxxxxxx Xxxxxxx
XX0-0000
Xxxxxxxx, Xxxx 00000
Attention: Contract Administrator
If to the Adviser:
JPMorgan Investment Advisors Inc.
Mail Code OH1-0211
0000 Xxxxxxx Xxxxxxx
XX0-0000
Xxxxxxxx, Xxxx 00000
Attn: Contract Administrator
If to the Company:
Genworth Life and Annuity Insurance Company
0000 Xxxx Xxxxx Xxxxxx, 0/xx/ Xxxxx
Xxxxxxxx, Xxxxxxxx 00000
Attn: Vice President - Associate General Counsel
Article 13
Miscellaneous
13.1. All persons dealing with the Trust must look solely to the property of
the Trust for the enforcement of any claims against the Trust as neither the
Board, officers, agents or shareholders assume any personal liability for
obligations entered into on behalf of the Trust. Each of the Company, the
Adviser, and the Administrator acknowledges and agrees that, as provided by the
Trust's Amended and Restated Declaration of Trust, the shareholders, trustees,
officers, employees and other agents of the Trust and the Portfolios shall not
personally be bound by or liable for matters set forth hereunder, nor shall
resort be had to their private property for the satisfaction of any obligation
or claim hereunder. The Trust's Amended and Restated Declaration of Trust is on
file with the Secretary of State of Massachusetts.
13.2. The Company will comply with all applicable laws and regulations aimed at
preventing, detecting, and reporting money laundering and suspicious
transactions. Without limiting the generality of the foregoing, the Company
shall take all necessary and appropriate steps, consistent with applicable
regulations and generally accepted industry practices, to: (i) obtain, verify,
and retain information with regard to Contract owner identification and source
of Contract owner funds, and (ii) maintain records of all Contract owner
transactions. The Company will (but only to the extent consistent with
applicable law) take all steps necessary
- 17 -
and appropriate to provide the Trust with any requested information about
Contract owners and their accounts in the event that the Trust shall request
such information due to an inquiry or investigation by any law enforcement,
regulatory, or administrative authority. To the extent permitted by applicable
law and regulations, the Company will notify the Trust of any concerns that the
Company may have in connection with any Contract owner in the context of
relevant anti-money laundering laws or regulations.
13.3. 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 until such time as it may come
into the public domain without the express written consent of the affected
party.
13.4. 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.
13.5. This Agreement may be executed simultaneously in two or more
counterparts, each of which taken together shall constitute one and the same
instrument.
13.6. If any provision of this Agreement shall be held or made invalid by a
court decision, statute, rule or otherwise, the remainder of this Agreement
shall not be affected thereby.
13.7. Each party hereto shall cooperate with each other party and all
appropriate governmental authorities (including without limitation the SEC, the
NASD, Inc. and state insurance regulators) and shall permit such authorities
(and other parties hereto) reasonable access to its books and records in
connection with any investigation or inquiry relating to this Agreement or the
transactions contemplated hereby.
13.8. 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.
13.9 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, with advance written notice to the
other parties hereto, assign this Agreement or any rights or obligations
hereunder to any affiliate of or company under common control with the Adviser
if such assignee is duly licensed and registered to perform the obligations of
the Adviser under this Agreement.
13.10. The names "JPMorgan Insurance Trust" and 'Trustees of JPMorgan Insurance
Trust" refer respectively to the Trust created and the Trustees, as trustees
but not individually or personally, acting from time to time under a
Declaration of Trust dated June 7, 1993 to which reference is hereby made and a
copy of which is on file at the office of the Secretary of the Commonwealth of
Massachusetts and elsewhere as required by law, and to any and all amendments
thereto so filed or hereafter filed. The obligations of 'JPMorgan Insurance
Trust' entered into in the name or on behalf thereof by any of the Trustees,
representatives or agents are made not individually, but in such capacities,
and are not binding upon any of the Trustees, Shareholders or representatives
of the Trust personally, but bind only the assets of the Trust, and all persons
dealing with any series of Shares of the Trust must look solely to the assets
of the Trust belonging to such series for the enforcement of any claims against
the Trust.
13.11. The Trust and the Administrator agree to consult with the Company
concerning whether any Portfolio of the Trust qualifies to provide a foreign
tax credit pursuant to Section 853 of the Code.
[SIGNATURE PAGES FOLLOW]
- 18 -
GENWORTH LIFE AND ANNUITY
INSURANCE COMPANY
By:
-----------------------------
Name: Xxxxxxxx X. Stiff
Title: Senior Vice President
JPMORGAN INSURANCE TRUST
By:
-----------------------------
Name:
Title:
JPMORGAN INVESTMENT ADVISORS INC.
By:
-----------------------------
Name:
Title:
JPMORGAN FUNDS MANAGEMENT, INC.
By:
-----------------------------
Name:
Title:
- 19 -
SCHEDULE A
SEPARATE ACCOUNTS AND CONTRACTS
Name of Separate Account and Date Form Number
Established by Board of Directors Funded by Separate Account
--------------------------------- -------------------------------------
P1154
Genworth Life & Annuity VA Separate
Account 1 SEC File No. 333-31172
August 19, 1987
- 20 -
Schedule B
Portfolios of the Trust
JPMorgan Insurance Trust Core Bond Portfolio 1
JPMorgan Insurance Trust Government Bond Portfolio 1
JPMorgan Insurance Trust Balanced Portfolio 1
JPMorgan Insurance Trust Large Cap Growth Portfolio 1
JPMorgan Insurance Trust Equity Index Portfolio 1
JPMorgan Insurance Trust Diversified Equity Portfolio 1
JPMorgan Insurance Trust Diversified Mid Cap Growth Portfolio 1
JPMorgan Insurance Trust Intrepid Mid Cap Portfolio 1
- 21 -
