FUND PARTICIPATION AGREEMENT
Among
STI CLASSIC VARIABLE TRUST,
SEI INVESTMENTS DISTRIBUTION CO.,
TRUSCO CAPITAL MANAGEMENT, INC.,
And
HARTFORD LIFE INSURANCE COMPANY
TABLE OF CONTENTS
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Page
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ARTICLE I. Series Shares
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ARTICLE II. Representations and Warranties
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ARTICLE III. Prospectuses, Reports to Shareholders
and Proxy Statements; Voting
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ARTICLE IV. Sales Material and Information
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ARTICLE V. Diversification
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ARTICLE VI. Potential Conflicts
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ARTICLE VII. Indemnification
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ARTICLE VIII. Applicable Law
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ARTICLE IX. Termination
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ARTICLE X. Notices
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ARTICLE XI. Miscellaneous
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SCHEDULE A Separate Accounts and Contracts
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SCHEDULE B Participating Series
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SCHEDULE C Allocation of Expenses
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FUND PARTICIPATION AGREEMENT
THIS AGREEMENT, effective as of this 19th day of August by and among
Hartford Life Insurance Company ("Hartford"), a Connecticut corporation, on its
behalf and on behalf of each separate account set forth on attached SCHEDULE A
as it may be amended from time to time (the "Separate Accounts"); STI Classic
Variable Trust (the "Trust"); SEI Investments Distribution Co. (the
"Distributor"); and Trusco Capital Management, Inc. (the "Adviser").
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 life insurance policies
and annuity contracts; and
WHEREAS, the Distributor is registered as a broker/dealer under the
Securities Exchange Act of 1934, as amended (the "1934 Act"), is a member in
good standing of the National Association of Securities Dealers, Inc. (the
"NASD") and serves as principal underwriter of the shares of the Trust; and
WHEREAS, the Trust intends to make available shares of its series set
forth on attached SCHEDULE B, as it may be amended from time to time by mutual
agreement of the parties (the "Series"), to the Separate Accounts of Hartford;
and
WHEREAS, the Adviser is registered as an investment adviser under the
Investment Advisers Act of 1940, as amended, and any applicable state securities
laws and serves as the investment adviser to the Series; and
WHEREAS, Hartford is an insurance company which has registered or will
register the variable annuities and/or variable life insurance policies listed
in Schedule A under the Securities Act of 1933 (the "1933 Act") and the
Investment Company Act of 1940 (the "1940 Act"), unless exempt from such
registration, to be issued by Hartford for distribution (the "Contracts").
NOW, THEREFORE, in consideration of their mutual promises, Hartford,
the Trust, the Distributor and the Adviser agree as follows:
ARTICLE I. SERIES SHARES
1.1 The Trust and the Distributor agree to make shares of the Series available
for purchase on each Business Day by the Separate Accounts. The Trust will
execute orders placed for each Separate Account on a daily basis at the net
asset value of each Series next computed after receipt by the Trust or its
designee of such order.
A. For purposes of this Agreement, Hartford shall be the designee of
the Trust and Distributor for receipt of orders from each Separate Account and
receipt by
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Hartford constitutes receipt by the Trust, provided that the Trust receives
notice of orders by 9:30 a.m. (Eastern time) on the next Business Day.
B. For purposes of this Agreement, "Business Day" shall mean any day on
which the New York Stock Exchange is open for trading and on which the Trust
calculates the net asset value of each Series pursuant to the rules of the
Securities and Exchange Commission ("SEC"), as set forth in the Series'
prospectus.
1.2 The Board of Trustees of the Trust (the "Board"), acting in good faith and
in the exercise of its fiduciary responsibilities, may refuse to permit the
Trust to sell shares of any Series to any person, or suspend or terminate the
offering of shares of any Series if such action is required by law or by
regulatory authorities having jurisdiction over the sale of shares.
1.3 The Trust and the Distributor agree that shares of the Trust or any of its
Series will be sold only to insurance companies for use in conjunction with
variable life insurance policies or variable annuities. No shares of the Trust
or any of its Series will be sold to the general public.
1.4 The Trust and the Distributor agree to redeem for cash, at Hartford's
request, any full or fractional shares of the Series held by the Separate
Accounts, on a daily basis at the net asset value next computed after receipt by
the Trust or its designee of the request for redemption.
A. For the purposes of this Agreement, Hartford shall be the designee
of the Trust for receipt of redemption requests from each Separate Account and
receipt by Hartford constitutes receipt by the Trust, provided that the
Distributor receives notice of the redemption request by 9:30 a.m. (Eastern
time) on the next following Business Day.
1.5 Hartford agrees that purchases and redemptions of Series shares offered by
the then current prospectus of the Series shall be made in accordance with the
provisions of the prospectus.
A. Hartford will place separate orders to purchase or redeem shares of
each Series. Each order shall describe the net amount of shares and dollar
amount of each Series to be purchase or redeemed.
B. In the event of net purchases, Hartford will pay for shares before
3:00 p.m. (Eastern time) on the next Business Day after receipt of an order to
purchase shares.
C. In the event of net redemptions, the Trust shall pay the redemption
proceeds in federal funds transmitted by wire before 3:00 p.m. (Eastern time) on
the next Business Day after an order to redeem Series shares is made.
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1.6 Issuance and transfer of the Series' shares will be by book entry only.
Share certificates will not be issued to Hartford or any Separate Account.
Shares purchased will be recorded in an appropriate title for each Separate
Account or the appropriate sub-account of each Separate Account. The Trust shall
furnish to Hartford the CUSIP number assigned to each Series identified in
Schedule B attached as may be amended from time to time.
1.7 The Distributor shall notify Hartford in advance of any dividends or capital
gain distributions payable on the Series' shares, but by no later than same day
notice by 6:00 p.m. Eastern time. Hartford elects to reinvest all such dividends
and capital gain distributions in additional shares of that Series. The Trust
shall notify Hartford of the number of shares issued as payment of dividends and
distributions. Hartford reserves the right to revoke this election and to
receive all such dividends and capital gain distributions in cash, provided that
reasonable notice is delivered to the Trust or its designee.
1.8 The Distributor shall make the net asset value per share of each Series
available to Hartford on a daily basis as soon as reasonably practical after the
net asset value per share is calculated. The Trust shall use its best efforts to
make such net asset value per share available by 6:00 p.m. Eastern time.
A. If the Distributor provides materially incorrect share net asset
value information through no fault of Hartford, the Separate Accounts shall be
entitled to an adjustment with respect to the Series shares purchased or
redeemed to reflect the correct net asset value per share.
B. The determination of the materiality of any net asset value pricing
error and its correction shall be based on the SEC's recommended guidelines or
Distributors standard pricing policy, whichever is more favorable to Contact
Owners, regarding these errors. Any material error in the calculation or
reporting of net asset value per share, dividend or capital gain information
shall be reported promptly to Hartford upon discovery. The Trust shall indemnify
and hold harmless Hartford against any amount Hartford is legally required to
pay annuity or life insurance contract owners that have selected a Series as an
investment option ("Contract owners"), and which amount is due to the Trust's or
its agents' material miscalculation and/or incorrect reporting of the daily net
asset value, dividend rate or capital gains distribution rate. Hartford shall
submit an invoice to the Trust or its agents for such losses incurred as a
result of the above which shall be payable within sixty (60) days of receipt.
Should a material miscalculation by the Trust or its agents result in a gain to
Hartford, Hartford shall immediately reimburse the Trust, the applicable Series
or its agents for any material losses incurred by the Trust, the applicable
Series or its agents as a result of the incorrect calculation. Should a material
miscalculation by the Trust or its agents result in a gain to Contract owners,
Hartford will consult with the Trust or its designee as to what reasonable
efforts shall be made to recover the money and repay the Trust, the applicable
Series or its agents. Hartford shall then make such reasonable effort, at the
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expense of the Trust or its agents, to recover the money and repay the Trust,
the applicable Series or its agents; but Hartford shall not be obligated to take
legal action against Contract owners.
With respect to the material errors or omissions described above, this section
shall control over other indemnification provisions in this Agreement. Neither
the Trust nor its agents will be liable for consequential damages.
ARTICLE II. REPRESENTATIONS AND WARRANTIES
2.1 Hartford represents and warrants that:
A. The Contracts are or will be registered under the 1933 Act unless
exempt and that the registrations will be maintained to the extent required by
law.
B. The Contracts will be issued in material compliance with all
applicable federal and state laws and regulations.
C. Hartford is duly organized and in good standing under applicable
law.
D. Hartford has legally and validly established each Separate Account
prior to any issuance or sale as a segregated asset account under the
Connecticut Insurance Code and has registered or, prior to any issuance or sale
of the Contracts, will register and will maintain the registration of each
Separate Account as a unit investment trust in accordance with the 1940 Act,
unless exempt from such registration.
2.2 The Trust and the Distributor represent and warrant that:
A. Series shares sold pursuant to this Agreement shall be registered
under the 1933 Act and the regulations thereunder to the extent required.
B. Series shares shall be duly authorized for issuance in accordance
with the laws of each jurisdiction in which shares will be offered.
C. Series shares shall be sold in material compliance with all
applicable federal and state securities laws and regulations.
D. The Trust is and shall remain registered under the 1940 Act and the
regulations thereunder to the extent required.
E. The Trust shall amend its registration statement under the 1933 Act
and the 1940 Act, from time to time, as required in order to effect the
continuous offering of the Series' shares.
2.3 The Trust represents and warrants that:
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A. The Trust is currently qualified as a "regulated investment company"
under Subchapter M of the Internal Revenue Code of 1986, as amended, (the
"Code"). The Trust will make every effort to maintain such qualification and
will notify Hartford immediately in writing upon having a reasonable basis for
believing that the Trust has ceased to qualify or that the Trust might not
qualify in the future.
B. The Trust is duly organized and validly existing under the laws of
the state of its organization.
C. The Trust does and will comply in all material respects with the
1940 Act.
D. The Trust has obtained an order from the SEC granting participating
insurance companies and variable insurance product separate accounts exemptions
from the provisions of the 1940 Act, as amended, and the rules thereunder, to
the extent necessary to permit shares of the Trust or its Series to be sold to
and held by variable insurance product separate accounts of both affiliated and
unaffiliated life insurance companies.
2.4 The Distributor represents and warrants that:
A. It is and shall remain duly registered under all applicable federal
and state laws and regulations and that it will perform its obligations for the
Trust and Hartford in material compliance with all applicable state and federal
laws and regulations.
ARTICLE III. PROSPECTUSES, REPORTS TO SHAREHOLDERS AND PROXY STATEMENTS; VOTING
3.1 The Trust shall provide Hartford with as many printed copies of the current
prospectus(es), statement of additional information, proxy statements, annual
reports and semi annual reports of each Series (and no other series), and any
supplements or amendments to any of the foregoing, as Hartford may reasonably
request. If requested by Hartford in lieu of the foregoing printed documents,
the Trust shall provide such documents in the form of camera-ready film,
computer diskettes or typeset electronic document files, all as Hartford may
reasonably request, and such other assistance as is reasonably necessary in
order for Hartford to have any of the prospectus(es), statement of additional
information, proxy statements, annual reports and semi annual reports of each
Series, and any supplements or amendments to any of the foregoing, printed in
combination with such documents of other fund companies' and/or such documents
for the Contracts. Expenses associated with providing, printing and distributing
such documents shall be allocated in accordance with SCHEDULE C attached to this
Agreement.
3.2 The Trust will provide Hartford with copies of its proxy solicitations
applicable to the Series. Hartford will, to the extent required by law, (a)
distribute proxy materials
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applicable to the Series to eligible Contract owners, (b) solicit voting
instructions from eligible Contract owners, (c) vote the Series shares in
accordance with instructions received from Contract owners; and (d) if required
by law, vote Series shares for which no instructions have been received in the
same proportion as shares of the Series for which instructions have been
received.
A. To the extent permitted by applicable law, Hartford reserves the
right to vote Series shares held in any Separate Account in its own right.
B. Unregistered separate accounts subject to the Employee Retirement
Income Security Act of 1974 ("ERISA") will refrain from voting shares for which
no instructions are received if such shares are held subject to the provisions
of ERISA.
3.3 The Trust and Hartford will comply with all provisions of the 1940 Act and
the rules thereunder and the Exemptive Order governing the Trust and voting
rights of its shareholders.
ARTICLE IV. SALES MATERIAL AND INFORMATION
4.1 Hartford shall furnish, or shall cause to be furnished, to the Trust prior
to use, each piece of sales literature or advertising prepared by Hartford in
which the Trust, the Adviser or the Distributor is described. No sales
literature or advertising will be used if the Trust, the Adviser, or the
Distributor reasonably objects to its use within ten (10) Business Days
following receipt by the Trust.
4.2 Hartford will not, without the written permission of the Trust, make any
representations or statements on behalf of the Trust or concerning the Trust in
connection with the advertising or sale of the Contracts, other than information
or representations contained in: (a) the registration statement or Series
prospectus(es), (b) Series' annual and semi annual reports to shareholders, (c)
proxy statements for the Series, or, (d) sales literature or other promotional
material approved by the Trust. In addition, Hartford will not without prior
written consent, which shall not be unreasonably withheld, make any
representations in regulatory filings regarding the Adviser.
4.3 The Trust shall furnish, or shall cause to be furnished, to Hartford prior
to use, each piece of sales literature or advertising prepared by the Trust in
which Hartford, the Contracts or Separate Accounts, are described. No sales
literature or advertising will be used if Hartford reasonably objects to its use
within ten (10) Business Days following receipt by Hartford.
4.4 Neither the Trust nor the Distributor nor the Adviser will, without the
permission of Hartford, make any representations or statements on behalf of
Hartford, the Contracts, or the Separate Accounts or concerning Hartford, the
Contracts or the Separate Accounts, in connection with the advertising or sale
of the Contracts, other than the information or representations contained in:
(a) the registration statement or prospectus
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for the Contracts, (b) Separate Account reports to shareholders, (c) in sales
literature or other promotional material approved by Hartford.
4.5 The Trust will provide to Hartford at least one complete copy of all
registration statements, prospectuses, statements of additional information,
reports to shareholders, proxy statements, solicitations for voting
instructions, sales literature and other promotional materials, applications for
exemptions and requests for no-action letters, and all amendments, that relate
to the Series or its shares.
4.6 Hartford will provide to the Trust, upon the Trust's request, 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, and
requests for no action letters, and all amendments, that relate to the
Contracts.
ARTICLE V. DIVERSIFICATION
5.1 The Trust represents and warrants that, at all times, each Series will
comply with Section 817 of the Code and all regulations thereunder, relating to
the diversification requirements for variable annuity, endowment, or life
insurance contracts and any amendments or other modifications to such Section or
regulations. In the event a Series ceases to so qualify, the Trust will notify
Hartford immediately of such event and the Adviser will take all steps necessary
to adequately diversify the Series so as to achieve compliance within the grace
period afforded by Treasury Regulation ss.1.817-5.
ARTICLE VI. POTENTIAL CONFLICTS
6.1 The Board will monitor the Series for the existence of any material
irreconcilable conflict between the interests of the Contract owners of all
separate accounts investing in the Series. The Board shall promptly inform
Hartford if it determines that an irreconcilable material conflict exists and
the implications thereof.
6.2 Hartford will report any potential or existing material irreconcilable
conflict of which it is aware to the Board. Hartford will assist the Board in
carrying out its responsibilities by providing the Board with all information
reasonably necessary for the Board to consider any issues raised by the
potential or existing material irreconcilable conflict. This includes, but is
not limited to, an obligation by Hartford to inform the Board whenever Contract
owner voting instructions are disregarded.
6.3 If it is determined by a majority of the Board, or a majority of its
independent Trustees, that a material irreconcilable conflict exists due to
issues relating to the Contracts, Hartford will, at its expense and to the
extent reasonably practicable, take whatever steps it can which are necessary to
remedy or eliminate the irreconcilable material conflict, including, without
limitation, withdrawal of the affected Separate
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Account's investment in the applicable Series. No charge or penalty will be
imposed as a result of such withdrawal.
6.4 Hartford, at the request of the Adviser will, 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. All
reports received by the Board of potential or existing conflicts, and all Board
action with regard to determining the existence 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 Securities and Exchange
Commission upon request.
ARTICLE VII. INDEMNIFICATION
7.1 Indemnification by Hartford
A. Hartford agrees to indemnify and hold harmless the Distributor, the
Adviser, the Trust and each of their directors, Trustees or (if applicable),
officers, employees and agents and each person, if any, who controls the
Distributor, the Adviser or the Trust within the meaning of Section 15 of the
1933 Act (collectively, the "Indemnified Parties" and individually, an
"Indemnified Party" 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 Hartford, which consent shall not be unreasonably
withheld) or expenses (including the reasonable costs of investigating or
defending any alleged loss, claim, damage, liability or expense and reasonable
legal counsel fees incurred in connection therewith) (collectively, "Losses"),
to which the Indemnified Parties or any of them may become subject under any
statute or regulation, or at common law or otherwise, insofar as such Losses are
related to the sale or acquisition of Series shares or the Contracts and:
1. Arise out of or are based upon any untrue statement or
alleged untrue statement of any material fact contained in a disclosure document
for the Contracts or in the Contracts themselves or in sales literature
generated or approved by Hartford applicable to the Contracts or Separate
Accounts (or any amendment or supplement to any of the foregoing) (collectively,
"Company Documents" for the purposes of this Article VII), 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 indemnity 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 was accurately derived from written
information furnished to Hartford by or on behalf of the Trust for use in
Company Documents or otherwise for use in connection with the sale of the
Contracts or Series shares; or
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2. Arise out of or result from statements or representations
(other than statements or representations contained in and accurately derived
from the registration statement, prospectus, statement of additional information
or sales literature of the Trust applicable to the Series (or any amendment or
supplement to any of the foregoing) (collectively, "Trust Documents" for
purposes of this Article VII)) or wrongful conduct of Hartford or persons under
its control, with respect to the sale or acquisition of the Contracts or Series
shares; or
3. Arise out of or result from any untrue statement or alleged
untrue statement of a material fact contained in Trust Documents 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
statement or omission was made in reliance upon and accurately derived from
written information furnished to the Trust by or on behalf of Hartford; or
4. Arise out of or result from any failure by Hartford to
provide the services or furnish the materials required under the terms of this
Agreement; or
5. Arise out of or result from any material breach of any
representation and/or warranty made by Hartford in this Agreement or arise out
of or result from any other material breach of this Agreement by Hartford.
B. Hartford shall not be liable under this indemnification provision
with respect to any Losses which are due to an 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 Trust, the
Distributor or the Adviser, whichever is applicable.
C. Hartford 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 Hartford 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 Hartford of any such claim shall not
relieve Hartford 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, Hartford shall be entitled to participate, at its own
expense, in the defense of such action. Hartford also shall be entitled to
assume the defense thereof, with counsel satisfactory to the party named in the
action. After notice from Hartford to such party of Hartford's election to
assume the defense thereof, the Indemnified Party shall bear the fees and
expenses of any additional counsel retained by it, and Hartford 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.
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D. The Indemnified Parties will promptly notify Hartford of the
commencement of any litigation or proceedings against them or any of their
officers or directors in connection with the issuance or sale of the Series
shares or the Contracts or the operation of the Trust.
7.2 Indemnification by the Distributor
A. The Distributor agrees to indemnify and hold harmless Hartford and
each of its directors, officers, employees and agents and each person, if any,
who controls Hartford within the meaning of Section 15 of the 1933 Act
(collectively, the "Indemnified Parties" and individually, an "Indemnified
Party" 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 Distributor, which consent shall not be unreasonably withheld)
or expenses (including the reasonable costs of investigating or defending any
alleged loss, claim, damage, liability or expense and reasonable legal counsel
fees incurred in connection therewith) (collectively, "Losses"), to which the
Indemnified Parties may become subject under any statute or regulation, or at
common law or otherwise, insofar as such Losses are related to the sale or
acquisition of the Series shares or the Contracts and:
1. Arise out of or are based upon any untrue statement or
alleged untrue statement of any material fact contained in Trust Documents if
attributable to the Distributor or sales literature of the Trust created or
supplied by the Distributor (or any amendment or supplement to any of the
foregoing) or arise out of or are based upon 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, provided that this indemnity 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 was accurately derived from
written information furnished to the Trust, the Adviser, or the Distributor by
or on behalf of Hartford, the Trust or the Adviser for use in Trust Documents or
otherwise for use in connection with the sale of the Contracts or Series shares;
or
2. Arise out of or result from statements or representations
(other than statements or representations contained in and accurately derived
from Company Documents or sales literature for the Contracts not supplied by the
Distributor 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
Contracts or Series shares; or
3. Arise out of or result from any untrue statement or alleged
untrue statement of a material fact contained in Company Documents 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 statements therein not
misleading if such statement or
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omission was made in reliance upon and accurately derived from written
information furnished to Hartford by or on behalf of the Distributor; or
4. Arise out of or result from any failure by the Distributor
to provide the services or furnish the materials required under the terms of
this Agreement; or
5. 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.
B. The Distributor shall not be liable under this indemnification
provision with respect to any Losses which are due to an 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 Hartford or the
Separate Account, whichever is applicable.
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 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 Distributor of
any such claim shall not relieve the Distributor 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 Distributor shall 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 its election to assume the defense thereof, the Indemnified Party shall bear
the 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.
D. The Indemnified Parties shall promptly notify the Distributor of the
commencement of any litigation or proceedings against them or any of their
officers or directors in connection with the issuance or sale of the Contracts
or the operation of a Separate Account.
7.3 Indemnification by the Adviser
A. The Adviser agrees to indemnify and hold harmless Hartford and each
of its directors, officers, employees and agents and each person, if any, who
controls Hartford within the meaning of Section 15 of the 1933 Act
(collectively, the "Indemnified Parties" and individually, an "Indemnified
Party" for purposes of this Section 7.3)
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against any and all losses, claims, damages, liabilities (including amounts
paid in settlement with the written consent of the Adviser, which consent
shall not be unreasonably withheld) or expenses (including the reasonable
costs of investigating or defending any alleged loss, claim, damage, liability
or expense and reasonable legal counsel fees incurred in connection therewith)
(collectively, "Losses"), to which the Indemnified Parties may become subject
under any statute or regulation, or at common law or otherwise, insofar as
such Losses are related to the sale or acquisition of the Series shares or the
Contracts and:
1. Arise out of or are based upon any untrue statement or
alleged untrue statement of any material fact contained in any Trust Documents
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, to the extent such statement or omission was
made in reliance upon and accurately derived from written information provided
to the Trust by the Adviser, provided that this indemnity 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 was accurately derived from written
information furnished to the Trust, the Adviser, or the Distributor by or on
behalf of Hartford for use in Trust Documents or otherwise for use in connection
with the sale of the Contracts or Series shares; or
2. Arise out of or result from statements or representations
(other than statements or representations contained in and accurately derived
from Company Documents) or wrongful conduct of the Adviser or persons under its
control, with respect to the sale or distribution of the Contracts or Series
shares; or
3. Arise out of or result from any untrue statement or alleged
untrue statement of a material fact contained in Company Documents, 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 statement or omission was made in reliance upon and accurately derived from
written information furnished to Hartford by or on behalf of the Adviser; or
4. Arise out of or result from any failure by the Adviser to
provide the services or furnish the materials required under the terms of this
Agreement; or
5. 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.
B. The Adviser shall not be liable under this indemnification provision
with respect to any Losses which are due to an Indemnified Party's willful
misfeasance, bad faith, or gross negligence in the performance of such
Indemnified Party's duties or by
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reason of such Indemnified Party's reckless disregard of obligations and duties
under this Agreement or to Hartford or the Separate Account, whichever is
applicable.
C. The Adviser shall not be liable under this indemnification provision
with respect to any claim made against an Indemnified Party unless such
Indemnified Party shall have notified the Adviser in writing within a reasonable
time after the summons or other first legal process giving information of the
nature of the claim shall have been served upon such Indemnified Party (or after
such Indemnified Party shall have received notice of such service on any
designated agent), but failure to notify the Adviser of any such claim shall not
relieve the Adviser from any liability which it may have to the Indemnified
Party against whom such action is brought otherwise than on account of this
indemnification provision. In case any such action is brought against the
Indemnified Parties, the Adviser shall be entitled to participate, at its own
expense, in the defense thereof. The Adviser also shall be entitled to assume
the defense thereof, with counsel satisfactory to the party named in the action.
After notice from the Adviser to such party of its election to assume the
defense thereof, the Indemnified Party shall bear the expenses of any additional
counsel retained by it, and the Adviser will not be liable to such party under
this Agreement for any legal or other expenses subsequently incurred by such
party independently in connection with the defense thereof other than reasonable
costs of investigation.
D. The Indemnified Parties shall promptly notify the Adviser of the
commencement of any litigation or proceedings against them or any of their
officers or directors in connection with the issuance or sale of the Contracts
or the operation of a Separate Account.
7.4 Indemnification by the Trust
A. The Trust agrees to indemnify and hold harmless Hartford and each of
its directors, officers, employees and agents and each person, if any, who
controls Hartford within the meaning of Section 15 of the 1933 Act
(collectively, the "Indemnified Parties" and individually, an "Indemnified
Party" for purposes of this Section 7.4) against any and all losses, claims,
damages, liabilities (including amounts paid in settlement with the written
consent of the Trust, which consent shall not be unreasonably withheld) or
expenses (including the reasonable costs of investigating or defending any
alleged loss, claim, damage, liability or expense and reasonable legal counsel
fees incurred in connection therewith) (collectively, "Losses"), to which the
Indemnified Parties may become subject under any statute or regulation, or at
common law or otherwise, insofar as such Losses are related to the sale or
acquisition of the Series shares or the Contracts and:
1. Arise out of or are based upon any untrue statement or
alleged untrue statement of any material fact contained in any Trust Documents
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
15
misleading, provided that this indemnity 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 was accurately derived from written information
furnished to the Trust, the Adviser, or the Distributor by or on behalf of
Hartford for use in Trust Documents or otherwise for use in connection with the
sale of the Contracts or Series shares; or
2. Arise out of or result from statements or representations
(other than statements or representations contained in and accurately derived
from Company Documents) or wrongful conduct of the Trust or persons under its
control, with respect to the sale or distribution of the Contracts or Series
shares; or
3. Arise out of or result from any untrue statement or alleged
untrue statement of a material fact contained in Company Documents, 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 statement or omission was made in reliance upon and accurately derived from
written information furnished to Hartford by or on behalf of the Trust; or
4. Arise out of or result from any failure by the Trust to
provide the services or furnish the materials required under the terms of this
Agreement; or
5. 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.
B. The Trust shall not be liable under this indemnification provision
with respect to any Losses which are due to an 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 Hartford or the
Separate Account, whichever is applicable.
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 shall 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 party named in the action.
After notice from the Trust to such party of its election to assume the defense
thereof, the Indemnified Party shall bear the expenses of any additional counsel
retained by it, and the Trust will not be liable to such
16
party under this Agreement for any legal or other expenses subsequently incurred
by such party independently in connection with the defense thereof other than
reasonable costs of investigation.
D. The Indemnified Parties shall promptly notify the Trust of the
commencement of any litigation or proceedings against them or any of their
officers or directors in connection with the issuance or sale of the Contracts
or the operation of a Separate Account.
7.5 Any party seeking indemnification (the "Potential Indemnitee") will promptly
notify any party from whom they intend to seek indemnification (each a
"Potential Indemnitor") of all demands made and/or actions commenced against the
Potential Indemnitee which may require a Potential Indemnitor to provide such
indemnification. At its option and expense, a Potential Indemnitor may retain
counsel and control any litigation for which it may be responsible to indemnify
a Potential Indemnitee under this Agreement.
7.6 With respect to any claim, the parties each shall give the others reasonable
access during normal business hours to its books, records, and employees and
those books, records, and employees within its control pertaining to such claim,
and shall otherwise cooperate with one and other in the defense of any claim.
Regardless of which party defends a particular claim, the defending party shall
give the other parties written notice of any significant development in the case
as soon as practicable, and such other parties, at all times, shall have the
right to intervene in the defense of the case.
7.7 If a party is defending a claim and indemnifying another party hereto, and:
(i) a settlement proposal is made by the claimant, or (ii) the defending party
desires to present a settlement proposal to the claimant, then the defending
party promptly shall notify the Indemnified Party of such settlement proposal
together with its counsel's recommendation. If the defending party desires to
enter into the settlement and the Indemnified Party fails to consent within
thirty (30) business days (unless such period is extended, in writing, by mutual
agreement of the parties hereto), then the Indemnified Party, from the time it
fails to consent forward, shall defend the claim and shall indemnify the
defending party for all costs associated with the claim which are in excess of
the proposed settlement amount.
Regardless of which party is defending the claim: (i) if a settlement requires
an admission of liability by the non-defending party or would require the
non-defending party to either take action (other than purely ministerial action)
or refrain from taking action (due to an injunction or otherwise) (a "Specific
Performance Settlement"), the defending party may agree to such settlement only
after obtaining the express, written consent of the non-defending party. If a
non-defending party fails to consent to a Specific Performance Settlement, the
consequences described in the last sentence of the first paragraph of this
Section 7.7 shall not apply.
17
7.8 The parties shall use good faith efforts to resolve any dispute concerning
this indemnification obligation. Should those efforts fail to resolve the
dispute, the ultimate resolution shall be determined in a de novo proceeding,
separate and apart from the underlying matter complained of, before a court of
competent jurisdiction. Either party may initiate such proceedings with a court
of competent jurisdiction at any time following the termination of the efforts
by such parties to resolve the dispute (termination of such efforts shall be
deemed to have occurred thirty (30) days from the commencement of the same
unless such time period is extended by the written agreement of the parties).
The prevailing party in such a proceeding shall be entitled to recover
reasonable attorneys' fees, costs, and expenses.
ARTICLE VIII. APPLICABLE LAW
8.1 This Agreement shall be construed and the provisions hereof interpreted
under and in accordance with the laws of the State of Connecticut.
8.2 This Agreement, its terms and definitions, shall be subject to the
provisions of the 1933 Act, the Securities Exchange Act of 1934, and the 1940
Act, and the rules and regulations and rulings thereunder, including such
exemptions from those statutes, rules and regulations as the SEC may grant.
ARTICLE IX. 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 upon six-months advance
written notice delivered to the other parties; or
B. Termination by Hartford by written notice to the Trust, the Adviser
or the Distributor with respect to any Series in the event any of the Series'
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
Hartford; or
C. Termination by Hartford upon written notice to the Trust with
respect to any Series in the event that such Series ceases to qualify as a
"regulated investment company" under Subchapter M of the Code or under any
successor or similar provision; or
D. Termination by Hartford upon written notice to the Trust and the
Distributor with respect to any Series in the event that such Trust fails to
meet the diversification requirements specified in Section 5.1 of this
Agreement; or
E. Termination upon mutual written agreement of the parties to this
Agreement.
18
F. At the option of the Trust, if the Contracts cease to qualify as
annuity contracts or life insurance policies, as applicable, under the Code, and
the annuity ceases to qualify as an annuity contract or life insurance policy
through no fault of the Trust or the Adviser. Termination shall be effective
upon receipt of notice by Hartford.
G. At the option of the Trust, if it is determined by administrative or
judicial proceeding that the Contracts are not registered or issued in
accordance with applicable federal and/or state law. Termination shall be
effective upon receipt of notice by Hartford.
H. Termination by the Distributor by prior written notice to Hartford
in the event that the Distributor ceases to be the principal underwriter of
shares of the Trust. Such termination shall only apply to the Distributor as a
party to the Agreement.
I. Termination by the Adviser by prior written notice to Hartford in
the event that the Adviser ceases to be Adviser to the Trust. Such termination
shall only apply to the Adviser as a party to the Agreement.
J. In the event this Agreement is assigned without the prior written
consent of the other parties, the other parties may terminate the Agreement by
providing notice to the assigning party.
K. Termination by the Distributor and/or the Trust by written notice to
Hartford if the Distributor shall determine, in its sole judgement exercised in
good faith, that Hartford 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 that will have a
material adverse impact upon the business or operations of the Distributor.
9.2 Effect of Termination.
A. Notwithstanding any termination of this Agreement, the Trust shall,
at the option of Hartford, continue to make available additional shares of the
Series pursuant to the terms and conditions of this Agreement, for all Contracts
in effect on the effective date of termination of this Agreement (the "Existing
Contracts") unless such further sale of Series shares is proscribed by law,
regulation or applicable regulatory body. Specifically, without limitation, the
owners of the Existing Contracts will be permitted to direct allocation and
reallocation of investments in the Series, redeem investments in the Series and
invest in the Series through additional purchase payments.
B. Hartford agrees not to redeem Series shares attributable to the
Contracts 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 or (iii)
as permitted by an order of the SEC. Upon
19
request, Hartford will promptly furnish to the Trust the opinion of counsel for
Hartford to the effect that any redemption pursuant to clause (ii) above is a
legally required redemption.
C. In addition to the foregoing, Article VII Indemnification and
Section 11.1 of Article XI shall survive any termination of this Agreement.
ARTICLE X. NOTICES
10.1 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 Trust:
STI Classic Variable Trust
Xxx Xxxxxxx Xxxxxx Xx.
Xxxx, XX 00000
Attn: Xxxxxxx X. Xxxxx, Vice President
If to the Distributor:
SEI Investments Distribution Co.
Attn: General Counsel
Xxx Xxxxxxx Xxxxxx Xxxxx
Xxxx, Xxxxxxxxxxxx 00000
If to the Adviser:
Trusco Capital Management, Inc.
Attn: Xxxx Xxxxxxxxx
00 Xxxx Xxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
If to Hartford: With a copy to:
Hartford Life Insurance Co. Hartford Life Insurance Co.
000 Xxxxxxxxx Xxxxxx 000 Xxxxxxxxx Xxxxxx
Xxxxxxxx, Xxxxxxxxxxx 00000 Xxxxxxxx, Xxxxxxxxxxx 00000
Attn: Xxxxxx X. Xxxxx, President Attn: Xxxxxxxxx X. Xxxxxx, General Counsel
20
ARTICLE XI. MISCELLANEOUS
11.1 Subject to the requirements of legal process and regulatory authority, each
party will 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 parties and, except as permitted by this Agreement or as required
by any governmental agency, regulator or other authority, shall not without the
express written consent of the affected party disclose, disseminate or utilize
such names and addresses and other confidential information until such time as
it may come into the public domain. Each party further agrees to use and
disclose Personal Information, as defined herein, only to carry out the purposes
for which it was disclosed to them and will not use or disclose Personal
Information if prohibited by applicable law, including, without limitation,
statutes and regulations enacted pursuant to the Xxxxx-Xxxxx-Xxxxxx Act (Public
Law 106-102). For purposes of this Agreement, "Personal Information" means
financial and medical information that identifies an individual personally and
is not available to the public, including, but not limited to, credit history,
income, financial benefits, policy or claim information and medical records. If
either party outsource services to a third-party, such third party will agree in
writing to maintain the security and confidentiality of any information shared
with them. To the extent that regulations promulgated under The
Xxxxx-Xxxxx-Xxxxxx Act require additional or modified security, privacy, or
confidentiality agreements between financial institutions and third party
vendors, the parties agree that they will execute such additional or modified
agreements as agreed to by all the parties hereto.
11.2 The captions in this Agreement are included for convenience of reference
only and in no way define or delineate any of the provisions hereof or otherwise
affect their construction or effect.
11.3 This Agreement may be executed simultaneously in two or more counterparts,
each of which taken together shall constitute one and the same instrument.
11.4 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.
11.5 Each party shall cooperate with each other party and all appropriate
governmental authorities (including, without limitation, the SEC, the National
Association of Securities Dealers and state insurance regulators) and shall
permit such authorities (and other parties) reasonable access to its books and
records in connection with any investigation or inquiry relating to this
Agreement or the transactions contemplated hereby.
21
11.6 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.
11.7 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.
11.8 The waiver of, or failure to exercise, any right provided for in this
Agreement shall not be deemed a waiver of any further or future right under this
Agreement.
11.9 A copy of the Trust's Declaration of Trust is on file with the Secretary of
State of the Commonwealth of Massachusetts and notice is hereby given that this
instrument is executed on behalf of the trustees and not individually, and that
the obligations of this instrument are not binding upon any of the trustees,
officers or shareholders of the Trust individually, but binding only upon the
assets and property of the Trust.
11.10 Hartford is currently developing and intends to adopt anti-money
laundering procedures as soon as practicable after final regulations are issued
by the United States Department of Treasury in accordance with the requirements
of the U.S. Patriot Act. All parties to this agreement agree to acknowledge the
adoption of these procedures upon implementation by amendment to this Agreement.
IN WITNESS WHEREOF, each of the parties has caused this Agreement to be executed
in as name and on its behalf by its duly authorized representative as of the
date specified above.
HARTFORD LIFE INSURANCE COMPANY STI CLASSIC VARIABLE TRUST
on its behalf and each
Separate Account
named in Schedule A,
as may be amended
from time to time
By:
By: XXXXXXX X. XXXXX
------------------------ --------------------
Its Its Vice President
SEI INVESTMENTS DISTRIBUTION CO. TRUSCO CAPITAL MANAGEMENT, INC.
By: XXXXXXX X. XXXXX By: XXXX X. XXXXXXXXX III
---------------- ---------------------
Its Vice President Its Executive Vice President
9/19/02
22
SCHEDULE A
SEPARATE ACCOUNTS AND CONTRACTS
---------------------------------------------------------------------------- ---------------------------------------
NAME OF SEPARATE ACCOUNT AND DATE ESTABLISHED CONTRACTS
---------------------------------------------------------------------------- ---------------------------------------
Hartford Life Insurance Company Classic Director Outlook Variable
Separate Account Two - Est. June 6, 1986 Annuity
---------------------------------------------------------------------------- ---------------------------------------
Hartford Life Insurance Company Classic Hartford Leaders Outlook
Separate Account Seven - Est. December 8, 1986 Variable Annuity
---------------------------------------------------------------------------- ---------------------------------------
23
SCHEDULE B
PARTICIPATING SERIES
STI Classic Variable Capital Appreciation Fund
STI Classic Variable Growth and Income Fund
STI Classic Variable Mid-Cap Equity Fund
STI Classic Variable Value Income Stock Fund
24
SCHEDULE C
ALLOCATION OF EXPENSES
------------------------------------------------------------ ---------------------------------------------------------
PAID BY HARTFORD PAID BY THE TRUST
------------------------------------------------------------ ---------------------------------------------------------
Preparing and filing the Separate Account's registration Preparing and filing the Trust's registration statement
statement
------------------------------------------------------------ ---------------------------------------------------------
Text composition for Separate Account prospectus and Text composition for Series prospectuses and supplements
supplements
------------------------------------------------------------ ---------------------------------------------------------
Text alterations of Separate Account prospectus and Text alterations of Series prospectuses and supplements
supplements
------------------------------------------------------------ ---------------------------------------------------------
Printing Separate Account prospectuses and Printing Series prospectus and supplements for use with
supplements for use with prospective existing Contract owners; or if requested by Hartford,
Contract owners providing camera-ready film, computer diskettes or
typeset electronic document files of such documents
Printing Series prospectuses and supplements and printing such documents for use with
for use with prospective Contract owners existing Contract owners (1)
------------------------------------------------------------ ---------------------------------------------------------
Text composition and printing of Separate Account Text composition and printing of Trust statement of
statement of additional information additional information (1)
------------------------------------------------------------ ---------------------------------------------------------
Mailing and distributing Separate Account prospectuses, Mailing and distributing Series prospectuses, supplements
supplements and statement of additional information to and statement of additional information to existing
existing Contract owners as required by applicable law Contract owners (1)
Mailing and distributing Separate Account prospectuses and
supplements to prospective Contract owners
Mailing and distributing Series prospectuses and
supplements to prospective Contract owners
------------------------------------------------------------ ---------------------------------------------------------
Text composition of any annual and semi-annual Text composition of annual and semi-annual reports of
reports of the Separate Account, printing, mailing, and the Series; printing, mailing, and distributing
distributing annual any annual and semi-annual reports semi-annual reports of the Series to existing Contract
of the Separate Account owners (1)
------------------------------------------------------------ ---------------------------------------------------------
Text composition, printing, mailing, distributing, and Text composition, printing, mailing, distributing, and
tabulation of proxy statements and voting tabulation of proxy statements and voting
instruction solicitation materials to Contract instruction solicitation materials to Contract owners
owners with respect to proxies sponsored by the with respect to proxies sponsored by the Series
Separate Accounts
------------------------------------------------------------ ---------------------------------------------------------
(1) Hartford may choose to print the Series' prospectus(es), statement of
additional information, and its semi annual and annual reports, or any of such
documents, in combination with such documents of other fund companies. In this
case, the Trust's share of the total expense for printing and delivery of the
combined materials shall be determined pro-rata based upon the page count of the
Series' documents as compared to the total page count for the combined materials
containing all other funds offered under the Contracts.
25
