RETAIL FUND PARTICIPATION AGREEMENT
THIS AGREEMENT, made and entered into this 23 of February, 2002, by and among
HARTFORD LIFE INSURANCE COMPANY, a stock life insurance company organized under
the laws of Connecticut (hereinafter the "COMPANY"), on its own behalf and on
behalf of each separate account of the Company set forth in SCHEDULE A hereto,
as may be amended from time to time (each such account hereinafter referred to
as a "SEPARATE ACCOUNT"), XXXX XXXXXXX FUNDS, LLC, a Delaware corporation
(hereinafter the "UNDERWRITER"), and XXXX XXXXXXX INVESTMENT TRUST II -Small Cap
Value Fund, a Massachusetts Business Trust (the "TRUST").
WITNESSETH:
WHEREAS, the Trust engages in business as an open-end management investment
registered under the Investment Company Act of 1940, as amended (hereinafter the
"1940 ACT") and its shares are registered under the Securities Act of 1933, as
amended (hereinafter the "1933 ACT") and presently makes shares of its series
available for sale to the public, to Broker Dealers or to both; and
WHEREAS, the Trust intends to make available shares of its series set forth on
attached Schedule A (the "FUND"), as it may be amended from time to time by
mutual agreement of the parties to the Separate Accounts of the Company; and
WHEREAS, the Underwriter is the principal underwriter and distributor for the
Fund as set forth on Schedule A; and
WHEREAS, the Underwriter is registered as a broker-dealer with the Securities
and Exchange Commission (hereinafter the "SEC") under the Securities Exchange
Act of 1934, as amended (hereinafter the "1934 ACT"),and is a member in good
standing of the National Association of Securities Dealers, Inc. (hereinafter
"NASD");and
WHEREAS, the Company issues certain group variable annuity contracts and group
funding agreements (the "CONTRACTS") in connection with retirement plans
intended to meet the qualification requirements of Sections 401, 403(b) or 457
of the Internal Revenue Code of 1986, as amended (the "CODE"); and
WHEREAS, the Company has determined it may use shares of investment companies
being sold concurrently to the public and Broker Dealers (publicly available
mutual funds) as the underlying investments held by insurance company segregated
asset accounts, without adversely affecting the status of the investment company
as adequately diversified. All of the separate accounts covered by this
agreement solely support the assets of retirement plans which meet the
qualification requirements as stated above.
WHEREAS, each Separate Account is a duly organized, validly existing segregated
asset account, established by resolution of the Board of Directors of the
Company under the insurance laws of the State of Connecticut to set aside and
invest assets attributable to the Contracts; and
WHEREAS, to the extent permitted by applicable insurance laws and regulations,
the Company intends to purchase shares of the Fund on behalf of each
corresponding Separate Account set forth on such Schedule
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A to fund the Contracts and the Underwriter is authorized to sell such shares to
unit investment trusts such as the Separate Accounts at net asset value; and
WHEREAS, for the services described herein and provided by Company, the
Underwriter will compensate Company as outlined in this agreement.
NOW, THEREFORE, in consideration of their mutual promises, the Company, the
Trust, and the Underwriter agree as follows:
ARTICLE I. Purchase and Redemption of Fund Shares.
1.1 The Trust and the Underwriter agree to sell to the Company those shares of
the Fund which the Company orders on behalf of any Separate Account, executing
such orders on a daily basis at the net asset value next computed after receipt
and acceptance by the Underwriter of such order as outlined in Schedule B. For
the purposes of these transactions, the Company shall be the designee of the
Underwriter for receipt of such orders from each Separate Account.
1.2 The Trust and the Underwriter agree to make shares of the Fund available
indefinitely for purchase at the applicable net asset value per share by the
Company on Business Days; provided, however, that the Board of Trustees or
Directors, as applicable, of the Fund (hereinafter the "TRUSTEES/DIRECTORS") may
refuse to sell shares of any Fund to any person, or suspend or terminate the
offering of shares of any Fund if such action is required by law or by
regulatory authorities having jurisdiction or is, in the sole discretion of the
Trustees/Directors, acting in good faith and in compliance with their fiduciary
duties under federal and any applicable state laws, necessary in the best
interests of the shareholders of any Fund.
1.3 The Company agrees to purchase and redeem the shares of the Fund named in
SCHEDULE A offered by the then current prospectus of the Fund in accordance with
the provisions of the applicable prospectus.
1.4 The Company will place separate orders to purchase or redeem shares of each
Fund.
1.5 Issuance and transfer of the Fund's shares will be by book entry only.
Share certificates will not be issued to the Company or any Separate Account.
Purchase and redemption orders for Fund shares will be recorded in an
appropriate title for each Separate Account or the appropriate subaccount of
each Separate Account.
1.6 The Underwriter shall furnish same day notice to the Company of any income,
dividends or capital gain distributions payable on the Fund's shares. The
Company hereby elects to receive all such dividends and distributions as are
payable on a Fund's shares in the form of additional shares of that Fund. The
Underwriter shall notify the Company of the number of shares so issued as
payment of such dividends and distributions no later than one Business Day after
issuance. The Company reserves the right to revoke this election and to receive
in cash all such dividends and distributions declared after receipt of notice of
revocation by the Fund.
1.7 The Underwriter shall make the net asset value per share for each Fund
available to the Company on a daily basis as soon as reasonably practical after
the close of trading each Business Day, but in no event later than 6:45 p.m.
Eastern Time on such Business Day.
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1.8 If the Underwriter provides incorrect share net asset value (to the extent
that the incorrect share net asset value is more than one-half of one percent of
the correct net asset value) per share, dividend or capital gain information
through no fault of the Company and such errors are not corrected by 4 p.m.
Eastern Time the next Business Day (by providing the incorrect and the correct
NAV for each day that the error occurred), the Underwriter shall be liable for
the systems and out of pocket costs to make all corrections to all Contract
owner, participant, or beneficiary accounts with respect to the Fund shares
purchased or redeemed to reflect the correct net asset value per share, dividend
or capital gain information so that each participant under a Contract is made
whole. Any error in the calculation or reporting of net asset value per share,
dividend or capital gain information shall be reported promptly to the Company
upon discovery. The Underwriter shall reimburse the Company for all out of
pocket expenses and employee time incurred for correcting such incorrect
information.
1.9 If the Company provides incorrect processing information through no fault
of the Underwriter or the Fund then the Underwriter shall be entitled to an
adjustment with respect to the Fund shares purchased or redeemed to reflect the
correct information. Any error in the information provided by the Company shall
be reported to the Underwriter promptly upon discovery. The Company shall
reimburse the Underwriter for all out of pocket expenses and employee time
incurred for correcting such incorrect information
1.10 All new accounts must be opened manually by the Underwriter. No accounts
can be set up via the NSCC's DCC&S platform. Accounts will be set up via fax to
the Institutional Support Team at (000) 000-0000.
ARTICLE II. Representations and Warranties
2.1 The Company represents and warrants that the Contracts are or will be
registered unless exempt and that it will make every effort to maintain such
registration under the 1933 Act to the extent required by the 1933 Act; that the
Contracts are intended to be issued and sold in compliance in all material
respects with all applicable federal and state laws. The Company further
represents and warrants that it is an insurance company duly organized and in
good standing under applicable law and that it has legally and validly
established each Separate Account prior to any issuance or sale of Contracts,
shares or other interests therein, as a segregated asset account under the
insurance laws of the State of Connecticut and has registered or, prior to any
issuance or sale of the Contracts, will register and will maintain the
registration of each Separate Account as a unit investment trust in accordance
with and to the extent required by the provisions of the 1940 Act, unless exempt
therefrom, to serve as a segregated investment account for the Contracts. Unless
exempt, the Company shall amend its registration statement for its Contracts
under the 1933 Act and the 1940 Act from time to time as required in order to
effect the continuous offering of its Contracts. The Company shall register and
qualify the Contracts for sale in accordance with securities laws of the various
states only if and to the extent deemed necessary by the Company.
2.2 The Trust and the Underwriter represent and warrant that (i) Fund shares
sold pursuant to this Agreement shall be registered under the 1933 Act and duly
authorized for issuance in accordance with applicable law and that the Fund is
and shall remain registered under the 1940 Act for as long as the Fund shares
are sold; (ii) the Fund shall amend the registration statement for its shares
under the 1933 Act and the 1940 Act from time to time as required in order to
effect the continuous offering of its shares; and
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(iii) the Fund shall register and qualify its shares for sales in accordance
with the laws of the various states only if and to the extent deemed advisable
by the Trust or the Underwriter.
2.3 The Trust and the Underwriter represents that the Fund (a) is currently
qualified as a Regulated Investment Company under Subchapter M of the Code; (b)
will make every effort to maintain such qualification (under Subchapter M or any
successor or similar provision); and (c) will notify the Company immediately
upon having a reasonable basis for believing that such Fund has ceased to so
qualify or might not so qualify in the future.
2.4 To the extent that the Fund finances distribution expenses pursuant to Rule
12b-1 under the 1940 Act, the Underwriter and the Trust represent that the
Fund's Board of Trustees or Directors, as applicable, including a majority of
its Trustees/Directors who are not interested persons of the Fund, have
formulated and approved a plan under Rule 12b-1 to finance distribution
expenses.
2.5 The Underwriter makes no representation as to whether any aspect of the
Fund's operations (including, but not limited to, fees and expenses and
investment policies) complies with the insurance laws or insurance regulations
of the various states except that the Underwriter represents that the Fund's
investment policies, fees and expenses are and shall at all times remain in
compliance with the laws of the States of Connecticut and California. The Trust
and the Underwriter represents that their respective operations are and shall at
all times remain in material compliance with the laws of the State of
Connecticut to the extent required to perform this Agreement.
2.6 The Underwriter represents and warrants that it is a member in good
standing of the NASD and is registered as a broker-dealer with the SEC. The
Underwriter further represents that it will sell and distribute the Fund shares
in accordance in all material respects with all applicable federal and state
securities laws, including without limitation the 1933 Act, the 1934 Act, and
the 0000 Xxx.
2.7 The Underwriter represents that the Fund is lawfully organized and validly
existing under the laws of the Commonwealth of Massachusetts and that it does
and will comply in all material respects with applicable provisions of the 0000
Xxx.
2.8 The Trust and the Underwriter represent and warrant that all of the Fund's
Trustees/Directors, officers, employees, investment advisers, and other
individuals/entities having access to the funds and/or securities of the Fund
are and continue to be at all times covered by a blanket fidelity bond or
similar coverage for the benefit of the Fund in an amount not less than the
minimal coverage as required by Rule 17g-1 under the 1940 Act or related
provisions as may be promulgated from time to time. The aforesaid Bond includes
coverage for larceny and embezzlement and is issued by a reputable bonding
company.
2.9 The Company represents and warrants that all of its directors, officers,
employees, investment advisers, and other individuals/entities dealing with the
money and/or securities of the Fund are covered by a blanket fidelity bond or
similar coverage in an amount not less than $5 million. The aforesaid includes
coverage for larceny and embezzlement and is issued by a reputable bonding
company.
2.10 The foregoing representations and warranties shall be made, by the party
hereto that makes the representation or warranty as of the date first written
above and at the time of each purchase and each sale of the Fund's shares
pursuant to this Agreement.
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ARTICLE III. Prospectuses; Reports and Proxy Statements; Voting
3.1 The Underwriter shall provide the Company at no charge with as many printed
copies of the Fund's current prospectus and statement of additional information
as the Company may reasonably request. In lieu of providing printed copies of
the Fund's current prospectus and statement of additional information, the
Underwriter shall provide camera-ready film, computer diskettes, e-mail
transmissions or PDF files containing the Fund's prospectus and statement of
additional information, and such other assistance as is reasonably necessary in
order for the Company once each year (or more frequently if the prospectus
and/or statement of additional information for the Fund are amended during the
year) to have the prospectus for the Contracts (if applicable) and the Fund's
prospectus printed together in one document or separately. The Company may elect
to print the Fund's prospectus and/or its statement of additional information in
combination with other fund companies' prospectuses and statements of additional
information.
3.2(a) The Underwriter shall provide the Company, at no charge, with copies of
the Fund's proxy statements, Fund reports to shareholders, and other Fund
communications to shareholders in such quantity as the Company shall reasonably
require for distributing to Contract owners.
3.2(b) The Underwriter shall pay for all costs for typesetting, printing and
distributing proxy materials.
3.3 The Fund's statement of additional information shall be obtainable by
Contract owners from the Underwriter, the Company or such other person as the
Trust may designate.
3.4 If and to the extent required by law the Company shall distribute all proxy
material furnished by the Underwriter to Contract owners to whom voting
privileges are required to be extended and shall:
(a) solicit voting instructions from Contract owners;
(b) vote the Fund shares held in the Separate Account in accordance with
instructions received from Contract owners; and
(c) so long as and to the extent that the SEC continues to interpret the
1940 Act to require pass through voting privileges for variable
annuity contract owners, vote Fund shares held in the Separate
Account for which no timely instructions have been received, in the
same proportion as Fund shares of such Fund for which instructions
have been received from the Company's Contract owners. The Company
reserves the right to vote Fund shares held in any segregated asset
account for its own account, to the extent permitted by law.
Notwithstanding the foregoing, with respect to the Fund shares held
by unregistered Separate Accounts that issue Contracts issued in
connection with employee benefit plans subject to the provisions of
the Employee Retirement Income Security Act of 1974, as amended, the
Company shall vote such Fund shares allocated to such Contracts only
in accordance with the Company's agreements with such Contract
owners.
3.5 The Underwriter will comply with all provisions of the 1940 Act requiring
voting by shareholders. Further, the Underwriter will act in accordance with the
SEC interpretation of the
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requirements of Section 16(a) with respect to periodic elections of directors or
trustees and with whatever rules the SEC may promulgate with respect thereto.
ARTICLE IV. Sales Material and Information
4.1 The Company shall furnish, or shall cause to be furnished, to the
Underwriter or its designee, each piece of sales literature or other promotional
material prepared by the Company or any person contracting with the Company in
which the Fund or the Underwriter is described, at least five calendar days
prior to its use. No such literature or material shall be used without prior
approval from the Underwriter or its designee, however, the failure to object in
writing within two Business days after the receipt of the material, will be
deemed approval. Such approval process shall not apply to subsequent usage of
materials that are substantially similar to prior approved materials.
4.2 Neither the Company nor any person contracting with the Company shall give
any information or make any representations or statements on behalf of the Fund
or concerning the Fund in connection with the sale of the Contracts other than
the information or representations contained in the registration statement or
prospectus for the Fund shares, as such registration statement and prospectus
may be amended or supplemented from time to time, or in reports to shareholders
or proxy statements for the Fund, or in sales literature or other promotional
material approved by the Underwriter or its designee, except with the permission
of the Underwriter or its designee.
4.3 The Underwriter shall furnish, or shall cause to be furnished, to the
Company or its designee, each piece of sales literature or other promotional
material in which the Company or any Separate Account is named, at least five
calendar days prior to its use. No such literature or material shall be used
without prior approval from the Company or its designee, however, the failure to
object in writing within two Business Days will be deemed approval. Such
approval process shall not apply to subsequent usage of materials that are
substantially similar to prior approved materials.
4.4 Neither the Trust nor the Underwriter shall give any information or make
any representations on behalf of the Company or concerning the Company, each
Separate Account, or the Contracts other than the information or representations
contained in the Contracts, a disclosure document, registration statement or
prospectus for the Contracts (if applicable), as such registration statement and
prospectus may be amended or supplemented from time to time, or in published
reports for each Separate Account which are in the public domain or approved by
the Company for distribution to Contract owners or participants, or in sales
literature or other promotional material approved by the Company, except with
the permission of the Company.
4.5 The Underwriter will provide to the Company at least one complete copy of
all prospectuses, statements of additional information, reports to shareholders,
proxy statements, and all amendments to any of the above, that relate to the
Fund or its shares.
4.6 The Company will provide to the Underwriter at least one complete copy of
all prospectuses, statements of additional information, reports, solicitations
for voting instructions, and all amendments to any of the above, if applicable
to the investment in a Separate Account or Contract, promptly after the filing
of such document with the SEC or other regulatory authorities.
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4.7 For purposes of this Article IV, the phrase "sales literature or other
promotional material" includes, but is not limited to, advertisements (such as
material published, or designed for use in, a newspaper, magazine, or other
periodical, radio, television, telephone or tape recording, videotape display,
signs or billboards, motion pictures, Internet, or other public media), sales
literature (i.e., any written communication distributed or made generally
available to customers or the public, including brochures, circulars, research
reports, market letters, form letters, electronic mail, seminar texts, reprints
or excerpts of any other advertisement, sales literature, or published article),
educational or training materials or other communications distributed or made
generally available to some or all agents or employees, registration statements,
disclosure documents, prospectuses, statements of additional information,
shareholder reports, and proxy materials.
4.8 The Company agrees and acknowledges that the Company has no right, title or
interest in the names and marks of the Fund and that all use of any designation
comprised in whole or part or such names or marks under this Agreement shall
inure to the benefit of the Fund and the Underwriter. Except as provided in
Section 4.1, the Company shall not use any such names or marks on its own behalf
or on behalf of a Separate Account in connection with marketing the Contracts
without prior written consent of the Trust and the Underwriter. Upon termination
of this Agreement for any reason, the Company shall cease all use of any such
names or marks.
4.9 The Trust and the Underwriter agree and acknowledge that each has no right,
title or interest in the names and marks of the Company, and that all use of any
designation comprised in whole or part or such names or marks under this
Agreement shall inure to the benefit of the Company. Except as provided in
Section 4.3, the Trust and Underwriter shall not use any such names or marks on
its own behalf or on behalf of a Fund in connection with marketing the Fund
without prior written consent of the Company. Upon termination of this Agreement
for any reason, the Trust and the Underwriter shall cease all use of any such
names or marks.
ARTICLE V. Fees and Expenses
5.1 The Trust and the Underwriter shall pay the fees and expenses provided for
in the attached SCHEDULE B.
ARTICLE VI. Indemnification
6.1 Indemnification By The Company
(a) The Company agrees to indemnify and hold harmless the Trust, the
Underwriter and each of their respective trustees, directors,
officers, employees or agents and each person, if any, who controls
the Fund or the Underwriter within the meaning of section 15 of the
1933 Act (collectively, the "INDEMNIFIED PARTIES" for purposes of
this Section 6.1) against any and all losses, claims, damages,
liabilities (including amounts paid in settlement with the written
consent of the Company) or litigation (including reasonable legal
and other expenses), to which the Indemnified Parties may become
subject under any statute, regulation, at common law or otherwise,
insofar as such losses, claims, damages, liabilities or expenses (or
actions in respect thereof) or settlements are related to the sale
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or acquisition of the Fund's shares or the Contracts and:
(i) arise out of or are based upon any untrue statement or alleged
untrue statement of any material fact contained in the disclosure
statement, registration statement, prospectus or statement of
information for the Contracts or contained in the Contracts or
sales literature or other promotional material for the Contracts
(or any amendment or supplement to any of the foregoing), or arise
out of or are based upon the omission or the alleged omission to
state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading; provided
that this agreement to indemnify shall not apply as to an
Indemnified Party if such statement or omission or such alleged
statement or omission was made in reliance upon and in conformity
with information furnished by such Indemnified Party or the
Underwriter to the Company on behalf of the Fund for use in the
registration statement, prospectus or statement of additional
information for the Contracts or in the Contracts or sales
literature (or any amendment or supplement) or otherwise for use
in connection with the sale of the Contracts or Fund shares; or
(ii) arise out of or as a result of (a) statements or representations
by or on behalf of the Company (other than statements or
representations contained in the Fund registration statement, Fund
prospectus or sales literature or other promotional material of
the Fund not supplied by the Company, or persons under its control
and other than statements or representations authorized by the
Underwriter); or (b) the willful misfeasance, bad faith, gross
negligence or reckless disregard of duty of the Company or persons
under its control, with respect to the sale or distribution of the
Contracts or Fund shares; or
(iii) arise out of or as a result of any untrue statement or alleged
untrue statement of a material fact contained in the Fund
registration statement, Fund prospectus, statement of additional
information or sales literature or other promotional material of
the Fund (or any amendment thereof or supplement thereto) or the
omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements
therein not misleading, if such a statement or omission was made
in reliance upon and in conformity with information furnished to
the Underwriter by the Company or persons under its control; or
(iv) arise as a result of any material failure by the Company to
provide the services and furnish the materials under the terms of
this Agreement; or
(v) arise out of or result from any material breach of any
representation and/or warranty made by the Company in this
Agreement or arise out of or result from any other material breach
by the Company of this Agreement; except to the extent provided in
Sections 6.1(b) and 6.3 hereof.
(b) No party shall be entitled to indemnification to the extent that such
loss, claim, damage, liability or litigation is due to the willful
misfeasance, bad faith, gross negligence or reckless disregard of
duty by the party seeking indemnification.
(c) In accordance with Section 6.3 hereof, the Indemnified Parties will
promptly notify the Company of the commencement of any litigation or
proceedings against them in connection with the issuance or sale of
the Fund shares or the Contracts or the operation of the Fund.
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6.2 Indemnification By the Underwriter
(a) The Underwriter agrees, with respect to each Fund that it
distributes, to indemnify and hold harmless the Company and each of
its directors, officers, employees or agents and each person, if
any, who controls the Company within the meaning of section 15 of
the 1933 Act (collectively, the "INDEMNIFIED PARTIES" for purposes
of this Section 6.2) against any and all losses, claims, damages,
liabilities (including amounts paid in settlement with the written
consent of the Underwriter) or litigation (including reasonable
legal and other expenses) to which the Indemnified Parties may
become subject under any statute, regulation, at common law or
otherwise, insofar as such losses, claims, damages, liabilities or
expenses (or actions in respect thereof) or settlements are related
to the sale or acquisition of the shares of the Fund that it
distributes or the Contracts and:
(i) arise out of or are based upon any untrue statement or alleged
untrue statement of any material fact contained in the
registration statement, prospectus or statement of additional
information for the Fund or sales literature or other promotional
material of the Fund (or any amendment or supplement to any of the
foregoing), or arise out of or are based upon the omission or the
alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not
misleading; provided that this agreement to indemnify shall not
apply as to any Indemnified Party if such statement or omission or
such alleged statement or omission was made in reliance upon and
in conformity with information furnished by such Indemnified Party
or the Company to the Underwriter on behalf of the Company for use
in the registration statement, prospectus or statement of
additional information for the Fund or in sales literature of the
Fund (or any amendment or supplement thereto) or otherwise for use
in connection with the sale of the Contracts or the Fund shares;
or
(ii) arise out of or as a result of (a) statements or representations
(other than statements or representations contained in the
registration statement, prospectus or sales literature for the
Contracts not supplied by the Underwriter or persons under its
control and other than statements or representations authorized by
the Company); or (b) the willful misfeasance, bad faith, gross
negligence or reckless disregard of duty of the Underwriter or
persons under the control of the Underwriter with respect to the
sale or distribution of the Contracts or Fund shares; or
(iii) arise out of any untrue statement or alleged untrue statement of
a material fact contained in a registration statement,
prospectus, statement of additional information or sales
literature or other promotional material with respect to the
Contracts (or any amendment thereof or supplement thereto), or
the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statement
or statements therein not misleading, if such statement or
omission was made in reliance upon and in conformity with
information furnished to the Company by the Underwriter or
persons under the control of the Underwriter; or
(iv) arise as a result of any material failure by the Underwriter to
provide the services and furnish the materials under the terms of
this Agreement; or
(v) arise out of or result from any material breach of any
representation and/or warranty made by the Underwriter in this
Agreement or arise out of or result from any other material breach
of this Agreement by the Underwriter; except to the extent
provided in Sections 6.2(b) and 6.4 hereof.
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(b) No party shall be entitled to indemnification to the extent that such
loss, claim, damage, liability or litigation is due to the willful
misfeasance, bad faith, gross negligence or reckless disregard of
duty by the party seeking indemnification.
(c) In accordance with Section 6.4 hereof, the Indemnified Parties will
promptly notify the Underwriter of the commencement of any
litigation or proceedings against them in connection with the
issuance or sale of the Fund shares or the Contracts or the
operation of the Separate Accounts.
6.3 No party shall be entitled to indemnification to the extent that such loss,
claim, damage, liability or litigation is due to the willful misfeasance, bad
faith, gross negligence or reckless disregard of duty by the party seeking
indemnification.
6.4 In accordance with Section 6.4 hereof, the Indemnified Parties will
promptly notify the other of the commencement of any litigation or proceedings
against them in connection with the issuance or sale of the Fund shares or the
Contracts or the operation of the Separate Accounts.
6.5 Indemnification Procedure
(a) Any person obligated to provide indemnification under this Article
VI ("INDEMNIFYING PARTY" for the purpose of this Section 6.4) shall
not be liable under the indemnification provisions of this Article
VI with respect to any claim made against a party entitled to
indemnification under this Article VI ("INDEMNIFIED PARTY" for the
purpose of this Section 6.4) unless such Indemnified Party shall
have notified the Indemnifying Party in writing within a reasonable
time after the summons or other first legal process giving
information of the nature of the claim shall have been served upon
such Indemnified Party (or after such party shall have received
notice of such service on any designated agent), but failure to
notify the Indemnifying Party of any such claim shall not relieve
the Indemnifying Party from any liability which it may have to the
Indemnified Party against whom such action is brought otherwise than
on account of the indemnification provision of this Article VI. In
case any such action is brought against the Indemnified Party, the
Indemnifying Party will be entitled to participate, at its own
expense, in the defense thereof. The Indemnifying Party also shall
be entitled to assume the defense thereof, with counsel satisfactory
to the party named in the action. After notice from the Indemnifying
Party to the Indemnified Party of the Indemnifying Party's election
to assume the defense thereof, the Indemnified Party shall bear the
fees and expenses of any additional counsel retained by the
Indemnified Party, and the Indemnifying Party will not be liable to
such party under this Agreement for any legal or other expenses
subsequently incurred by such party independently in connection with
the defense thereof other than reasonable costs of investigation,
unless:
(i) the Indemnifying Party and the Indemnified Party shall have
mutually agreed to the retention of such counsel or
(ii) the named parties to any such proceeding (including any impleaded
parties) include both the Indemnifying Party and the Indemnified
Party and representation of both parties by the same counsel would
be inappropriate due to actual or potential differing interests
between them.
A successor by law of the parties to this Agreement shall be entitled to the
benefits of the indemnification contained in this Article VI. The
indemnification provisions contained in this Article VI shall survive any
termination of this Agreement.
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ARTICLE VII. Applicable Law
7.1 This Agreement shall be construed and the provisions hereof interpreted
under and in accordance with the laws of the State of Massachusetts.
7.2 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 and
the terms hereof shall be interpreted and construed in accordance therewith.
ARTICLE VIII. Termination
8.1 This Agreement shall terminate:
(a) at the option of any party upon sixty days advance written notice to
the other parties unless otherwise agreed in a separate written
agreement among the parties; or
(b) at the option of the Underwriter upon institution of formal
proceedings against the Company by the NASD, NASD Regulation, Inc.
("NASDR"), the SEC, the insurance commission of any state or any
other regulatory body regarding the Company's duties under this
Agreement or related to the sale of the Contracts, the administration
of the Contracts, the operation of the Separate Accounts, or the
purchase of the Fund shares, which in the judgment of the Underwriter
is reasonably likely to have a material adverse effect on the
Company's ability to perform its obligations under this Agreement; or
(c) at the option of the Company upon institution of formal proceedings
against the Trust, the Underwriter or the Adviser by the NASD,
NASDR, the SEC, or any state securities or insurance department or
any other regulatory body, related to the purchase or sale of the
Fund shares or the operation of the Fund which in the judgment of
the Company are reasonably likely to have a material adverse effect
on the Underwriter's ability to perform its obligations under this
Agreement; or
(d) at the option of the Company if a Fund delineated in SCHEDULE A
ceases to qualify as a Regulated Investment Company under Subchapter
M of the Code (a "RIC"), or under any successor or similar provision,
and the disqualification is not cured within the period permitted for
such cure, or if the Company reasonably believes that any such Fund
may fail to so qualify and be unable to cure such disqualification
within the period permitted for such cure; or
(e) at the option of any party to this Agreement, upon another party's
material breach of any provision of this Agreement; provided that
the party not in breach shall give the party in breach notice of the
breach and the party in breach does not cure such breach within 30
days of receipt of such notice of breach; or
(f) at the option of the Company, if the Company determines in its sole
judgment exercised in good faith, that either the Trust or the
Underwriter has suffered a material adverse change in its business,
operations or financial condition since the date of this Agreement
or is the subject of material adverse publicity which is likely to
have a material adverse impact upon the business and operations of
the Company; or
11
(g) at the option of the Underwriter if the Underwriter determines in
its sole judgment exercised in good faith, that the Company has
suffered a material adverse change in its business, operations or
financial condition since the date of this Agreement or is the
subject of material adverse publicity which is likely to have a
material adverse impact upon the business and operations of the
Trust or Underwriter.
8.2 Notice Requirement
(a) In the event that any termination of this Agreement is based upon
the provisions of Sections 8.1(b), 8.1(c) or 8.1(d), prompt written
notice of the election to terminate this Agreement for cause shall
be furnished by the party terminating the Agreement to the
non-terminating parties, with said termination to be effective upon
receipt of such notice by the non-terminating parties; provided that
for any termination of this Agreement based on the provisions of
Section 8.1(d), said termination shall be effective upon the Fund's
failure to qualify as a RIC and to cure such disqualification within
the period permitted for such cure.
(b) In the event that any termination of this Agreement is based upon the
provisions of Sections 8.1(f) or 8.1(g), prior written notice of the
election to terminate this Agreement for cause shall be furnished by
the party terminating this Agreement to the non-terminating parties.
Such prior written notice shall be given by the party terminating
this Agreement to the non-terminating parties at least 60 days before
the effective date of termination.
8.3 It is understood and agreed that the right to terminate this Agreement
pursuant to Section 8.1(a) may be exercised for any reason or for no reason.
8.4 Effect of Termination
(a) Notwithstanding any termination of this Agreement pursuant to
Section 8.1(a) through 8.1(g) of this Agreement and subject to
Section 1.2 of this Agreement, the Company may require the Trust and
the Underwriter to continue to make available additional shares of
the Fund for so long after the termination of this Agreement as the
Company desires pursuant to the terms and conditions of this
Agreement as provided in paragraph (b) below, for all Contracts in
effect on the effective date of termination of this Agreement
(hereinafter referred to as "EXISTING CONTRACTS"), unless such
further sale of Fund shares is proscribed by law, regulation or an
applicable regulatory body. Specifically, without limitation, the
owners of the Existing Contracts shall be permitted to direct
reallocation of investments in the Fund, redeem investments in the
Fund and/or invest in the Fund upon the making of additional
purchase payments under the Existing Contracts unless such further
sale of Fund shares is proscribed by law, regulation or an
applicable regulatory body.
(b) The Trust and/or Underwriter shall remain obligated to pay Company
the fee in effect as of the date of termination for so long as shares
are held by the Accounts and Company continues to provide services to
the Accounts. Such fee shall apply to shares purchased both prior to
and subsequent to the date of termination. This Agreement, or any
provision thereof, shall survive the termination to the extent
necessary for each party to perform its obligations with respect to
shares for which a fee continues to be due subsequent to such
termination.
12
ARTICLE IX. Notices
9.1 (a) Any notice shall be deemed duly given only if sent by hand or overnight
express delivery, evidenced by written receipt or by certified mail, return
receipt requested, to the other party at the address of such party set forth
below or at such other address as such party may from time to time specify in
writing to the other party. All notices shall be deemed given the date received
or rejected by the addressee.
If to the Company:
Hartford Life Insurance Company
000 Xxxxxxxxx Xxxxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
Attention: Vice President, Investment Products Division
with a copy to:
General Counsel
Hartford Life Insurance Company
000 Xxxxxxxxx Xxxxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
If to the Trust:
Xxxx Xxxxxxx Funds, LLC
000 Xxxxxxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxx, XX 00000
Attention: Legal Department
If to the Underwriter:
Xxxx Xxxxxxx Funds, LLC
000 Xxxxxxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxx, Xx 00000
Attention: Legal Department
ARTICLE X Miscellaneous
10.1 Subject to law and regulatory authority, each party hereto shall treat as
confidential the names and addresses of the owners of the Contracts and all
other information reasonably identified as such in writing by any other party
hereto, and, except as contemplated by this Agreement, shall not disclose,
disseminate or utilize such confidential information without the express prior
written consent of the affected party until such time as it may come into the
public domain. In addition, the parties hereby represent that they will use and
disclose Personal Information (as defined below) 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). "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
13
records. If either party outsources services to a third party, such third party
will agree in writing to maintain the security and confidentiality of any
information shared with them.
10.2 The captions in this Agreement are included for convenience of reference
only and in no way define or delineate any of the provisions hereof or otherwise
affect their construction or effect.
10.3 This Agreement may be executed simultaneously in two or more counterparts,
each of which taken together shall constitute one and the same instrument.
10.4 If any provision of this Agreement shall be held or made invalid by a
court decision, statute, rule or otherwise, the remainder of the Agreement shall
not be affected thereby.
10.5 This Agreement shall not be assigned by any party hereto without the prior
written consent of all the parties.
10.6 Each party hereto shall cooperate with each other party and all
appropriate governmental authorities (including without limitation the SEC, the
NASD, NASDR and state insurance regulators) and shall permit each other and such
authorities (and the parties hereto) reasonable access to its books and records
in connection with any investigation or inquiry relating to this Agreement or
the transactions contemplated hereby. Notwithstanding the foregoing, each party
hereto further agrees to furnish the California Insurance Commissioner with any
information or reports in connection with services provided under this Agreement
which such Commissioner may request in order to ascertain whether the insurance
operations of the Company are being conducted in a manner consistent with the
California laws and regulations.
10.7 Each party represents that (a) the execution and delivery of this
Agreement and the consummation of the transactions contemplated herein have been
duly authorized by all necessary corporate or trust action, as applicable, by
such party and when so executed and delivered this Agreement will be the valid
and binding obligation of such party enforceable in accordance with its terms
subject to bankruptcy, insolvency, reorganization, moratorium and similar laws
of general applicability relating to or affecting creditors' rights and to
general equity principles; (b) the party has obtained, and during the term of
this Agreement will maintain, all authorizations, licenses, qualifications or
registrations required to be maintained in connection with the performance of
its duties under this Agreement; and (c) the party will comply in all material
respects with all applicable laws, rules and regulations.
10.8 The parties to this Agreement may amend by written agreement the Schedules
to this Agreement from time to time to reflect changes in or relating to the
Contracts, the Separate Accounts or the Fund.
[The rest of this page has been left intentionally blank]
14
IN WITNESS WHEREOF, each of the parties hereto has caused this Agreement to be
executed in its name and behalf by its duly authorized representative as of the
date first written above.
XXXX XXXXXXX FUNDS, INC. HARTFORD LIFE INSURANCE COMPANY
By [ILLEGIBLE] By /s/ Xxxx Xxxxxxx
----------------------------- -----------------------------
Name: [ILLEGIBLE] Name: Xxxx Xxxxxxx
Title: President Title: Vice President
XXXX XXXXXXX SMALL CAP VALUE FUND
By /s/ Xxxxxxx X. Xxxxxx
-----------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Chief Investment Officer
15
SCHEDULE A
SEPARATE ACCOUNTS
Each Separate Account established by resolution of the Board of Directors of the
Company under the insurance laws of the State of Connecticut to set aside and
invest assets attributable to the Contracts. Currently, those Separate Accounts
are as follows:
401 MARKET
K, K1, K2, K3, K4
TK, TK1, TK2, TK3, TK4
VK, VK1, VK2, VK3, VK4
UK, XX0, XX0, XX0, XX0
403 AND 457 MARKETS
DCI, DCII, DCIII, DCIV, DCV, DCVI, 457, 403, UFC
FUNDS
Xxxx Xxxxxxx Small Cap Value Fund - Class A Shares
16
SCHEDULE B
NSCC FUND/SERVE NETWORKING TRADING
2.1 Company will utilize the NSCC Defined Contribution Platform for retirement
plan trading. The terms and conditions set forth in the NSCC Networking
Agreement are hereby incorporated by reference into this Agreement. Company will
net purchase and redemption trades for the Xxxx Xxxxxxx Funds up to 4 p.m. E.T.
on trade date. These trades will process through Company's administration system
and net trades will be transmitted to the NSCC by the NSCC Cycle 6 deadline on
the day following trade date (T+1). If Company misses the NSCC DCC&S Cycle 6
transmission window and transmits any trades in the next available cycle as-of,
Company is solely responsible for notifying JHSS by phone prior to 10:30 AM ET
on T+1 of the amount of the trade and Fund into which it has been placed so that
the trade may be price protected against gain/loss. In turn, cash settlement
will take place within the normal NSCC settlement on T+1. Any resulting
adjustments shall be processed by JHSS at the net asset value for the prior
Business Day. Pricing cash settlement would take place once the adjustment has
been confirmed on T+1. If Company misses the Cycle 6 transmission deadline, and
fails to timely notify JHSS of that failure, any resulting as-of loss shall be
the sole responsibility of Company which shall promptly pay each Fund for any
loss incurred to the Fund as a result of the as-of transaction upon written
notice of such loss.
2.2 If the NSCC platform becomes unavailable, then trades will be transmitted
via facsimile to JHSS by 10:30 AM ET on T+1 and processed accordingly. Company
is solely responsible for notifying JHSS by phone prior to 9:30 AM ET on T+1 of
the pending faxes in order that JHSS may price protect these trades. JHSS can
not guarantee price protection for any trades received via fax after 10:30 AM
ET. Company shall accept any losses for such as-of faxed transactions
transmitted after 10:30 AM ET and will promptly pay each fund for any loss
incurred to the Fund as a result of the as/of transaction upon written notice of
such loss.
2.3 EXCHANGE TRADING. If Company transmits exchange orders via the NSCC after
12:00 AM ET, the trust/TPA must provide JH with a spreadsheet via email or fax
prior to 9:30 AM ET on T+1 detailing the to and from fund, account, transaction,
trade date and dollar value of each exchange transaction so that JH may identify
and price protect these trades. If the Company fails to provide this exchange
information to JH via fax or email prior to the deadline any resulting losses
shall be the sole responsibility of Company. A null trade fax or email must be
sent when there is no exchange activity for that day.
2.4 NSCC REJECT. If there is a NSCC redemption reject that must be processed
manually, payment will be made to Company in as timely a manner as possible as
outlined in the prospectus.
2.5 TRADE REJECTIONS. Company will report to JHSS by phone any rejected trades
by T+1, prior to their estimate cutoff time (currently 10:30 AM ET) in order
that shares may be reserved at that trade date's price.
2.6 TRADE CORRECTIONS: Processing errors that result from any delay or error
caused by the Trust/TPA Entity will be adjusted outside the Fund/SERV system on
an as-of basis. The cost to the Fund or Fund Agent of such transactions shall be
borne by the Trust/TPA Entity that shall promptly
17
reimburse the Fund Agent for any as/of losses. Fund agent must be notified of
any trade corrections in writing by 10:30 AM ET in order to be price protected
for the previous day's price.
2.7 SETTLEMENT. For purposes of wire transfers, Company shall net purchase and
redemption activity across all Funds occurring on the same day.
2.8 Monies for all trades processed through the NSCC shall be settled as part
of the NSCC cash settlement on T+1. For manual adjustments, if the cash value of
the net activity across all Funds results in monies due to JHSS, then Company
shall initiate a wire transfer to JHSS by 11:00 a.m. E.T. on Trade Date plus One
("T+1") using the wire instructions provided by JHSS.
2.9 MONEY MOVEMENT. If the cash value of the net activity across all Funds
results in monies due Company, JHSS shall initiate a wire transfer to Company by
11:00 a.m. E.T. on TD +1.
2.10 JHSS and Company shall monitor the receipt of wires on a daily basis. If
for any reason a wire is not received, the receiving party is responsible for
notifying the sender of this problem by 12:00 p.m. E.T. on TD+2. If any wire is
not received on the Business Day such wire was required to be initiated and it
is determined that the sending party was negligent in initiating the wire, then
the sending party shall compensate the receiving party for the amount of such
wire plus associated bank penalties.
18
SCHEDULE C
FUND DISTRIBUTION FEE
--------------------------------------------------------------------
Xxxx Xxxxxxx Small Cap Value -- Class A Shares 25 bps
In consideration for the distribution and marketing services provided by the
Company, the Underwriter agrees to pay the Company an amount equal to the Fund's
then current 12b-1 Distribution Plan based on the average aggregate amount
invested by the Company's Separate Account(s) in the Fund. This fee will start
quarterly in arrears and will be paid within 30 days of the end of each calendar
quarter. The Company shall send the Underwriter an invoice for amounts due,
within 10 calendar days of the end of each calendar quarter to the address
listed below.
FUND PARTICIPANT SERVICING FEE
-----------------------------------------------------------------------------
Xxxx Xxxxxxx Small Cap Value -- Class A Shares 20 bps
In consideration of the services provided by the Company, the Underwriter agrees
to pay the Company an amount equal to the following basis points per annum on
the average aggregate amount invested by the Company's Separate Account(s) in
each Fund under the Fund Participation Agreement, such amounts to be paid within
30 days of the end of each calendar quarter. The Company shall send the
Underwriter an invoice for amounts due, within 10 calendar days of the end of
each calendar quarter to the address listed below.
INVOICE BILLING:
Attention: Betsey Xxxxxxxxx
Xxxx Xxxxxxx Funds, LLC
000 Xxxxxxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxx, XX 00000
19
FIRST AMENDMENT TO THE
RETAIL FUND PARTICIPATION AGREEMENT
BETWEEN
XXXX XXXXXXX FUNDS, LLC., XXXX XXXXXXX INVESTMENT TRUST II
AND
HARTFORD LIFE INSURANCE COMPANY
This Amendment, made as of this 26 day of September, 2002 by and between Xxxx
Xxxxxxx Funds, LLC. (Underwriter), Xxxx Xxxxxxx Investment Trust II (Trust) and
Hartford Life Insurance Company (Company).
WITNESSETH:
WHEREAS, the parties have entered into a
Retail Fund Participation Agreement,
dated February 23, 2002, ("the Agreement") which is incorporated herein by this
reference; and
WHEREAS, Section 10.8 of said Agreement provides that the Agreement may be
amended by written agreement signed by both parties.
NOW, THEREFORE, in consideration of the mutual covenants hereinafter set forth,
and intending to be legally bound, the Agreement shall be amended as follows:
1. All reference to "Trust" should include both Xxxx Xxxxxxx Investment Trust
II -- Small Cap Equity Fund, a
Massachusetts Business Trust and Xxxx Xxxxxxx
Capital Series Trust -- US Global Leaders Growth Fund, a
Massachusetts Business
Trust.
2. All reference to the Xxxx Xxxxxxx Small Cap Value Fund shall now read the
Xxxx Xxxxxxx Small Cap Equity Fund.
3. Schedule A shall be amended to include the U.S. Global Leaders Growth Fund
-- Class A
4. Schedule C shall be amended to include the U.S. Global Leaders Growth Fund
-- Class A shares with the same Distribution Fee and Participant Servicing Fee
as set forth therein.
Except as provided herein, the terms and conditions contained in the Agreement,
shall remain in full force and effect.
IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Amendment as of the date set forth above.
XXXX XXXXXXX FUNDS, LLC XXXX XXXXXXX INVESTMENT TRUST II
By: /s/ Xxxxx X. Xxxxxx By: /s/ Xxxxx X. Xxxxxx
----------------------------------- -----------------------------------
Name: Xxxxx X. Xxxxxx Name: Xxxxx X. Xxxxxx
Title: Senior VP & Chief legal Officer Title: Senior VP & Chief legal Officer
XXXX CAPITAL SERIES TRUST HARTFORD LIFE INSURANCE COMPANY
By: /s/ Xxxxx X. Xxxxxx By: /s/ Xxxx Xxxxxxx
----------------------------------- -----------------------------------
Name: Xxxxx X. Xxxxxx Name: Xxxx Xxxxxxx
Title: Senior VP & Chief Legal Officer Title: Vice President
